Argued October 5, 1979
November 2, 1979.
Zoning — Scope of appellate review — Error of law — Abuse of discretion — Special exception — Open air used car lot — Use variance — Dimensional variance.
1. In a zoning case where the lower court heard 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. 
2. An open air used car lot is not of the same general character as a retail sales operation conducted in an enclosed building and is thus not entitled to be treated as a special exception under a zoning ordinance which grants a special exception for use of property for retail sales in an enclosed building and businesses of the same general character. 
3. The effect upon the public interest of a use variance from a zoning ordinance is ordinarily greater than the effect of a dimensional variance, and a property owner is not entitled to a use variance merely because dimensional requirements of the zoning ordinance make permitted uses impossible. 
4. The power to grant variances from zoning ordinances should be exercised sparingly and only in exceptional circumstances. 
Argued October 5, 1979, before Judges ROGERS, BLATT and CRAIG, sitting as a panel of three.
Appeal, No. 804 C.D. 1979, from the Order of the Court of Common Pleas of Delaware County in case of Robert E. Cook and Paula F. Cook and Puritan Oil Company, Inc. v. The Zoning Hearing Board of The Township of Ridley, No. 736 of 1979.
Application to The Zoning Hearing Board of the Township of Ridley for special exception or variance from zoning ordinance. Application denied. Applicant appealed to the Court of Common Pleas of Delaware County. Special exception granted. JEROME, J. Township appealed to the Commonwealth Court of Pennsylvania. Held: Reversed. Zoning board order reinstated.
Robert N. Speare, with him Peter A. Dunn, and Petrikin, Wellman, Damico Carney, for appellant.
James R. Flick, with him Anderman, Hughey Flick, for appellees.
Ridley Township has appealed an order of the Court of Common Pleas of Delaware County, overturning a decision of the Township's Zoning Hearing Board. The Zoning Hearing Board denied the application of Robert E. Cook and Paula F. Cook, equitable owners, and Puritan Oil Company, Inc., record owner, for a variance or, in the alternative, a special exception which would permit the use of their narrow triangular parcel of ground as an open air used car lot. The court below heard no evidence so that it is our duty in this case to determine whether the Zoning Hearing Board committed an error of law or an abuse of discretion. We believe that it did neither and will reinstate its order.
The parcel of land in question is bounded on all three of its sides by public streets. One side is 71 feet in length and the other two each about 260 feet. It is located in the C-2 General Commercial Zoning district in which uses are allowed by the following zoning provisions:
Any retail business whose principal activity is the sale of new merchandise in an enclosed building including, but not limited to, the following: Automobile sales, boat sales, motorcycle sales. . . .
Uses which in the opinion of the Zoning Hearing Board are of the same general character as those listed as permitted uses and which will not be detrimental to the intended purpose of this district.
The landowners argued successfully below that Section 8.207 permitting uses of the same general character as those listed in Section 8.202 authorize such similar uses as special exceptions. They reason from this conclusion that the only issue was whether the township had shown that an open air used car lot would be contrary to the health, safety and general welfare of the community. Concluding that it would not, the court below held that the special exception should issue. Whether or not the "same general character" uses allowed by Section 8.207 are merely permitted uses or uses allowed by special exception, the question of whether an open air used car lot is a use of the same general character as a retail business whose principal activity is the sale of new merchandise in an enclosed building, persists. The question is one of law. We hold that an open air used car lot is not of the same general character as a retail business conducted in an enclosed building. The used car lot was not, therefore, either a permitted use or a use permitted by special exception.
See Section 913 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 10913.
The court below having decided that the used car lot was permitted by special exception and that the township had not shown a deleterious effect on the health, safety and welfare of the community, reversed the Zoning Hearing Board without discussion of the landowners' application for a variance. The landowners say that we should now decide that they proved the necessity for the grant of a variance and that we should reverse the Zoning Hearing Board decision on this ground. Their argument is that the characteristics of their lot — long, narrow and bounded entirely by streets — are such that they could not erect on it a building in which anything, much less a retail business, could be conducted. Their thesis begins with reference to a requirement of the zoning ordinance that buildings be set back 30 feet from all streets. Since the base of their triangular lot is only about 70 feet long, adherence to the set back requirement would allow for a building only five feet wide. A real estate expert testified that such a building could not accommodate a retail business. Hence, say the landowners, a variance from the ordinance's use regulation which will permit them to conduct an open air used car business must issue. The fallacy of this argument lies in the assumption that the set back requirements are immutable but that the use requirement may, and in this case must, be varied in relief of their unnecessary hardship. Again they err. It has been recognized that the effect upon the public interest of a use variance is ordinarily greater than the effect of a dimensional variance. Pyzdrowski v. Pittsburgh Board of Adjustment, 437 Pa. 481, 490, 263 A.2d 426, 431 (1970). Further, it is settled principle that the power to grant variances should be exercised sparingly and only in exceptional circumstances. McClure Appeal, 415 Pa. 285, 203 A.2d 534 (1964). Necessary corrolaries of these rules are that the scope of a variance should not exceed that reasonably necessary to relieve the unnecessary hardship caused by the zoning regulations and that a use variance should not ordinarily be granted if a dimensional variance will cure the hardship.
Ridley Township appears to say that the dimensions of the lot here in question are such that it should not be used for anything, although it was once used as a gasoline service station. We observe that if the lot was owned in sole and separate ownership before the existence of zoning regulations which now make a conforming use impossible, some variances may be required to issue to make its use possible. Jacquelin v. Horsham Township, 10 Pa. Commw. 473, 312 A.2d 124 (1973).
AND NOW, this 2nd day of November, 1979, the order of the Court of Common Pleas of Delaware County is reversed and the decision of the Zoning Hearing Board of Ridley Township is reinstated; without prejudice, however, to the right of the appellees, or their successors in ownership of the premises in question, to apply for appropriate relief from zoning restrictions as indicated in the opinion filed herewith.