36 Pa. Commw. 88 | Pa. Commw. Ct. | 1978
Dissenting Opinion
Dissenting Opinion by
June 15, 1978:
I would not ordinarily dissent from an Order of this Court upholding a variance granted by a Zoning Hearing Board affirmed by the Court of Common Pleas. I am constrained to do so in this case, because I believe that the issue of this case is important.
The variance granted in this case permits the construction of a dwelling house on an 8000 square feet lot in a zoning district in which the minimum lot size requirement is that of 10,125 square feet. The lot in
The majority’s decision permits Fox to build a house on lot 34 upon a showing only that lot 34 was
The holding here is inconsistent with Section 508 (4) of The Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10508(4), which immunizes lots in approved subdivisions from the effect of subsequently enacted zoning regulations for a period of three years only. If, as this case holds, one who owns a lot in an approved subdivision may have a variance to use the lot contrary to present zoning requirements upon a mere showing that the lot was in a subdivision approved prior to the zoning requirements and in spite of the fact that he owns contiguous land, undersized lots once shown on approved subdivisions are immunized perpetually.
This case will greatly hinder the desirable end of improving communities by upgrading zoning regulations. Anyone familiar with titles in suburban municipalities knows that there are scores, if not hundreds, of old, approved subdivisions showing tiny lots, recorded in the offices of Recorders of Deeds. Today’s decision would allow one who owns tracts once approved for such subdivision to obtain variances to build on substandard lots regardless of present zoning requirements and his ability to conform. Further, some properties now in single ownership have been assembled by their owners by the purchase of adjoining lots in old, approved subdivisions which are substandard by present zoning requirements. Today’s decision would sanction, as of right, the subdivision of such properties in accordance with the old plans,
In my opinion, one who has purchased a nonconforming lot contiguous to property already owned may not have a variance to construct a dwelling house on the nonconforming lot by showing only that the lot was on a plan of subdivision approved before the enactment of zoning regulations which made the lot nonconforming.
Lead Opinion
Opinion by
The issue before the Court in this ease is the propriety of a Zoning Hearing Board’s grant of a variance when the application before it was for a special exception and when the variance was to build on an abutting, undersized lot. The trial court affirmed the decision of the Zoning Hearing Board with an able opinion by Judge McGovern, Jr., which opinion is reported at 63 Del. 401 (1976). We affirm and adopt the opinion of Judge McGovern, Jr.
Accordingly, we will enter the following
Order
Now, June 15,1978, the Order of the Court of Common Pleas of Delaware County in the above matter, dated November 24, 1976, affirming, after Petition for Reconsideration, supplemental brief and argument thereon, its order of June 15, 1976, is affirmed.