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January 7, 1964


Appeals, Nos. 56 and 68, Jan. T., 1964, from order of Court of Common Pleas of Montgomery County, dated June 19, 1963, in re appeal of Gladys Diamond, individually and as chairman of a special committee of Curtis Hills Civic Association. Order reversed; reargument refused February 21, 1964.


Edmund B. Spaeth, Jr., with him John E. Forsythe, and MacCoy, Evans & Lewis, and Cohen, Shapiro and Cohen, and Wisler, Pearlstine, Talone & Gerber, for appellants.

Samuel H. High, Jr., with him High, Swartz, Roberts & Seidel, for Township of Cheltenham, appellant.

Vincent A. Cirillo and Julian W. Barnard, for appellees.

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

Author: Roberts

[ 413 Pa. Page 381]


On December 14, 1962, Gladys Diamond, individually and as chairman of a special committee of the Curtis Hills Civic Association, appealed to the Zoning Board of Adjustment of Cheltenham Township, Montgomery County, from the issuance, on December 5, 1962, of a building permit for the construction of a shopping center. The site of construction is owned by a group of investors known as the Cedarbrook Joint Venture. The appeal challenged as unconstitutional Township Ordinance No. 938, pursuant to which the property had been rezoned, on the grounds that the zoning change depreciated the value of surrounding properties by fifty percent, thus constituting an unlawful taking, and that the rezoning constituted unlawful spot zoning. After a complete and lengthy hearing,*fn1 the board of adjustment denied the appeal and affirmed the issuance of the permit.

An appeal from the board's decision was filed by Mrs. Diamond on March 1, 1963, in the Court of Common Pleas of Montgomery County, and was followed by a petition for supersedeas to halt construction. A hearing was held by the court, which set the supersedeas bond at $75,000. The civic association did not post bond, and the supersedeas was not granted. Without taking additional testimony, the court below held that ordinances No. 938 and No. 873, to which the former was an amendment, were invalid on the authority of Eves v. Zoning Board of Adjustment, 401 Pa. 211, 164 A.2d 7 (1960). The Joint Venture, who are

[ 413 Pa. Page 382]

    the developers of the property, and the township have appealed.

In order to better understand the problems here presented, it is helpful to trace the combined histories of both the zoning ordinances and of the Cedarbrook development. Cheltenham Township adopted a general zoning ordinance and zoning map in 1929, which established zoning districts throughout the township. Ordinance No. 873 was enacted on May 17, 1956, "to amend, supplement and re-enact the Cheltenham Zoning Ordinance of 1929, as amended." Section 200 divided the township into eight designated districts, including "FF Commercial and Business District," one of the classifications later applied to the Cedarbrook property.

Sections 801 and 802 empowered the board of township commissioners to amend the zoning map and to designate an area "FF" upon request of a landowner who shall submit a plan of the area, including the location, dimensions, etc., of proposed buildings and structures, of sidewalks and pedestrian areas, of automobile access and parking areas, and of landscaping or other uses, plus data to enable the commissioners "to judge the effectiveness of the design and character of the entire area and its relationship to surrounding areas." Should the development of the area be by stages, a less detailed plan of the portions not scheduled for immediate development would suffice, but a detailed plan must be submitted to the commissioners at a later date and prior to construction.*fn2 Section 1501

[ 413 Pa. Page 383]

    prescribed general requirements for buildings and accessory uses constructed in any district, with section 1505 setting standards for all off-street parking.

At the time of enactment of ordinance No. 873, the FF classification was applied immediately to an area bordered by Cheltenham and Ogontz Avenues and Washington Lane, where a shopping center was constructed. The property now owned by the Cedarbrook Joint Venture, a large triangular tract bordered by Cheltenham and Ogontz Avenues and Easton Road, less than one-quarter mile from the first FF area, was then occupied by the Cedarbrook Country Club and was zoned by ordinance No. 873 "C Residential" along the highways and "A Residential" in the center.

Beginning in September, 1958, a series of public meetings were held between members of the Cedarbrook Joint Venture*fn3 and the board of township commissioners to consider the future use of the Cedarbrook tract which was being purchased for development.*fn4 On February 17, 1959, apparently as a result of the earlier meetings, ordinance No. 873 was amended by ordinance No. 934, which created "FFF Commercial Districts." In these districts, office buildings, multiple dwellings, apartment buildings, hotels, and accessory uses were permitted. Although setting forth specific land coverage requirements and limitations, the new ordinance, as did ordinance No. 873, provided for application by landowners to the board of commissioners for re-classification, accompanied by the same type of development plan.

[ 413 Pa. Page 384]

On April 21, 1959, the board of commissioners held a public hearing at which a detailed plan of development of the approximately 150 acre Cedarbrook tract (apparently the product of the prior meetings), submitted by Mr. Merriam pursuant to ordinances 873 and 934, was thoroughly considered. The application and plan requested that 33 acres of the tract be rezoned to FF Commercial and that the remaining 116 acres be rezoned FFF Commercial. The FF area would contain an enclosed mall shopping center, including 23 acres for parking. In the FFF area would be constructed five high-rise apartment buildings located on 70 acres of land, a hotel on six acres, and office buildings on approximately 41 acres. The 70 acre apartment area would include, for use of apartment residents, a swim club and a 40 acre golf course in the center of the tract, separating the apartments from the commercial area.

Mr. Merriam testified, both on direct examination and on cross-examination by counsel for the civic association, and explained in detail the considerations entered into in reaching the finalized plan. Particularly emphasized was the fact that development of the entire 150 acre tract was contemplated as an integrated complex and comprehensive whole, not as individual projects on separate parcels of land. The total cost of the undertaking was estimated at $50,000,000.

During the course of the hearing, the chairman of the board of commissioners asked of the audience, which included members and representatives of the civic association, whether or not there were objections to the proposed zoning change. Although there was no specific objection at the time, later in the meeting a representative of the Curtis Hills and other civic associations requested that the commissioners continue the ...

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