Appeal from the Order of the Court of Common Pleas of Lancaster County, in case of In Re: Appeal of Eugene K. Martin from decision of Clay Township Zoning Hearing Board, No. 2502-1985.
Peter Schannauer, Law Office of J. Marlin Schreiner, for appellant.
Anthony P. Schimaneck, Morgan, Hallgren, Cross-well & Kane, P.C., for appellees.
Judges MacPhail, and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. Judge MacPhail dissents.
[ 108 Pa. Commw. Page 108]
This is an appeal from an order of the Court of Common Pleas of Lancaster County (trial court), entered
[ 108 Pa. Commw. Page 109]
January 14, 1986, affirming the denial by the Zoning Hearing Board of Clay Township (Board) of a special exception requested by Eugene K. Martin and Marvin R. Weaver (Petitioners).
Petitioners own a 67-lot subdivision in Clay Township which is zoned as Residential-2 (R-2). In an R-2 district, single family dwellings are a permitted use while apartments, of a restricted size, are permitted by special exception. Petitioners intend to develop 59 lots as single-family dwellings,*fn1 with the remaining 8 lots to be developed as four six-unit apartment buildings. Petitioners filed a request with the Board for a special exception. After a hearing, the Board denied Petitioner's request concluding that although Petitioners complied with the specific requirements for a special exception, the apartments, as developed, would adversely affect the district. Petitioners appealed the decision to the trial court, which affirmed the decision of the Board.
Petitioners now appeal to this court contending that the Board erred in denying the special exception.*fn2
An applicant, by showing the proposed use is permitted by special exception and that it complies with the specific requirements of the ordinance, identifies the proposal as one which the municipal legislative body has determined to
[ 108 Pa. Commw. Page 110]
be appropriate in the district and therefore presumptively consistent with the health, safety and ...