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APPEAL LEWIS KATES ET AL. FROM DECISION CHELTENHAM TOWNSHIP ZONING HEARING BOARD. LEWIS KATES AND JUDITH KATES (10/16/78)

decided: October 16, 1978.

APPEAL OF: LEWIS KATES ET AL. FROM DECISION OF CHELTENHAM TOWNSHIP ZONING HEARING BOARD. LEWIS KATES AND JUDITH KATES, JOHN LEONARD AND BARBARA LEONARD, DONALD MAYER AND VERA MAYER AND ARNOLD ZASLOW AND BRENDA ZASLOW, APPELLANTS. (2 CASES)


Appeals from the Orders of the Court of Common Pleas of Montgomery County in cases of Lewis Kates and Judith Kates et al. v. Commissioners of Cheltenham Township, Montgomery County, Pennsylvania, No. 75-1670; and Appeal of Lewis Kates and Judith Kates et al. from Decision of Cheltenham Township Zoning Hearing Board and Crestview Convalescent Home, Inc., Intervenor, No. 74-10017.

COUNSEL

Lewis Kates, with him Joseph R. Livesey, and Kates & Livesey, for appellant.

Frank L. Newburger, III, with him Samuel H. High, Jr., Solicitor, for appellee.

Morris Gerber, with him Gerber, Maerz, Wilenzik & Shields, for intervenor.

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

Author: Blatt

[ 38 Pa. Commw. Page 147]

Two appeals from a consolidated order of the Court of Common Pleas of Montgomery County affirming decisions of the Cheltenham Township Zoning Hearing Board (Board) have been consolidated for argument and opinion of this Court. Lewis Kates and other owners (appellants) of residential property in the neighborhood in which the Crestview Convalescent Home (Crestview) is located have asked us to reverse both the grant of a special exception permitting Crestview's expansion and the decision upholding the validity of a zoning ordinance under which the exception was granted.

Crestview has been operated as a convalescent home since 1953 and is located in an R-3 residential district, as determined by Cheltenham Township's Zoning Ordinance of 1929. Although the use did not conform to the zoning restrictions, Crestview was granted a variance in 1965 to expand from thirty-five to fifty-three beds. Objections to the facility's variance request were withdrawn when the owners of Crestview promised that they would make no further expansion requests. In 1971 Crestview sought, and was granted by the Board, a second variance request to double its occupancy. This action, however, was reversed by the lower court, which found that Crestview had failed to establish the hardship necessary for the grant of a variance.

[ 38 Pa. Commw. Page 148]

In March, 1974, Cheltenham Township (Township) Commissioners enacted Ordinance No. 1318 (Ordinance) which added a provision to the nonconforming use section of the existing zoning ordinance to permit special exceptions subject to a number of requirements*fn1 for "the expansion and/or replacement of an existing nonconforming nursing home or home for the aged" when the building does not comply with township, state or federal regulations "as to size, capacity, safety or type of construction" or when reconstruction, addition or replacement is required to meet such

[ 38 Pa. Commw. Page 149]

    regulations "in order to provide Health Insurance Benefits to all occupants or patients." Crestview applied for a special exception to expand its facility from seventy to one hundred seventy beds pursuant to the Ordinance, and the Board granted the special exception on June 18, 1974. On appeal, the lower court dismissed the appellants' objections and affirmed the grant of the special exception but limited the number of beds to 153.*fn2 In a separate appeal to the lower court, these same appellants challenged the validity of the Ordinance, but the lower court also affirmed the Board's determination of its validity. Now before us is a review of the propriety of the grant of the special exception and the validity of the Ordinance.

Our scope of review here, in a case where the lower court has taken no additional evidence on an appeal from a zoning board, is limited to a determination of whether or not the Board committed an abuse of discretion or an error of law. Warwick Land Development Corporation v. ...


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