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GILDEN APPEAL. (03/13/62)

March 13, 1962

IN RE GILDEN APPEAL.


Appeal No. 1, Jan. T., 1962, from order of Court of Common Pleas of Chester County, July T., 1960, No. 27, in re appeal of Dr. Charles T. Gilden, Jr. et ux., et al. from decision of Board of Adjustment of Tredyffrin Township. Order affirmed.

COUNSEL

Lester J. Schaffer, with him Robert W. Lentz, and Reilly, Fogwell & Lentz, for appellants.

John B. H. Carter, with him Holbrook M. Bunting, Jr., Edward W. Madeira, Jr., J. Barton Rettew, Jr., and Rocap and Rocap, and Pepper, Hamilton & Scheetz, for appellees.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Musmanno

[ 406 Pa. Page 486]

OPINION BY MR. JUSTICE MUSMANNO

The Main Line Remedial Education Center, which at present operates a school for "handicapped and exceptional children" in Williston Township, Chester County, has planned to re-situate in Tredyffrin Township, Chester County, where it will have more opportunities and greater facilities for the operation of its establishment. It accordingly has entered into a contract with Dr. and Mrs. Charles T. Gilden to purchase in Tredyffrin Township a tract of land of 4.167 acres on which there stands a large building excellently suited for its purposes, it having been originally built as a school. It is sturdily constructed of stone with walls two feet thick and is screened from the general neighborhood by foliage which imparts to it isolation and attractiveness.

Since the property lies in an area zoned as R-1/2 Residence it comes within the jurisdiction of the zoning ordinance of the township which reads, inter alia: "Section 251. USE REGULATIONS. A building may be erected, altered or used, and a lot may be used or occupied for any of the following purposes, and for no other: ... 3. When authorized as a special exception by the Board of Adjustment, Education (including dormitory of an educational institution), religious or philanthropic use, however, a hospital, sanitarium, correctional or penal institution shall not be permitted."

The owners and the purchasers of the land applied for a special exception under this ordinance. The board of adjustment, after a hearing, denied the application and filed the following cursory opinion in explanation of its decision: "After due consideration of all of the testimony in Appeal No. 110, the Board is of the opinion that the applicant is not an educational institution within the meaning of the Zoning Ordinance; rather, it is more akin to a hospital sanitarium

[ 406 Pa. Page 487]

    or correctional institution, which uses are expressly prohibited by Section 251(3) of the Tredyffrin Township Zoning Ordinance. Therefore, it is the decision of the Board of Adjustment on the 13th day of June, 1960, that the application for a special exception be denied."

The Gildens and the Main Line Educational Center (hereinafter referred to as the Center) appealed to the Court of Common Pleas of Chester County, which, after a review of the proceedings before the board, including the testimony and the exhibits, reversed the board, stating: "The findings and conclusions made by the Board of Adjustment of Tredyffrin Township that Main Line Remedial Education Center is not an educational institution and is 'more akin to,' or is, a hospital, sanitarium, or correctional institution, are not supported by the evidence which was before the Board and such findings and conclusions were, therefore, arbitrary. Van Sciver v. Zoning Board of Adjustment, 396 Pa. 646. Being arbitrary, the refusal to grant the special exception sought by Charles J. Gilden, Jr., Agnes W. Gilden, and Main Line Remedial Center was a manifest abuse of discretion by the Board of Adjustment."

A number of property owners in the immediate vicinity of the property (who will hereinafter be referred to as the appellants) have brought the matter before us on a writ of certiorari to ...


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