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THOMAS KELLY AND HELEN KELLY v. ZONING HEARING BOARD UPPER MORELAND TOWNSHIP (02/14/85)

decided: February 14, 1985.

THOMAS KELLY AND HELEN KELLY, APPELLANTS
v.
ZONING HEARING BOARD OF UPPER MORELAND TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Thomas Kelly and Helen Kelly v. Zoning Hearing Board of Upper Moreland Township and Margaret L. King et al., No. 81-19176.

COUNSEL

Donald A. Semish, Semish & Grau, for appellants.

George B. Ditter, with him, Raymond Jenkins and S. Gerald Corso, Jenkins, Tarquini & Jenkins, for appellee.

President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Barry. Opinion by Judge Rogers. This decision was reached prior to the resignation of Judge Williams, Jr.

Author: Rogers

[ 87 Pa. Commw. Page 535]

Thomas Kelly and Helen Kelly, his wife, have appealed an order of the Court of Common Pleas of Montgomery County affirming a decision of the Zoning Hearing Board of Upper Moreland Township (board) which rejected their challenges to the validity

[ 87 Pa. Commw. Page 536]

    of the township zoning ordinance and their application for a variance.

Appellants' property is located in a residential zoning district where only single family residences on three acre lots are permitted uses. The appellants' lot on which their residence is located contains six acres. They purchased the property in 1945 by deed containing a restrictive covenant providing that the lot might not be subdivided so as to produce any lot containing less than three acres. This restriction was imposed upon all lots in the development called Oak Ridge Farm. When the restriction expired in 1960, the owners of lots in Oak Ridge Farm successfully petitioned the Board of Commissioners of Upper Moreland Township to adopt the three acre minimum lot size as a zoning regulation affecting their properties. The appellants were not petitioners but they knew of the action of other property owners and made no objection to it.

In 1981, the appellants formed a desire to subdivide their six acre lot into three parcels, each containing about two acres. They applied to the board for a variance and they challenged the validity of the three acre minimum lot size requirement. After three evenings of hearings, the board denied the variance. The appellants appealed to the court of common pleas which, without receiving additional evidence, affirmed the board.

On appeal before this court, "our scope of review is limited to determining whether the finder of fact . . . [here the board], abused its discretion or committed an error of law." DeCaro v. Washington Township, Berks County, 21 Pa. Commonwealth Ct. 252, 256, 344 A.2d 725, 727 (1975).

The appellants make three arguments: first, that the three acre minimum lot size requirement is unconstitutional

[ 87 Pa. Commw. Page 537]

    as having an exclusionary purpose and effect; second, that it is unconstitutional as an unreasonable exercise of police power; and third, that they had established their entitlement to a variance.

We agree with the trial court that the appellants failed to produce evidence overcoming the presumption favoring the validity of the contested ordinance or ...


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