Appeal from order of Court of Common Pleas of Montgomery County, No. 63-7562, in case of H. Durston Saylor, III, May M. Saylor, his wife, and Haverford Civic Association v. F. R. Drayton, Jesse L. Stetler and Julius Zieget, comprising Zoning Board of Adjustment of Lower Merion Township et al.
H. Durston Saylor, II, with him John J. Dautrich, for protestants, appellants.
Robert S. Ryan, with him Lewis H. Van Dusen, Jr., and Drinker, Biddle & Reath, for zoning board, appellee.
Joseph F. Keener, Jr., with him Elkins Wetherill, and Henderson, Wetherill & O'Hey, for property owners, intervenor-appellees.
Bell, C. J., Musmanno, Cohen, Eagen, O'Brien and Roberts, JJ. Mr. Justice Jones took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Cohen joins in this dissenting opinion.
The Court being equally divided, the order of the lower court is affirmed.
Dissenting Opinion by Mr. Justice Roberts:
In my view, the variance granted by the court below was grounded on a misapprehension of law and should be set aside and the case remanded for consideration under the correct standard.
The record discloses that William J. Vogt and Helen M. Vogt, his wife, purchased the premises known as 558 Montgomery Avenue, Haverford, Montgomery County, Pennsylvania by deed dated January 29, 1959. At that time the building was not in conformity with the prevailing "R-4" zoning under which only "single-family detached dwellings" were permitted, having been converted into a three unit apartment house by a prior owner.
On January 28, 1963, the Vogts were notified by the township to terminate the multi-family occupancy of the building. Thereupon, the Vogts applied to the zoning board of adjustment of the township for a variance to permit continued use of the premises as an apartment house. The board, relying on the decision in Sheedy v. Zoning Board of Adjustment, 409 Pa. 655, 187 A.2d 907 (1963), granted the variance whereupon H. Durston Saylor, his wife, and the Haverford Civic ...