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CAMPBELL v. UGHES (12/12/72)

decided: December 12, 1972.

CAMPBELL
v.
UGHES, ET AL.



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Malcolm Campbell v. Zoning Hearing Board of West Norriton Township, Montgomery County, Pennsylvania, Ughes Application, No. 71-10304.

COUNSEL

Malcolm Campbell, appellant, for himself.

Daniel L. Quinlan, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. Concurring Opinion by Judge Crumlish. Judge Kramer joins in this Opinion.

Author: Rogers

[ 7 Pa. Commw. Page 100]

This is a zoning case with a single issue and undisputed facts. It has, however, a rather extensive history which we repeat not because it justifies the order below, which we must reverse, but because it explains perhaps why the case has gone as far as it has.

In 1908 Frank Shearer and his wife acquired a 100 foot lot on North Whitehall Road, West Norriton Township, Montgomery County. In 1909 the Shearers acquired an adjoining 58 foot lot. They resided in a dwelling house on the property until the survivor of them, Mr. Shearer, died in 1967. He devised the property to Dorothy M. Ughes and her husband Joseph J. Ughes, the appellees here. At some time prior to Mr. Shearer's death North Whitehall Road had been subjected to the zoning regulations of the R-2 district of West Norriton Township, the only one pertinent here being a requirement of an 85 foot width for each lot.

Mr. and Mrs. Ughes sought the advice of real estate experts and lawyers as to the most advantageous means of disposing of their inheritance. The real estate advisor told them that they would sell to best advantage if they could subdivide, selling the house on a 73 foot lot to one buyer and the remaining 85 foot vacant lot to another buyer. To accomplish this they applied for a variance from the 85 foot requirement. The Zoning Board acquiesced, apparently on the ground that the property having been acquired as two lots in 1908-1909 could not thereafter be required by zoning to be treated as one lot. This decision was made on July 24, 1968.

[ 7 Pa. Commw. Page 101]

On August 12, 1968 a Pauline Campbell appealed the zoning board decision to the Common Pleas Court. On August 16, 1968 the Ughes sold and conveyed the house on a 73 foot lot to Mr. and Mrs. Frank P. Vitelli.*fn1 In October 1968, the Common Pleas Court reversed the Board's grant of variance, without prejudice to the right of the applicant's to seek a variance on the ground of unnecessary hardship or of unconstitutionality of the lot width requirement as applied to their property.

The instant case is the renewed application of Mr. and Mrs. Ughes, now joined by Mr. and Mrs. Vitelli, for relief from the 85 foot requirement with respect to the lot conveyed to the Vitellis. The Zoning Board concluded, upon what facts it does not state, that the 85 foot width requirement inflicted unnecessary hardship upon applicants' interests in their property, and further that the 85 foot width requirement was unconstitutional. The court below affirmed, also concluding that the 85 foot width requirement was unconstitutional.

The sole factual basis for any variation from the width restriction here, and the only fact adduced by the appellees in support of their application, is that, of the 24 lots on the block of North Whitehall Road in which the Ughes property is located, 16 have ...


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