Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Lakeside Youth Service v. Zoning Hearing Board of Upper Moreland Township, No. 79-4623.
David P. Grau, with him, Donald A. Semisch, Semisch & Grau, for appellant.
Mabel Ditter Sellers, with her, Raymond Jenkins of Jenkins, Tarquini & Jenkins, for appellee.
Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.
[ 51 Pa. Commw. Page 486]
This is the appeal of Lakeside Youth Service from the order of the Court of Common Pleas of Montgomery County affirming an order of the Zoning Hearing Board of Upper Moreland Township denying Lakeside's application for a special exception.
Lakeside is a non-profit corporation which operates homes to which people who have committed criminal offenses may be assigned for supervision and rehabilitation. Lakeside agreed to purchase a dwelling
[ 51 Pa. Commw. Page 487]
house in Upper Moreland Township for the purpose of establishing a home for delinquent young females in court custody. The agreement to purchase is contingent on the approval of the use by township zoning authorities. The house is located in an O-Office Zoning District where single family detached dwellings are a permitted use.
Lakeside filed an application to use the house as a group home with the township Zoning Hearing Board without giving a name to the relief it sought. The Board in its notice of hearing described the application as one for a variance. After the hearing the Zoning Hearing Board approved the proposed use as a special exception. The township appealed this order to the Court of Common Pleas of Montgomery County which agreed that the notice informing that a variance was requested was ineffective as the basis for an order granting a special exception and remanded the matter to the Zoning Hearing Board for a new hearing to be conducted after proper notice.
The Zoning Hearing board scheduled a new hearing and advertised it as one concerning an application for a variance or a special exception. At the hearing, the notes of testimony of the earlier hearing were admitted and additional testimony of witnesses for the parties and that of a neighbor was received. This time the Zoning Hearing Board denied Lakeside any relief. On appeal the Montgomery County Court of Common Pleas affirmed the Zoning Hearing Board.
Lakeside presents two questions. It first says that the Zoning Hearing Board committed an abuse of discretion or erred at law by failing to grant a special exception on second hearing after granting one on the first, the evidence being essentially the same at both. It relies on our case of Grace Building Co. v. Hatfield Township, ...