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HENRY D. EVANS AND DEVEREUX FOUNDATION v. ZONING HEARING BOARD EASTTOWN TOWNSHIP (01/24/79)

decided: January 24, 1979.

HENRY D. EVANS AND THE DEVEREUX FOUNDATION, APPELLANTS
v.
ZONING HEARING BOARD OF EASTTOWN TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Chester County in case of Henry D. Evans and The Devereux Foundation v. Zoning Hearing Board of Easttown Township, No. 166 January Term, 1977.

COUNSEL

Douglas D. Royal, with him Reese A. Davis, and Greenwell, Porter, Smaltz & Royal, for appellants.

John S. Halsted, with him Kevin Holleran, and Gawthrop & Greenwood, for appellee.

Judges Crumlish, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 40 Pa. Commw. Page 105]

This appeal is by The Devereux Foundation (Foundation) and Henry D. Evans (Evans) from an order of the Court of Common Pleas dated August 4, 1977, which affirmed the Zoning Hearing Board of Easttown Township's (Board) denial of a request for a continuance of a non-conforming use and denial of an application for a special exception and/or variance from the Easttown Township Zoning Ordinance of 1939.

The subject property is located at 208 Old Lancaster Road, Devon, Chester County, Pennsylvania, in a district zoned "R-1" Residential. Under Section 401 of the Easttown Township Zoning Ordinance permissible uses in R-1 districts include certain residential, religious, educational, recreational and farm uses. General office use is not permitted in an R-1 district. The Foundation is the legal titleholder of the subject tract and has entered into a conditional sales agreement with Evans, the equitable titleholder.

In 1923 the property in question was purchased by Helen T. Devereux for use by the Foundation, a non-profit, non-public educational institution providing residential treatment for the retarded and emotionally disturbed. Since that time it has been used as a residence for Ms. Devereux and for various support activities of the Foundation which include dormitory, infirmary, commissary and office use. Such use by the Foundation is permissible as a non-conforming use since it predated enactment of the Township's ordinance.

Should Evans be granted the relief requested, he would purchase the property after which he proposes

[ 40 Pa. Commw. Page 106]

    to use part as his residence and to lease the remainder to one or more tenants for use as commercial office space.

Appellants' application to the Board sought granting of the proposed use based upon three alternative grounds for relief. They argue they are entitled to (1) a continuance of an existing non-conforming use; (2) a grant of a special exception in accordance with Section 1500(1)(a) of the zoning ordinance*fn1 and/or (3) a variance pursuant to Section 912 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10912. Board denied all three requests, the trial court affirmed, and this appeal followed.

Appellants' initial contention that the proposed use of the tract is a continuance of an existing non-conforming use rather than a new or changed use is without merit. In order for Appellants to be granted a continuance of an existing non-conforming use, it must be determined that the present use is an office use. However, a careful review of the record indicates the Board did not make an error of law in interpreting the present use as essentially an educational one.*fn2 Courts in this Commonwealth have long held that the term ...


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