Summary
In John R. Greene Associates, a "traditional zoning case," factually similar to the present case, we upheld the lower court's decision to deny a variance for a 6-foot departure from side yard requirements.
Summary of this case from Twp. of Coal v. WillisOpinion
Argued December 12, 1980
February 12, 1981.
Zoning — Scope of appellate review — Abuse of discretion — Error of law — Variance — Burden of proof — Public welfare — Unnecessary hardship — Side yard requirements.
1. In a zoning case where the lower court receives no evidence, review by the Commonwealth Court of Pennsylvania is to determine whether the zoning board abused its discretion or committed an error of law. [607]
2. A property owner seeking a variance from zoning ordinance requirements must prove that a grant of the request would not adversely affect public health, safety or welfare and that the zoning regulation uniquely imposes upon his property an unnecessary hardship because as zoned the property because of its physical characteristics cannot be used for any permitted purpose or could be so used only at a prohibitive expense. [607-8]
3. A variance from side yard requirements of a zoning ordinance will not be granted unless such requirements make construction of a permitted building thereon impossible as otherwise an unnecessary hardship does not exist. [608]
Argued December 12, 1980, before Judges ROGERS, BLATT and MacPHAIL, sitting as a panel of three.
Appeal, No. 2617 C.D. 1979, from the Order of the Court of Common Pleas of Cumberland County in case of John R. Greene Associates v. Zoning Hearing Board of Lower Allen Township, No. 147 Civil, 1978.
Application with Zoning Hearing Board of Lower Allen Township for variance. Application denied. Applicant appealed to the Court of Common Pleas of Cumberland County. Denial affirmed. SHUGHART, P.J. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Francis A. Zulli, Reynolds, Bihl and Schaffner, for appellant.
Jerome T. Foerster, Cleckner and Fearen, for appellee.
Robert E. Yetter, Metzger, Wickersham, Knauss Erb, for party appellee.
This is an appeal from the Court of Common Pleas of Cumberland County which affirmed an order of the Zoning Hearing Board of Lower Allen Township denying the application of Greene Associates (appellant) for a dimensional variance from the Township's zoning restrictions.
The property in question consists of two adjoining lots, each having dimensions of 25 feet by 120 feet, and together forming a rectangular tract 50 feet wide by 120 feet deep. The property is located in an R-2 zone which, under the Township's zoning ordinance, requires that single-family dwellings have a minimum side yard width of 15 feet. The appellant seeks a variance from the restriction to build a single-family dwelling on the two-lot tract, with the house being 26 feet wide and 44 feet deep, leaving a 15-foot side yard on one side of the house but only a 9-foot side yard on the other side. The appellant requests a dimensional variance to permit this 6-foot departure from the 15-foot side yard requirement on the grounds that the zoning requirements impose an unnecessary and unique hardship on the use of the land.
The Board concluded that the appellant did not show an unnecessary hardship and denied the variance. The lower court, without taking additional evidence, affirmed the Board's denial.
Where, as here, the court below receives no evidence, our review on appeal is limited to a determination of whether or not the Board has abused its discretion or committed an error of law. Phelan v. Zoning Hearing Board of Lower Merion Township, 19 Pa. Commw. 63, 339 A.2d 612 (1975). And it is clear that an applicant is entitled to a variance only where he establishes (1) that the zoning regulation uniquely burdens his property so as to create an unnecessary hardship and (2) that the variance will not have an adverse effect upon the public health, safety or welfare. Board of Supervisors of Solebury Township Appeal, 49 Pa. Commw. 267, 412 A.2d 163 (1980); Hankin v. Zoning Hearing Board of West Norriton Township, 35 Pa. Commw. 164, 384 A.2d 1386 (1978). See also Section 912 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 10912. Moreover, for variance purposes, an unnecessary hardship may be said to result when, due to the physical characteristics of the property, it is impossible to make use of the property as a permitted use or use is possible only at a prohibitive expense. Canter v. Township of Abington Zoning Hearing Board, 43 Pa. Commw. 132, 401 A.2d 1240 (1979); Holmes v. Zoning Hearing Board of Kennett Township, 39 Pa. Commw. 447, 396 A.2d 859 (1978).
At the hearing before the Board, a representative of the appellant was asked if it would be possible to build a house on the property in conformity with the 15-foot side yard requirements, and he responded: "If we get much narrower than the 26 feet, I think the building would take on the appearance of possibly a mobile home or a modular home, and I don't think it would do any justice to the homes in the existing neighborhood." This was the only testimony brought forth at the Board hearing concerning any unnecessary hardship, and we agree with the Board that the appellant did not thereby fulfill its burden of proving that the side yard requirements constituted an unnecessary hardship for it.
A careful reading of the record indicates only that the appellant cannot comply with the side yard requirements unless it builds a narrower house than the one it proposes to build, and we have previously held that yard requirements do not constitute an unnecessary hardship unless they make the construction of a residence on the property impossible. Schaaf v. Zoning Hearing Board of Edinboro, 22 Pa. Commw. 50, 347 A.2d 740 (1975); Jacquelin v. Horsham Township, 10 Pa. Commw. 473, 312 A.2d 124 (1973).
The appellant's further argument that the condition alleged as a hardship was not self-inflicted is irrelevant. We will, therefore, affirm the order of the court below.
ORDER
AND, NOW, this 12th day of February, 1981, the order of the Court of Common Pleas of Cumberland County, dated December 3, 1979, which affirmed an order of the Zoning Hearing Board of Lower Allen Township, is affirmed.