5 Pa. Commw. 271 | Pa. Commw. Ct. | 1972
Opinion by
This is an appeal from an Opinion and Order, dated December 14, 1971, of the Court of Common Pleas of York County, affirming an adjudication of the York City Zoning Board of Adjustment (Board). Rachel
The record discloses that the property is located within an R-3 Zoning District, wherein commercial usages, such as that of a beauty salon, are prohibited. The garage fronts upon an alley sixteen feet in width and in which parking is permitted on only one side. The Zoning Ordinance of the City of York provides for “beauty or similar shop” usage in its C-1 Commercial District. The appellants’ garage has been used for the parking of automobiles and for the storage of a boat to the time the application was made.
Section 1113 of the Ordinance provides the procedures for special exception and variance applications.
Section 1401 of the Ordinance provides:
“Powers. The Board of Adjustment shall have the following powers: . . .
“3. To authorize upon requests for adjustment in specific cases such variance from the terms of this Ordinance as will not be contrary to the public interest where owing to special conditions, a literal enforcement of the provisions of this Ordinance will result in unnecessary hardships, so that the spirit of this Ordinance shall be observed and substantial justice done..."
The record shows that the building permit application, as submitted by the Jacksons, contained therein the handwritten word — “variance.” In the course of direct examination, Mrs. Jackson affirmatively stated that a “variance” application Avas filed. Appellants urge upon this Court the consideration of four issues: (1)
None of the issues raised by the Jacksons are meritorious. It is true, as counsel for Jacksons argues, that the record is silent as to whether the witnesses were sworn. In answer to this contention, the Chairman of the Zoning Board of Adjustment submitted to the lower court an affidavit stating that the witnesses had in fact been sworn.
Appellants argue that the testimony of two city officials improperly influenced the Board in its adjudication. The record indicates clearly that the City Solicitor testified as an interested private citizen and neighboring property owner and not in his official capacity. In the course of his testimony, he specifically disqualified himself from any participation in the case other than as a witness. The other city official was the Business Administrator of the city, who testified for the record that his work does not . involve zoning matters. In the case of Marino v. Zoning Hearing Board of Harrison Township, 1 Pa. Commonwealth Ct. 116, 123-25, 274 A. 2d 221, 225 (1971), we held that unless there is positive proof on the record that the public officials
In view of the fact that the requested usage was not permitted under the Zoning Ordinance in the R-3 zoning classification area wherein this property is situate (but was otherwise provided in another zone) and in further view of the fact that the Jacksons applied for a variance and acknowledged this fact on the record, there can be no doubt that the Jacksons were applying for a variance. Appellants’ argument based upon confusion has no merit. Section 1401-3, quoted above, clearly sets forth the standard Avhieh must be met by a property owner desiring a “variance.” The language used in the Zoning Ordinance Section is typical of the language employed in zoning ordinances throughout this Commonwealth. We therefore must reject appellants’ contention of an unlawful delegation of legislative power. See Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P. L. , No. 247, Article IV, Section 603, 53 P.S. 10603. This Court has ruled in several recent cases that there are two general criteria necessary for the grant of a variance under a zoning ordinance. These are: (a) unnecessary hardship upon and which is unique or peculiar to the property involved, as distinguished from hardship arising from the impact of the zoning ordinance on the entire district, and. (b) that the proposed variance is not contrary to the public safety, health or general welfare of the community. See Boyd v. Wilkins Township Board of Adjustment, 2 Pa. Commonwealth Ct. 324, 279 A. 2d 363 (1971); Torak, et al v. Board of Adjustment of Upper Merion Toionship, 2 Pa. Commonwealth Ct. 48, 277 A. 2d 521 (1971); Jacobs v. Philadelphia
In conclusion, we note that the record made by these appellants in no way supports their arguments before this Court. We affirm the Opinion and Order of the court below.
We note that appellants were represented at the hearing and before this Court by the same attorney, who admitted to us during oral argument, that he was uncertain as to whether the witnesses had been sworn.