Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Appeal of: Dunkin' Donuts Franchising Corp. and Mark Cohen, Owner-intervenor, From Decision of The Abington Township Zoning Hearing Board and Walter Joseph Frantz, M.D., Protestant of Record, Intervenor, and Township of Abington, Intervenor.
Daniel B. Michie, Jr., with him Fell, Spalding, Goff & Rubin, for appellant.
Emanuel A. Bertin, with him Moss, Rounick & Hurowitz, for appellee.
Fred J. Silverman, for intervenor, Cohen.
Hubert D. Yollin, for intervenor, Krantz.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.
On March 20, 1970, a building permit was issued to appellee Dunkin' Donuts Franchising Corporation (Dunkin' Donuts) to permit the erection of a building on property zoned F-1 Commercial District located on the northwest corner of Old York Road and Berrell Avenue, Abington Township, Montgomery County. The purpose of the building, as stated on the permit application, was to erect a "retail baked goods and restaurant."
Walter J. Krantz, M.D., whose property is located immediately adjacent to the property in question, appealed on March 27, 1970, to the township Zoning Hearing
Board (Board) from the issuance of the permit. After a public hearing, the Board, on June 10, 1970, rendered its decision in which it rescinded the permit on the grounds that (1) the parking requirements were not met for a combination restaurant and retail baked goods shop; and (2) the proposed establishment is a "restaurant specializing in take-out foods" which is prohibited in a F-1 Commercial District by Section 1101(4) of the township ordinance.*fn1 On July 9, 1970, Dunkin' Donuts appealed from the Board's decision to the Montgomery County Court of Common Pleas. The owner of the subject property and Dr. Krantz then intervened. After argument before the court en banc on April 7, 1971, the court on April 15, 1971, reversed the Board's determination that the proposed use of the property is prohibited in an F-1 Commercial District and remanded the matter to the Board on the issue of compliance with the parking requirements for the double usage as a retail baked goods shop and restaurant. This was in accord with the court's determination that a Dunkin' Donuts enterprise ". . . constitutes a double usage, namely, a restaurant and retail bakery, both permitted
uses under Article XI, Section 1101(4) and (7) of the Ordinance." The township then intervened in the case and ...