93 Pa. Commw. 498 | Pa. Commw. Ct. | 1985
Opinion by
This appeal results from an order of the Court of Common Pleas of Delaware County which affirmed the decision of the Zoning Hearing Board of New-town Township (Board) denying an application for a special exception filed by Benito DiMartino (applicant) .
• Applicant purchased a lot in Newtown Township in 1959. He testified that he signed an agreement of sale in January, 1959; the closing, however, was not
The lot in question has frontage of seventy-five feet' and is 125 feet deep, thereby totalling 9,375 square feet. On March 30, 1959, the Board of Supervisors of Newtown Township amended the township’s zoning ordinance, requiring that single family residences in the zone in which applicant’s lot was located have frontage of at least eighty feet and a minimum lot size of 12,000 square feet. There were also requirements concerning the size ■ of the .side and rear yards as well as a provision that the building should not exceed twenty percent of the total lot area.
Section 1377.02 (Section 1377.02) of the zoning ordinance, also passed on March 30, 1959, stated:
A building may be created or altered on any lot held at the effective date of this Zoning Ordinance in single and separate ownership which is not of the required minimum area or frontage or is of such unusual dimensions that ■the owner would have difficulty in providing the • required open spaces for .the district in which such lot is situated, provided a special exception is authorized.
Believing that Section 1377.02 was applicable to the present situation, applicant applied to the Board for a special exception.
Pursuant to the application, hearings were held before the Board on two separate days. At the first hearing, all parties agreed that applicant’s proposed building met all of the requirements of the 1959
A number of neighbors testified in opposition to the special exception, stating their beliefs that allowing applicant to b.uild the 'house on the loit would be detrimental to the conxmunity. It was also brought to
The trial court affirmed the decision of the Board on the ground that applicant had failed to establish ownership of the lot prior to the March 30, 1959 adoption of the ordinance in question. The court thus ruled that applicant failed to establish his entitlement to a special exception under the provisions of Section 1307.02, thereby affirming the Board’s Finding of Fact No. 13, which stated, “The testimony of the applicant relating to the date upon which an agreement of sale was executed relating to the subject premises was somewhat equivocal.” (Board’s Opinion, June 16, 1983).
Our scope of review in zoning cases where the court of common pleas takes no additional evidence is limited to a determination of whether the Board abused its discretion, committed an error of law or made necessary factual findings which are not supported by substantial evidence in the record. Zoning Hearing Board of Indiana Township v. Weitzel, 77 Pa. Commonwealth Ct. 108, 465 A.2d 105 (1983). Applicant argues that both the Board and the trial court committed an error of law in requiring him to prove that he owned the lot in question on the effective date of the ordinance establishing the special exception provisions. We agree with the applicant’s argument.
A close reading of Section 1377.02 shows no intent on the part of the township’s legislative body to make the special exception provisions personal and therefore applicable only to the landowner who held title on the date of enactment of Section 1377.02. .In
In the present case, the Board specifically found that the applicant purchased the lot in question from Mr. Bravo by deed dated April 30, 1959. There is no dispute that applicant can trace his title back to the effective date of Section 1377.02; That section also requires, however, that the nonconforming lot has been held in “single and separate”' ownership as of the effective date of the ordinance. As appellee intervenor Newtown Township points out in its brief, applicant had failed to prove that either of the two contiguous parcels, one at 707 Ellis Avenue and one at 728 Elgin Avenue, were not part of the lot owned by either applicant or his predecessor in title as of March 30, 1959. The Township thus argues that applicant failed to sustain his burden of proof which could render Section 1377.02 applicable. We agree that applicant failed to proffer such proof; we do not believe, given the circumstances of this case, that applicant is forever barred from offering such proof. It must be remembered that the hearing in this matter was held on. two separate occasions. Applicant and his counsel were not present at the. second, date
Order
Now, December 17, 1985, the May 2, 1984 order of the Court of Common Pleas of Delaware- County at No. 83-6219 is vacated and the matter is remanded for proceedings consistent with this opinion.
Jurisdiction relinquished.
The Newtown Township ordinance sets forth specific standards to be considered in a case involving a special exception. While the Board made findings on these points, the trial court, because of its resolution, found .it unnecessary to review these findings. If applicant is unable to prove that the lot in question was held in single and separate ownership as of March 30, 1959, then no review of these standards is necessary. On the other hand, should applicant 'sustain his burden of proof, the trial court must then review the Board’s findings and conclusions concerning these specific standards.