*1 In summary we hold that is entitled to Lehigh for a of three to the refund, years period prior filing its for sales taxes to the petition, paid Commonwealth, adjudication of Finance therefore, & Revenue is reversed. enter we Accordingly, following
Order this 5th day April, 1973, it is ordered, And Now, Order this Court dated February 23, 1973, is amended, with respect years 1964 and 1965; judgment is hereby directed to be entered favor of the Commonwealth in the amount $193,752.61; with respect years and 1968, judgment directed to be hereby entered in favor of Lehigh Valley Cooperative Farmers amount $281,247.39. McKay Adjustment. v. Board of *2 November before 1, 1972, Argued President Judge and Judges Cromlish, Bowman Jr., Kramer, Wilkin- Rogers and son, Jr., Menoer, Blatt. Scales, him II,
Thomas P. A. G. dole, with Shaw, Scales appellant. *3 for Geraso,
Thomas R. appellee. Opinion Judge Jr., February Crumlish, 1973: to E. as Secretary her
Mary McKay, capacity of of and the Commissioner by authority Township North County, appealed Westmoreland Huntingdon, of Common of the order the Court Pleas Westmore- land which the North Town- County upheld Huntingdon Adjustment’s variance to ship grant Florence M. who to use her as sought Evans station. a service gasoline entered into an of sale agreement
Evans 1962 and for a under variance the zon- applicable in 1964 applied In 1965 the deed was executed. After a ing provisions.1 in 1966 a variance was granted. held hearing McKay zoning significant to note that the It is ordinance under which adopted July application was made for variance was not until the applied special time, Evans had for to that Prior use 1964. applicable zoning under the then permit tract for the same ordi- nance.
appealed the Court Common Pleas which after additional taking testimony affirmed the decision of the Board. were taken Exceptions and the Court Com mon Pleas, en sitting banc, declared it was without jurisdiction to hear the case. This Court on appeal that issue determined that the lower court did, fact, have jurisdiction and remanded it on the hearing exceptions. v. Board McKay Adjustment, Pa. Com monwealth Ct. A. 609, 279 2d 376 (1971). On remand, the lower court en banc once sitting again upheld Board’s decision to the variance. That ruling the subject of this appeal.
Appellant contends (1) that application R.-2 single family dwelling classification of the zoning tract in question does not create an hard- unnecessary ship upon property which is and unique peculiar it; hence the variance should not been have granted; (2) the court below abused its dis- cretion in upholding Board’s decision because it failed to make specific fact findings as required by ordinance and zoning because the lower court itself also failed to make specific of fact. findings
We with disagree appellant’s contentions and hold the order of the lower court must be affirmed. The of our importance scope review once again is manifest in this zoning appeal. Where, here, took below additional our testimony, function on is to determine appeal whether the court below com mitted an error of law or abused its discretion. Durkin *4 v. Co. Bd. Contracting Zoning Adjustment, 6 Pa. Commonwealth Ct. 293 A. 211, 2d 622 (1972); v. Drop 6 Pa. Adjustment, Commonwealth Ct. 293 64, 144 A. 2d (1972). arc not unmindful of
We the burden placed upon an to applicant prove unnecessary hardship that is unique peculiar property and that the pro- use will not be posed contrary the public interest.
88 Corp., Zoning Adjustment, Mobil Oil et al. v. Board of 1972); ( 5 Pa. Commonwealth Ct. A. 2d 541 291 535, City Zoning et York Jackson, Board, al. v. 5 Pa. Com monwealth A. real Ct. 2d 438 We also 271, especially authorizing ize that a variances, those com gen mercial in use a residential not district should erously granted. Borough Speers et al. Pfile, v. (cross-appeals), 7 Pa. A. Commonwealth Ct. (Filed 1972). 2d 598 Dec. The record before us merits our conclusion that the court below did not abuse its discretion nor an law did it commit error of finding applicant her here had met burden. pre-
The court below considered both the evidence sented before Board and also considered the addi- hearing. tional evidence adduced at its The de novo uncontroverted establish facts that there are commer- specifically, cial uses erected in the immediate area; parking such uses as: a funeral home with a lot; medical-professional apartment building. center and an blessing All of these are under the of variances. Also vicinity play- in the immediate are a school with a ground area, fire and a station, tract which a trail- er home is located.2
Proximate to the is a commercial area and Dairy Queen commercial establishments such as a snack supermarket bar and a abound other areas. testimony There was some that the is suit- purposes proposed for residential able and that the use increase traffic but this was would controverted testimony not suitable for residen- tial use.
In this consideration evidence, Board3 deter- proper gave it mined that was variance and entirely precisely many from clear It is not record how it is there but clear that are located there is at trailers least one. granting Board was 2-1 favor The vote the vari- ance.
34 clearing the (1) reasons: the following approaching to motorists visibility will afford greater the of ser- illuminating lights the intersection; (2) the intersec- at this the dangers lessen vice station would a blighted piece of township rid the it would (3) tion; the possibility eliminate it would (4) property; and unkept prop- on run-down injured children getting the possi- (6) tax revenue; it increase would erty; (5) fam- be used as single would that the bility the (a) possibility because residence is ily poor of prop- the (b) dangers the widening road; the state the intersection; (c) annoying a busy damage erty been and is pres- has the traffic; (7) sound made to correct that prob- no effort a hazard with ently that would no to believe traffic there is reason lem; (8) be a distinct the service station would increase; (9) as to way be erected such and could improvement adjacent property.4 insure privacy tak- testimony and on the additional On this record location of the found that the court below en, of the traffic sur- conditions, the nature premises, fire home, included funeral area which rounding and combined to trailers apartments school, station, on this hardship prop- and particular a unique impose found that the area of the prem- also The court erty. in- on a commercial basis; developed ises is welfare public not detrimental tended use was was not self- the hardship of the neighborhood banc, exceptions, en agreed. The court inflicted. not substitue its findings court will reviewing A there cred- court where is competent, lower those which the decision of upon in the record ible evidence based. Lower Yoder v. Township could be able screening The variance shrubbery was granted be placed subject at the boundaries to the conditions that suit an identify maintained. ing marker historical A. 2d 579 Pa. Ct. Weinzierl, Commonwealth This case is for the similar factually most part There is one distinction which merits reference. Pfile. *6 There an for filed but the a variance Avas application landowner had of the restriction knowledge zoning when he in the land. This is not so the case bought bar. The in denied Pfile, initially Board had however, the variance here the vari whereas the Board granted ance and the after the sustained de novo court, hearing, the Board.
In Pfile, it was stated at 7 Pa. Common supra, wealth Ct. at A. 2d at 234, 603, “[gener economic or ally, financial is not in hardship itself sufficient to sustain the but granting variance, ‘. . . this doctrine a has been where it is only applied of more from question one of profits type development as to another of opposed type development.’ [Citation] occasions, rcure the to However, when, record appears show in the of total ‘property hardship’ sense loss usability for of the any a use variance permitted uses, Avill be affirmed . . . We with the agree [citations].” that the below evidence shows that such property does hardship exist this case. a this is not
Further, self-inflicted situa hardship tion which was found Gro Pa. Appeal, 440 A. 2d 876 There it was said: in a case “only . . . which arises after the has been a sold to a new owner who has paid high price the property because he assumed that variance which he anticipat justify ed would his do we price, hold that the owner cannot the which prove hardship burdens his land rather than unnecessary was self-inflicted.” Gro Ap Pa. at 269 A. 2d at 880-1. The peal, agreement bound Evans sale which was executed prior of the enactment present zoning ordinance. Oro is not in point. findings
Appellant's the final contention that enough specific not and the court below were Board satisfy zoning merit. Section ordinance is without Township provides: “The ordinance 9.7-3 regu- Adjustment from the a variance shall not shall unless the said Board lations of this Ordinance upon finding the evidence or facts based make a fact particular specific presented T.The in each case that: topographical physical surrounding, shape condi- or hardship upon specific as dis- owner, of the tions tinguished if let- the strict inconvenience, from mere regulations 2. The condi- were carried out; ter petition upon for a is based tions which the variance applicable, generally, unique not be are and would zoning classification; within the same other difficulty hardship alleged not been cre- or has 3. The any presently having person an interest ated granting property; will not A The variance *7 injurious public mutually or to the welfare detrimental neighborhood improvements property in the or to other property . .” is located. . in which the especially Board and the no doubt that the We have clearly both tribunals consid- demonstrate that ordinance and on the basis the command the ered adequately the articulated result. the evidence Affirmed. by Opinion Judge Rogers
Dissenting : sup no here I because there is evidence to dissent gasoline upon imposition port service station the community Circleville, North Hunt the residential Township, contrary provisions ingdon of the zoning Township ordinance. appellee, the owuer house lot1 suit
The 1 appellee poor condition. The is in advances this house The (although neglect of the variance her for the a reason
37
proposed purchaser,
and her
the South Penn Oil Com
require
pany, required
township’s
from
a variance
property’s
ment that the
be for
use should
residential
purpose
appellee
only. To
a
was
obtain
variance
required
feasibly
prove
that the
could not
any
purpose.
permitted
be
for
cases,
used
Under the
infeasibility
by
showing
might
proved
(1)
a
be
either
physical
that the
were
characteristics
any
per
such
for
that it could not
case be used
purpose
physical
mitted
were
or that the
characteristics
only
purpose
arranged
such
for
that it could
be
such
prohibitive
Adjustment
expense (Zoning
v.
Board of
2 Pa.
“Special of Board of North Township, Huntingdon held the Town House at was pres- p.m., All members were December 1966. 9:00 ent. following remarks:
“Mr. Hassan made the Hardship on use was not established. The “1. land any petition claim of for the did not make solicitor hardship were none far as land and admitted there so concerned. use was Proposed gasoline is within
“2. service station feet Circleville School. development very is
“3. Residential favorable. Alleged precedents
“4. commercial in area are without basis.
“5. Maintain character of area. residential presented following Dick in the form of a “Mr. may filed): (attached original letter so that study application careful of Florence M. “After my grant- opinion that a variance should be Evans it is following ed for the reasons: properly give it “1. will cleared, When greater visibility approaching to motorists the inter- section. dangers The at this intei’section would be les-
“2. lights illuminating station. service sened township blighted piece It would rid “3. property. possibility eliminate the “4. It children would unkept property. getting hurt run-down *9 greater property bring in tax reve- “5. The would nue. possible
“6. Tbe tbis would chance that poor single family be used as a are due to: residence “(a) Possibility widening tbe road to tbe State increasing accomadate tbe flow of traffic. [sic] “(b) dangers damage busy Tbe at intersection.
“(c) “ annoying Tbe sound traffic. objections people
‘Tbe of tbe in tbe area were taken objections into full consideration. Some of tbe bad already prop- merit. If there bad not been commercial picture changed. in erties tbe I tbe could of area, recom- protect privacy mend order to tbe Mr. Flick’s Road) (707 Robbins Station that Mrs. Evans plant shrubbery pines a screen of or stand between rpoperties [sic].’
C. W. Dick following “Mr. Brown made tbe remarks: Property years “1. it as is has been several definitely is a hazard. There no have been efforts made problem. to correct tbe
“2. There is no reason to believe that traffic would proposed increase at tbis tbe intersection as result tbe service station.
“3. The erection of tbe service station would be a improvement. distinct Proper shrubbery screening pri-
“4. would assure adjacent vacy property. by by
“A motion was made Mr. Dick and seconded appeal Mr. Brown to tbe for variance Mrs. Contingent following: Evans. on tbe Approval granted by “1. tbe Board of Commis required Zoning sioners Section 8.7 of tbe Ordi nance. screening placed shrubbery
“2. be Suitable adjacent properties. boundaries with identifying marker Three “3. The historical Springs Camp premises. maintained on of the motion and
“Dick and Brown voted favor against Hassan voted the motion. Adjustment thereby grants ap-
“The *10 peal for variance Florence Evans on the at Clay Pike and Robbins Station Road.” appeal
On from the the court took evidence. testimony This consisted of the residents neighborhood opposed application for variance expert and that a real estate that the establishment gasoline depress service station on this lot would properties vicinity. the value of the residential produced the evidence Indeed, the court below, general neighbor which stands is that the unrebutted, percent only hood is 90 to 100 residential and that the exceptions to residential use near the are an elementary school across the a residence con street, verted to funeral home use in the same block, and, greater building accommodating distance, doctor’s appellee by brought offices. The cross-examination out developed that U. S. Route 30 is close and is commerci ally supermarket Dairy and there Queen that is a ice cream establishment somewhere in the area. How ever, the record also shows that Circleville sits on a height above U. S. Route 30 and that the market and the shop only ice cream are a mile distant. Not the testi mony photographs clearly prove but in the record that vicinity quiet the immediate of this lot is a residential neighborhood. description Its on this record would, my judgment, make enjoining out a creditable case for gasoline the establishment of a service station at the proposed here location as a nuisance at common law. Prendergast (1917) v. Walls, 257 Pa. 101 A. 547, 826 ;
41
A.
Pen
(1919);
Pa.
Hohl v.
Modell,