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UPPER DARBY TOWNSHIP APPEAL. (03/17/64)

March 17, 1964

UPPER DARBY TOWNSHIP APPEAL.


Appeal, No. 57, Jan. T., 1964, from order of Court of Common Pleas of Delaware County, March T., 1962, No. 1845, in re appeal of George J. McWilliams, Joan C. McWilliams, Henry M. Peddle et al. from decision of Zoning Board of Adjustment of Upper Darby. Order reversed.

COUNSEL

Philip J. O'Malley, with him Paul R. Sand, Township Solicitor, for appellant.

Robert E. J. Curran, with him Kassab, Cherry, Curran & Archbold, for appellees.

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

Author: O'brien

[ 413 Pa. Page 584]

OPINION BY MR. JUSTICE O'BRIEN

After a properly advertised public hearing, the Board of Commissioners of the Township of Upper Darby, on June 7, 1960, enacted Ordinance No. 1534, amending the Township Zoning Ordinance by changing the classification of land on the North Side of Marshall Road, from Long Lane to Ashton Road, from B-Business to R-3 Residential.

R-3 Residential zoning allows for certain uses accessory to residential uses, such as "the professional office or studio of a doctor, dentist, teacher, artist, architect, musician, lawyer, justice of the peace, real estate broker, or profession or occupation of a similar character". The ordinance provides, however, that such accessory uses are allowed only where "the office or occupational room is located in a dwelling in which the practitioner resides or in a building accessory thereto".

Twelve row duplex dwellings were erected on the land rezoned and appellees acquired a number of these dwellings. Appellees then applied to the township building inspector for a certificate of occupancy authorizing the use of one of the dwellings, 350 Long Lane, as a real estate office. The building inspector refused the permit on the ground that the applicants did not comply with the provision of the zoning ordinance, requiring the applicant to reside in the premises for which the permit was sought. There is no dispute as to this factual question, appellees conceding that they do not reside at 350 Long Lane.

Appellees appealed to the board of adjustment, which sustained the action of the building inspector. An appeal to the Court of Common Pleas of Delaware County followed and that court, without taking additional testimony, made findings of fact and conclusions of law and entered a decree nisi reversing the board of adjustment. The township's exceptions were dismissed

[ 413 Pa. Page 585]

    and a final order entered, directing the issuance of the certificate of occupancy applied for by appellees. The township has appealed the final order of the court below.

Appellees' position throughout the course of this litigation has been that Ordinance No. 1534 is unconstitutional and deprives them of their property without due process of law. This contention is based upon their assertions that the ordinance (1) was not enacted pursuant to a comprehensive ...


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