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APPEAL GEORGE BAKER (05/22/75)

decided: May 22, 1975.

IN RE: APPEAL OF GEORGE BAKER, JR. FROM THE DECISION OF THE ZONING HEARING BOARD OF FRANCONIA TOWNSHIP, MONTGOMERY COUNTY, PENNSYLVANIA. GEORGE BAKER, JR., APPELLANT


Appeal from the Order of the Court of Common Pleas of Montgomery County in case of In Re: Appeal of George Baker, Jr., from the Decision of the Zoning Hearing Board of Franconia Township, Montgomery County, Pennsylvania, No. 73-11887.

COUNSEL

Stanford S. Hunn, with him Hunn and Dischell, for appellant.

Clarke F. Hess, with him Walton B. Yoder, Jr., P. Glenn Moyer and Butera & Detwiler, for appellee.

Judges Kramer, Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 19 Pa. Commw. Page 164]

This is an appeal by George Baker, Jr. (Baker) from an order of the Court of Common Pleas of Montgomery County, dated July 15, 1974, which affirmed an order of the Franconia Township Zoning Hearing Board (Board), denying Baker a special exception.

Baker is the owner of a 6.23 acre tract on which he proposes to build 36 townhouses. The most prominent feature of the land is its bisection by a flood plain which runs the entire length of the property, a distance of about 900 feet. The flood plain is approximately 150 feet wide, by the Board's estimate and finding, and 75 feet wide, by the estimate of Baker's engineer.

[ 19 Pa. Commw. Page 165]

The lower court took no additional evidence and did not make independent findings of fact. In such circumstances, our scope of review is limited to determining whether the Board abused its discretion, committed errors of law, or based its conclusions upon findings of fact which are not supported by substantial evidence. Robin Corporation v. Board of Supervisors of Lower Paxton Page 165} Township, 17 Pa. Commonwealth Ct. 386, 332 A.2d 841 (1975); Rothrock v. Zoning Hearing Board of Whitehall Township, 13 Pa. Commonwealth Ct. 440, 319 A.2d 432 (1974).

Special exceptions are authorized by section 913 of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10913, where the following provision is found:

"Where the governing body in the zoning ordinance, has stated special exceptions to be granted or denied by the board pursuant to express standards and criteria, the board shall hear and decide requests for such special exceptions in accordance with such standards and criteria. In granting a special exception, the board may attach such reasonable conditions and safeguards, in addition to those expressed in the ordinance, as it may deem necessary to implement the purposes of this act and the zoning ordinance."

A substantial body of decisional law has developed in this area, and certain basic principles relating to the granting of special exceptions are well established.

A landowner who is entitled to a special exception is pursuing a permitted use, conditioned only upon his showing that all of the requirements of the relevant ordinance for the particular exception requested have been met. Township of Marple v. Ford, 13 Pa. Commonwealth Ct. 192, 318 A.2d 414 (1974); West Whiteland Township v. Exton Materials, Inc., 11 Pa. Commonwealth Ct. 474, 314 A.2d 43 (1974). Uses permitted through special exception are not violations of the ordinance, and in this respect special exceptions differ from variances. Township of Haverford v. Spica, 16 Pa. Commonwealth Ct. 326, 328 A.2d 878 (1974); Brunner v. Zoning Hearing Board of Upper Makefield Township, 12 Pa. ...


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