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KENNETH HIGGINS v. TOWNSHIP RADNOR AND ZONING HEARING BOARD RADNOR TOWNSHIP (04/24/74)

decided: April 24, 1974.

KENNETH HIGGINS, WILLIAM LINDSAY, III, AND WILLIAM MARTIN, APPELLANTS,
v.
TOWNSHIP OF RADNOR AND ZONING HEARING BOARD OF RADNOR TOWNSHIP, APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Township of Radnor v. Zoning Hearing Board of Radnor Township, No. 10354 of 1971.

COUNSEL

James S. Kilpatrick, Jr., with him Thomas J. Burke and Haws and Burke, for appellants.

Joseph A. Damico, Jr., with him Fronefield, deFuria and Petrikin, for appellees.

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

Author: Rogers

[ 13 Pa. Commw. Page 196]

The appellees in this case, the five legal and equitable owners of a tract of land in Radnor Township, Delaware County, containing about five acres, were refused a Certificate of Occupancy for the establishment and operation of a tennis club for profit. The property is in a R-1 district of the township zoning ordinance and map, in which the use of land for the purpose intended is impermissible.

[ 13 Pa. Commw. Page 197]

The appellees appealed from the refusal of the Certificate of Occupancy, seeking a variance, which, after hearings, the Zoning Hearing Board granted. Intervening objecting neighbors, appellants here, appealed the grant of the variance to the Court of Common Pleas of Delaware County, which affirmed the Zoning Hearing Board. The intervenors have appealed to us the lower court's order.

No evidence was taken by the court below, so that our review is limited to a determination of whether or not the Zoning Hearing Board abused its discretion or committed an error of law in granting the variance.

The five-acre parcel in question is the remainder of a tract containing approximately 49 acres acquired by a corporation in 1955. Those of the appellees who have been referred to herein as record owners,*fn1 purchased the stock of the corporation in 1956. In 1967 the 49 acre tract was bisected by the Mid-County Expressway, locally known as the Blue Route. The corporation thereafter sold the larger of the two tracts created by the Expressway, which is described as being capable of accommodating a development of 25 to 30 one-acre lots. The corporation was thereafter dissolved and its assets, including the remaining five-acre tract, came into the possession of the stockholders, four of the appellees herein.

The tract is unimproved and roughly triangular in shape. It is bounded on the west for its entire length by an approximately 25 foot high bank at the summit of which is constructed the Expressway, and on the south and east by public roads. Just inside the road which forms the east line the property is traversed by Ithan Creek which runs in a ravine for the whole length of the property. Near the foot of the embankment of

[ 13 Pa. Commw. Page 198]

    the Expressway and again traversing the whole length of the ...


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