Appeal from the Order of the Court of Common Pleas of Chester County in case of In Re: Appeal of John J. Bateman Associates (A Limited Partnership), No. 19 August Term, 1975.
Thomas P. Mohr, with him W. Richard Gentry, and Gentry and Mohr, for appellant.
Robert F. Adams, with him Gawthrop & Greenwood, for appellee.
Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 39 Pa. Commw. Page 580]
This zoning appeal by John J. Bateman Associates (landowner) presents the question of whether part of land area already counted for zoning requirement purposes, with respect to existing apartment development, can be credited a second time for compliance with the same type of requirement, with respect to retail store development proposed to be added to the same land parcel.
Landowner's parcel, in a C-Commercial district of Westtown Township, Chester County, has an area of 455,202 square feet, a fraction more than 10 acres. In 1966, the landowner submitted a special exception application, embracing the entire ten-acre parcel, to construct a 94-unit apartment development. The Westtown Township Board of Adjustment, now the zoning hearing board (Board), granted the special exception because it complied with all of the Westtown Township Zoning Ordinance (Ordinance) requirements as
[ 39 Pa. Commw. Page 581]
they then stood, including a floor area ratio requirement*fn1 of 0.40 maximum, set forth in Section 302 as applicable to the Commercial District.
In 1971, the township amended the Ordinance to add a Section 302.1, providing a new floor area ratio for apartments in the Commercial District, to be "maximum, 1 apartment per 5,000 square feet." At the same time, Section 302 was amended to read as follows:
In the commercial (C) district, the following regulations shall apply to all uses, except apartments and multi-family dwellings : . . . (Emphasis supplied.)
As amended, the section restated the original floor area ratio maximum of 0.40.
Thus, from the time that Section 302.1 was added, 470,000 square feet (94 units times 5,000 square feet) became the land area required with respect to 94 apartment units.*fn2 Walter v. Philadelphia Zoning Board of Adjustment, 437 Pa. 277, 263 A.2d 123 (1970). All of the parcel's 455,202 ...