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KENNETH R. SCHAFFER AND ERMA M. SCHAFFER v. ZONING HEARING BOARD UPPER DARBY TOWNSHIP AND CATHERINE M. TOPPITZER. CATHERINE M. TOPPITZER V. ZONING HEARING BOARD UPPER DARBY TOWNSHIP. KENNETH R. SCHAFFER AND ERMA M. SCHAFFER (10/26/77)

decided: October 26, 1977.

KENNETH R. SCHAFFER AND ERMA M. SCHAFFER
v.
ZONING HEARING BOARD OF UPPER DARBY TOWNSHIP AND CATHERINE M. TOPPITZER. CATHERINE M. TOPPITZER V. ZONING HEARING BOARD OF UPPER DARBY TOWNSHIP. KENNETH R. SCHAFFER AND ERMA M. SCHAFFER, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Kenneth R. Schaffer and Erma M. Schaffer, his wife, v. Zoning Hearing Board of Upper Darby Township; Catherine M. Toppitzer, Intervenor, No. 76-9471; and Catherine M. Toppitzer v. Zoning Hearing Board of Upper Darby Township, No. 76-1660.

COUNSEL

Thomas F. Schilpp, for appellants.

James C. Brennan, with him Hinkson & Brennan, for appellee.

Judges Rogers and Blatt, sitting as a panel of two. Opinion by Judge Rogers.

Author: Rogers

[ 32 Pa. Commw. Page 262]

This is an appeal of protesting neighbors from an order of the Delaware County Court of Common Pleas affirming the grant by the Upper Darby Township Zoning Hearing Board (Board) of variance for the expansion of Catherine M. Toppitzer's funeral home.

In 1934, George Toppitzer established a funeral business at the southwest corner of Garrett Road and Lansdowne Avenue in Upper Darby Township, Pennsylvania. After the enactment of the Upper Darby Zoning Ordinance (Ordinance) in 1938, the funeral

[ 32 Pa. Commw. Page 263]

    home was a nonconforming use of the original lot.*fn1 George Toppitzer died in 1966 and his widow, Catherine M. Toppitzer, became the sole owner of the business which she has carried on since that time, and of the real estate at Garrett Road and Lansdowne Avenue on which it was located.

In 1942, George Toppitzer purchased the premises at 354 Lansdowne Avenue which adjoins the Toppitzer Funeral Home to the south. A variance which permitted the parking of some cars in connection with the funeral business on a portion of this lot was granted to George Toppitzer in 1957.*fn2 Mrs. Toppitzer was the owner of this property at the time this case was begun by her application for a variance.

In 1959, George Toppitzer acquired the premises at 357 Owen Avenue. The rear boundary of this property abuts the original Toppitzer Funeral Home property. In July of 1959, the Zoning Board of Adjustment granted Mr. Toppitzer a variance to construct a twenty-eight foot driveway across this lot and to allow off-street parking at the rear of the premises for use in connection with the funeral business.*fn3 Mrs. Toppitzer also owned this property at the time she applied for the variance in this case.

In 1972, Catherine M. Toppitzer acquired premises at 359 Owen Avenue, the rear line of which also abuts the original Toppitzer Funeral Home property. The record in ...


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