25 Pa. Commw. 626 | Pa. Commw. Ct. | 1976
Opinion by
This is an appeal by the Township of Upper More-land from an order of the Court of Common Pleas of Montgomery County, dated July 22, 1975, which dismissed the Township’s appeal from an order of the Zoning Hearing Board of the Township of Upper Moreland. The Board’s order granted use, area, width, front-yard and side-yard variances to Edward H. Heller for the construction of a duplex. We affirm the order of the court of common pleas.
The subject property is apparently
Our scope of review where the court of common pleas has not received additional evidence is limited to determining whether the Board abused its discretion or committed an error of law. AFSO Builders, Inc. v. Zoning Hearing Board of the Township of Upper Darby, 12 Pa. Commonwealth Ct. 100, 314 A.2d 860 (1974).
Preliminarily we note that the Township has conceded that because of the small size of Heller’s lot the ordinance does not permit any construction in strict conformity with the applicable restrictions. Consequently, the Township does not question the area, front-yard and width variances granted to Heller. The Township’s appeal is limited to a challenge of the use
The requirements for a variance have been explicitly defined:
“To obtain a variance, a property owner must prove (1) that an unnecessary hardship unique to the property exists; and, (2) that the variance, if granted, would not be contrary to the public health, safety, welfare or morals.
“An unnecessary hardship can be established: (1) by a showing that the physical characteristics of the property were such that it could not in any case be used for the permitted purpose or that the physical characteristics were such that it could only be arranged for such purpose at prohibitive expense ... or (2) by proving that the characteristics of the area were such that the lot has either no value or only a distress value
Township of 'Haverford v. Spica, 16 Pa. Commonwealth Ct. 326, 330-31, 328 A.2d 878, 881 (1974); Surrick v. Zoning Hearing Board of the Township of Upper Providence, 11 Pa. Commonwealth Ct. 607, 613-14, 314 A.2d 565, 568 (1974).
The Township contends
Heller correctly observes that many cases have acknowledged the uses of adjacent and surrounding land may be relevant to the question of hardship. See Filanowski v. Zoning Board of Adjustment, 439 Pa. 360, 266 A.2d 670 (1970); Borough of Ingram v. Sinicrope, 8 Pa. Commonwealth Ct. 448, 303 A.2d.855 (1973); McKay v. Board of Adjustment, 8 Pa. Commonwealth Ct. 29, 300 A.2d 810 (1973); Pfile v. Borough of Speers, 7 Pa. Commonwealth Ct. 226, 298 A.2d 598 (1972); and J.M.W., Inc. v. Zoning Hearing Board of Chester, 61 Del. Co. Rep. 485 (1973). The applicant
Heller did not have to show that the land could not be sold for the permitted purposes through evidence of actual attempts at sale. Pfile, supra. Conversely, Heller could not carry his burden of proof by merely offering his personal opinion that a single-family home would not be marketable. Board of Commissioners of Upper Moreland Township v. Zoning Hearing Board of Upper Moreland Township, 22 Pa. Commonwealth Ct. 361, 349 A.2d 507 (1975).
We have examined the record
Order affirmed.
The parties have not made a copy of the ordinance available to us and we thus cannot examine the use restrictions firsthand. The briefs indicate that there is no disagreement over what the ordinance requires.
The Township also questions whether the court' of common pleas properly applied its appellate scope of review. In light of the fact that this Court, like the court of common pleas, is reviewing the action of the Board, this issue need not be considered.
Much, but Hot all, of the specific evidence of the surrounding uses (the areh is dominated by various commercial and multifamily uses, including many duplexes) is found in the transcript of a prior Board hearing which involved another nearby property owned by Heller. This second transcript was certified to this Court as part of the record in the instant case. Although this additional evidence was not formally incorporated into .the record at the Board’s hearing in the instant case, it was “noted for the record” that the instant property is adjacent to the lot involved in the prior hearing, and specific reference was made to the prior proceeding by the. Board Chairman. Additionally, the adjacent property was referred to without objection at several points in the hearing. We do not condone the failure of the Board and counsel to formally incorporate this prior transcript into the record, but we believe that under the circumstances of this case, we may consider this transcript as supportive of the Board’s findings. Although the Township disputes the evidentiary support of its Board's findings, it does not assert that the picture of the community painted by the Board and the court of common pleas is in error or misleading.