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LOWER MERION TOWNSHIP v. ENOKAY (09/26/67)

decided: September 26, 1967.

LOWER MERION TOWNSHIP, APPELLANT,
v.
ENOKAY, INC.; NEIGHBORHOOD CLUB OF BALA-CYNWYD, APPELLANT, V. ENOKAY, INC.



Appeals from order of Court of Common Pleas of Montgomery County, No. 65-5025, in case of Lower Merion Township and The Neighborhood Club of Bala-Cynwyd v. Enokay, Inc. and The Young Men's and Young Women's Hebrew Association.

COUNSEL

Lewis H. Van Dusen, Jr., with him Thomas E. Wood, Robert S. Ryan, and Drinker, Biddle & Reath, for township, appellant.

Francis E. Shields, with him William R. Deasey, for appellant.

Cassin W. Craig, with him Fred B. Creamer, David M. Jordan, and Wisler, Pearlstine, Talone & Gerber, for appellees.

Bell, C. J., Musmanno, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones took no part in the consideration or decision of this case.

Author: O'brien

[ 427 Pa. Page 130]

Enokay, Inc., is the owner of 6.057 acres of land situate in Lower Merion Township, Montgomery County. The land fronts on Conshohocken State Road, St. Asaph's Road, and Llanberris Road. Enokay's sole stockholder is the Federation of Jewish Agencies of Greater Philadelphia, of which the Young Men's and Young Women's Hebrew Association is a constituent agency. The property involved is zoned partly R-7 and partly R-3, under the township zoning ordinance.

The zoning ordinance permits the erection and use of buildings of the type sought to be erected by appellees in areas zoned as the land here involved is zoned, when applications for such are authorized by the board of adjustment as a special exception. Appellees applied for a special exception which was denied by the zoning board of adjustment. An appeal to the Court of Common Pleas of Montgomery County resulted in a reversal of the board of adjustment, and we granted appellants' petition, under Rule 68 1/2, for leave to appeal.

The board of adjustment's denial of appellees' application was based on two factors: first, that the proposed structure and its use would be injurious to the health, safety, welfare and morals of the community; and second, that appellees' proposed parking facilities were inadequate and violative of the governing provisions of the zoning ordinance. The court of common pleas determined that the board had abused its discretion

[ 427 Pa. Page 131]

    in finding that the proposed use would be injurious to the health, safety, welfare and morals of the community. The court further held that the board had misinterpreted the applicable provisions of the zoning ordinance, relative to parking facilities, and that adequate provisions for parking were provided.

A petitioner who seeks a special exception must show that the proposed use is allowable under the terms of the ordinance which permits special exceptions. Temple Univ. v. Zon. Bd. of Adj., 414 Pa. 191, 199 A.2d 415 (1964); Rieder Appeal, 410 Pa. 420, 188 A.2d 756 (1963); Phi Lambda Theta Zoning Case, 400 Pa. 60, 161 A.2d 144 (1960). In the instant case, there is no serious dispute that the proposed use is allowable under the terms of the ordinance. Having shown that the use is allowable, there is no burden on the petitioner to show that the use would not damage the health, safety and morals of the community. On the contrary, the burden is on the protestants to show that such use would damage the health, safety and morals of the community. Temple Univ. v. Zon. Bd. of Adj., supra; Good Fellowship Amb. Club's Appeal, 406 Pa. 465, 178 A.2d 578 (1962); Archbishop O'Hara's Appeal, 389 Pa. 35, 131 A.2d 587 (1957).

Since the court below took no additional testimony, the scope of our review is limited to determining whether the board of adjustment abused its discretion or committed an error of law. Chersky v. Bd. of Adj., 426 Pa. 33, 231 A.2d 757 (1967); Cleaver v. Board of Adjustment, 414 Pa. 367, 200 A.2d 408 (1964), and cases cited therein. As previously stated, the court ...


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