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APPEAL GRACE BUILDING CO. v. ZONING HEARING BOARD UPPER MERION TOWNSHIP (10/18/78)

decided: October 18, 1978.

IN RE: APPEAL OF GRACE BUILDING CO., INC. FROM THE DECISION OF THE ZONING HEARING BOARD OF UPPER MERION TOWNSHIP, AS TO LOTS 6 THROUGH 9, SECTION "E", LINCOLN AVENUE, UPPER MERION TOWNSHIP, MONTGOMERY COUNTY, PENNSYLVANIA. GRACE BUILDING CO., INC., APPELLANT
v.
ZONING HEARING BOARD OF UPPER MERION TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Grace Building Company, Inc. v. Zoning Hearing Board of Upper Merion Township, No. 75-11510.

COUNSEL

Alfred O. Breinig, Jr., for appellant.

Gregory J. Dean, with him Meneses and Dean, for appellee.

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

Author: Blatt

[ 38 Pa. Commw. Page 179]

The Grace Building Co. (appellant) appeals here from an order of the Court of Common Pleas of Montgomery County which affirmed a decision of the Zoning Hearing Board of Upper Merion (Board) denying the appellant's request for a special exception and/or variance to construct a dwelling on an undersized lot.

The appellant is the owner of three lots located in an area of Upper Merion Township which is zoned R-2

[ 38 Pa. Commw. Page 180]

    residential. It is also the equitable owner of another lot contiguous to these three. The four lots are laid out in a subdivision plan which had been approved in 1925, predating by many years the adoption of the Upper Merion zoning and subdivision ordinances and each of the lots is 20 feet in width and 100 feet in depth. The appellant desired to combine these lots so as to construct thereon a single family residence. The combined lots meet all of the dimensional requirements of the R-2 district except that of total area, with the R-2 ordinance requiring a 10,000 square foot area and the combined lots having an area of only 8,000 square feet. The appellant therefore applied to the Board for a variance and/or special exception to build the residence on the undersized lot, and the Board denied both requests. The lower court, without taking further evidence, affirmed the Board's decision, and this appeal followed.

Our scope of review in zoning cases where the court below took no additional evidence is limited to a determination of whether or not the Board abused its discretion or committed an error of law. Warwick Land Development Corporation v. Board of Supervisors, 31 Pa. Commonwealth Ct. 450, 376 A.2d 679 (1977).

The Board and the lower court denied the application here for a special exception on the basis that the appellant had failed to sustain its burden to show that its application was within the provision authorizing the special exception. The application was based on Section 1601A of the Upper Merion Township zoning ordinance,*fn1 which provides as follows:

[ 38 Pa. Commw. Page 181]

A. When authorized as a Special Exception, a building may be erected or altered on any lot held in single and separate ownership on the effective date of this Ordinance which is not of the required minimum area or width or is of such unusual dimensions that the owner would have difficulty in providing the ...


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