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BERLANT ET AL. v. LOWER MERION TOWNSHIP ZONING HEARING BOARD (07/12/71)

decided: July 12, 1971.

BERLANT ET AL.
v.
LOWER MERION TOWNSHIP ZONING HEARING BOARD



Appeal from the Order of the Court of Common Pleas of Montgomery County, No. 70-02911, in case of Nathan Berlant, et al. v. Zoning Hearing Board of Lower Merion Township and Beth Am Israel Synagogue, Intervenor.

COUNSEL

John F. Christie, III, with him Samuel H. High, Jr., and High, Swartz, Roberts & Seidel, for appellants.

Robert S. Ryan, with him John W. Fischer, Lewis H. Van Dusen, Jr., and Drinker, Biddle & Reath, for appellee.

Edward N. Barol, with him Jack A. Rounick and Moss, Rounick & Hurowitz, for intervenor.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Manderino.

Author: Manderino

[ 2 Pa. Commw. Page 584]

Beth Am Israel Synagogue (Synagogue) is the owner of four acres of land in Lower Merion Township. These four acres are classified "R-1" under the Lower Merion Township Zoning Ordinance. Under that classification

[ 2 Pa. Commw. Page 585]

    a religious use of land is permitted when authorized by special exception. The Synagogue applied to the Township Zoning Board of Adjustment for a special exception to build a house of worship on these four acres and for a variance from the parking requirements of the classification. Both of these requests were granted by the Zoning Board. Several neighbors to the proposed site of the new synagogue protested the granting of the special exception. These protestors have never challenged the grant of the variance from the parking requirements, and therefore we do not deal with the question of whether or not such grant constituted an abuse of discretion or error of law by the Board.

On appeal to the Court of Common Pleas of Montgomery County, the decision of the Zoning Board granting a special exception to the Synagogue, was affirmed. The protesting neighbors have now appealed to this court, pursuant to Section 402(4) of the Appellate Court Jurisdiction Act (Act of July 31, 1970, 17 P.S. 211.402(4)).

The protesting neighbors contend that the Synagogue has not met its burden of establishing that the proposed special exception will not be contrary to the public interest. Section 2305(3) of the Zoning Ordinance of Lower Merion Township provides as follows: "In determining whether the allowance of a special exception or variance is contrary to the public interest, the Board shall consider whether the application, if granted, will: a. substantially increase the traffic congestion in the streets; b. increase the danger of fire or panic or otherwise endanger the public safety; c. overcrowd the land or create an undue concentration of population; d. impair an adequate supply of light and air to adjacent property; e. be consistent with the surrounding zoning and uses; f. adversely affect the comprehensive

[ 2 Pa. Commw. Page 586]

    plan of the township; g. unduly burden water, sewer, school, park or other public facilities; or h. otherwise adversely affect the public health, safety, morals or general welfare." The protesting neighbors thus maintain that in order to warrant the grant of the special exception, the Synagogue must produce credible evidence to the effect that the proposed building will in no way affect the health, safety, ...


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