393 Pa. 337 | Pa. | 1958
Opinion by
This is an appeal from the order of the court below affirming the decision of the zoning board which granted a variance to appellee.
The appellee is owner of a lot in Plymouth Township, Montgomery County, adjoining premises of ap
At the public hearing on the application held April 16, 1956, no objections were raised and the variance was granted. Appellee obtained a building permit on April 17th and proceeded to excavate on April 21st. On April 25th the appellant filed his appeal in the court below and also notified appellee in writing to “refrain from going ahead with the work pending the final determination of this appeal.” At this time not much more than the excavation had been completed.
On June 11th, the court below “referred [the new matter] back to the Board of Adjustment for the purpose of taldng . . . additional testimony.” Further hearing having been had on July 16th, the court below affirmed the decision of the board; hence this appeal.
At best, the testimony established that when application for the variance was made, appellee had done nothing more than purchase the lot and a set of ready-made plans. The board granted the variance on the basis that appellee qualified for it under Section 1601 of the ordinance;
“The difficulties and hardships, which move the board of adjustment to depart from the strict letter of the ordinance, should be. substantial and of compelling force”: Kerr’s Appeal, 294 Pa. 246, 253, 144 A. 81, 84. The power to grant a variance “is to be ‘sparingly exercised and only under peculiar and exceptional circumstances, for otherwise there would be little left of the Zoning Law to protect public rights’ ”: Kovacs v. Ross Township Board of Adjustment, 173 Pa. Superior Ct. 66, 73, 95 A. 2d 350. Having recognized these principles, the court below proceeded to find as follows: “The reasons assigned by the Board for its decision in this case were neither substantial, serious nor compelling nor were the circumstances peculiar or exceptional.” In this result we wholeheartedly concur; but we cannot accept the court’s basis for sustaining the board’s decision.
Merely because appellant did not seek nor obtain a supersedeas does not destroy his rights on appeal.
The order of the court below is reversed at the cost of appellee, and the record is remanded for the entry of an order consonant with this opinion.
“. . . a building may be erected ... on any unimproved lot . . . which is not of the required minimum area or width . . . [subject to board approval].”