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PHI LAMBDA THETA ZONING CASE. (06/03/60)

June 3, 1960

PHI LAMBDA THETA ZONING CASE.


Appeal, No. 192, Jan. T., 1959, from order of Court of Common Pleas of Union County, Sept. T., 1958, No. 52, in re application of Phi Lambda Theta for special exception for use of a student fraternity in a residential district. Order reversed.

COUNSEL

Clyde P. Bailey, with him John L. Bailey, and Irvin Graybill, Jr., for appellant.

Charles Wolfe Kalp, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bok

[ 400 Pa. Page 61]

OPINION BY MR. JUSTICE BOK.

Bucknell University, 114 years old and educating 2500 students yearly, is located in the Borough of Lewisburg, Union County.

It has eight men's college fraternities which own property in the borough, and one of these, Phi Lambda Theta, occupied a small and inadequate house at 34 Brown Street. In June, 1958, this fraternity agreed to buy a new and more commodious house at 203 South

[ 400 Pa. Page 62]

Third Street, also in the borough. This agreement was later consummated. The fraternity then applied for a certificate of occupancy, which was refused by the administrative officer of the zoning ordinance. On appeal, the board of adjustment, by a divided vote, reversed the officer and granted the certificate. The protesting neighbors appealed to the court of common pleas, which reversed the board and revoked the certificate. By stipulation, a tape recording of the testimony taken before the board constitutes the record of evidence, with no further testimony taken by the court below. The fraternity now appeals to us.

We think that appellant is entitled to a certificate of occupancy as a matter of right.

Under Article III - Use Regulations - of the ordinance, Section 1 deals with permitted uses in a Residential District, saying that "no building or structure shall be used, erected... for any industrial, manufacturing, or commercial purpose, or for any other than the following: A. Single detached dwellings, twin or semi-detached dwellings, apartment houses or multiple dwellings.... H. Club, fraternity house, or lodge when authorized as a special exception."

Both parties wanted to agree that sub-section H is unconstitutional, at least so far as the requirement of authorization as a special exception is concerned, but we need not reach that question. It is also admitted that no signs, guideposts, or standards are given in the ordinance by which to judge the conditions under which a "special exception" might be granted or withheld. This lack prevents an exception from being validly made: Devereux Foundation, Inc., Zoning Case, 351 Pa. 478 (1945), 41 A.2d 744; Dooling's Windy ...


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