Opinion
Argued September 12, 1984
November 5, 1984.
Zoning — Variance — Scope of appellate review — Error of law — Abuse of discretion — Gasoline pump canopy — Unnecessary hardship — Economic hardship.
1. In a zoning case where the lower court took no additional evidence, review by the Commonwealth Court of Pennsylvania is to determine whether the zoning board abused its discretion or committed an error of law. [25]
2. A proposed canopy over gasoline pumps to shelter gasoline patrons and to provide cover for convenience store patrons may properly be found not to constitute service equipment of a gasoline retailer entitled to a zoning exemption applicable to gasoline pumps and other service equipment. [26]
3. An applicant for a variance must establish the existence of an unnecessary hardship unique or peculiar to the property, and a dimunition of expected profits is merely an economic hardship and does not constitute an unnecessary hardship in the absence of proof that the property as zoned is practically valueless. [27]
Judge DOYLE filed a dissenting opinion which was substantially as follows:
1. A canopy over gasoline pumps should properly be categorized as service equipment and should be entitled to the same exemptions granted pumps under an ordinance granting such exemption to gasoline pumps and other service equipment. [28]
Argued September 12, 1984, before Judges WILLIAMS, JR., CRAIG and DOYLE, sitting as a panel of three.
Appeal, No. 301 C.D. 1984, from the Order of the Court of Common Pleas of Dauphin County in case of Pilot Oil Corporation v. Zoning Hearing Board of West Hanover Township, No. 2744 S. 1983.
Application for variance with West Hanover Township Zoning Hearing Board. Application denied. Applicant appealed to the Court of Common Pleas of Dauphin County. Appeal denied. MORGAN, J. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
C. Kent Price, Hepford, Swartz, Menaker Morgan, for appellant.
F. R. Martsolf, Connelly, Martsolf Reid, for appellee.
This is an appeal by Pilot Oil Corporation (Pilot) from an order of the Court of Common Pleas of Dauphin County which affirmed a zoning board decision denying it a variance.
Pilot holds an option to purchase a tract of land in West Hanover Township (Township) upon which it proposes to construct a convenience store and a self-service fueling station. The tract is located in a Commercial General zoning district. As defined by the West Hanover Township Zoning Ordinance (Ordinance), a Commercial General district imposes a sixty foot front yard requirement on structures although allowing gasoline pumps and service equipment to be located not less than twenty-five feet from the property line. Due to the location of the tract, it is subject to the sixty foot yard requirement on two sides, that side facing Linglestown Road (Pennsylvania Route 39) and that side facing Jonestown Road (old U.S. Route 22).
Pilot requested a variance from the Township to construct a canopy over the gasoline pumps it planned to have located on the side of the tract facing Linglestown Road. The canopy, from its point of junction with the convenience store, would extend thirty-three feet into the front yard leaving twenty-seven feet remaining to the property line. After a hearing, the zoning hearing board denied the variance. Pilot appealed that denial to the Court of Common Pleas of Dauphin County which affirmed the denial on January 26, 1984.
Both in its appeal before the common pleas court and before this Court, Pilot contends that it is not required to obtain a variance to build its planned canopy and, in the alternative, it had carried its burden of proof before the zoning hearing board so as to be entitled to the variance. Our scope of review in zoning cases where the common pleas court took no additional testimony is limited to a determination of whether the zoning board abused its discretion or committed an error of law. Kuhl v. Zoning Hearing Board of Green Township, 52 Pa. Commw. 249, 415 A.2d 954 (1980).
As the common pleas court noted, since it took no additional testimony, its scope of review was likewise limited.
We first address Pilot's contention that it does not require a variance under the Ordinance to build its canopy. Pilot bases its argument on Article XVIII, Section B of the Ordinance which permits gasoline pumps and other "service equipment" to be located at least twenty-five feet from the property line. The proposed canopy would cover the gasoline pumps and Pilot maintains it is included as other service equipment subject to the twenty-five foot set-back requirement. The Ordinance does not define the term "service equipment." The zoning board rejected this argument finding the canopy to be a structure subject to the sixty foot set-back requirement. The common pleas court specifically found that the canopy is an elevated structure involving special zoning considerations. Unlike lighting fixtures and oil display racks, an elevated canopy is not within the ordinary understanding of the term "service equipment" as used in reference to the retail sale of gasoline. The common pleas court also found that one of the purposes of the canopy, other than sheltering patrons while at the pumps, is to shelter patrons going back and forth to its convenience store to pay for gas and other purchases. We also note that the plot plan included in Pilot's brief shows the canopy meeting the convenience store. Brief for Appellant at 11. Whether or not it is actually attached to the convenience store, we agree with the common pleas court that Pilot's planned canopy is more akin to an eave or cornice of a building, subject to a twenty-four inch overhang limitation, than "service equipment." Therefore, we conclude the canopy does not fit into the exception contained in Article XVIII, Section B, of the Ordinance and a variance from the sixty-foot front yard requirement is necessary.
Article XVIII, Section B, of the Ordinance reads as follows:
B. LOCATION OF GASOLINE PUMPS
Gasoline pumps and all other service equipment shall be set back not less than twenty-five (25') feet from any lot line and shall be located that vehicles stopped for service will not extend over the property line.
Article III, Section D(6)(a) of the Ordinance provides that cornices, eaves, gutters, bay windows, or chimneys may project into the minimum front, side or rear yard of a lot, not more than twenty-four inches. Reviewing the plan included in Pilot's brief as well as the transcript of the zoning hearing, we view the canopy essentially as an architectural extension of the convenience store. See Brief for Appellant at 11.
We next turn to Pilot's contention that it had met its burden of proof before the zoning board so as to be entitled to a variance. The law is clear that a variance from a zoning ordinance may be granted only in exceptional circumstances. The applicant must prove, among other things, that the present zoning restrictions result in an unnecessary hardship unique or peculiar to the property. Section 912 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 10912; Upper Leacock Twp. Supervisors v. Zoning Hearing Board of Upper Leacock Twp., 481 Pa. 479, 393 A.2d 5 (1978).
In the present case, the hardship about which Pilot complains is the diminution of its expected profits from the planned fuel center. Diminution of profitability has been long considered as legally insufficient to justify a variance. See Re Pierorazio, 53 Pa. Commw. 593, 419 A.2d 221 (1980). As noted by the learned common pleas judge, the proper tests for determining unnecessary hardship are: first, whether the property can be used in a reasonable manner within the restrictions of the Ordinance and not whether a proposed use is more desirable and, second, that financial hardship, short of rendering a property practically valueless, is insufficient to warrant the grant of a variance. Glazer v. Zoning Hearing Board of Worcester Township, 55 Pa. Commw. 234, 423 A.2d 463 (1980). On the evidence contained in the record, we conclude Pilot has not met its heavy burden of proving unnecessary hardship.
As we have found a variance is required to permit Pilot to construct its planned canopy and that Pilot has not carried its burden of proof, we affirm the order of the common pleas court denying Pilot's appeal from the denial of the variance.
ORDER
AND NOW, the 5th day of November, 1984, the order of the Court of Common Pleas of Dauphin County affirming the denial of a variance to Pilot Oil Corporation by the Zoning Hearing Board of West Hanover Township is hereby affirmed.
I respectfully dissent. While acknowledging that an elevated canopy is not within the ordinary understanding of the term "service equipment", once granted that gasoline pumps are themselves items of service equipment, an elevated canopy over the pumps would also be within the conception, given the specific frame of reference here, "gasoline pumps and other service equipment" (emphasis added). I believe the canopy would therefore be within the exception to the sixty foot set-back requirement.