Opinion
Argued April 9, 1980
July 7, 1980.
Zoning — Scope of appellate review — Findings of fact — Substantial evidence — Error of law — Change in nonconforming use — Special exception — Variance — Unnecessary hardship — Economic hardship.
1. In a zoning case where the court below took no additional evidence, review by the Commonwealth Court of Pennsylvania is to determine whether findings of fact of the zoning board were unsupported by substantial evidence and whether the board committed an error of law. [529]
2. When a zoning ordinance permits a change in a nonconforming use only when the change is of the same or more restrictive classification and when the proposed use is deemed equally or more appropriate to the district than the existing use, a change from a nonconforming use as a firehouse to an auto repair shop is properly denied. [529]
3. A special exception under a zoning ordinance cannot be granted when the proposed use is not one which is allowed as a special exception in the particular district. [530]
4. A variance from zoning requirements is permitted only where an unnecessary hardship exists, and such hardship is not demonstrated when it appears that the property can be used for permitted purposes and the only hardship established is an economic one. [530]
Argued April 9, 1980, before President Judge CRUMLISH and Judges CRAIG and WILLIAMS, JR., sitting as a panel of three.
Appeal, No. 555 C.D. 1979, from the Order of the Court of Common Pleas of Montgomery County in case of Louis J. Bruni and Sonja Bruni, his wife v. Zoning Hearing Board of Plymouth Township, No. 78-12984.
Application to the Zoning Hearing Board of Plymouth Township for continuance of nonconforming use, special exception or variance. Application denied. Applicants appealed to the Court of Common Pleas of Montgomery County. Appeal dismissed. LOWE, P.J. Applicants appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Norman Ashton Klinger, for appellants.
Arthur Lefkoe, Wisler, Pearlstine, Talone, Craig Garrity, with him Herbert F. Rubenstein, Beeghley, Rubenstein Moore, for appellee.
The Montgomery County Common Pleas Court affirmed the Plymouth Township Zoning Hearing Board's (Board) denial of a continuance of a nonconforming use and an application for a special exception and/or variance of its ordinance.
Louis and Sonja Bruni are titleholders of a property in a district zoned "D" residential and from 1906 through early 1978 it was used as a firehouse, a nonconforming use. In addition to the typical firehouse activities and functions, such as the storage and routine maintenance of firefighting equipment, including light vehicle maintenance and minor repairs, it was used as a social hall for dinners, wedding receptions and post-funeral gatherings.
In seeking relief, Brunis propose to operate an automobile repair garage (exclusive of body work) on the premises between the hours of 8:00 A.M. and 6:00 P.M., six days a week. Their application for relief cites three alternative grounds: (1) a continued nonconforming use of equal or more restrictive classification under Section 1800.B of the zoning ordinance; (2) a special exception citing Section 1000.K.1 and Section 2101 of the zoning ordinance; and (3) a variance under Section 2101.D.2 of the zoning ordinance and Section 912 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 10912. The Board denied all three requests, the trial court affirmed, and this appeal followed.
Appellants continue to press a fourth argument that the subject property is unzoned and can be used for an automobile repair shop because a prior township zoning had marked the location of the firehouse with a white rectangular box with the symbol "FH." Other community points of interest such as schools, churches, cemeteries, and the police station are similarly denoted on the zoning map and referenced by an identifying legend on the map. To seriously contend that the area within the white box was left unzoned while the surrounding land is zoned "D Residential" is, in the words of the court below, "absurd." It merits no further discussion here.
We reiterate our scope of review: Since the court below took no additional evidence, we are limited to a determination of whether the Board's findings are supported by substantial evidence or whether it erred in law. Seidita v. Board of Zoning Appeals, 41 Pa. Commw. 340, 399 A.2d 156 (1979).
The Brunis' initial contention is without merit. Section 1800.B of the township zoning ordinance provides a change of a non-conforming use:
B. Change. Any lawful, non-conforming use of a building or land may be changed to another non-conforming use of the same or more restrictive classification, provided that the Zoning Hearing Board shall find that the proposed use if [sic] equally appropriate, or more appropriate to the district, than the existing non-conforming use.
The Board properly reasoned that an auto repair shop is a use permitted in a commercial district whereas a firehouse, alternatively held to be a municipal use or a philanthropic use, is a permitted use in an "AA" residential district or an office laboratory district, respectively. Since the use and dimensional restrictions of a commercial district are less restrictive than in an "AA" residential district or office laboratory district, the change in non-conforming uses was properly denied. Obviously, an automobile repair shop is not the same or more restrictive than a firehouse.
Rawhauser v. Dover Township Zoning Board, 60 Pa. D. C.2d 614 (1972).
North End Fire Company Number 1 of Pottstown Appeal, 85 Pa. D. C. 287 (1952).
Brunis' argument that their special exception will not adversely affect the community fails. An applicant first must establish that his proposed use is one which is allowed by special exception generally complying with the purposes of the ordinance. In Re: Appeal of Zambrano Corp., 49 Pa. Commw. 6, 410 A.2d 1293 (1980); In Re: Appeal of William J. Lowney, Jr., 46 Pa. Commw. 213, 406 A.2d 1160 (1979). Since the ordinance fails to provide for an automobile repair shop by special exception in a "D" residential district, we need not reach the issue of whether the proposed use adversely affects the community's health, safety or welfare.
Finally, it is contended that the Board erred in denying the Brunis' request for a variance. It is well settled law that a variance may be granted only where unnecessary hardship exists, that the hardship was not self-imposed, that a grant of the variance will not adversely affect the public welfare, and that the variance is the minimum necessary to afford relief. Silar v. Zoning Board of Adjustment, 46 Pa. Commw. 340, 407 A.2d 74 (1979).
The record reveals that, although there are various commercial establishments within the surrounding area, Brunis' property could be used for single-family dwellings, municipal use, hospital, recreational use under municipal direction, community center, telephone central office, club, fraternal institution, and multi-family dwellings. No evidence was presented showing that any of the preceding uses were unfeasible or that efforts to sell the property for a permitted use failed. The record supports the conclusion that the variance request was bottomed not upon lack of feasibility of permitted uses but rather upon the expectation that the property will be economically productive as a repair shop. This "economic hardship" is legally insufficient to constitute an "unnecessary hardship" and we have said so ad nauseum. Nardozza Zoning Case, 45 Pa. Commw. 482, 405 A.2d 1020 (1979).
We hold that the Board did not err in denying the relief. Accordingly, we
ORDER
AND NOW, this 7th day of July, 1980, the order of the Court of Common Pleas of Montgomery County dated February 15, 1979, is hereby affirmed.