11 Pa. Commw. 74 | Pa. Commw. Ct. | 1973
Opinion by
This is an appeal from the decision of the lower court allowing appellee a variance to use on-site water in operating a parochial school, the operation of the parochial school being permitted by special exception. It is agreed that appellee qualifies in all respects for the special exception but for the fact that the zoning ordinance requires off-site water which is not available. The Zoning Hearing Board had denied the variance and was reversed by the lower court.
In 1969, in a prior proceeding, appellee had obtained a special exception to build and use a church and Sunday school on this site with a variance for use of on-site water provided certain special conditions were met with regard to the approval of the on-site well and its periodic inspection, as well as an agreement that appellee would discontinue its use of the on-site well and change to off-site public water whenever it became available. Appellee met and continues to meet these conditions. It now applies to use the church buildings for a parochial school for pre-ldndergarten, kindergarten, and grades one and two, anticipating about 45 students.
The Zoning Hearing Board, from its comments at the hearing and from its opinion, apparently felt it did not have authority to grant the variance and, indeed, indicated it felt it made a mistake in 1969 when it granted the previous one. It found as a fact that no new structure would be needed and that off-site sewer facilities were available and used. It also found as a fact the present well provided pure and potable water, and that there was no danger to the public health, safety, morals or welfare and none would be created by granting the variance. The Board did state that in general the provision of the zoning ordinance requiring off-site water bore a reasonable relationship to the public health, safety, morals or welfare; nevertheless, the
The lower court held that it was a manifest abuse of its discretion for the Board to take this position. We agree with the court below and must affirm.
While not controlling, it is certainly significant that all of the witnesses at the hearing spoke in favor of the application. There were no protestants. It is also significant that there was affirmative evidence that not only was there no public water main within 800-1,000 feet of the property, but, in addition, it was affirmatively shown that the Authority that had the
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. Bee 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 examination of those cases and the authorities therein cited mate 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.
Affirmed.