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FRANKLIN AND MARSHALL COLLEGE v. ZONING HEARING BOARD CITY LANCASTER. DOROTHY J. KORN (03/31/77)

decided: March 31, 1977.

FRANKLIN AND MARSHALL COLLEGE
v.
THE ZONING HEARING BOARD OF THE CITY OF LANCASTER. DOROTHY J. KORN, RICHARD W. BOMBERGER, CATHERINE S. BOMBERGER AND THE CITY OF LANCASTER, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Lancaster County in case of Franklin and Marshall College v. The Zoning Hearing Board of the City of Lancaster, Trust Book No. 43, Page 347.

COUNSEL

Lawrence J. Keeting, with him James F. Heinly, and Morgan, Hallgren & Heinly, for appellants.

John Paul Kershner, with him W. Jeffrey Sidebottom, and Barley, Snyder, Cooper & Barber, for appellee.

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

Author: Wilkinson

[ 29 Pa. Commw. Page 479]

Franklin and Marshall College (F & M) applied on January 13, 1976, for zoning approval and a building permit to convert a single-family dwelling it owns at 611 College Avenue, Lancaster, into a boarding house to accommodate 15-19 students. The property for which F & M seeks a special exception under Article 5 of the Lancaster Zoning Ordinance (Ordinance) is located in a CA (Conversion-Apartment) District. Conversion plans include the construction of an addition to the existing structure. Upon completion,

[ 29 Pa. Commw. Page 480]

F & M plans to lease the house to the Zeta Beta Tau Fraternity. Of the 11 dwellings on the block, 2 are already fraternities. On February 2, 1976, a hearing was held before the Zoning Hearing Board of the City of Lancaster (Board) and on March 2 the Board rejected the application for a special exception on the basis that another fraternity was "not compatible with adjacent and other properties in the district." An appeal was filed with the Court of Common Pleas of Lancaster County and a hearing held on June 7, 1976. On June 11 the lower court ruled that there was no substantial evidence that F & M's plans would substantially affect the health, safety and welfare of the community and ordered the Board to grant the special exception. The Board then filed this appeal.

Three major issues have formed on appeal: Did F & M comply with the Ordinance's minimum off-street parking requirements; did F & M comply with the Ordinance's side yard requirements; and, is there substantial evidence to support the Board's finding that the proposed use would be detrimental to the welfare of the neighborhood?*fn1

[ 29 Pa. Commw. Page 481]

The parking requirements necessary for the issuance of the special exception are found in Article 8 of the Ordinance. The Board denied F & M a special exception finding that: "Although the minimum off-street parking space required by ยง 078.4 are [sic] provided the spaces are not functional as presently arranged. Accordingly, in effect, parking hasn't been provided for." In so ruling, the Board relied upon the testimony of the city traffic engineer that "there may be some operational factors with getting the vehicles out of the parking lot." The witness testified on cross-examination, however, that the zoning requirements were satisfied by the proposed parking facility. No testimony was offered that the plan violated any specific requirement of the Ordinance. The denial, therefore, cannot stand.

Before a special exception is granted, Article 6 of the Ordinance requires that alterations to converted single-family dwellings have a 5 foot side yard. The north wall of the present structure for which F & M seeks a special exception is located 3 feet from the property line. F & M sought a variance to allow the new wing of the building to extend along the same line as the present structure, 3 rather than 5 feet from the property line. The Board ruled that a variance was not proper, which adjudication F & M does not appeal.

F & M now contends that the 5 foot side yard requirement is inapplicable to this type of structure. F & M points out that ...


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