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ELLER v. BOARD ADJUSTMENT (03/26/64)

March 26, 1964

ELLER
v.
BOARD OF ADJUSTMENT, APPELLANT.



Appeal, No. 20, Jan. T., 1964, from order of Court of Common Pleas of Chester County, Oct. T., 1962, No. 80, in case of James C. Eller v. Board of Adjustment of London Britain Township. Order affirmed.

COUNSEL

Theodore O. Rogers, with him James E. O'Neill, and Rogers & O'Neill, for appellant.

Ralph W. Kent, with him D. Barry Buckley, and Perna & Delduco, for appellee.

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

Author: Roberts

[ 414 Pa. Page 2]

OPINION BY MR. JUSTICE ROBERTS

James C. Eller and his wife own approximately 13 acres of land in London Britain Township, Chester

[ 414 Pa. Page 3]

County. The Ellers purchased the property in 1951 and, since that time, have been engaged in raising mushrooms. At the time of the purchase, the land was improved with a house, a barn, some chicken houses, and a double mushroom house.

In 1952, the township enacted a zoning ordinance which classified the entire township "District A," a residential and farming district. Permitted uses include a "mushroom house provided it is located at least 500 feet from the nearest official roadside line and 1000 feet from all other lot boundaries." Since the Eller's mushroom house was 400 feet from the adjacent road and 180 feet from the nearest property line, it constituted a nonconforming use. In 1956, pursuant to a recent amendment to the ordinance, Mr. Eller applied for and obtained a permit to expand his nonconforming use by 100 percent. An additional double mushroom house was immediately constructed.

In 1959, appellee applied for a permit to construct two additional double mushroom houses which would double his then existing facilities. From the refusal of the permit, an appeal was taken to the Board of Adjustment of London Britain Township. After a public hearing, the board affirmed the refusal of the zoning officer to issue the permit. It held that since the special exception to expand, granted in 1956, had exhausted the board's power under the ordinance, Eller's request had to be treated as a petition for a variance. The board held that the owner's burden to sustain the grant of a variance had not been made out.

On appeal to the court of common pleas, appellee, for the first time, challenged the ordinance as an unconstitutional, arbitrary restriction upon the ownership and use of his property. Without taking additional testimony, the court held that the board properly found that Eller had failed to ...


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