Appeal, No. 40, Jan. T., 1962, from order of Court of Common Pleas of Montgomery County, June T., 1960, No. 2, in case of Wynnewood Civic Association v. Board of Adjustment of Lower Merion Township and Thomas Wynne, Incorporated. Appeal quashed.
Leo Vernon, with him Desmond J. McTighe, J. Grant McCabe, iii, and William W. Cancelmo, for appellant.
Robert L. Trescher, with him Arthur H. Moss, Cassin W. Craig, C. Brewster Rhoads, and Montgomery, McCracken, Walker & Rhoads, and Wisler, Pearlstine, Talone & Gerber for corporation, appellee.
Edmind B. Spaeth, Jr., with him John E. Forsythe, Township Solicitor, and Wright, Mauck & Spencer, for Board of Adjustment of Lower Merion Township and Lower Merion Township, appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This is a controversy between the owner of a tract of land, located in Wynnewood, Lower Merion Township, Montgomery County, who seeks to erect thereon a twelve-story apartment building, and a civic association, composed of residents in and about the area, which opposes the erection of such building. In the background of this controversy is a record of litigation, extending in item over a decade, before the Township Board of Adjustment (Board), the Township Commissioners (Township), the Courts of Common Pleas and Quarter Sessions of Montgomery County and the Superior Court.
Thomas Wynne, Inc. (Wynne), owns a tract of land which is now zoned under Township Ordinance 1031 as an "R-7" district wherein the erection of apartment buildings is permitted. This tract of land is bounded on the east by land owned by Wynne upon which apartment buildings are located, on the south by the right of way and the Wynnewood Station of the Pennsylvania Railroad and on the north and west by land which is zoned and used only for single family dwellings.
In 1950, under the then existing Township zoning ordinance, this land (part of a larger tract of land owned by a Miss Gibson) was zoned as a district within which was permitted the erection of only single family dwellings. On April 12, 1950, Miss Gibson applied for a change of zoning to permit the erection of apartment buildings on this land. Her application having been rejected by the Township Planning Commission and the Township, Miss Gibson on Auguse 2, 1950 petitioned
for a declaratory judgment in the Court of Common Pleas of Montgomery County wherein she sought to have the then existing zoning ordinance declared unconstitutional in its application to this land; that petition was dismissed. In 1951, Miss Gibson and Wynne's predecessor in title again applied to the Board for permission to erect apartment buildings on this land; both the Township and Wynnewood Civic Association (Association) were opposed and, after hearing, the Board denied the application. Although an appeal was then taken to the Court of Common Pleas of Montgomery County it was not prosecuted.
In 1952, Miss Gibson and Wynne again appealed to the Township to change the then existing zoning ordinance so as to allow erection of apartment buildings on this land and, on July 16, 1952, the Township, over the Association's vigorous opposition, tentatively approved such change. On December 8, 1952, the Township passed Ordinance 1031 under the terms of which this ...