48 Pa. Commw. 469 | Pa. Commw. Ct. | 1980
Opinion by
Bensalem Township (Township) and H. A. Steen Industries, Inc. (applicant) cross appeal from an order of the Court of Common Pleas of Bucks County which reversed the decision of the Bensalem Township Zoning Hearing Board (Board) and granted a variance to the applicant to erect a billboard. We affirm the lower court’s order.
The Township argues that the applicant failed to meet its burden of proving an unnecessary hardship, i.e., that there was no possibility that the property could be used in strict conformity with the provisions of the zoning ordinance and that the variance is necessary to enable reasonable use of the property. See J. Richard Fretz, Inc. v. Hilltown Township Zoning Hearing Board, 18 Pa. Commonwealth Ct. 471, 473-74, 336 A.2d 464, 465-66 (1975). Although there is no direct testimony indicating that the property cannot be used in conformity with the ordinance and that a billboard is the only reasonable use, it is evident from the very description of the property that a manufacturing or other permitted use is essentially impossible. The property is only 33 feet wide at its widest point. Access exists only through an agreement with the railroad and is limited to one day per month. In fact, it appears from the decision of the Board that it recognized the existence of a hardship.
The Township argues, however, that any hardship was self-imposed because the applicant had knowledge of the unique character of the land and the zoning regulation when it purchased the property and, there
We have held that the mere fact that one purchases property with knowledge of the hardship does not necessarily preclude a variance. See Franklin Towne Realty, Inc. v. Zoning Hearing Board, 37 Pa. Commonwealth Ct. 632, 391 A.2d 63 (1978); Harper v. Zoning Hearing Board, 21 Pa. Commonwealth Ct. 93, 343 A.2d 381 (1975). As Judge Craig said in Zoning Hearing Board v. Grace Building Co., 39 Pa. Commonwealth Ct. 552, 558, 395 A.2d 1049, 1052 (1979):
Certainly the mere fact that property changes hands after the adoption of zoning cannot be a basis for holding that no variances can thereafter be granted with respect to any matter of which the purchaser could be aware. Because zoning considerations relate primarily to the circumstances of the property and not to the identity of the owners, it would seem that subsequent purchasers can stand in the shoes of the original owner with respect to a variance, provided that the claimed hardship does not arise out of the purchase itself, as was the case in McClure Appeal, 415 Pa. 285, 203 A.2d 534 (1964), where the alleged hardship arose out of the purchase price paid, or as in Zoning Hearing Board v. Petrosky, 26 Pa. Commonwealth Ct. 614, 365 A.2d 184 (1976), where the physical size and shape of the land was affected by the purchase transaction itself. See the explanation of the principle by Judge Blatt in Harper v. Zoning Hearing Board, 21 Pa. Commonwealth Ct. 93, 97-98, 343 A.2d 381, 384 (1975).
The record in this case clearly indicates that the applicant did not create the hardship which it contends justifies the variance. Further, in cases involving similar small, irregular parcels of land, we have held
Finally, the Township raises a question about the interpretation of the lower court’s order which provides that “ [s]uch variance shall represent the least modification possible of the restrictions imposed by the zoning ordinance” as it relates to the application for a double-faced billboard. As we discussed in H. A. Steen Industries, Inc. v. Zoning Hearing Board, supra note 1, at 455-56, 396 A.2d at 68, the order purports to require a billboard to be constructed insofar as possible in conformity with the ordinance provisions relating to the regulation of billboards.
Order affirmed.
And Now, this 11th day of January, 1980, the order of the Court of Common Pleas of Bucks County, dated November 8,1978, directing that a variance be granted to H. A. Steen Industries, Inc., to erect a billboard on land described in its application, is affirmed.
This decision was reached prior to the expiration of the term of office of Judge DiSalle.
The applicant appeals to preserve the issue raised but not answered below concerning the constitutionality of the Township ordinance regarding billboard regulation. Since we affirm the lower court’s decision to grant a variance, we need not reach this issue. See H. A. Steen Industries, Inc. v. Zoning Hearing Board, 39 Pa. Commonwealth Ct. 451, 396 A.2d 66 (1978).