Opinion
Argued May 5, 1978
September 21, 1978.
Zoning — Variance — Scope of appellate review — Error of law — Abuse of discretion — Setback requirements — Topography — Unnecessary hardship — Pennsylvania Municipalities Planning Code, Act 1968, July 31, P.L. 805 — Self-inflicted hardship.
1. In a zoning case where the lower court took additional evidence, review by the Commonwealth Court is to determine whether the lower court abused its discretion or committed an error of law. [634]
2. Under the Pennsylvania Municipalities Planning Code, Act 1968, July 31, P.L. 805, it is proper to grant a variance from setback requirements of a zoning ordinance when it is shown that because of unique topographical conditions of the property an unnecessary hardship would otherwise be imposed upon the property owner. [634-5]
3. The mere fact that a property owner purchased his property with knowledge of a hardship imposed on the use of the property by zoning restrictions does not alone require that he be denied a variance on the ground that the hardship was self-inflicted. [635-6]
Argued May 5, 1978, before Judges CRUMLISH, JR., WILKINSON, JR. and BLATT, sitting as a panel of three.
Appeal, No. 1570 C.D. 1977, from the Order of the Court of Common Pleas of Allegheny County in case of Franklin Towne Realty, Inc. v. The Zoning Hearing Board of the Borough of Franklin Park, Allegheny County, Pennsylvania, No. S.A. 1518 of 1976.
Petition to the Zoning Hearing Board of the Borough of Franklin Park for variance. Petition denied. Petitioner appealed to the Court of Common Pleas of Allegheny County. Variance granted. FLAHERTY, J. Borough appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
William W. Milnes, with him Brandt, Milnes, Rea Malone, for intervenor-appellant.
James W. Dunn, Jr., for appellee.
The Borough of Franklin Park (Borough) appeals here from an order of the Court of Common Pleas of Allegheny County which reversed a decision of the Zoning Hearing Board of the Borough of Franklin Park (Board) and granted a setback variance to Franklin Towne Realty (Franklin Towne).
Franklin Towne owns property in the Borough on which it wishes to construct single-family residences. The area in which the property is located is zoned R-2 residential, which zoning permits Franklin Towne's proposed use but also requires a fifty-foot front yard setback. Franklin Towne applied to the Board for a variance to permit a portion of the property to be developed with only a thirty-foot front yard setback. The Board denied the application and Franklin Towne appealed to the court of common pleas. The lower court took additional evidence and granted the variance. This appeal followed.
In a zoning case where the lower court heard additional evidence, review by this Court is limited to a determination of whether or not the lower court committed an error of law or an abuse of discretion. Reed v. Zoning Hearing Board, 31 Pa. Commw. 605, 377 A.2d 1020 (1977). The Borough argues here that (1) the hardship alleged was not sufficiently unique or peculiar to the property to justify a variance and (2) that any hardship was self-inflicted.
The Borough argues initially that the hardship to the property was not sufficient to justify the granting of a variance. In granting the variance, the lower court found that "there are unique physical circumstances which include irregularity of lot size and shape and exceptional topical [sic] and other physical conditions peculiar to the property in question, and that significant hardship will result unless a setback variance is granted. . . ." The record indicates that Franklin Towne's property is located on a sharply sloped portion of land. The lots for which the variances are sought front along a road which runs in an ascending grade perpendicular to the slope of the ground. The individual lots slope sharply downward from the grade of the road. The primary reason for which the variances were sought was to bring the proposed houses closer to the road so as to reduce the amount each was set under the road's elevation. Franklin Towne presented testimony indicating that a fifty-foot setback would require the individual houses to be serviced with steeply sloped driveways and that the necessary change in grade of the individual lots would induce drainage problems and increase the danger of slides. Finding this testimony to be well supported in the record, we believe that the lower court did not abuse its discretion in granting the variance. Section 912(1) of the Pennsylvania Municipalities Planning Code, 53 P. S. § 10912(1), provides that a zoning hearing board may grant a variance when it finds, inter alia, that a hardship is caused by exceptional topographical conditions peculiar to the particular property. The record clearly indicates that due to the property's unique, topographical conditions, the ordinance's fifty-foot setback requirement imposed an unnecessary hardship for which a variance was properly granted by the lower court.
Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 10101 et seq.
The Borough also maintains that Franklin Towne is not entitled to a variance because it purchased the property with knowledge and awareness of the setback requirements of the R-2 zoning. This Court rejected an identical argument in Harper v. Zoning Hearing Board, 21 Pa. Commw. 93, 97-98, 343 A.2d 381, 384 (1975), where we said:
The Board found that '[s]ince [both owners] acquired the premises with knowledge of the zoning regulations any hardship they claim is self-imposed and cannot serve to justify the grant of a variance.' The Board apparently reached this conclusion by relying on McClure Appeal, 415 Pa. 285, 203 A.2d 534 (1964) and other cases cited by the Township for the proposition that one who seeks a variance cannot be heard to complain of a hardship when that hardship was present to his knowledge when he purchased the property. More recently, however, in Gro Appeal, 440 Pa. 552, 269 A.2d 876 (1970) our Supreme Court has narrowed the circumstances under which a landowner who purchases with knowledge of the property's condition and the existing zoning classification will be prevented from obtaining a variance. According to Gro, such a landowner's hardship is self-inflicted only where he has paid a high price for the property because he assumed that a variance which he anticipated would justify that price. The mere fact that he purchased with knowledge of the hardship would not alone preclude his being granted a variance. See Borough of Ingram v. Sinicrope, 8 Pa. Commw. 448, 303 A.2d 855 (1973). (Emphasis added.)
See also Schaaf v. Zoning Hearing Board, 22 Pa. Commw. 50, 56, 347 A.2d 740, 743 (1975). Franklin Towne's knowledge of the zoning requirements prior to the purchase of the property here, therefore, is not sufficient in itself to bar its application for a variance.
The order of the lower court is affirmed.
ORDER
AND NOW, this 21st day of September, 1978, the order of the Court of Common Pleas of Allegheny County, docketed at S.A. 1518 of 1976, and dated July 18, 1977, is hereby affirmed.