21 Pa. Commw. 129 | Pa. Commw. Ct. | 1975
Opinion by
This is an appeal by James H. Voortman and Jane P. Voortman, husband and wife, from an order of the Court of Common Pleas of Bucks County which affirmed the denial by the Bucks County Zoning Board of a variance from a public sewer requirement sought by the Voortmans to expand their nonconforming mobile home park.
The Voortmans are owners of a 21.5 acre tract in Richland Township upon which they presently operate a twenty unit mobile home park named Cherry Mobile Home Park. At all times pertinent to this appeal, Rich-land Township did not have a zoning ordinance and so the terms of the Bucks County Zoning Ordinance of 1969 controlled. Under this ordinance, the Voortman property was zoned R-C (residential-conservation) which does not permit mobile home parks; but since the Voortmans’ twenty unit mobile home park predated the ordinance, it was allowed to continue as a nonconforming use. In August of 1970, the Voortmans decided to expand this use by the addition of twenty mobile homes — the maximum
“It is, of course, well settled in this Commonwealth that an applicant seeking a variance for an expansion of a nonconforming use must still meet the ordinary requirements for the grant of a variance, i.e., that the refusal to grant the variance would cause an unnecessary hardship peculiar to that property and that the grant of the variance would not be contrary to the health, safety and general welfare of the community. Walter v. Philadelphia Zoning Board of Adjustment, 437 Pa. 277, 263 A. 2d 123 (1970).” (Emphasis in original.) Snyder v. Zoning Hearing Board, Borough of Zelienople, 20 Pa. Commonwealth Ct. 139, 341 A. 2d 546 (1975).
The central argument of the Voortmans on appeal is that the requirement of public sewage, or more specifically a properly installed package treatment plant which could cost them as much as $85,645.00, is an unnecessary hard
“The Board felt that the appellee had not shown unnecessary hardship peculiar to its property. Appellant cites and relies on the long line of cases which properly establish that unnecessary hardship to the property in question must be established. See Borough of Ingram v. Sinicrope, 8 Pa. Commonwealth Ct. 448, 303 A. 2d 855 (1973); Marple Gardens, Inc. v. Zoning Board of Adjustment and Johnson, 8 Pa. Commonwealth Ct. 436, 303 A. 2d 239 (1973); Mobil Oil Corp. v. Zoning Board of Adjustment, 5 Pa. Commonwealth Ct. 535, 291 A. 2d 541 (1972). An exam*134 ination of those cases and the authorities therein cited make it clear that the degree of the hardship that must be shown must bear some relationship to the necessity. It would be hard to imagine a more unnecessary hardship than not to permit the appellee to use on-site water which is immediately available, is supplied in accordance with a variance granted within three years, and is admittedly healthful water. It becomes even more unnecessary and a more apparent abuse of discretion when not only is the hardship unnecessary, but it is clearly a hardship that is beyond appellee’s power to remedy, i.e., it is not a matter of expending money; no off-site water is available at any price. Further, appellee agrees and has agreed to discontinue the on-site water use immediately when off-site water becomes available.
“Finally, one of the important factors to be considered is whether the hardship is peculiar to this property. There is certainly nothing in this record to show that there is another property in this Township that has potable and healthful on-site water expressly approved for one purpose as a substitute for off-site water, and not permitted to be used for another purpose with regard to the same property. It is hard to visualize anything more idiosyncratic to this particular property.” West Goshen, supra, 11 Pa. Commonwealth Co. at 77, 313 A. 2d at 179, 180 (Emphasis in original.)
Of course, in the instant case, it is the zoning board’s position that a package treatment is a feasible alternative to the on-site septic system proposed by the Voortmans, and therefore their hardship is merely economic, whereas the landowner in West Goshen had no viable alternative to on-site water. We are not persuaded by this distinction, however, for two reasons. Initially, the record does not establish that the Voortmans could, in fact, operate an
Finally with respect to the impact of the grant of the variance upon the public health and welfare of the community, we must conclude that the zoning board exceeded its jurisdiction by, in effect, collaterally attacking the determinations made by the Department of Health in granting the on-site septic system permit. That' agency has primary authority over such determinations, and it is not for the zoning board to enforce the technical engineering regulations of that agency even though it may be convinced that a permit was improvidently granted. See the able discussion of Judge Satterthwaite in Caldwell v. Northampton Township Zoning Board of Adjustment, 18 Bucks Co. L. Rep. 573, 580 (1968), aff’d 1 Pa. Commonwealth Ct. 222, 273 A. 2d 557 (1971), where the cases are collected and analyzed.
Order reversed.
. In affirming the zoning board, the lower court agreed that the Voortmans had only established an economic hardship which
. The appellee-party in interest here, Kichland Township, raises the same objection to the variance sought by the Voortmans.
. Section 221(a) of the county ordinance defines “public sewer” as: “any municipal or privately owned sewer system in which sewage is collected from building and piped to an approved sewage tank disposal system. It may also be referred to as ‘off-lot’ or ‘off-site’ sewer. This shall include capped sewers when installed to county specifications.” (Emphasis supplied.)
. Although a zoning board may determine whether there is evidence that particular health regulations have been complied with, Caldwell, supra, here that determination has been made by the Department of Health and the zoning board may not disregard the prior approval. See Mignatti Construction Co., Inc.’s Zoning Application, 3 Pa. Commonwealth Ct. 242, 246, 281 A.2d 355, 356 (1971).