5 Pa. Commw. 535 | Pa. Commw. Ct. | 1972
Lead Opinion
Opinion,
The Zoning Board of Adjustment and the Court of Common Pleas, after a de novo hearing, both refused appellants’ request for a variance. We affirm on the opinion of Judge Warren Gr. Morgan, reported herewith, which ably disposes of all the questions raised,, excepting one, i.e.: Does the record sustain the lower court’s decision? .We find that it does.
The case was exceptionally well tried by all counsel, both before the Zoning Board of Adjustment and the Common Pleas Court. In this appeal, appellants rely on a line of cases of the Supreme Court of Pennsylvania, including Standard Investments Corporation’s Petition, 341 Pa. 129, 19 A. 2d 167 (1941); Ferry v. Kownacki, 396 Pa. 283, 152 A. 2d 456 (1959); Forest Hills Borough Appeal, 409 Pa. 392, 187 A. 2d 166 (1963); and Peirce v. Zoning Board of Adjustment, 410 Pa. 262, 189 A. 2d 138 (1963). This line of cases and this record might support appellants’ position if the lower court had found in favor of granting the variance. Such was the instance in the cases cited. Such
Affirmed.
By the Court Below :
This is an appeal from the refusal of the Zoning Hearing Board of Dauphin Borough to grant a variance from the provisions of the zoning ordinance to permit the erection of a gasoline service station on property owned by the individual appellants, which the appellant Mobil Oil Company has conditionally agreed to purchase, and located in a C-1, Semi-Commercial District. A de novo hearing was held before us and from the record we make the following
Findings of Fact
1. The individual appellants are the owners of properties in Dauphin Borough as follows:
John W. and Mary Elizabeth Whitenight, 218 Erie Street; Joyce E. H. Lupey, 228 Erie Street; Elizabeth P. Christ and Marlin P. Weaver, 222-224 Erie Street; Richard S. and Cornnie E. Megonnell, 226 Erie Street; Wilmer L. Boughner and Catherine Boughner Brown, 230-232 Erie Street.
2. The individual appellants have executed an agreement to sell the properties to appellant, Mobil Oil Company, which agreement is contingent upon the requested variance being granted for the erection of a gasoline station.
3. The properties, which have residential structures erected on them, are located in a C-1, Semi-Commercial District under the provisions of the Dauphin Borough Zoning Ordinance adopted on July 6, 1948.
4. Under the provisions of Section 501 of the Dauphin Borough Zoning Ordinances the following uses are permitted in C-1, Semi-Commercial Districts:
(2) Churches, convents and parish houses.
(3) Schools, Libraries and.museums.
(4) Municipal Building and Post Office.
(5) Office, studio, personal service shop, bank, financial institution, telegraph office and telephone exchange.
(6) Restaurants, tea room, delicatessen, confectionery shops, or retail food, drug, or general merchandise store.
(7) Fraternal and veterans' organizations.
5. Under the provisions of Section 1005 of the Dauphin Zoning Ordinance,- gasoline. service stations are permitted in the I-1 Industrial District.
Discussion
A variance may be granted only under exceptional circumstances and only where the applicant establishes (1) that, an unnecessary hardship, unique to the particular property, will result if the variance is not granted; and (2) that the proposed use will not be contrary to the public interest. O’Neill, et al., Appellants v. Zoning Board of Adjustment, 434 Pa. 331, 254 A. 2d 12 (1969); Filanowski, et al. v. Zoning Board of Adjustment, 439 Pa. 360, 266 A. 2d 670 (1970).
The familiar requirements for a variance are set forth in Richman v. Zoning Board of Adjustment, 391 Pa. 254, 259, 137 A. 2d 280 (1958):
“A variance is a departure from the letter, but not the spirit, of the zoning statute. It is not to be considered that a re-zoning may be accomplished under the guise of a grant of variance.
“The sole justification for the grant of a variance is that a strict application of the terms of the zoning statute will result in an ‘Unnecessary hardship’, ,and-even then, the variance can be granted only if the spirit
This record will not support a variance. There are five parcels of land included in the tract for which the variance is sought. Except for some general but inconclusive observations, by a real estate expert who had never attempted to sell them, regarding possible difficulty in marketing the parcels in the tract for any of the permitted uses, there was no testimony of hardship in connection with Nos. 222-224-226 Erie Street which comprise over 40% of the tract. Nor was the testimony offered in connection with the other parcels more compelling. Generally, the type of hardship that justifies the granting of a variance is brought about by the shape or topography of the land. At most, the other applicants have established that their respective real estate brokers had not sold their properties for the asking price during the terms of their listing contracts. In weighing this testimony, it was significant that one real estate broker was not even aware that the property he attempted to sell was zoned for commercial uses. The testimony of the applicants regarding attempts to sell was far “short of the active, prolonged, and specific testing of the marketability of the ground which is essential to demonstrate that it cannot be sold or used for the purpose zoned.” Eldridge v. Cheltenham Twp 87 Montg. Co. L.R. 135. It appears that the only hard
Appellants point out that in the past another variance has been granted permitting a gasoline service station in this zone. Aside from the fact that this use was later abandoned, each request for a variance must rest on its own facts, and evidence of granting other variances is not only irrelevant, it is inadmissible. Rickman v. Zoning Board of Adjustment, supra.
Appellants also challenge the constitutionality of the zoning ordinance on the ground that its regulating of gasoline service stations bears no substantial relationship to the public health, safety, morals and general welfare. They recognize the principle that imposes the burden of proving the invalidity of an ordinance upon the one who challenges it but seek to shift this burden to the municipality by contending that the ordinance totally prohibits gasoline service stations. Beaver Gasoline Co., et al. v. Zoning Board of the Borough of Osborne and the Borough of Osborne, 1 Pa. Commonwealth Ct. 458, 275 A. 2d 702 (1971). According to the appellants, although this ordinance does not literally prohibit gasoline service stations it effectually does so by restricting such use to a district several blocks distant from the most travelled highway. They argue that it is not economically feasible to locate a gasoline service station in this district and cite the present absence of such use to support their contention.
We do not agree with the appellants. They have the burden of proving the invalidity of this ordinance under the general rule and have not sustained it. The Dauphin Borough Zoning Ordinance expressly permits gasoline service stations in the 1-1 Industrial District and the principle asserted by appellants for Beaver Gasoline
Conclusions of Law
1. Appellants have not met the burden of proof resting upon them either as to a variance nor as to the invalidity of the Dauphin Borough Zoning Ordinance in its application to the case at bar.
2. The appeal must be dismissed.
Order of Court
And now, December 6, 1971, the appeal from the decision of the Zoning Hearing Board of Dauphin Borough is dismissed.
Concurrence Opinion
Concurring Opinion by
I concur in the conclusion in which the majority adopts the opinion of the court below. The appellant
Mobil Oil contended that the Dauphin Borough zoning ordinance was a de facto prohibition of gasoline service stations in that they were permitted only in what was in actuality an economically unfeasible territorial confine. The lower court recognized that prohibitory zoning reduces the onus put on those who challenge constitutionality by calling the municipality at the outset to justify by supporting evidence its stringent restriction. Beaver Gasoline Co. v. Borough of Osborne, 445 Pa. 571, 285 A. 2d 501 (1971). As I read it, the court held that Beaver applies only where the total prohibition is spelled out on the face of the ordinance. I do not agree.
In Beaver, the Supreme Court affirmed this Court, 1 Pa. Commonwealth Ct. 458, 275 A. 2d 702 (1971), in holding that one who challenges the prohibitionary nature of an ordinance has the moving burden of proving it. Neither this Court, nor the Supreme Court, has limited this burden to de jure prohibitions. Our sustained interpretation of this facet of the law never intended to place upon a municipality a heavier burden in its defense of an admitted prohibition than its defense of a proven prohibition which by ingenious draftsmanship it sought to deny or to disguise. If appellant had met his burden by proving the existence of a de facto prohibition, the theory of Beaver should have applied.
The record indicates that Mobil has failed to meet this threshold burden. Accordingly, I concur in the conclusion that the appeal must be dismissed.
