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APPEAL W. B. DODGE (05/24/79)

decided: May 24, 1979.

IN RE: APPEAL OF W. B. DODGE, JR. FROM THE DECISION OF THE UPPER MERION TOWNSHIP ZONING HEARING BOARD OF UPPER MERION TOWNSHIP AS TO LOTS NOS. 6 AND 7, SCHENLEY AVENUE, UPPER MERION TOWNSHIP, MONTGOMERY COUNTY, PA. W. B. DODGE, JR., APPELLANT


Appeal from the Order of the Court of Common Pleas of Montgomery County in case of W. B. Dodge, Jr. v. Zoning Hearing Board of Upper Merion Township, No. 76-01926.

COUNSEL

Alfred O. Breinig, Jr., for appellant.

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

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

Author: Wilkinson

[ 43 Pa. Commw. Page 66]

This is an appeal from the denial of an application for a special exception or variance to construct a single family dwelling on an undersized "lot" in Upper Merion Township (Township). The Court of Common Pleas of Montgomery County in an opinion and order sustained the determination of the Zoning Hearing Board (Board). We affirm the order.

Appellant is the owner of two contiguous lots (hereafter lots 6 and 7) which constitute the "lot" in issue. It is in an area of the Township which is zoned R-2 residential. The original two lots, now one "lot", are laid out in a subdivision plan, recorded in 1925, each 20 feet by 100 feet. At the time of the enactment of the Township zoning ordinance in 1942, and until 1961, the two lots were held by George Elliott and his wife. In 1961, lot 6 was conveyed to Godfrey Elliott and lot 7 to William Elliott. Thereafter, Grace Building Company, Inc., acquired lot 7 in 1964 and lot 6 in 1966 and subsequently conveyed both to appellant in 1969. On October 9, 1975, appellant sought a special exception or variance to construct a single family dwelling on the "lot", formerly two lots. The "lot" in every respect meets none of the dimensional requirements of an R-2 District, being most notably deficient in total area, R-2 requiring 10,000 square feet and the combined lots having an area of 3,940 square feet, and lot width, R-2 requiring 70 feet and the lots having a combined width of 40 feet. The Board found, inter alia, that the proposed use would substantially injure and detract from the use of neighboring property, would adversely affect

[ 43 Pa. Commw. Page 67]

    the character of the neighborhood and would be adverse to the public interest.*fn1

Section 2001-B of the Upper Merion Township Zoning Ordinance imposes the following guidelines on the Board in considering whether to grant a special exception:

B. [The Board] must determine that the proposed change will not substantially injure or detract from the use of neighboring property or from the character of the neighborhood and that the use of the property adjacent to the area included in the proposed change or plan is adequately safeguarded.

C. It must determine the proposed change will serve the best interest of the Township, the convenience of the ...


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