22 Pa. Commw. 365 | Pa. Commw. Ct. | 1975
Opinion by
This is an appeal from a decision of the Court of Common Pleas of Montgomery County affirming the grant of a variance to Mr. and Mrs. Harvey Goodman by the Zoning Hearing Board (Board) of Lower Moreland Township (Township). We must reverse.
This controversy arises out of the construction by the Goodmans of a swimming pool on the Goodman property in 1973. In their original application to the Township for a building permit, the Goodmans described the proposed pool as encompassing an area 18 by 38 feet, and a building permit was issued pursuant to this application. Shortly thereafter, however, and without any notification to the Township the proposed area specifications for the pool were enlarged to 20 feet by 40 feet and when the pool was built, the Goodmans added a concrete pad and a sliding board alongside the pool, again with no notice to the Township.
After the pool and the adjoining pad and slide had been installed, Mr. and Mrs. Gottlieb, the adjacent prop
The threshold inquiry necessarily involves a determination as to how the required setbacks should be measured under a proper interpretation of the zoning ordinance. The Board and the lower court both measured the setbacks from the inside wall of the swimming pool, and therefore determined that the existing setbacks were deficient by only five to nine inches, an amount considered to be “de minimis.” The Gottliebs, on the other hand, argue that the coping and concrete pad are also part of the “swimming pool structure” so that setbacks should be measured from their respective perimeters. We must agree with them.
To declare that the edge of the inside wall of the pool is the “perimeter of the swimming pool structure” is tantamount to saying that only the inside of the swimming pool constitutes the structure, an interpretation obviously impossible. The more difficult question, however, is whether the “swimming pool structure” consists only of the pool’s walls, with the setbacks consequently measured from the outside of those walls, or of the coping and concrete pad as well.
Attorneys for both sides have exhaustively researched the meaning of “structure” within the context of zoning law, and it is argued persuasively for the Goodmans that the concrete pad and coping are not “structures” as that term is used in the ordinance and as it has been defined by the courts. The question here, however, is not whether the concrete pad and coping are themselves “structures”; but rather, whether they are part of this “swimming pool structure.” In our view, objects which are affixed to or which abut the swimming pool and which are integrally used in connection with it should be considered part of the “swimming pool structure,”' and both the concrete pad and the coping clearly fall within this category.
We can place no significance upon the assertion by the Goodmans that the swimming pool structure setbacks under the Township ordinance have always in the past been measured from the inside wall of the pool. Clearly the language of the ordinance, as it presently stands, cannot properly permit such an interpretation, and, if it should actually be felt that measurement from the inside wall is wiser, the ordinance ought to be so amended. But “zoning boards and the courts must not impose their concept of what the zoning ordinance should be, but rather their function is only to enforce the zoning ordinance in accordance with the applicable law.” Kline Zoning Case, 395 Pa. 122, 125, 148 A.2d 915, 916 (1959').
The conditions which must be established- in order for a property owner to obtain a variance have been well defined in case law and have also been codified more recently in Section 912 of the Municipalities Planning
We, therefore, reverse the decision of the court below.
. We recognize, too, that there is an important safety consideration behind the provision for setbacks between the pool and the property line.
. Act of July 31, 1968, P. L. .805, as amended, 53 P. S. §10912.