Summary
finding of unnecessary hardship supported by testimony of prior tenant, realtor and a neighboring land owner that traffic volume, noise, lights, water run-off and dust related to surrounding uses rendered property unsuitable for residential use
Summary of this case from Valley View Civic Ass'n v. Zoning Board of AdjustmentOpinion
Argued March 7, 1973
April 25, 1973.
Zoning — Scope of appellate review — Abuse of discretion — Error of law — Burden of proof — Variance — Public welfare — Unnecessary hardship — Physical characteristics — Distress value — Permitted use — Attempt to sell — Evidence — Usability — Self-inflicted hardship.
1. In a zoning case where the lower court has considered additional evidence, the Commonwealth Court of Pennsylvania is to determine on appeal whether the court manifestly abused its discretion or committed an error of law. [450]
2. The burden is upon an applicant to establish that a proposed variance from a zoning ordinance is not contrary to public safety, health, morals or general welfare and that unnecessary hardship unique or peculiar to applicant's property exists, which hardship may be established by showing that the physical characteristics of the property are such that it cannot be used for the permitted purposes or only so used at prohibitive expense or by proving that the characteristics of the area are such that the property has no value or only distress value for any permitted purpose. [450-1]
3. It is not fatal to an application for a variance from a zoning ordinance to fail to show attempts to sell the property when other evidence has established that the land cannot reasonably be used as zoned. [452-3]
4. A property owner suffers a self-inflicted hardship and cannot be granted a variance from a zoning ordinance when he purchases property for a high price in anticipation of a variance, but a property owner is not so precluded when the purchase is made in good faith for meritorious purposes and, before seeking a variance, the owner seeks to overcome the adverse impact of the surrounding conditions. [453]
President Judge BOWMAN and Judge MENCER dissented.
Argued March 7, 1973, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Appeal, No. 680 C.D. 1972, from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Appeal of Anthony Louis Sinicrope, et ux., from the Decision of the Zoning Officer Refusing Occupancy Permit for Commercial Uses of Property at 207 Maxwell Street, Ingram Borough, No. S. A. 800 of 1971.
Application for occupancy permit denied by building inspector. Applicants appealed to Ingram Borough Zoning Hearing Board, requesting variance. Application denied. Applicants appealed to the Court of Common Pleas of Allegheny County. Appeal sustained. LENCHER, J. Borough appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Gilbert E. Morcroft, with him Clarence W. Biggs, Jr., for appellant. Helen M. Witt, with her Edward A. Witt, and Cleland, Hurtt and Witt, for appellees.
Appellees were denied a permit to operate a beauty and gift boutique in a single family dwelling located at 207 Maxwell Street, Borough of Ingram. Appellees then requested a variance from the zoning ordinance which designated the property in question as an "A Residential District," and when the variance was denied by the Zoning Hearing Board, appealed to the Court of Common Pleas of Allegheny County. The court, after hearing additional testimony, reversed the Zoning Hearing Board and granted the variance.
Where the lower court has considered additional evidence in making its findings of fact and conclusions of law, our review on appeal is to determine whether the court manifestly abused its discretion or committed an error of law. Drop v. Board of Adjustment, 6 Pa. Commw. 64, 293 A.2d 144 (1972).
"In order to establish a right to a variance an applicant must prove (1) unnecessary hardship upon and which is unique or peculiar to the applicant's property, as distinguished from the hardship arising from the impact of the Zoning Act or regulations on the entire district; and (2) that the proposed variance is not contrary to the public safety, health, morals or general welfare. . . . [Citations omitted.]" Marple Township Appeal, 430 Pa. 113, 114, 243 A.2d 357 (1968).
As noted recently in Philadelphia v. Earl Scheib Realty Corp., 8 Pa. Commw. 11, 301 A.2d 423, the unnecessary hardship can be established: "(1) by a showing that the physical characteristics of the property were such that it could not in any case be used for the permitted purpose or that the physical characteristics were such that it could only be arranged for such purpose at prohibitive expense. [Citations omitted.]; or (2) by proving that the characteristics of the area were such that the lot has either no value or only a distress value for any purpose permitted by the zoning ordinance. (Ferry v. Kownacki, 396 Pa. 283, 152 A.2d 456 (1959); Peirce v. Zoning Board of Adjustment, 410 Pa. 262, 189 A.2d 138 (1963))."
We must conclude upon a review of the record that the lower court did not abuse its discretion in finding that the characteristics of the area bordering the property at 207 Maxwell Street were such that to deny the requested variance would impose an unnecessary hardship upon the appellee. Although the dwelling house has a Maxwell Street address, it actually fronts on Linshaw Avenue. Immediately to the front of the property, across Linshaw Avenue, is a shopping center. An exit from the shopping center parking lot funnels traffic onto Linshaw Avenue at this location. Adjacent to the property on one side is a recreation area with a baseball field and tennis courts; on the other is a chiropractic clinic. There was ample testimony that the traffic volume, noise, lights, dust, and water run-off combine to render appellee's property unfeasible for use as a residence. A realtor testified that the property lacked all of the "amenities" of residential property such as safety, quiet enjoyment, freedom from dirt and noise, pleasant surroundings, and a "sense of belonging where it is." One of four men who were tenants for a period during the hearing before the Board, but who vacated prior to the court's hearing, testified that the excessive traffic and the interferences by noise and lights made the dwelling, in his opinion, unsuitable for a residence. In fact, one of the objectors, a neighboring property owner, graphically illustrated a few of the adverse circumstances besetting appellant's property: "The question has been asked about it being a residence. Until that house was built I almost sold mine for the same reason that the house right now is having a problem. The water, we had to have the problem of water coming off the ball field. The people next door to me, Cavishes, had an awful problem. They finally had to put in two big drains and take it out. The house there at 207 still gets the problem in. . . . So the dirt is a problem, the water is a problem. The man has fought over there for five years trying to get a lawn in. You can't because it washes out."
The findings of the lower court, as supported by the evidence, clearly indicate that the property is unfeasible for use as a residence and not, as the appellant would suggest, simply that the property is more feasibly used as a commercial venture than as a residence and thus within the proscription of Crafton Borough Appeal, 409 Pa. 82, 185 A.2d 533 (1962).
There is ample testimony also to support the conclusion of the lower court that the circumstances creating the hardship are unique to the appellee's property. This is the only dwelling house on the residential street fronting on Linshaw Avenue, bearing the impact of the traffic, lights, and noise of the shopping center.
The finding that the proposed variance is not contrary to the public safety, health, and general welfare relies upon the expert testimony of a realtor who felt the proposed use would not constitute a safety hazard and in fact thought the use would benefit the area. We cannot hold that the lower court abused its discretion in making this determination.
Two additional points require attention. First, the lack of evidence showing attempts to sell the property is not fatal where, as here, other evidence has established that the land cannot reasonably be used as zoned. See Zoning Board of Adjustment of Hanover Township, Northampton County v. Koehler, 2 Pa. Commw. 260, 278 A.2d 375 (1971); Pfile v. Borough of Speers, 7 Pa. Commw. 226, 298 A.2d 598 (1972).
Nor does the fact that appellee purchased with knowledge of the zoning restriction preclude the variance because of a self-inflicted hardship. In Gro Appeal, 440 Pa. 552, 269 A.2d 876 (1970), the Supreme Court delineated the circumstances in which an owner who purchased with knowledge of the condition of the property and the existing zoning classification would be prohibited from obtaining a variance: "Only in a case such as this, which arises after the property has been sold to a new owner who has paid a high price for the property because he assumed that a variance which he anticipated would justify his price, do we hold that the owner cannot prove that the hardship which burdens his land was unnecessary rather than self-inflicted." 440 Pa. at 560, 269 A.2d at 880. Here, the appellee purchased the property to prevent loss of hand money he had loaned his brother, the original purchaser, when his brother withdrew from the agreement. Only after unsuccessfully attempting to overcome the adverse impact of the surrounding conditions have appellees sought this variance.
Affirmed.
President Judge BOWMAN and Judge MENCER dissent.