Summary
In York Township Zoning Board of Adjustment v. Brown, 407 Pa. 649, 182 A.2d 706 (1962), and Friendship Builders, Inc. v. West Brandywine Township Zoning Board, 1 Pa. Commw. 25, 271 A.2d 511 (1970), the Pennsylvania Supreme Court and this court, respectively, held that mere plan approval under subdivision regulations does not establish a vested right or nonconforming use.
Summary of this case from Bensalem Township AppealOpinion
May 21, 1962.
June 28, 1962.
Municipalities — Zoning — Ordinance — Special exception — Necessity for undue hardship.
1. In this zoning case in which the property owners applied for special exceptions from a zoning ordinance's area and width requirements as to certain lots in land subdivisions owned and developed by them and the applicable section of the zoning ordinance required a showing of undue hardship, which the court below found did not exist, it was Held that the court below had properly affirmed the refusal of the zoning board of adjustment to grant a special exception. [650-2]
2. A municipality's approval of subdivision plans prior to the enacting of a zoning ordinance does not create a vested right to subdivide the lots as so approved. [652]
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.
Appeals, Nos. 43 and 44, May T., 1962, from orders of Court of Common Pleas of York County, Oct. T., 1960, Nos. 127 and 247, in case of York Township Zoning Board of Adjustment v. Gordon L. Brown, Dorothy I. Brown, his wife, Leo R. Keener et ux. Order in each appeal affirmed.
Proceedings on appeals by property owners from decision of zoning board of adjustment.
Orders of zoning board refusing special exceptions affirmed, opinion by SHADLE, J. Property owners appealed.
Russell F. Griest, with him Anstine Griest, for appellants.
Raymond L. Hovis, for appellee.
The court below affirmed the York Township Zoning Board of Adjustment's refusal of special exceptions from the York Township Zoning Ordinance area and width requirements as to certain lots in several land subdivisions owned and developed by the appellants.
Under section 402(1)(B) and 302(1)(A)(3) of the York Township Zoning Ordinance, lots in the districts in which the subdivisions are located when not served by a public water supply or a sanitary sewer system must have an area of not less than 20,000 square feet and a width of not less than 100 feet. Some of the appellants' lots did not meet these requirements and accordingly they applied to the York Township zoning officer for special exceptions so as to permit the lots in question to remain as originally laid out, though admittedly not in conformity with the zoning requirements. The application was refused and the refusal affirmed by the township's board of adjustment.
The appellants then went into the Court of Common Pleas of York County, which appointed a referee to take additional testimony. The court did not accept the referee's findings in behalf of the appellants, and, after its own study of the record, affirmed the board of adjustment's refusal of special exceptions. This appeal followed.
Section 701 of the York County Zoning Ordinance provides: ". . . parcels of land held in single and separate ownership which are composed of contiguous lots originally subdivided into lots having areas or widths less than those permitted in the district in which the parcel of land is located shall be re-subdivided to conform to the area width regulations imposed by this ordinance; provided, however, that where such re-subdivision will result in undue hardship, as in the case of substantial improvements having been made to the property under and subject to any then existing regulations, which improvements render re-subdivision impractical or unusually burdensome, the Zoning Board of Adjustment may grant a Special Exception for the use of such lots as nonconforming lots subject to the provisions of Article XI and within the spirit of these regulations."
We agree with the lower court's conclusions that this section, dealing as it does, with nonconforming lots (and not section 700) governs the facts in the case. To hold otherwise would be practically to nullify section 701. Under this section the appellants had to show that conforming to the zoning ordinance's requirements would result in "undue hardship," but, as fully discussed by the lower court, whose reasoning we affirm, the record does not show such "undue hardship."
Nor can we agree with appellant's contention that with respect to those subdivision plans approved by the township prior to the zoning ordinance, there was created a vested right to subdivide the lots as so approved. As succinctly stated by this same lower court in York Township Zoning Board v. Brown, 74 York 197 (1960) "In the abstract, it is highly desirable in the zoning process that pre-existing land subdivisions should conform to later zoning laws. Otherwise, subdivisions in their infancy could perpetuate for years the problems zoning was designed to eliminate. Furthermore, the financial hardship on the owner in complying is not nearly as great as that of the operator of a proscribed business who faces complete annihilation. Land subdivisions usually can be made to conform by enlarging lot sizes or combining two lots into one. True it is that such action produces less profit to the subdivider than he had anticipated. Yet it no longer requires citation of authority to show that failure to realize anticipated profits furnishes no basis for exception from the zoning process."
The action of the court below in affirming the board's refusal of the special exceptions is amply supported by the record and by the law.
We see no abuse of discretion and accordingly the order in each appeal is affirmed.