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RIEDER APPEAL. (03/19/63)

March 19, 1963

RIEDER APPEAL.


Appeal, No. 67, Jan. T., 1963, from order of Court of Common Pleas of Montgomery County, No. 62-3824, in re appeal of Mary T. Rieder from decision of Zoning Board of Adjustment of Borough of Norristown. Order reversed.

COUNSEL

Lawrence A. Brown, with him Duffy, McTighe and McElhone, for intervenor, appellant.

Samuel H. High, Jr., with him High, Swartz, Roberts & Seidel, for appellee.

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

Author: Roberts

[ 410 Pa. Page 421]

OPINION BY MR. JUSTICE ROBERTS

This is an appeal from the reversal by the Court of Common Pleas of Montgomery County of an order of the Board of Adjustment of the Borough of Norristown [Board], which granted a special exception permitting construction of an addition to a nursing home.

Appellant acquired the property, located in an "A" residential area, in 1954.*fn1 It consists of a three story stone structure, 84 by 37 feet,*fn2 and has been operated as a nursing home since 1946. The building has a licensed capacity for 32 patients, and, ordinarily, some patients are housed on the third floor.*fn3 It is proposed to erect a one story addition, 45 feet wide and 60 feet long, to be connected to the present home by a passageway 20 feet long. The addition will contain housing for 20 patients, baths, nursing station, storage area, waiting room and fire escapes. Both structures will be able to accommodate a total of 45 patients.*fn4 The cost of the proposed addition is approximately $60,000.

[ 410 Pa. Page 422]

Immediately to the east of appellant's property is a rather large food market with parking lot in the rear. Across the street is a hotel, and, nearby, is another large food market and a group of residential buildings.

Appellee (protestant before the Board) is the owner of the property immediately adjoining the nursing home to the west. This property has been used as a single dwelling house, although presently it is unoccupied (and apparently has been vacant since 1958). This building and the nursing home retain the external appearance of large, older, single dwelling houses.

The proceeding before the court below was based entirely upon the record established before the Board. The test to be applied by this Court, therefore, is whether the Board clearly abused its discretion or committed an error of law: Brennan v. Zoning Board of Adjustment, 409 Pa. 376, 187 A.2d 180 (1963).

A special exception in a zoning ordinance has been defined as "... one allowable where facts and conditions detailed in the ordinance, as those upon which an exception may be permitted, are found to exist." Phi Lambda Theta Zoning Case, 400 Pa. 60, 161 A.2d 144 (1960); Kotzin v. Plymouth Township Zoning Board of Adjustment, 395 Pa. 125, 149 A.2d 116 ...


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