19 Pa. Commw. 469 | Pa. Commw. Ct. | 1975
Opinion by
This is a zoning appeal. In June of 1972, Appellant, Louis S. Rubin, filed an application for a zoning permit for the development of a 10.34 acre tract in Upper Southampton Township as a 96 unit apartment complex.
Hence this appeal.
In appeals like this where the court below did not consider additional evidence, our scope of review is limited to a determination of whether the zoning board committed a manifest abuse of discretion or erred as a matter of law. Radnor Township v. Falcone, 16 Pa. Commonwealth Ct. 283, 328 A.2d 216 (1974); Dewald v. Board of Adjustment, City of Pittsburgh, 13 Pa. Commonwealth Ct. 303, 320 A.2d 922 (1974). Appellant urges us to undertake an independent fact-finding function in this case because there is evidence of an “exclusionary” intent by the Township in attempting to frustrate Appellant’s application by burdensome administrative delays. We disagree. At most,
The standards governing the grant or denial of a variance are firmly established. As so ably stated by our sister Judge BLATT in Alfano v. Zoning Hearing Board of Marple Township, 14 Pa. Commonwealth Ct. 334, 336-337, 324 A.2d 851, 852-53 (1974), a case of remarkable factual similarity to the instant appeal:
“A variance should, of course, be granted only in exceptional circumstances and the burden of proving its need is a heavy one. The Boulevard Land Corporation v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 584, 303 A.2d 234 (1973). In order to establish his right to a variance, an applicant must prove: (1) that the effect of the zoning ordinance is to burden his property with an unnecessary hardship which is unique to his particular property; and (2) that the variance would not have an adverse effect upon the public health, safety or welfare. Sposato v. Radnor Township Board of Adjustment, 440 Pa. 107, 270 A.2d 616 (1970). An applicant can establish the existence of an unnecessary hardship ‘ (1) by a showing that the physical characteristics of the property were such that it could not in any case be used for the permitted purpose or that the physical characteristics were such that it could only be arranged for such purpose at prohibitive expense ... or (2) by proving that the characteristics of the area were such that the lot has either no*475 value or only a distress value for any purpose permitted by the zoning ordinance. . . .’ Philadelphia v. Earl Scheib Realty Corp., 8 Pa. Commonwealth Ct. 11, 17, 301 A.2d 423, 426 (1973). Economic hardship, however, short of rendering property practically valueless, does not justify a variance. Boulevard Land Corporation, supra.”
A review of the record reveals the following: Appellant bought the subject tract in 1958 at which time it was and still remains zoned for single family residential uses. Physically, the property is vacant and wooded; two small streams traverse the tract with a resultant irregular flood plain on the land fronting County Line Road; and a 40 foot wide gas pipeline easement runs through the eastern third of the property in a north-south direction. The property is bordered on three sides by land zoned or developed as single-family residences, and 33 acres across County Line Road in Lower Moreland Township had been rezoned for a shopping center but no development had begun at the time of Appellant’s application. Additionally, the tract is abutted to the east by a municipal sewage pumping station and a non-conforming light-industrial use. Appellant subdivided a one and one-quarter acre parcel in 1962, and one-quarter acre was condemned for the pumping station in 1964. Otherwise the property has remained intact.
The crux of Appellant’s case is that his property, as presently zoned, is “practically valueless” due to 1) its physical limitations, 2) the conditions surrounding the tract; and 3) his unsuccessful efforts to sell the property since 1960. The mere placing of a “for sale” sign on the property and listing it with local real estate brokers without quoting a sales price, however, does not evidence “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.” Mobil Oil Corp. v. Zoning Board of Adjustment, 5 Pa. Common
Appellant’s real estate expert, however, disproved Appellant’s own case. He testified that the land was practically valueless for single-family development because homes could not be marketed in that area for the $50,000 construction cost. On cross-examination, however, this witness admitted that he had not undertaken a detailed cost analysis for Appellant’s tract, but rather had relied upon the improvement costs of another project in which he was involved. Additionally, he agreed that homes in the immediate area were being marketed for $50,000, and that the land as presently zoned could be sold for $10,000 to $40,000. This does not give a property distress value. At best (and not uncommon in the contests we hear too frequently), it indicates that Appellant could make a greater profit by selling his property for apartments rather than for single family homes. We say it again, mere economic hardship will not support a variance. Jasy Corp. v. Board of Adjustment, 413 Pa. 563, 198 A.2d 854 (1964); Alfano v. Zoning Hearing Board of Marple Township, supra; Levin v. Zoning Hearing Board of the Township of Radnor, 11 Pa. Commonwealth Ct. 452, 314 A.2d 579 (1974).
Finally, the record here does not establish a property hardship as was found in Pfile v. Borough of Speers, 7 Pa. Commonwealth Ct. 226, 298 A.2d 598 (1972).
Order affirmed.
. Appellant’s initial attempt to apply for a zoning permit in April of 1972 was rebuffed by the zoning officer’s refusal even to provide him with the necessary application forms. This was apparently on the advice of the Township solicitor who was of the opinion that Appellant would have to proceed by way of a rezoning rather than a variance due to size of the acreage and nature of change in zoning involved. Following the issuance of a writ of mandamus by the Court of Common Pleas of Bucks County on June 1, 1972, the application forms were promptly tendered to Appellant.