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ZONING HEARING BOARD v. SLAVITZ (12/07/71)

decided: December 7, 1971.

ZONING HEARING BOARD
v.
SLAVITZ



Appeal from the Order of the Court of Common Pleas of Chester County, No. 3, October Term, 1970, in case of Max Slavitz v. The Zoning Hearing Board of West Whiteland Township.

COUNSEL

William H. Lamb, with him Lamb, Windle & McErlane, for appellant.

Lawrence E. Wood, for appellee.

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

Author: Mencer

[ 3 Pa. Commw. Page 496]

Max Slavitz (Slavitz) is a part owner of a tract of land containing 21 acres in West Whiteland Township in Chester County. Acting for all the owners, he applied to the Zoning Hearing Board of West Whiteland Township (Board) for a special exception which would provide the necessary permission to build 252 garden type apartment units on this land. Since the land was in an "R-3" residence district, it was necessary for Slavitz to establish that the contemplated building project could be authorized under the zoning ordinance as a special exception.

The Board, after hearing, denied Slavitz his application for special exception and he appealed to the Court of Common Pleas of Chester County which, without taking any evidence, reversed the Board. The Board has now appealed to this Court.

Garden type apartments are permitted by special exception under the ordinance involved here. Since the lower court took no additional testimony, our function is to determine whether the Board clearly abused its discretion or committed an error of law. Cleaver v. Board of Adjustment, 414 Pa. 367, 200 A.2d 408 (1964). A special exception is allowable where facts and conditions detailed in the ordinance, as those upon which an exception may be permitted, are found to exist. Lukens v. Ridley Township Zoning Board, 367 Pa. 608, 80 A.2d 765 (1951). We said in Berlant v. Zoning Hearing Board of Lower Merion Township, 2 Pa. Commonwealth Ct. 583, 586, 279 A.2d 400, 401 (1971): "A special exception is not an 'exception' to a zoning ordinance. It is a permitted use which an applicant

[ 3 Pa. Commw. Page 497]

    is entitled to have, unless the Board determines, according to the standards in the zoning ordinance, that the use would adversely affect the community."

Section 21.03 of the West Whiteland Township zoning ordinance provides that garden type apartments may be permitted as a special exception, subject to the following terms and conditions:

"1. A minimum lot area of five (5) acres.

"2. A minimum lot width of four hundred (400) feet at ...


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