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KERN v. BOARD ADJUSTMENT (ET AL. (07/02/63)

THE SUPREME COURT OF PENNSYLVANIA


July 2, 1963

KERN
v.
BOARD OF ADJUSTMENT (ET AL., APPELLANT).

Appeal, No. 193, Jan. T., 1963, from order of Court of Common Pleas of Montgomery County, No. 62-6611, in case of Harry F. Kern and Martha M. Kern, his wife, Salvatore J. Puleo et al. v. Board of Adjustment of Plymouth Township. Order affirmed.

COUNSEL

Alphonso Santangelo, for appellants.

Victor J. Roberts, with him High, Swartz, Roberts & Seidel, for appellee.

Joseph j. McGrory, with him A. Benjamin Scirica, Township Solicitor, for township, appellee.

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

Author: Roberts

[ 411 Pa. Page 583]

OPINION BY MR. JUSTICE ROBERTS

The Zoning Board of Adjustment of Plymouth Township granted a special exception, subject to 13 restrictions, for the construction of six apartment buildings containing 98 units in a Residential Special District.*fn1 The land to be used is a 6-1/2 acre triangular shaped parcel bounded by Sandy Hill Road and Germantown Pike, two of the busiest thoroughfares in the township, and Hallowell Road, with frontages of 1230 feet, 976 feet and 776 feet respectively. It is from the court's affirmance of the board's action, without taking additional testimony, that certain property owners in the vicinity, protestants before the board, take this appeal.

The zoning ordinance ( § 900) provides that in Residential Special Districts, a "building may be erected or used, and a lot may be used or occupied, for ... the following purposes .... B. When authorized as a special exception, an apartment house or apartment hotel ...." The ordinance in § 2102 B sets forth the standards to be applied by board in granting special exceptions.

In Residential Special Districts, the ordinance by § 902 establishes the minimum lot area and width requirements, as well as the front, side and rear yard

[ 411 Pa. Page 584]

    depths and widths. It likewise limits the building coverage "not to exceed twenty-five (25) percent" of the lot.

Appellants' chief complaint is that the plot plan submitted with the application is "inaccurate, incomplete, vague and misleading" and "fails to meet the requirements" of the zoning ordinance and that the board "manifestly abused its discretion" in granting the exception. The effect of appellants' argument is to require of the plot plan the particularity of a building permit. While it may perhaps be desirable and helpful to have the plan meet that standard of dimensional detail,*fn2 surely no party in interest is misled or prejudiced by a plan which discloses the essential dimensions of the area to be used and the basic locations of the structures and other facilities to be constructed. This is especially so here, since the submitted plan together with the board's order as corrected and clarified by the court below describe with definiteness and certainty the precise use of the area.

Appellants quite properly and successfully maintained that three of the Board's conditions required setbacks (from the rights of way) below the minimum mandated by Section 902 of the zoning ordinance. The court below corrected each of those conditions to conform to the zoning ordinance. The court below properly concluded: "... the appellants contend that some of the conditions are illegal, particularly No. 1, which provides that 'No building ... shall be erected or constructed closer than 30 feet to ... Germantown Pike,' and No. 2, which provides that 'No building ... shall be erected or constructed closer than 15 feet to ... Hallowell Road,' and No. 3, which provides that 'No building ... shall be erected or constructed closer than 15 feet to ... Sandy Hill Road.' These conditions conflict

[ 411 Pa. Page 585]

    with Section 902 of the Ordinance providing for setbacks, and would grant the owner of the premises rights in excess of those which, according to his plan, he seeks. Subject to the modification of these three conditions, the decision of the Board of Adjustment should be affirmed."

"AND NOW, November 26, 1962, the decision of the Board of Adjustment of Plymouth Township is affirmed, subject to full compliance by the applicant, or his assigns, with the set-back requirements of Section 902 of the Plymouth Township Zoning Ordinance of 1959. ..."

Our review satisfies us that the proposed apartments clearly come within the exceptional use authorized by the ordinance. The sole error committed by the board was corrected by the court below. Therefore, finding no abuse of discretion or error of law, we affirm the decision of the court below.

Mr. Justice BENJAMIN R. JONES and Mr. Justice COHEN would remand for the purpose of securing a more appropriate and specific plan.

Disposition

Order affirmed.


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