Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Gladys deH. Shinn, William Shinn, Ann O'Brien, John B. O'Brien and Frank Titlow v. Lower Merion Township Zoning Hearing Board, No. 70-14126.
W. Horace Hepburn, with him Justin G. Duryea and Duryea, Larzelere & Hepburn, for appellants.
Robert S. Ryan, with him Henry S. Bryans, Lewis H. Van Dusen, Jr. and Drinker, Biddle & Reath, for appellee.
James S. Kilpatrick, Jr., with him Thomas J. Burke and Haws & Burke, for intervening appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Mencer. Judge Blatt joins in this dissent.
[ 10 Pa. Commw. Page 547]
"The case herein represents a unique factual situation and an unusual zoning question which does not fall into any of the formalized categories yet decided. It is unlikely to occur again and the law, being a living instrument, must try to benefit the community, protect the property of all, without distorting the precedents existing. The Lower Merion Board has done it and we agree with its findings."
We open our opinion with these closing remarks of Judge Smillie in his able opinion for the court below. We agree with him and affirm the decision.
The intervening appellees presented their case to the Zoning Hearing Board originally and on remand for further testimony and reconsideration. The lower court has considered it twice, the first time remanding for further testimony concerning the existence of a nonconforming use and for elaboration of the opinion, and the second time on appeal from the remand hearing. In every instance, it has been the unanimous opinion of the Board and the court below that intervening appellees should have the right to demolish an existing service station and a residence on the subject property and to erect in their places a larger station, occupying the entire property.
Stripped to its essential, relevant bare bones and perhaps with over-simplification, the facts of the case are these: From 1926, prior to any zoning ordinance, and until 1936, a service station was operating at 1105 Youngsford Road (approximately 75 feet to the northeast
[ 10 Pa. Commw. Page 548]
of 351 Conshohocken State Road). In 1936, the owner of both tracts sought permission of the Board of Adjustment (predecessor of the Zoning Hearing Board) to transfer this service station to 351 Conshohocken State Road. The permission was granted. The nubbin of this case, which all parties, as well as the Zoning Hearing Board and the lower court have realized fully from the beginning, is: Did this action of the Board of Adjustment constitute granting permission to move a nonconforming use from 1105 Youngsford Road to 351 Conshohocken State Road, or was it merely the granting of a variance for the use of 351 Conshohocken State Road as a service station in a residential zone without regard to what would happen at 1105 Youngsford Road thereafter?
Those in support of calling it the granting of a variance assert it was then and is now improper and beyond the Board's authority to transfer a nonconforming use. Those in favor of calling it a transfer of a nonconforming use argue, equally forcefully, that it would have been just as improper and beyond the Board's authority to grant a variance, for no undue hardship was shown. The entire testimony on undue hardship at the hearing on February 27, 1936, before the Board of Adjustment, the transcript of which was made a part of this record, was: "Q. In what respect would this be a hardship on you [the owner] if you were not allowed to do that [i.e., not permitted to transfer the service station to 351 Conshohocken State Road]? A. Well, it would make an awfully big difference in the station, for ...