86 Pa. Commw. 601 | Pa. Commw. Ct. | 1984
Opinion by
This is an appeal from the decision of the Court of Common Pleas of Allegheny County affirming with modifications the denial of a zoning variance. The petitioner, Susan Burger, sought a variance from the Zoning Hearing Board of the Municipality of Penn
Burger purchased the subject property, comprising 1.68 acres, in 1978. At the time of the purchase, the property was zoned R-l residential and was governed by Ordinance No. 992, enacted in August of 1963. Under this ordinance, certain non-residential uses were permitted in R-l residential districts; one of these uses was a “farm,” which was defined as:
Any parcel of land containing five acres or more with accessory buildings thereon, provided that such buildings other than one dwelling are not within three hundred (300) feet of •a property line. Truck gardens and nurseries shall be considered to be farms'.
In April of 1980, a new zoning provision, Ordinance No. 1617, was adopted and Ordinance No. 992 was repealed. Under No. 1617, the zoning classification of Burger’s property remained the same. Among the non-residential uses permitted in R-l residential districts is agricultor e/gardening. The term agriculture is defined as:
Farming, the cultivation of soil for the purpose of producing crops and/or raising livestock for either personal use or resale. Such activity shall be permitted only on tracts of land at least 5 acres in size and under single ownership or control.
On October 12, 1982, Burger filed an application with the Zoning Hearing Board requesting a variance from the five acre limitation imposed by Ordinance No. 1617. She asserted that because she was allergic to cow’s milk and to certain chemicals used by commercial growers of vegetables and chickens, she needed to grow her own vegetables and keep small animals on her property to provide organic food for
After a hearing, the Zoning Board, on December 28, 1982, denied the request for a variance. The Board concluded that Burger did not have legal ownership or control over five acres, and therefore did not conform to the requirements of Ordinance No. 1617. The Board also decided that the hardship asserted by Burger was a personal hardship, and not one imposed by the land itself. Finally, the Board found that there was no lawful nonconforming use upon which Burger could rely.
Burger appealed the Board’s decision to the Court of Common Pleas. Without taking additional testimony, the court affirmed the decision of the Board, but noted in its opinion that since Burger was lawfully raising rabbits and maintaining a garden — but not raising goats, geese and ducks — prior to the enactment of Ordinance No. 1617, she could continue to raise rabbits and maintain a garden, but could not expand these activities. Burger has appealed this decision and order.
Burger concedes that because she does not have ownership or control of five acres of land, her animal farming activities do not conform to the requirements' of Ordinance No. 1617. Nor does she dispute the determination that her hardship is a personal one, and thus not within the category of hardships which would support the granting of a variance. Her challenge is predicated on the contention that the raising of small animals on her property predated the enactment of both Ordinance No. 992 and Ordinance No. 1617, and therefore constitutes a legal nonconforming use which she is permitted to continue despite the statutory prohibitions. On this issue, the Board specifically found that there were no farm animals on the prop
"While we are not authorized to disturb findings and conclusions of the trial court which are not appealed, see Sheppard v. Old Heritage Mutual Insurance Co., 492 Pa. 581, 425 A.2d 304 (1980); Keller v. Scranton, 200 Pa. 130, 49 A. 781 (1901), we must nonetheless exercise our appellate review consistent with established precedent and independent of any legal errors which may be contained in the unappealed portions of the trial court’s decision. Thus, although the trial court determined that Burger’s farming activities were valid prior to the 1980 amendment, we cannot be bound by that determination for purposes of deciding whether Burger’s propagation of goats, ducks and geese constitutes an allowable nonconforming use. Bather, we must look to the undisturbed findings of the Board and the applicable legal precedent to determine whether these activities are permissible.
As noted earlier, the Board found that there was no raising of farm animals from 1958 until Burger
Burger raises two additional issues, procedural in nature. First, she contends that the Board should not have accepted and relied upon letters written by
Second, Burger contends that the trial court erred in issuing its decision without allowing her counsel the opportunity to present a motion pursuant to Section 1010 of the Pennsylvania Municipalities Planning Code, 53 Pa. C.S.A. §11010, for the taking of additional evidence. Burger asserts that her counsel was relying on the scheduling of a conciliation conference at which he intended to move to amend the record. Scheduled conciliation conferences were cancelled on two occasions; and then the court issued its decision without holding such a conference. Burger does not contend that a conciliation conference was a condition precedent to the court rendering a decision on her appeal. Furthermore, five months elapsed between' the filing of the appeal and the court’s decision, and-the court entertained both oral argument and written memoranda on the issue. As such, we believe that counsel had ample opportunity to present a motion to amend the record, and his failure to do so presents no reason to remand this case.
Accordingly, the order of the Court of Common Pleas of Allegheny County is affirmed.
And Now, this 31st day of December, 1984, the order of the Court of Common Pleas of Allegheny County is affirmed.