21 Pa. Commw. 93 | Pa. Commw. Ct. | 1975
Opinion by
These three appeals, consolidated for the purpose of argument before this Court, involve three requests for variances for three separate lots in Ridley Township (Township). All three requests were denied by the Township’s Zoning Hearing Board (Board) which, after holding hearings, issued its adjudication on February 11, 1974 refusing all of the petitions. On appeal to the Court of Common Pleas of Delaware County, however, the landowners involved in each appeal were successful and, in three separate opinions dated October 24, October 31, and November 12, that court, without taking additional evidence, reversed the Board and ordered that all three variances be granted.
Our scope of review in zoning appeals involving requests for variances, where the lower court has taken no additional evidence, is limited to a determination of whether or not the Board abused its discretion or committed an error of law. AFSO Builders, Inc. v. The Zoning Hearing Board of the Township of Upper Darby, 12 Pa. Commonwealth Ct. 100, 314 A.2d 860 (1974); The Boulevard Land Corporation v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 584, 303 A.2d 234 (1973). We cannot accept the Township’s assertion that our scope of review should be narrower. If zoning boards were allowed to grant variances at their own absolute discretion, they would, in effect, be enacting zoning legislation by a piecemeal process. See Michener Appeal, 382 Pa. 401, 115 A.2d 367 (1955).
Section 912 of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10912 sets out the Board’s function in considering requests for variances and also establishes the conditions
“The building area shall not exceed thirty per cent (30%) of the lot area, and in no case shall any building be erected on any lot with an area of less than 5,000 square feet and a width of less than 50 feet at the front building line.”
All of the lots in question fail to meet the minimum width of fifty feet. In addition, one contains less than the 5,000 square feet minimum area. Otherwise, building plans in each case appear to conform to the requirements of the zoning ordinance.
The minimum area and width requirements of Section 402 of the ordinance were initially adopted by the Township in 1970. Prior to that time, although Section 402 merely stated:
“The building area shall not exceed thirty per cent (30%) of the lot area.,”
Section 405 then provided:
“In case of a single family dwelling there shall be two side yards, one on each side of the main building, the aggregate widths of which shall be at least twenty (20) feet. Neither side yard shall be less than eight (8) feet wide. Provided, that in the case of a lot held in single and separate ownership at the effective date of this Ordinance of a width less than fifty (50) feet, a single-family dwelling may be built thereon with side yards of less width, when authorized as a special ex*97 ception by the Board of Adjustment, and provided further, that in case of a single-family dwelling constructed with its greater dimension parallel with the front street a one-story porch, either enclosed or unenclosed, may project into one of the side yards, provided the width of such side yard is not thereby reduced to less than the required minimum of eight (8) feet.”
It is obvious that Section 405 of the ordinance, as in effect prior to 1970, did not prevent the construction of a building on a lot less than 50 feet in width. It merely established the minimum sideyard setbacks applicable to every building regardless of the width of the lot on which the building was to be constructed, and it relaxed the standard for lots of a width less than 50 feet when such lots had been held in single and separate ownership since the effective date of the ordinance (1937). Lots of less than fifty feet in width, therefore, could clearly be built upon until 1970, even if acquired after 1937, so long as the standard sideyard requirements and all other valid conditions prescribed in the ordinance were met. We must, therefore, consider the 50-foot minimum width requirement as having first been imposed, along with the minimum area requirement, in 1970.
APPEAL NO. 1523 C. D. 1974
The lot covered in this appeal, located on Washington Avenue in a “B” residential zoning district, is owned by John W. Harper and G. Leonard Rappold, III, who acquired it on March 23, 1971 upon the dissolution of Harco, Inc., which had owned the property since 1965. These two current owners had been the sole shareholders of Harco, Inc., and upon its dissolution, the lot had been distributed to them. It is 40 feet wide along Washington Avenue and 125 feet deep, with an area of 5000 square feet. They propose to build a two-story single family residence on the lot. The Board found that “[sjinee [both
APPEAL NO. 152U C. D. 197h
This lot is also 40 feet wide and 125 feet deep, and it is located on Jackson Avenue in a “B” residential district. It is owned by John W. Harper and his wife, and Mr.
“Again, as I said, Mr. Shang has pointed out the lot could be worth $1,000. I was wondering for what, other than to sell it to a neighbor? What else could you do with it? The average neighbor will give you a $1,000 for it. That’s an assumption. Suppose the average neighbor says $15. ?”
The township also relies on Volpe Appeal, 384 Pa. 374, 121 A.2d 97 (1956) in arguing that Harper’s part ownership of the adjacent lot to the north should prevent his being granted a variance. In Volpe, however, the landowner had subdivided a single large tract into two lots, one of which was not large enough to build on according
APPEAL NO. 1525 C. D. 197U
This lot, which is 40 feet wide and 100 feet deep, with an area of 4000 square feet, is located on Fernwood Avenue, also in a “B” residential district. It is owned by G. Leonard Rappold and his wife, who purchased it at a county treasurer’s sale in 1962. They likewise now propose to build a single family dwelling on the premises. As to this lot, the Township argues that the Board was correct in holding that the grant of a variance under the circumstances of this case would be “detrimental to the public welfare.” This conclusion was based on the Board’s finding that: “The property in question has a severe drainage problem which would be aggravated by construction.” Yet, as the lower court held, this finding is unsupported by the record. A neighbor did state her opinion that a drainage problem presently exists, but nowhere in the record is there the slightest indication that building on the lot will aggravate the problem in any way. One seeking a variance, of course, must not only prove unnecessary hardship but he must also show that the variance, if granted, will not adversely affect the public health, safety or welfare. Commissioners of Plymouth Township v. Wannop, 13 Pa. Commonwealth Ct. 237, 320 A.2d 455 (1974); Surrick v. Zoning Hearing Board of the Township
We, therefore, affirm the lower court in Appeals Nos. 1523, and 1524 and remand No. 1525 to the lower court so that the parties thereto may be given an opportunity to enter evidence into the record concerning the adverse effect, if any, which the grant of a variance will have on the existing drainage problem and so that a determination may then be properly made as to whether or not a variance should be allowed in accordance with this opinion.
. In testifying to this purchase, Harper corrected his testimony at an earlier hearing to the effect that the property had be.en inherited through his father’s estate.