Appeal, No. 2617 C.D. 1979 | Pa. Commw. Ct. | Feb 12, 1981
Opinion by
This is an appeal from the Court of Common Pleas of Cumberland County which affirmed an order of the Zoning Hearing Board of Lower Allen Township denying the application of Greene Associates (appellant) for a dimensional variance from the Township’s zoning restrictions.
The Board concluded that the appellant did not show an unnecessary hardship and denied the variance. The lower court, without taking additional evidence, affirmed the Board’s denial.
Where, as here, the court below receives no evidence, our review on appeal is limited to a determination of whether or not the Board has abused its discretion or committed an error of law. Phelan v. Zoning Hearing Board of Lower Merioti Township, 19 Pa. Commw. 63" court="Pa. Commw. Ct." date_filed="1975-05-14" href="https://app.midpage.ai/document/phelan-v-zoning-hearing-board-6362380?utm_source=webapp" opinion_id="6362380">19 Pa. Commonwealth Ct. 63, 339 A.2d 612 (1975). And it is clear that an applicant is entitled to a variance only where he establishes (1) that the zoning regulation uniquely burdens his property so as to create an unnecessary hardship and (2) that the variance will not have an adverse effect upon the public health, safety or welfare. Board of Supervisors of Solebury Township Appeal, 49 Pa. Commw. 267" court="Pa. Commw. Ct." date_filed="1980-02-07" href="https://app.midpage.ai/document/appeal-of-the-board-of-supervisors-v-zoning-hearing-board-6366139?utm_source=webapp" opinion_id="6366139">49 Pa. Commonwealth Ct. 267, 412 A.2d 163 (1980); Hankin v. Zoning Hearing Board of West Norriton Township, 35 Pa. Commw. 164" court="Pa. Commw. Ct." date_filed="1978-05-03" href="https://app.midpage.ai/document/hankin-v-zoning-hearing-board-6364285?utm_source=webapp" opinion_id="6364285">35 Pa. Commonwealth Ct. 164, 384 A.2d 1386 (1978). See also Section 912 of the Pennsylvania Municipalities Planning Code (MPC), Act of
At the hearing before the Board, a representative of the appellant was asked if it would be possible to build a house on the property in conformity with the 15-foot side yard requirements, and he responded: “If we get much narrower than the 26 feet, I think the building would take on the' appearance of possibly a mobile home or a modular home, and I don’t think it would do any justice to the homes in the existing neighborhood.” This was the only testimony brought forth at the Board hearing concerning any unnecessary hardship, and we agree with the Board that the appellant did not thereby fulfill its burden of proving that the side yard requirements constituted an unnecessary hardship for it.
A careful reading of the record indicates only that the appellant cannot comply with the side yard requirements unless it builds a narrower house than the one it proposes to build, and we have previously held that yard requirements do not constitute an unnecessary hardship unless they make the construction of a residence on the property impossible. Schaaf v. Zoning Hearing Board of Edinboro, 22 Pa. Commw. 50" court="Pa. Commw. Ct." date_filed="1975-11-21" href="https://app.midpage.ai/document/schaaf-v-zoning-hearing-board-1482541?utm_source=webapp" opinion_id="1482541">22 Pa. Commonwealth Ct. 50, 347 A.2d 740 (1975); Jacquelin v. Horsham Township, 10 Pa. Commonwealth Ct. 473, 312 A.2d 124 (1973).
The appellant’s further argument that the condition alleged as a hardship was not self-inflicted is irrele
Order
And, Now, this 12th day of February, 1981, the order of the Court of Common Pleas of Cumberland County, dated December 3, 1979, which affirmed an order of the Zoning Hearing Board of Lower Allen Township, is affirmed.