Appeal of O'Hara

• Decision Date: 26 April 1957
• Citation: 389 Pa. 35,131 A.2d 587
• Parties: Appeal of Most Reverend John F. O'HARA, C.S.C., Archbishop of Philadelphia. In the Matter of the Appeal of His Excellency, Most Reverend John F. O'HARA, C.S.C., Archbishop of Philadelphia, from Decision of Board of Adjustment of Cheltenham Township.
• Court: Pennsylvania Supreme Court

Page 587

131 A.2d 587

389 Pa. 35

Appeal of Most Reverend John F. O'HARA, C.S.C., Archbishop of Philadelphia In the Matter of the Appeal of His Excellency, Most Reverend John F. O'HARA, C.S.C., Archbishop of Philadelphia, from Decision of Board of Adjustment of Cheltenham Township.

Supreme Court of Pennsylvania.

April 26, 1957.

William F. Fox, Norristown, James E. Gallagher, Jr., Philadelphia, Fox Differ & Honeyman, Norristown, Stradley, Ronon, Stevens & Young, Philadelphia, of counsel, for appellant.

Samuel L. Sagendorph, Norristown, for individual intervenors-appellees.

Samuel H. High, Jr., Norristown, for Cheltenham Township, intervenors-appellees.

Before CHARLES ALVIN JONES, C. J., and BELL, CHIDSEY, MUSMANNO, ARNOLD, BENJAMIN R. JONES and COHEN, JJ.

BENJAMIN R. JONES, Justice.

The language of former Chief Justice Stern in Devereux Foundation, Inc. Zoning Case, 351 Pa. 478, 479, 41 A.2d 744, is particularly applicable to this appeal: 'We are here called upon to deal with a type of controversy in which two interests, each in itself legitimate and wholly commendable, come into conflict merely by reason of the proximity of their locations. The one interest is that of a school * * *, and the other that of the inhabitants of a fine residential suburban section who oppose * * *' erection of the school.

The following facts as they appear in the opinion of the learned court below are pertinent and relevant to this appeal:

1.

'His Excellency, Most Reverend John F. O'Hara, C. S. C., Archbishop of Philadelphia, * * *, is the equitable owner of approximately eighteen acres of vacant land located in Wyncote, Cheltenham Township, Montgomery County, Pennsylvania, having a frontage on Royal Avenue of 750.2 feet and bounded on the East and North by residences and on the West by the right-of-way of the Philadelphia and Willow Grove Street Railway Company * * *.

2.

'Said property is situate in an 'AA' residential district as defined by the Cheltenham Zoning Ordinance of 1929 as amended.

3.

'Said Zoning Ordinance as to 'AA' Residence Districts, Article III, provides, inter alia, as follows: 'Section 301.--A building may be erected, altered, or used and a lot or premises may be used for any of the following purposes and for no other: (3) Educational, religious, or philanthropic use by and with the consent of the Board of Adjustment, excluding hospital, sanitarium, rest home or correctional institution and including dormitory of an educational institution.' (Italics added.)

4.

'On June 25, 1954, petitioner filed his application requesting a special exception so that said premises might be used for educational purposes, a regional diocesan high school to serve fourteen parishes.

5.

'At the public hearing held on August 24, 1954, the plans provided for the erection of a regional, diocesan high school, three stories high, 337 feet in length by 65 feet in width with two extensions in the rear, one for a gymnasium and the other for an auditorium to accommodate 1,000 to 1,200 Catholic boys and girls, not to exceed 2,000 students. In addition, it was planned to construct a faculty house to accommodate 40 priests; three small convents for 20 sisters each, a parking area to accommodate 436 automobiles and in the rear a stadium for athletic events with portable seating to accommodate 3,200 persons.

6.

'On December 1, 1954, the Board of Adjustment, in a twelve page report, denied the application for a special exception * * *. 7.

'Three hearings were held (before the court below) and petitioner had made various changes in his plans and proposals, concerning the size of the high school building and faculty accommodations, and has entirely eliminated the stadium. (Words in parentheses added.)

8.

'The present plan before the court provides for the erection of a diocesan high school covering four years of high school education, which will serve fourteen parishes. * * * There will be no students attending the proposed high school from the City of Philadelphia.

9.

'The present proposed high school is to be built to accommodate 1,200 pupils and will not be expanded to accommodate more than 1,600 pupils.

10.

'There are presently a total of 1,035 Catholic children of high school age in the fourteen parishes that would be served by the proposed diocesan high school. * * *

11.

'The tract of land upon which the proposed high school is to be erected contains approximately eighteen acres with a frontage of approximately 750 feet on Royal Avenue, a public street in Cheltenham Township, having a 40 foot right-of-way with 24 feet paved between curbs, but no sidewalks. Said tract is approximately 600 feet from Easton Road and approximately 1,000 feet distant from Rice's Mill Road and the westerly line of the property abuts a right-of-way of the Philadelphia Transportation Company, which operates a street railway from Philadelphia to Willow Grove.

12.

'The proposed high school building will be 242 feet in length, fronting on Royal Avenue, and 65 feet in depth. It is the top cross member of a letter 'T', the stem of the 'T' being 120 feet deep and 98 feet wide. The building itself will set back 90 feet from the center line of Royal Avenue or 70 feet from the ordained road width.

13.

'The school building will be of modern, fire-proof brick construction and design, containing three floors and a basement, * * *.

14.

'Said proposed building is to contain 24 classrooms, a gymnasium or auditorium * * *.

15.

'With permission of the municipal authorities, petitioner plans to widen Royal Avenue, so that in front of the school for a total distance of 440 feet Royal Avenue would be widened to an extra width of 20 feet, and for the balance of the frontage on Royal Avenue, a widening of 8 feet.

16.

'In addition to the widening of Royal Avenue, petitioner proposes to install a paved secondary 20 foot wide highway parallel to Royal Avenue and about 30 feet to the north of Royal Avenue; also 20 feet wide entrance and exit roads leading to a parking area to the rear of the school.

17.

'The proposed parking area is to be located 285 feet from Royal Avenue and would safely park 164 cars. In addition, there would be single parking capacity or easy single car passage for 60 more cars, making a total of off-highway parking for 224 cars. This would furnish more offstreet parking facilities than required by the township ordinance.

18.

'Concrete sidewalks are planned along the Royal Avenue frontage and access sidewalks entirely around the school as well as access sidewalks to all secondary buildings.

19.

'The plans also provide for the erection of three residence buildings on the tract, two being convents accommodating 20 persons, and a male faculty residence accommodating approximately 15 persons.

20.

'The buildings will occupy 5% of the total area of the land, and 6.2% when all planned buildings are completed. Approximately one-third of the total area will be used for school, living, and parking purposes, and two-thirds of the area in the rear will be undeveloped but used for recreational purposes, but not for a stadium.

21.

'This 18 acre tract is located in Wyncote in the middle of an 'AA' residential district which district has been almost completely developed by the construction of from 325 to 350 fine, single family dwellings ranging in value from $20,000 to $40,000 each.

22.

'The residential district in which petitioner's property is located was developed entirely for country or suburban residential living and all of the township streets in this vicinity which lead to petitioner's land are narrow streets intended to accommodate limited traffic for residential purposes. This neighborhood has no sidewalks or municipal street lighting.

23.

'Royal Avenue, being the only street on which petitioner's property fronts, affords the only entrance and exit to the property. It is 2300 feet in length. Its western terminus is at Easton Road and its eastern terminus is at Rice's Mill Road. The width of the cartway is 24 feet. The access roads from Church Road, such as Mulford Road, Gribbel Road, Sinkler Road, Rice's Mill Road, and Bickley Road are black-top roads with a paved cartway of 24 feet, with the exception of Mulford Road which is like a winding country lane. All of these roads are only wide enough for ordinary residential traffic. Some of the intersections of these roads with Royal Avenue are dangerous intersections for vehicles and pedestrians.

24.

'Royal Avenue can be entered from Easton Road, Rice's Mill Road, and the above access streets from Church Road. It is estimated that 720 students would come to this school by public transportation, either Reading Company bus lines or Philadelphia Transportation Company street railway; 240 would walk to school, and 240 would come by private car. No school buses would be operated by the school or the archdiocese.

25.

'The use of this tract for a regional diocesan high school, * * *, will increase traffic * * *.

26.

'To remedy this condition, the township would be required to spend thousands of dollars on the widening of the nearby streets, provide safe sidewalks for the public, especially these pupils, and install proper street lighting and traffic controls.

27.

'This requested use of the land will change the quiet residential character of the neighborhood and will have a slight damaging effect on real estate values and the entire neighborhood.

28.

'Adjacent to this tract on Royal Avenue there is an 8 inch sanitary sewer which is adequate to carry the burden that would be placed upon it by the school and other buildings, but there is a possbility that a pump might have to be installed.

29.

'There are no storm sewers available in the area and with the construction of the school, accessory buildings, sidewalks and parking area, the run-off of surface water from the tract will be increased and it might be necessary to install some kind of storm water sewers, especially to the East of this...