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GRO APPEAL. MILLS APPEAL (10/09/70)

decided: October 9, 1970.

GRO APPEAL. MILLS APPEAL


Appeal from order of Court of Common Pleas of Delaware County, No. 8699 of 1968, in re appeal of Joseph Gro from decision of Board of Adjustment of Township of Upper Darby.

COUNSEL

Franklin J. Seyfert, with him Seyfert & Emuryan, for appellants.

Donald J. Orlowsky, with him ReDavid, Orlowsky, Natale & Anderman, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Concurring Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell joins in this concurring opinion. Dissenting Opinion by Mr. Justice Roberts.

Author: O'brien

[ 440 Pa. Page 553]

This is a zoning appeal from a decision of the lower court granting a variance to permit the erection of fifty-nine apartment units. The appellants, a group of residents in the Township of Upper Darby, are opposed to the construction of such apartments.

The property has frontage of 353 feet along Ashurst Avenue and a depth of 120 feet along the northerly side of the property and a depth of 123 feet along the southerly side.

Ashurst Avenue is currently only partially paved and in poor condition and is not a through street along the subject property, with a dead end at the Pennsylvania Railroad tracks along the south side of the property, and ending on the north side at Primos Avenue.

The entire rear portion of the property, varying from five to eight feet in depth, is currently zoned Manufacturing-Industrial (M) and the remainder of the tract is zoned R-2 Residential under the Upper Darby Zoning Ordinance.

Under Section 203 of the Upper Darby Zoning Ordinance, when a zoning district boundary line divides a property held in single and separate ownership, the regulations as to the use in the less restricted district are permitted to extend an additional 50 feet into the more restricted district.

As a result of the aforesaid boundary tolerance provision, approximately 46 percent of the subject property can be legally developed under the Manufacturing-Industrial regulations, and under said regulations, apartment use is permitted by special exception.

All of the property abutting the rear or east side of the subject property is zoned "M" all the way out

[ 440 Pa. Page 554]

    to Oak Avenue, a distance of approximately 1,200 feet. In this area are located the industrial concerns of Franklin Printing, Crucible Steel, Building Units, Clifton Builders Supply, and other industrial uses.

To the south side, the subject property is bounded by the Penn Central Railroad tracks, elevated about eight feet, which carry approximately 70 scheduled commuter trains per day on the Philadelphia-West Chester Branch.

On the opposite side of the railroad tracks is located a shopping center, zoned B-Business, running all the way out to Providence Road.

On the northside of the subject property is located the Primos-Secane Swim Club.

On the west or front side, the subject property is bounded by Ashurst Avenue along the side of which flows the Muckinipates Creek, and on the opposite side of the creek is located unimproved ground.

Because of the topography of the ground, and its adjoining Muckinipates Creek, extensive grading, roadwork, retaining walls and other improvements would be required to prepare the site for either single family residential or apartment development, the cost ...


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