*1 226 com- convert workmen’s body, as a not, judicial
should life health into coverage general group pensation added.) Pa. at coverage.” insurance (Emphasis A. 2d at 604. below is affirmed. order of court (Cross-appeals). Speers Borough of et al. v. Pfile, *2 before February Kramer, Argued Judges Rear- sitting and as a of three. panel Blatt, Mencer before President Bowman 31,1972, Judge October gued Judges Crumlish, Jr., Jr., Kramer, Wilkinson, Rogers Blatt. Menoer,
Melvin B. Bassi, with him Woodward & for Bassi, applicants.
Jack H. him France, with Murphy for France, Borough Speers.
Opinion by Judge December 1972: Mencer, These are from a appeals decision of the Court *3 Common Pleas Washington of the de- County reversing of the Zoning cision Board of Adjustment (now Zoning Hearing Speers of which Board) Borough denied application for a requested by variance the landowners in a gasoline herein order that station service could be on the subject built which is zoned R-2 Resi- property dence a classification provi- which makes no District, for sion such a commercial use.1 The zon- applicable 1 “R-2 Districts . . Residence . Regulations. building may “Section A 401. Use be erected or may occupied any following used, used and a lot or for of the purposes, and no other: Any permitted
“1. use in R-l Residence Districts. family Single dwelling.
[1. detached Telephone utility office; lines; central 2. electric substa- tion, special exception. authorized when as a Accessory customarily on the 3. use same lot with in- permitted foregoing cidental uses. Signs, 4. when erected and maintained in accordance with
Article IX of this ordinance.] Two-family dwelling. “2. detached has ordinance not been amended in i»g part relevant since its in 1950. passage
The subject (Lot Nos. property 141-147) is part T.A. Estate Plan of No. Morgan Lots, 5, which was planned by Willdnsburg [Allegheny County] Real Estate & Trust re- Company (Wilkinsburg) corded Office of Washington Recorder’s County 1956. September 28, Sometime C. early 1967, Yance DeiCas into an with agreement entered Wilkins- burg purchase subject He testi- property. later fied that at the time of this he had de- purchase, termined whether to for use a residential property use or for a commercial that he had use, no idea a placing station on the site that at time, that he had zoned knowledge property that was residential when he it. bought
Then on for May 11¡, a a request made variance to utilize the unspecified for an use. This request incidentally suggested could easily be rezoned commercial. On May 22, in- appropriate municipal body decided that more formation concerning was needed the intended use Two-family provided dwelling,
“3. semi-detached the dwell- ing party with has common is erected at wall
the same time. Multiple dwelling. “4. “,j. Single family provided dwelling, attached that such shall dwelling units,
not be constructed in series more than 6 provided and further all units of a con- series shall be structed at the same time. *4 Parking special exception. lot when
“6. authorized as a parochial institutions; religious “7. Public or educational or philanthropic excluding uses, hospitals, sanitariums cor- and penal rectional or institutions. Municipal building municipal including depart- and use “8. fire
ment. Signs, erected when and maintained in “9. accordance Ar- with of this ordinance.”
ticle 9 unanimously opposed any rezoning the but it property, Nine from residential to commercial. of the Mr. WilMnsburg formally conveyed to days thereafter, Mae his Nos. DeiCas, wife, DeiCas and Veronica Lot Then 4, 141-147 deed dated June inclusive. Mr. DeiCas con- June and Mrs. (recorded 20, 1968), Mr. Bassi Mr. Mrs. Pfile to and Mrs. veyed “purpose interest in the the property, a two-thirds in [including to the Grantees [being] deed vest in Mrs. title said premises equal Mr. and the to DeiCas] respective- as tenants shares, entirety, one-third ly.” a requested hearing June Mr. Bassi 3,1968,
On (inex- on May 1968, request be held variance 14, informed, he until July 1, 1910, was plicably, and on held), such a would be June hearing open Borough he Council requested further road (Belmont Alley) access only on latter denied request July This was property. 1968. a lease into subsequently
The landowners entered Corporation Richfield condi- with Atlantic agreement variance for the of a tioned on the granting ser- construction of a gasoline permit order construct A order to permit vice station. building for on but May station was applied 21,1910, commercial use proposed was denied because a residential zone. for a hearing request
A variance concerning Board of July 15, 1910, by held finally An request. denied the Adjustment subsequently court which was taken to the lower reversed the appeal These subject to certain conditions. Board’s decision, because Board took ex- (1) resulted appeals cross its denial of ap- reversal of the variance ception the landowners took excep- because plication; (2)
231 no court the lower imposed by tion to a condition proposed advertise the feet) sign “high-rise” (over took no ad- lower court station’s location. Since the determine whether ditional our is to evidence, duty an committed discretion or abused its clearly error of law. as
The location court below the property’s described sta- follows: proposed “The location for the tion is a land situated at the intersection of tract of XI of as Legislative Ramp Route 62141 relocated The 70. Speers for Interstate interchange Highway tract is Route bounded on the southwest Legislative by on the an 62141, by alley Alley] northeast [Belmont the A. T. Plan beyond Estate No. Morgan Lots, 5, which sit in said On the west plan. various houses east bounded XI and on the aforesaid Ramp Route Legislative again Legislative Route as compris- curves triangle to the north. It is a of land 0.8736 ing Legislative acres frontage along with XI Route of depth Ramp about 485 feet and a along of about 70 feet Route Legislative which narrows cuts into it as the Route travels east.” XI
Interstate with its 70, Ramp constituting R. property’s western and L. which boundary, 62141, were was relocated Plan No. Morgan so as to bisect constructed after 1956 record does (the some time indicate As when). originally planned by Wilkinsburg, shape, however, rectangular Lot Nos. 141-146 were western- being 100 feet and 60 feet wide. The long ap- being most No. was more lot, square size, di- A Helen proximately street, Avenue, 75 feet wide. boundary vided Plan No. 5 and served as southern of Lot Nos. 138-147 inclusive. guide, in the record as a
Using drawings the official progres- of L. R. 62141 seems to have construction lots. curtailed the southern boundaries sively substantially 141-146 Nos. were The of Lot lengths Lot remaining little leaving successively decreased a part seem to be 138-140 No. 141. Lot Nos. now super- Avenue Maple L. is named R. 147 was No. Avenue. width Lot sedes Helen *6 Ramp of construction half the nearly decreased by Al- Belmont the same. nearly XI. remains length Its boundary, northern the property’s which served as ley, par- 141-147. Of Lot Nos. remains as to unchanged necessarily L. R. 62141 is the fact that ticular note the to feet below up varying constructed at a level Nos. 141-147. surface of Lot prop- therefore, doubt, There can be little from what in character different substantially is erty planned in 1950 and when residential it was when zoned contend therefore, landowners, in 1956. The into lots un- their property of a residential classification the premises realistic use of only and that the suitable, sta- proposed gasoline their preferably is commercial, the across exists a station There already tion. another and yet from the (L. 62141) street R. side of 1-70. on the other 300 feet distant such station The “high-rise” sign. stations has Each of these R. on L. traffic heavy to the point further landowners as it, 1-70 the ramps of and the proximity Further, terrain of property. their as the elevated well open Council’s refusal Borough they point access preventing easy thus Alley, public Belmont to the property. 391 Pa. Adjustment, v. Zoning
In Richman
of
Supreme
Court
(1958),
Generally,
variance,
of a
granting
sufficient
to sustain
itself
been
where
only
applied
but “. . . this doctrine has
develop-
one
is a
of more
from
question
profits
type
Gro
type
development.”
to another
opposed
ment
878 (1970).
440 Pa.
269 A. 2d
552, 555,
876,
Appeal,
appears
on rare occasionsthe
record
However, when,
loss
total
in the sense of
hardship”
to show “property
a use vari-
permitted uses,
for
usability
Pa.
v.
Kownacki,
as in
affirmed,
Ferry
ance will be
tract
uses; (2) L.R. 62141; (3) of by the construction caused erty existence roadway; (4) flow of that traffic heavy 62141; L.R. on the side of opposite of a station property’s XI 1-70 as the of of Ramp the existence (5) 1-70 it- proximity boundary; (6) western render it useless quite self is isolate the tract to realistic to a more permit a variance is granted unless use of the property. own- the abutting property
It is no
argument
say
extend
in order to
buy parts
ers wish
Alley.
unopened
Belmont
yards
their
rear
across
v.
Ferry
Court stated
Supreme
This
as the
would,
ren-
Finally,
may
the Board did
feel that an
“not
owner
‘unnecessary hardship’
rely
create his own
and then
upon it to secure a variance.” This
no
conclusion was
prompted by
bought
doubt
the fact that Mr.
DeiCas
property
purposes only
for investment
he
and that
property
knew
was zoned
he
residential when
bought
Supreme
recently
it. The
Court
delineated
hardship”
ap-
when the “self-inflicted
rule was to be
plied “Only
:
in a case such as
which arises after
this,
property
paid
has been sold to a new owner
has
who
high price
property
for the
because he assumed that
anticipated
justify
price,
a variance which he
would
his
prove
do we hold that the owner cannot
that the hard-
ship
unnecessary
which burdens his land was
rather
Appeal, supra,
than self-inflicted.” Gro
The record does not reveal, however, what Mr. paid property originally, although DeiCas for the together paid clear that the Bassis and the Pfiles they $2,666.66 for the two-thirds interest ac- quired from Mr. DeiCas. there is noth- Furthermore, ing pur- in the record to indicate that the assumption chased with the that a variance would justify price. (Mr. needed to DeiCas’s investment resale.) could well have been for residential fact, In previously Mr. DeiCas, noted, had not decided com- whether to use the for a residential or a mercial purpose. Borough It seems after the only denied access the tract effectively did landowners resort to their agreement with Atlantic Corporation. Richfield we see reason the condition
Lastly, no to disturb imposed the lower court that no “high-rise” (over *10 20 location. advertise the station’s feet) sign proposed Conditions placed on the of variances are grant permis- sible. Nicholson v. Board 392 Zoning Adjustment, Pa. 140 278, A. 2d 604 912 of Article (1958). Section IX of the Pennsylvania Municipalities Planning Code, Act of P. L. No. July 31, 1968, 53 P.S. , 247, §10912, permits a when board, granting impose to any variance, reasonable conditions and Here safeguards. the lower court reversed the to power Board had same impose reasonable conditions relative to the grant the variance. We believe limitation height that imposed the lower court is reasonable.
Order affirmed.
Dissenting Opinion Judge Blatt: I must respectfully dissent.
The majority has held that in landowners case are entitled to receive a variance to build a gaso- line station and that Board of Zoning Adjustment abused (Board) its discretion in grant such failing a variance.
It
is well
I
recognized,
a
that
landowner
believe,
heavy
must
in
carry
burden
order
he
prove
is entitled to a variance.
“In order to obtain a vari-
ance the
is well
law
settled that an applicant must
prove
the variance will
(1)
not be contrary
pub-
lic
interest;
(2) unnecessary hardships will result
if
(Emphasis
it is not
granted.”
Altemose
original.)
v.
Company
Construction
3
Hearing Board,
Pa.
Ct.
281 A. 2d
781,
(1971).
Commonwealth
“An
a variance has the burden
applicant
seeking
criteria.”
met both of the above
that he has
proving
2 Pa.
Township
v. Wilkins
Boyd
Adjustment,
(1971).
Ct.
279 A. 2d
Commonwealth
324, 326,
A
not be
where the record
granted
variance should
demonstrating
barren as to
evidence
“completely
the land
cannot
be used with-
question
possibly
the present
uses enumerated under
permissible
. .” Marple Township
classification.
.
zoning
Appeal,
case,
430 Pa.
graphical topographical location and features un- is sufficient render the useless present made less a variance is But the has granted. majority *11 landowners assumption despite the fact that the no into to indi- placed competent testimony the record cate that the could not be used as zoned. One property of the Mr. Deicas is a landowners, (who professional the used engineer), property testified that could not be for residential purposes because there was insufficient access thereto and there were no on utility facilities the There that property. was no testimony, however, such facilities were not as immediately available, Mr. Deicas testified that at one access, point along the elevation is 6 a 35-foot Maple Street, where feet, with could be of In driveway placed grade only 18%. there was no as to of any case, testimony why either make the these was sufficient unusable. property as to the value testimony There was no of the property zoned; testimony as no as to the currently possibility
239 for other authorized property purposes of the using as ; testimony an R-l District as no (such apartments) of as the of the the changing grade property, costs Hanover there Board Zoning Adjustment 278 v. Pa. Commonwealth Ct. Township Koehler, 260, adjacent that testimony A. and no (1971); 2d render station would nearby or the highways District. R-l if it continued as an property useless best highest While there was testimony testi- is as a such gasoline station, use of the economic of an possibility mony points only con- does not “[ejconomic hardship and an hardship, hardship peculiar stitute such a unique, unnecessary in itself to the involved that will justify propei'ty . . v. issuance of a variance. .” DiSanto Lower Merion 410 Pa. Adjustment Township, 189 A. 2d (1963). mandated holds that a variance is majority area. merely because of the conditions of the physical No as to testimony cited, however, the effect characteristics have sxxch on value physical such does not exist property. Indeed, testimony majority proving the record. The lifts the burdexx of an from the and assumes hardship landowners, actual on its below, did court these own, physical con- as shown characteristics, maps, photographs, other such make diagrams physical tour evidence, unusable as zoned. Meanwhile, ignores the fact no evidence was introduced as ef- upon fect of these features value or the usefulness in question. of the property changes
This decision
standards of
in vari-
proof
In
ance cases.
the future it will apparently
merely
*12
for landowners
to show
their
necessary
that
unique physical
contains
characteristics.
effects
characteristics on the use of
physical
prop-
of such
the
this Court
testified
but
to,
need not be
zoned
as
erty
super
to sit
be permitted
courts will
the lower
wheth-
as to
judgment
their own
and use
boards
zoning
zoned. The ad-
be used as
can
er
not the property
or
rational
land use
upon
a standard
of such
effect
verse
understood.
easily
can be
planning
an unnec-
to prove
to failing
in addition
Moreover,
failed
the landowners have
case,
essary hardship
not be con-
would
of a variance
grant
that the
to prove
that
clear
interest. The law seems
trary
public
spirit
if ‘the
granted only
can be
“the variance
pub-
health;
the public
be observed;
shall
ordinance
and sub-
secured;
welfare
general
lic
and the
safety;
”
Board
v. Zoning
Richman
done.’
justice
stantial
A.
2d
It should be noted,
moreover,
there seems
be
a strong indication that
in
any hardship
the use of this
property (although of course,
there is
no evidence
was
hardship)
self-inflicted.
The landowners knew
was
R-l
purchased
zoned
when they
it, and, despite such knowledge, they went through with
the deal.
under
Surely,
these
can-
circumstances,
they
not claim an unnecessary hardship. McClure Appeal,
415 Pa.
203 A.
2d 534 (1964);
v. Board
Drop
6 Pa.
Adjustment,
Commonwealth Ct.
293 A.
2d
(1972). The majority cites Gro Appeal,
Lastly, majority seems clearly have erred in stating this Court’s scope review. As the majority it:
puts
“Since the lower court
took no additional evi-
dence,
duty
our
is to determine whether
clearly abused its discretion or committed an error of
law.” The lower court
make a
judge,
did
view
however,
opin-
In the
court
question.
lower
he stated: “We
ion,
inspected
traveled to the site and
and some of our comments are based
observa-
upon
tion.” Such a view and its
opin-
use
the lower court’s
ion seems
an admission
relevant
clearly
evidence,
*14
and the lower court was not
deciding
solely
case
on
the record received from the Board.
In
v. Media
Beebe
Zoning
5 Pa. Commonwealth Ct.
Hearing Board,
Very little evidence of any effort on the part of landowners to carry their heavy burden proving the grant of a variance was mandated was to be found anywhere in the record in case, and, view the I record, can find no basis on which either to hold the Board abused its discretion or committed an error of law or that the lower court had evidence Avhich to base its decision I granting variance. would reverse the ruling of the lower court and rein- state the Board’s order that the variance be denied. Rogers
Judge joins this dissent.