54 Pa. Commw. 573 | Pa. Commw. Ct. | 1980
Opinion by
American Medical Centers, Inc. and Charles H. Dager, respectively the equitable and legal owners of a parcel of land in Lower Gwynedd Township, have petitioned for review of an order of the Court of Common Pleas of Montgomery County affirming the township Zoning Hearing Board’s (Board) denial of their application for a variance.
On appeal to the Common Pleas Court additional evidence was introduced. The court en banc visited the property and affirmed the action of the Board.
Appellants advance two arguments on this appeal. First, it is contended that the zoning ordinance lot size requirement of twenty acres for a nursing home use is unreasonably large and, therefore, confiscatory. This of course challenged the substantive valadity of the ordinance on constitutional grounds. Cf. Concord Township Appeal, 439 Pa. 466, 268 A.2d 765 (1970); National Land and Investment Co. v. Easttown Township Board of Adjustment, 419 Pa. 504, 215 A.2d 597 (1965). This argument was not presented to the Board. The
Appellants’ reliance on Eller v. Board of Adjustment, 414 Pa. 1, 198 A.2d 863 (1964), and Fazio v. Zoning Hearing Board of Marlborough Township, 32 Pa. Commonwealth Ct. 243, 378 A.2d 1299 (1977), cert. denied, 439 U.S. 827 (1978) to show that constitutional arguments may be raised for the first time on appeal is misplaced. Eller involved procedural possibilities before the enactment of Section 1004 of the MPC and, we have held, is no longer controlling on this issue. Phelan v. Zoning Hearing Board of Lower Merion
This leaves for our resolution whether the Board and the Common Pleas Court erred in refusing to grant a traditional variance from the lot size requirement. It is well established that such a variance is justified only by the unnecessary hardship that results when physical characteristics peculiar to the property or incompatible neighboring uses make permitted development physically impossible or economically infeasible. See, e.g., Peirce v. Zoning Board of Adjustment, 410 Pa. 262, 189 A.2d 138 (1963) (residentially zoned lot surrounded by sewage pumping station, chemical plant, industrial highway, and industrial equipment storage yard), Borough of Emmaus v. Schuler, 48 Pa. Commonwealth Ct. 100, 409 A.2d 444 (1979) (small, irregularly shaped lot). The burden of proof on the landowner in such cases is a heavy one and, especially when authorizing a commercial use in a residential district, variances must not be generously granted. McKay v. Board of Adjustment, 8 Pa. Commonwealth Ct. 29, 300 A.2d 810 (1973).
The only evidence of unnecessary hardship in the present case is a description by Dager of commercial uses in the area and the topography of the site and his unsupported opinion that residential development of the property would not be desirable. There was no evidence that residential buildings could not be placed on the lot or that it has no value, or only a distress value, as zoned. Indeed, the suggestion that topographical
We have held that an applicant cannot carry his burden of proving the unnecessary hardship by “merely offering his personal opinion that a single-family home would not be marketable.” Upper Moreland Township Board of Commissioners v. Zoning Board, 25 Pa. Commonwealth Ct. 626, 631, 361 A.2d 455, 458 (1976); Accord Avonsato Appeal, 44 Pa. Commonwealth Ct. 77, 403 A.2d 198 (1979). This variance application was properly denied.
Order affirmed.
Order
And Now, this 18th day of November, 1980, the decision of the Court of Common Pleas of Montgomery County affirming the action of the Zoning Hearing Board of Lower Gwynedd Township is hereby affirmed.