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FLORENCE M. HAMILTON ET AL. v. ZONING HEARING BOARD WHITEMARSH TOWNSHIP (03/12/81)

decided: March 12, 1981.

FLORENCE M. HAMILTON ET AL., APPELLANTS
v.
ZONING HEARING BOARD OF WHITEMARSH TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of In Re: Appeal of Lafayette Hill Professional Building, Inc. from the decision and action of the Zoning Hearing Board of Whitemarsh Township, Montgomery County, Pennsylvania, No. 77-7580.

COUNSEL

Gerald T. Hathaway, Cunniff, Bray & McAleese, for appellants.

S. Gerald Corso, Jenkins, Tarquini & Jenkins, for appellee.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt. Dissenting Opinion by Judge Rogers.

Author: Blatt

[ 57 Pa. Commw. Page 452]

Seven adjoining landowners (appellants) appeal here from an order of the Court of Common Pleas of

[ 57 Pa. Commw. Page 453]

Montgomery County which affirmed a grant of a variance by the Whitemarsh Township Zoning Hearing Board to Lafayette Hill Professional Building, Inc. (Lafayette).

Lafayette's lot is an irregular tract, roughly a trapezium, consisting of 1.36 acres which fronts on Germantown Pike. It is presently entirely undeveloped and slopes downward from front to rear. The road frontage is about 200 feet and the mean distance to the rear of the lot is about 375 feet. The lot is divided by a township zoning boundary which runs parallel to Germantown Pike so that for a distance of 200 feet from the front of the lot the property is zoned as "CR-H" for commercial-retail buildings while the remaining portion in the rear of the lot is zoned as "B" residential. The rear portion of the lot has no road frontage and no road access except from Germantown Pike across the "CR-H" portion of the lot.

In 1977, Lafayette applied for a variance from the zoning ordinance to develop its entire lot for commercial retail purposes, proposing to construct a medical office building on the "CR-H" portion of the lot and to use the remaining, residential portion of the lot for parking and flood control.

After a hearing in April of 1977, the Board denied the requested variance on the grounds that the lot did not suffer from any unique physical characteristics which precluded its development in strict conformity with the zoning ordinance. On appeal, the court remanded the case to the Board on the grounds that, although the Board correctly found that strict compliance with the zoning ordinance was possible, it had failed to consider the economic hardship associated with such compliance.

After a subsequent hearing, the Board concluded that the residential portion of the lot could not be reasonably developed ...


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