35 Pa. Commw. 164 | Pa. Commw. Ct. | 1978
Opinion by
The appellants, Bernard Hankin and Miles Robinson, trading as Forest Park Apartments, desiring to construct semi-detached twin dwellings in a zoning district of West Norriton Township, Montgomery County, where such use was not permitted, applied for variances from the use regulation and also from offstreet parking and certain open space requirements of the township zoning ordinance. The appellee is the Township of West Norriton
The appellants first argue that the court below should not have considered and decided the matter of the propriety of the grant of the use variance because that issue was not before it for decision. We agree. The appellants’ zoning appeal notice of course stated no question concerning the use variance and no other party had appealed. As the Supreme Court said many years ago “[Where] [t]here is but one appellant ... we could not on his appeal decide the case against him for a possible error of the court below in his favor.” Price v. Lancaster County, 189 Pa. 95, 96, 41 A. 987 (1899).
The appellants next say that the Board’s order denying their applications for the parking and open space variances was unreasonable and should have been reversed. We disagree. An applicant is entitled to a variance only where he establishes: (1) that the zoning regulation uniquely burdens his property in a fashion which creates unnecessary hardship; and (2) that the variance would not have an adverse effect upon the public health, safety or welfare. Fretz v. Hilltown Township Zoning Hearing Board, 18 Pa. Commonwealth Ct. 471, 336 A.2d 464 (1975); Alfano v. Zoning Hearing Board of Marple Township, 14 Pa. Commonwealth Ct. 334, 324 A.2d 851 (1974). We agree with the lower court that the appellants adduced no evidence demonstrating that the parking and open space regulation created unnecessary hardship, within the meaning of that term applied in zoning cases.
The appellants finally say that they should be entitled to the parking and open space variances because the township zoning ordinance fails to provide for the use of any twin dwellings and is therefore, un
Accordingly, we enter the following
Order
And Now, this 3rd day of May, 1978, the order of the Court of Common Pleas of Montgomery County appealed from herein is vacated; and the order of the Zoning Hearing Board of West Norriton Township dated June 3, 1976, granting the appellants a variance to erect semi-detached twin dwellings and refusing the appellants’ applications for other variances from the requirements of the Township Zoning Ordinance, is reinstated.
In its brief in tbis Court, the township for a reason which escapes us describes its status as that of amicus curiae. Since the township was in fact a party before the Zoning Hearing Board and, as we understand, appeared in the court below in opposition to the grant of any variance, we believe it was entitled to appear in this Court as appellee.