45 Pa. Commw. 277 | Pa. Commw. Ct. | 1979
Opinion by
The Zoning Hearing Board of Horsham Township (Board) refused a variance to Emil Kraiser, Jr., for the construction of a duplex residential dwelling in an area zoned EP — Flood Plain Conservation District. The Montgomery County Court of Common Pleas affirmed and, because there is no error in evidence or law, we do likewise.
Kraiser purchased a property which at the time was zoned R-5 Residential and permitted the proposed construction. Afterwards, the Township, by ordinance, rezoned the tract and established a Flood Plain Conservation District. The proposed construction is specifically forbidden in a Flood Plain Conservation District.
In a zoning case where the court below has not taken additional evidence, our scope of review is limited to whether the Board on the basis of the record then made abused its discretion or erred in law. Holmes v. Zoning Hearing Board of Kennett Township, 39 Pa. Commonwealth Ct. 447, 396 A.2d 859 (1978).
Because the Board concluded that Kraiser failed to carry the burden of showing that the proposed use would not constitute a danger to the immediate neighborhood, we restrict our inquiry to consideration of whether the Board properly found the use constitutes a hazard to the health, safety and welfare of the surrounding community.
The pertinent evidence before the Board from which it drew its findings follows. Kraiser presented a licensed professional engineer. The Township also presented an engineer. It was established that past inundation of this tract and surrounding property had caused property damage. Kraiser’s engineer agreed that the 236-feet 100-year flood level
We find in the record substantial evidence of flooding and drainage problems to support the conclusions of the Board and the trial court that a variance in these circumstances would be harmful to the community. Moreover, it can be properly concluded that building on the flood plain would increase flood height and conceivably increase the hazard to the inhabitants of other buildings both on and away from the zoned areas. The zoning ordinance strikes a satisfactory balance between a property owner’s interest in developing his property as he wishes and the duty of the Board to regulate development of flood-prone land.
Kraiser’s puzzlement is understandable. If he complies with the permitted conditional uses under the Flood Plain Ordinance, he finds himself for all practical purposes stuck with a useless property. But in the interest of all the residents, he must suffer along with other property owners who are likewise affected by the ordinance.
Accordingly, we
Order.
And Now, this SÍOth day of August, 1979, the order of the Court of Common Pleas of Montgomery County, dated July 24, 1978, is hereby affirmed.
A flood frequency of 100 years does not mean that a flood of such a magnitude will happen only once in 100 years. What it does mean is that an analysis of the available hydrologic data indicates that the chances that a flood will occur in any particular year are
The present grade of the property varies 231% feet to 235% feet.