Appeal, No. 44, Jan. T., 1958, from order of Court of Common Pleas of Montgomery County, Nov. T., 1956, No. 24, in case of Home Life Insurance Company of America v. Board of Adjustment of Lower Merion Township. Order affirmed.
C. Brewster Rhoads, with him Robert L. Trescher, Victor J. Roberts, Carl H. Anderson, and Montgomery, McCracken, Walker & Rhoads, for appellant.
Edmund B. Spaeth, Jr., with him John E. Forsythe, Township Solicitor, and Wright, Mauck, Hawes & Spencer, for appellee.
Before Jones, C.j., Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
The question involved on this appeal is whether the plaintiff company complied with prescribed legal procedure for testing the constitutionality of a zoning ordinance as it affects its property. The appellee has filed a motion to quash which will be treated with later.
Home Life Insurance Company of America, hereinafter referred to as the Company, is the owner of an unimproved tract of land in Lower Merion Township, Montgomery County, containing some 19 acres. The property is situated in an area zoned by the township's ordinance as R-1 - the most restricted residential classification. In June of 1954, the Company petitioned the
Board of Township Commissioners for a re-zoning of the district from R-1 Residential to R-7 Residential in which latter classification the erection of apartment houses is permitted by the ordinance. The Commissioners took no action on this petition. Two years later, the Company filed with the Superintendent of Building Inspection a petition requesting a variance that would allow it to erect on its land an apartment house and to use its property for such purpose. The Company did not apply for a building permit; nor did it submit any plans for a proposed apartment house. The Superintendent declined to entertain the Company's petition on the ground that he was without power to grant a variance.
The Company thereupon filed with the township's Board of Adjustment an "Application and Appeal" from the action of the Superintendent. The broad purpose of this application and appeal, as therein stated, was "to place in issue the constitutionality and validity of the Lower Merion Township Zoning Ordinance of 1927, as amended, as it applies to the herein described property, and to accomplish a change in the zoning classification of the property from R-1 Residence District to a classification that will permit the erection and use of apartment houses within the regulations contained in Article X (R-7 Residence Districts) of the Lower Merion Zoning Ordinance of 1927, as amended." No plans or drawings for an apartment house or houses were attached to the Company's pleading or submitted by it to the Board of Adjustment.
Counsel for the township promptly moved the Board of Adjustment to quash the Company's appeal "for lack of jurisdiction" - a term which was a patent misnomer. The real objection to the appeal lay in the appellant's failure to supply the requirements of the ...