10 Pa. Commw. 473 | Pa. Commw. Ct. | 1973
Opinion by
The Court of Common Pleas of Montgomery County affirmed a decision of the Zoning Hearing Board of Horsham Township denying the instant appellants, Henry P. Jacquelin and Barbara A. Jacquelin, variances to construct a dwelling house on a lot of which they are the equitable owners.
The Zoning Hearing Board denied the variances by reason of the “magnitude of the variances requested, and the traffic hazard that could result from the reduction of a site [sic] triangle due to the location of this house close to Johnson Road.” The court below affirmed the Board.
Since the court below did not receive evidence, it is our duty to review the Zoning Hearing Board’s decision and uphold it unless there appears abuse of its discretion or error of law. We are required to reverse.
The effect of the Board’s decision is that this nonconforming lot, held in separate ownership since before
In Poster Advertising Company, Inc. v. Zoning Board of Adjustment, 408 Pa. 248, 182 A. 2d 521 (1962), where all but a small portion of a lot was condemned, the Supreme Court reversed the lower court and Zoning Board of Adjustment which had denied a variance to permit the construction of outdoor advertising signs. The following passage from that case seems applicable here:
“The size and dimension of the land as presently constituted prevent the construction and use thereon of any residence property. The conclusion of the board to the contrary was not justified. In fact, the size and dimension permit a very limited number of productive uses, the most likely and practical being that contemplated. If this use is denied, the owner will be compelled to continue to pay taxes thereon, maintain the actual surface and adjoining sidewalks in a clean and reasonably safe condition in order to escape possible damage claims, without any return from the use of the property whatsoever.
“Of course, an economic hardship is not sufficient in itself to warrant the grant of a variance: Richman v. Zoning Board of Adjustment, 391 Pa. 254, 137 A. 2d 280 (1958); Nagrann v. Zoning Board of Adjustment, supra. But this is not a case of ‘economic hardship’ such as where the owner seeks to use the land in a more profitable manner. This is a case wherein any productive use of the land will be denied altogether. It is a case of the existence of a substantial hardship pe
There is a plethora of common pleas authority holding the denial of variances in the circumstances here present to be improper exercises of discretion by zoning boards. Picco v. Horsham Township, 80 Montgomery County Law Reporter 121 (1962); Lavenson v. Horsham Township, 83 Montgomery County Law Reporter 139 (1964); Steele v. Solebury Township Zoning Board of Adjustment, 14 Bucks County Law Reporter, 64 (1964). See Ryan, Pennsylvania Zoning Law Practice, §6.3.3. As is pointed out by Mr. Ryan, the case of the lot which is too small and cannot be made to conform could just as well be treated as involving a nonconforming lot entitled to be used as a matter of fundamental law, but the- courts generally have treated the problem as involving a variance required in order to avoid the confiscation of property. Ryan, supra, §6.1.7. The instant case, as we have decided it, is consonant in principle with those which hold that a use variance must be granted where the zoning ordinance permits only uses for which the land is totally unsuited. Ferry v. Kownacki, 396 Pa. 283, 152 A. 2d 456 (1959); Peirce v. Zoning Board of Adjustment, 410 Pa. 262, 189 A. 2d 138 (1963).
The Board justified its denial of the variance primarily upon the asserted hazard of reducing the sight angle at the intersection. While this concern may be reflected in zoning regulations, it may not be applied so as wholly to deprive the owner of land at an intersection of its use. The police power, however broadly construed, may not be employed to take private property for public use without just compensation. The Board’s concern for the view at the intersection, moreover, has been anticipated by the Legislature in Section
Order reversed.