Radnor Ind., Ltd.v.Radnor T. Z.H.B

Commonwealth Court of PennsylvaniaJul 6, 1983
75 Pa. Commw. 397 (Pa. Cmmw. Ct. 1983)

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Argued April 7, 1983

July 6, 1983.

Zoning — Variance — Scope of appellate review — Unnecessary hardship.

1. In a zoning variance case when the trial court receives no evidence, the scope of review of the Commonwealth Court of Pennsylvania is limited to a determination of whether the zoning hearing board abused its discretion or committed an error of law. [399]

2. The mere fact that under different zoning regulations a business would be able to expand so as to increase its economic advantage does not constitute an unnecessary hardship and does not require the grant of a variance. [399]

Argued April 7, 1983, before Judges BLATT, CRAIG and DOYLE, sitting as a panel of three.

Appeal, No. 1682 C.D. 1982, from the Order of the Court of Common Pleas of Delaware County in the case of Radnor Industries, Ltd. v. Zoning Hearing Board of Radnor Township, No. 79-17629.

Application to the Zoning Hearing Board of Radnor Township for variance. Application denied. Applicant appealed to the Court of Common Pleas of Delaware County. Appeal denied. SURRICK, J. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.

Mary R. Barr, with her Douglas D. Royal, Greenwell, Porter, Smaltz and Royal, for appellant.

Eugene H. Evans, Goldberg and Evans, for appellee.


Radnor Industries, Ltd., (Radnor) appeals here from an order of the Court of Common Pleas of Delaware County which affirmed an order of the Zoning Hearing Board of Radnor Township (Board) denying Radnor's application for a variance pursuant to Section 912 of the Pennsylvania Municipalities Planning Code (MPC). Radnor has alternatively and unsuccessfully challenged the substantive validity of the Residential (R-3) zoning of a portion of its property pursuant to Section 1004 of the MPC, 53 P. S. § 11004.

Act of July 31, 1968, P.L. 805, 53 P. S. § 10912.

Radnor is the equitable owner of a tract of land which is zoned R-3 in its southern half and Commercial-Office (C-O) in its northern half and which has been dual-zoned since 1928. It is improved with an office building of approximately 21,000 square feet, 9,900 square feet being in the Commercial District and 11,000 square feet in the Residential District. There are presently 60 parking spaces available, 38 of which are in the Commercial District and 22 in the Residential District.

Testimony in the record indicates that the building and parking spaces were able to encroach upon the R-3 portion of the lot due to a Boundary Tolerance provision of the Radnor Township Zoning Ordinance in effect at the time of development. This provision was eliminated in 1972, at which time the usage in the R-3 portion became a non-conforming use.

Desiring to expand its business, Radnor made application to the Board for a variance to add 65 parking spaces and one truck unloading berth in the R-3 portion of the lot. These additions are requested in conjunction with the proposed addition of 15,400 square feet of office space in the C-O half of the lot.

The Board denied Radnor's request for a variance because "there was no proof of hardship as required for the grant of a variance" pursuant to Section 912 of the MPC, 53 P. S. § 10912. This conclusion was based on the Board's finding that:

10. The only hardship proved at the hearing was a personal hardship as a result of [Radnor's] desire to expand the availability of commercial floor space rather than a hardship arising out of any topographical or physical feature unique and peculiar to the property.

Where, as here, the trial court receives no evidence, our scope of review is limited to a determination of whether or not the Board 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).

The issue before us, therefore, is whether or not Radnor has suffered an unnecessary hardship, which is substantial and of compelling force, as a result of a portion of its property being zoned R-3. See Magrann v. Zoning Board of Adjustment, 404 Pa. 198, 170 A.2d 553 (1961).

The mere fact that, under different zoning regulations, Radnor could expand its business so as to increase its economic advantage, does not constitute an unnecessary hardship and does not require the grant of a variance. Berger v. Zoning Hearing Board of Cheltenham Township, 54 Pa. Commw. 405, 422 A.2d 219 (1980). We have consistently held that mere economic hardship will not support the grant of a variance except where the zoning regulations render the applicant's property practically valueless, Commissioners of Plymouth Township v. Wannop, 13 Pa. Commw. 237, 320 A.2d 455 (1974), which is certainly not the case here, where the lot is improved with a 21,000 square foot office building and 60 parking spaces.

Radnor also challenges the substantive validity of the R-3 zoning for a portion of the property arguing that the dual-zoning of its lot has resulted in the confiscation of its property without compensation and is consequently invalid. Inasmuch as we have already determined that Radnor's property is presently being used for the office building and parking spaces, and there is no evidence in the record to support Radnor's allegation of confiscation, we believe that the Board correctly denied the challenge to the substantive validity of the ordinance.

We will, therefore, affirm the order of the Board.

ORDER

AND NOW, this 6th day of July, 1983, the order of the Court of Common Pleas of Delaware County in the above-captioned matter is hereby affirmed.