Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Eugene A. Canter v. Township of Abington Zoning Hearing Board, No. 77-12589.
David M. Jordan, with him, of counsel, Wisler, Pearlstine, Talone, Craig & Garrity, for appellant.
James L. Price, for appellee.
Judges Wilkinson, Jr., Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 43 Pa. Commw. Page 133]
This is an appeal from an order of the Court of Common Pleas of Montgomery County reversing a decision of the Zoning Hearing Board of Abington Township (Board) which refused the grant of a variance to construct an open parking lot as an accessory to appellee's business. We affirm.
Appellee has operated a retail business in the township since 1972 in property located at the intersection of Jenkintown Road and Cadwalader Avenue in a building which had previously been used as the McKinley Fire Company firehouse. Appellee purchased the property from the fire company in 1972 and in that year, incident to the sale, the township supervisors agreed to rezone the property from an "H" residential district to an "F-1" residential district.
[ 43 Pa. Commw. Page 134]
Consistent with this rezoning, and pursuant to the requirements of the zoning ordinance for adequate parking facilities in a commercial district, the fire company agreed to permit appellee's employees and customers to use the parking lot at its new firehouse located on the opposite side of Jenkintown Road from appellee's business.*fn1 In the spring of 1976, the township and fire company erected "Do Not Enter" and "No Parking" signs at the entrance to the fire company lot. Appellee subsequently purchased the vacant lot across the street from his property on Cadwalader Avenue for the purpose of a parking lot for the convenience of his customers and requested a special exception or variance from the Board since this property was zoned in an "H" residential district.
The evidence at the hearing before the Board indicated that two gasoline stations and the firehouse were located on the remaining corners of the intersection of Jenkintown Road and Cadwalader Avenue; that the lot for which the variance or special exception was sought was situate between a gasoline station, zoned commercial, and a single family dwelling; and that the lot was non-conforming in size with respect to an "H" district having a 40 foot as opposed to the required 50 foot frontage. Testimony from the company's fire chief established that the signs were erected by and at the behest of the township to avoid liability occasioned by accidents and to permit firemen free access to the lot during emergencies. It was further uncontradicted at the hearing that appellee's
[ 43 Pa. Commw. Page 135]
customers and employees no longer used the fire company lot after the signs were erected. The Board determined appellee had established neither the right to a special exception nor the basis for a new variance under the township zoning ordinance. On appeal, the court of common pleas reversed, ...