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JOHN LEONARD ET AL. v. ZONING HEARING BOARD CHELTENHAM TOWNSHIP ET AL. (02/22/83)

decided: February 22, 1983.

JOHN LEONARD ET AL., APPELLANTS
v.
THE ZONING HEARING BOARD OF CHELTENHAM TOWNSHIP ET AL., APPELLEES



Appeals from the Order of the Court of Common Pleas of Montgomery County in case of John Leonard et al. v. Zoning Hearing Board of Cheltenham Township and Crestview Convalescent Home, Inc., Nos. 81-22844 and 81-22845.

COUNSEL

Christina J. Barbieri, Kates, Livesey & Mazzocone, P.C., for appellants.

Morris Gerber, with him Gilbert P. High, Jr., Gerber & Shields, for appellees.

Judges Blatt, Craig and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 72 Pa. Commw. Page 238]

These consolidated appeals concern two orders of the Court of Common Pleas of Montgomery County which directed the posting of security in the appeal of two decisions of the Cheltenham Township Zoning Hearing Board (Board), and dismissed those appeals when Appellants failed to post the required security. We affirm both orders of the court of common pleas.

Appellants are landowners whose property abuts the property of the Crestview Convalescent Home (Crestview) located on Church Road in Cheltenham Township. Crestview has been operated as a state licensed skilled nursing care facility since 1954. Crestview seeks to expand its facility and Appellants are opposed to its expansion. The dispute over Crestview's expansion dates back to 1974, although the instant litigation does not. Examination of relevant facts since that time, however, will place in proper perspective the common pleas court's decision to require the posting of security.

In March of 1974, the Cheltenham Township Commissioners enacted ordinance No. 1318 which permitted special exceptions for the "expansion and/or replacement of an existing non-conforming nursing home" whenever the existing structure did not comply with the township, state, or federal regulations regarding size, capacity, safety or type of construction. Special exceptions were also permitted whenever reconstruction, addition or replacement was desirable to meet capacity standards specified in township,

[ 72 Pa. Commw. Page 239]

    state or federal regulations for the purpose of providing health insurance benefits to the nursing homes' occupants or patients. In 1974, Crestview applied for a special exception to expand its facility to 170 beds. The Cheltenham Township Zoning Hearing Board granted the requested special exception in June, 1974. Several of the abutting landowners who appeal here,*fn1 filed appeals with the Court of Common Pleas of Montgomery County, challenging both the decision granting the special exception and the validity of Ordinance No. 1318. Crestview intervened in both appeals.

In 1977, the court of common pleas dismissed the appeals and modified the decision of the Zoning Hearing Board reducing the number of beds permitted under the special exception to 153. The landowners appealed to this Court and we affirmed, finding no abuse of discretion or error of law. Appeal of Kates, 38 Pa. Commonwealth Ct. 145, 393 A.2d 499 (1978).*fn2 A petition for allowance of an appeal to the Pennsylvania Supreme Court was subsequently denied in 1979. Following that denial of allocatur, however, Crestview was financially unable to begin construction within the required time and the permission it had received to expand under the special exception lapsed.

On October 21, 1980, the Cheltenham Township Commissioners amended Ordinance No. 1318 by enacting Ordinance No. 1490. That enactment reduced the square footage of lot area required per bed and eliminated the requirement that the facility ...


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