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RALPH CALDWELL AND VIOLA CALDWELL v. BOARD ADJUSTMENT NORTHAMPTON TOWNSHIP (02/09/71)

decided: February 9, 1971.

RALPH CALDWELL AND VIOLA CALDWELL, HIS WIFE,
v.
THE BOARD OF ADJUSTMENT OF NORTHAMPTON TOWNSHIP



Appeal from the order of the Court of Common Pleas of Bucks County, No. 377, May Term, 1967, in case of Ralph Caldwell, et ux., v. The Board of Adjustment of Northampton Township. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.

COUNSEL

C. David Krewson, with him Stuckert, Yates and Krewson, for appellants.

E. Dillwyn Darlington, with him Cadwallader, Darlington and Clarke, for appellee.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Barbieri (who has since been appointed to the Supreme Court of Pennsylvania and did not participate in the decision). Opinion by Judge Mencer. Dissenting Opinion by Judge Manderino. Judge Crumlish joins in this dissent.

Author: Mencer

[ 1 Pa. Commw. Page 224]

The Plaintiffs have taken this zoning appeal from the denial of a special exception to permit the construction of multiple-family, two-story dwelling houses on their property. Plaintiffs' property consists of eighteen acres of land on Sackettsford Road, Northampton Township, Bucks County, and in an R-1 Residential Zone under the provisions of the Zoning Ordinance of the Township. However, the Zoning Ordinance permits a requested use if it can be constructed on sufficient land to provide not less than 15,000 square feet per family and if it is authorized as a special exception under certain standards set forth in the ordinance. The Board of Adjustment, after two hearings, denied plaintiffs' application for a special exception. An appeal was taken to the Court of Common Pleas of Bucks County which affirmed the Board. The lower court did not take any additional testimony and therefore the sole question before it was whether the Board of Adjustment had committed an error of law or had manifestly abused its discretion. Archbishop O'Hara's Appeal, 389 Pa. 35, 131 A.2d 587 (1957).

[ 1 Pa. Commw. Page 225]

A special exception is issued for an exceptional use if the Board of Adjustment determines its availability. Such uses are made available as a privilege, not as a right, assuming that the conditions detailed in the ordinance are found to exist. Eves v. Zoning Board of Page 225} Adjustment, 401 Pa. 211, 164 A.2d 7 (1960); Devereux Foundation, Inc., Zoning Case, 351 Pa. 478, 41 A.2d 744 (1945). The rules that determine whether the exception should be granted or refused are those enumerated in the ordinance.

The lower court concluded that the Board was properly guided by the standards in the ordinance and had not manifestly abused its discretion by refusing to grant the special exception. We agree. The evidence presented was carefully analyzed in the able opinion of Judge Satterthwaite, as reported in 18 Bucks Co. L. Rep. 573 (1968). We have carefully examined the record and have found sufficient evidence to sustain the determination of the Board. We therefore find no abuse of discretion.

Order affirmed.

Disposition

Affirmed.

Dissenting Opinion by Judge ...


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