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KOTZIN v. PLYMOUTH TOWNSHIP ZONING BOARD ADJUSTMENT (ET AL. (03/16/59)

March 16, 1959

KOTZIN
v.
PLYMOUTH TOWNSHIP ZONING BOARD OF ADJUSTMENT (ET AL., APPELLANTS).



Appeal, No. 51, Jan. T., 1959, from order of Court of Common Pleas of Montgomery County, Nov. T., 1957, No. 43, Misc. Docket 25, page 6, in case of Joseph Kotzin v. Plymouth Township Zoning Board of Adjustment. Order reversed.

COUNSEL

Elkins Wetherill, with him Knox Henderson, and Henderson, Wetherill & O'Hey, for appellants.

William F. Fox, with him Fox, Differ & Honeyman, for appellee.

Before Jones, C.j., Musmanno, Jones, Cohen and Mcbride, JJ.

Author: Cohen

[ 395 Pa. Page 126]

OPINION BY MR. JUSTICE COHEN

This is an appeal from the order of the Court of Common Pleas of Montgomery County, reversing the

[ 395 Pa. Page 127]

    action of the Zoning Board of Adjustment for Plymouth Township, and granting two special exceptions to appellee, Joseph Kotzin, permitting him to use his land in the township as a noncommercial recreational swimming club and a day camp. The board had refused Kotzin's application for the two special exceptions, determining that if the application were granted the public health, morals and welfare would be adversely affected.

The appeal to the lower court was determined solely on the record that had been developed before the board. No additional testimony was taken by the lower court. Our only responsibility, therefore, is to determine whether the board, in denying the special exceptions, committed a manifest abuse of discretion or an error of law.

The Zoning Ordinance of Plymouth Township enacted in 1954 provides in Section 400-C(5) that land in "AA" residential districts may be used or occupied as a day camp or as a noncommercial recreational use when such use or occupancy is authorized as a special exception. A special exception was defined by Mr. Justice STERN in Devereux Foundation, Inc., Zoning Case, 351 Pa. 478, 483 41 A.2d 744 (1945) as follows: "An 'exception' in a zoning ordinance is one allowable where facts and conditions detailed in the ordinance, as those upon which an exception may be permitted, are found to exist." Thus, an exception has its origin in the zoning ordinance itself. It relates only to such situations as are expressly provided for and enunciated by the terms of the ordinance. The rules that determine the grant or refusal of the exception are enumerated in the ordinance itself. The function of the board when an application for an exception is made is to determine that such specific facts, circumstances and conditions exist which comply with the standards of

[ 395 Pa. Page 128]

    the ordinance and merit the granting ...


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