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JACOBI v. ZONING BOARD ADJUSTMENT. (01/21/64)

January 21, 1964

JACOBI, APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT.



Appeal, No. 46, Jan. T., 1964, from order of Court of Common Pleas of Montgomery County, No. 63-1235, in case of Edward A. Jacobi and Sophie Jacobi, his wife, Ulrik F. Smith et al. v. The Zoning Board of Adjustment of Lower Moreland Township and His Excellency, the Most Reverend John J. Krol, Archbishop of Philadelphia. Order affirmed.

COUNSEL

Thomas S. Howland, with him Howland and Hess, for appellants.

James E. Gallagher, Jr., with him James N. Peck, Harry N. Moran, Jr., William F. Fox, and Fox, Differ, DiGiacomo & Lowe, and Stradley, Ronon, Stevens & Young, for appellees.

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

Author: Jones

[ 413 Pa. Page 288]

OPINION BY MR. JUSTICE JONES

This appeal challenges an order of the Court of Common Pleas of Montgomery County sustaining the grant by the Zoning Board of Adjustment of Lower Moreland Township (Board), of a special exception to permit the use of a property, located in an "L-Residential" zone, as a church, parochial elementary school, convent and rectory.

The applicant was the Roman Catholic Archbishop of Philadelphia who, in his archiepiscopal capacity, owns the subject property, which prior to its purchase by the archdiocese, was occupied as a family dwelling house and utilized as a farm.

The township zoning ordinance provides that in "L-Residential" zones a building may be erected or used for educational or religious purposes "when authorized as a special exception by the Board of Adjustment after public hearing". Having held such a hearing on the Archbishop's application, the Board granted the requested special exception and the Board's action was sustained by the Court of Common Pleas of Montgomery County.

[ 413 Pa. Page 289]

Appellants' main argument is most peculiar in that it challenges the validity of the entire ordinance as not having been made in accordance with a comprehensive plan. True, the contention is confined to the issue that a special exception may not be granted by a first class township zoning board of adjustment when the Township has not established or adopted a comprehensive plan.*fn1 Nevertheless, in the absence of a comprehensive plan, not just the special exception provisions, but the entire ordinance falls: Eves v. Zoning Board of Adjustment, 401 Pa. 211, 164 A.2d 7.To agree with appellants' contention in this respect we would necessarily Page 289} have to invalidate the entire ordinance and, accordingly, the Archbishop could use the property without let or hindrance.

There is nothing in the record, however, which would support the argument that the ordinance was not adopted pursuant to a comprehensive plan nor (as was the case in Eves) is there the slightest showing of internal evidence from a reading of the ordinance itself that it was not so enacted. There is a presumption that the ordinance is valid and such presumption has not been overcome by appellants.

Appellants also contend that the Board abused its discretion and acted in an arbitrary manner in granting a special exception in this case, correctly stating the rule of law that where no additional testimony is taken before the common pleas court, the scope of that court's review is to examine the record to determine whether the Board was guilty of a manifest abuse of discretion or an error of law and, if so guilty, to set aside the Board's decision: Blair v. Board of ...


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