Appeal, No. 50, Jan. T., 1964, from order of Court of Common Pleas of Montgomery County, No. 6211753 of 1962, in case of Temple University v. Zoning Board of Adjustment of Cheltenham Township. Order reversed.
Reuben E. Cohen, with him Nathan B. Feinstein, Russell Conwell Cooney, William R. Spofford, and Cohen, Shapiro and Cohen, and Ballard, Spahr, Andrews and Ingersoll, for appellant.
Samuel H. High, Jr., for appellee.
Joseph H. Stanziani, with him Waters, Fleer, Cooper & Gallager, for intervening appellee.
Before Bell, C.j., Musmanno, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE O'BRIEN
The appellant, Temple University, is the owner of three tracts of land in Cheltenham Township. One tract consists of 9.98 acres extending northeast from the intersection of Penrose Avenue and Beech Avenue. There exists on this tract a building used for school classrooms by The Tyler School of Fine Arts, a division of Temple University. Adjoining this tract is a 2.51 acre tract located across Beech Avenue from the classroom tract, extending southeast from the intersection of Penrose Avenue and Beech Avenue. This tract is bounded by Penrose Avenue on the West, Beech Avenue on the North, Cedar Lane on the East, and Graham Lane on the South. The appellant planned to erect a dormitory for 50 male students and 100 female students on this tract. The appellant also owns a third tract of approximately 1.6 acres directly East, across Cedar Lane, from the classroom tract.
In September of 1962, the appellant filed an application to the Zoning Board of Adjustment of the Township of Cheltenham for a special exception. The 9.98 acre tract is zoned AA Residential, and the 2.61 acre tract is zoned B Residential. The application was made pursuant to Section 301(3) of the Cheltenham Zoning Ordinance, permitting buildings in AA Residential districts as follows, to wit: "3. Educational, religious or philanthropic use, when authorized as a special exception, excluding hospital, sanitarium, rest home or correctional institution and including dormitory of an educational institution." Section 501(1) of the Cheltenham Zoning Ordinance which applies to B Residential districts, provides and allows any use permitted in AA Residential districts.
On October 15, 1962, the zoning board of adjustment conducted a hearing. One of the matters of New Business was the appellant's application for a special exception. On November 21, 1962, the zoning board of adjustment denied the appellant's petition for a special exception on the ground that the proposed dormitory would adversely affect the health, safety and morals of the community, and on the ground that the off-street parking requirements would not be met.
The appellant, Temple University, appealed to the Court of Common Pleas of Montgomery County. The LaMott Citizens for Action was granted leave to intervene. On March 22, 1963, an opinion and order was entered affirming the board of adjustment's finding that a special exception should not be granted because the intended use would be damaging to the "health, safety and morals" of the community. The court rejected the alleged lack of parking areas as a ground for the refusal, resting its opinion on the health, safety and morals issue. This appeal followed.
The testimony upon which the findings that the planned dormitory would violate the health, safety and morals of the community were based, came from several residents of the surrounding neighborhood. These witnesses testified to isolated incidents involving young people who "dressed like artists". One incident involved a car with young men as passengers driving through an intersection controlled by a stop sign without stopping. Another witness testified that he saw two young people dressed like artists near the school property doing things that would have shocked the ladies in attendance at the hearing. Other witnesses testified to the parking problem created by the students, the inevitable ...