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CRARY HOME AND C. J. CRARY v. JOSEPH DEFREES (12/17/74)

decided: December 17, 1974.

THE CRARY HOME AND C. J. CRARY, ET UX., APPELLANTS,
v.
JOSEPH DEFREES, ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Warren County in case of Joseph DeFrees, et al. v. The Zoning Hearing Board of Warren Borough, The Crary Home and C. J. Crary, et ux., No. 85 August Term, 1973.

COUNSEL

David McNeil Olds, with him Johanna G. O'Loughlin, Reed, Smith, Shaw & McClay and, of counsel, Donald S. Mervine and Mervine & Calderwood, for appellants.

William A. Bevevino, with him Swanson, Bevevino and Millin, P.C., for appellees.

Judges Crumlish, Jr., Kramer and Mencer, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 16 Pa. Commw. Page 182]

This is an appeal from an order of the Court of Common Pleas of Warren County, dated November 30, 1973, which reversed a decision of the Zoning Hearing Board of Warren Borough (Board), dated August 28, 1973. The Board's decision had granted a special exception to Mr. and Mrs. C. J. Crary and the Crary Home (Crary), over the objections of certain residents of the Borough of Warren (objectors).

Crary had applied for a special exception to permit the construction of several structures in a residential section of Warren. The land in question is located in an "R-1 Single Family Residence District." The application indicates that Crary intended to establish and maintain a home for "indigent gentlemen and gentlewomen of advanced years, residents of Warren County, with preference given to worthy, needy members of the Methodist Church."*fn1 The application further says that "[l]iving accommodations will be furnished in apartment units, as shown on plans submitted herewith." The plans submitted with the application show a fairly extensive

[ 16 Pa. Commw. Page 183]

    overall development, covering 61,400 square feet with five structures, including a garage, a combined barn and greenhouse, a "studio," a conventional single family dwelling (the residence of Mr. and Mrs. Crary), and the proposed "home" itself. Some of these structures are already in existence and apparently only the construction of the "home" is in issue. The home, as proposed by Crary, would contain eight single occupancy units (each with bath and kitchen facilities) and two double occupancy units. All units would share a large common living room. Testimony in the record indicated, and the Board found, that the Crarys contemplated eventually expanding the home to make use of the entire lot, including their family residence.

After hearing, the Board granted Crary the requested special exception, with one member dissenting and writing a minority opinion. The objectors appealed to the Court of Common Pleas of Warren County, which reversed the Board. Crary appealed to this Court.

The lower court heard no additional evidence, and, in such cases, our scope of review is limited to determining whether the Board committed a manifest abuse of discretion or an error of law. Brunner v. Zoning Hearing Board of Upper Makefield Township, 12 Pa. Commonwealth Ct. 109, 112, 315 A.2d 359, 360-61 (1974); Clawson v. Harborcreek Zoning Hearing Board, 9 Pa. Commonwealth Ct. 124, 127, 304 A.2d 184, 186 (1973). Both parties seem to agree that there is no issue regarding the exercise of discretion by the Board, and our review is invoked only to determine whether legal error was committed.

The crux of this case involves the construction of the Borough zoning ordinance. Section 802.3 of the ordinance provides, in relevant part, as follows: " Special Exceptions. The Board of Adjustment shall grant or refuse special permits under the following ...


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