Opinion
Argued April 4, 1979
August 30, 1979.
Zoning — Scope of appellate review — Abuse of discretion — Error of law — Variance — Pennsylvania Municipalities Planning Code, Act 1968, July 31, P.L. 805 — Unnecessary hardship — Public welfare — Economic hardship — Flood plain — Drainage problem.
1. In a zoning case where the lower court took no additional evidence, review by the Commonwealth Court of Pennsylvania is to determine whether the zoning board abused its discretion or committed an error of law. [278]
2. Under the Pennsylvania Municipalities Planning Code, Act 1968, July 31, P.L. 805, a property owner seeking a variance must prove the existence of an unnecessary hardship due to unique physical characteristics of the property, that the property cannot be developed in strict conformity to zoning requirements, that the hardship was not self-inflicted and is more than an economic hardship personal to the applicant, and that the variance will not be detrimental to public welfare, recognizing also that variances will be granted sparingly and only in exceptional circumstances. [279]
3. A variance is properly denied a property owner seeking to construct a duplex residential dwelling in an area zoned as a flood plain, when substantial evidence supports the conclusion that the construction of such a building would cause drainage and flooding problems harmful to the community. [280]
Argued April 4, 1979, before President Judge BOWMAN and Judges CRUMLISH, JR., WILKINSON, JR., ROGERS, BLATT, CRAIG and MacPHAIL. Judges MENCER and DiSALLE did not participate.
Appeal, No. 1617 C.D. 1978, from the Order of the Court of Common Pleas of Montgomery County in case of Emil Kraiser, Jr. v. Zoning Hearing Board of Horsham Township, No. 76-15284.
Application to the Zoning Hearing Board of Horsham Township for variance. Application denied. Applicant appealed to the Court of Common Pleas of Montgomery County. Appeal denied. VOGEL, J. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Donald A. Semisch, with him Semisch Grau, for appellant.
Paul D. North, for appellee.
The Zoning Hearing Board of Horsham Township (Board) refused a variance to Emil Kraiser, Jr., for the construction of a duplex residential dwelling in an area zoned FP — Flood Plain Conservation District. The Montgomery County Court of Common Pleas affirmed and, because there is no error in evidence or law, we do likewise.
Kraiser purchased a property which at the time was zoned R-5 Residential and permitted the proposed construction. Afterwards, the Township, by ordinance, rezoned the tract and established a Flood Plain Conservation District. The proposed construction is specifically forbidden in a Flood Plain Conservation District.
In a zoning case where the court below has not taken additional evidence, our scope of review is limited to whether the Board on the basis of the record then made abused its discretion or erred in law. Holmes v. Zoning Hearing Board of Kennett Township, 39 Pa. Commw. 447, 396 A.2d 859 (1978).
Section 912 of The Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 10912, provides that an applicant for a variance must establish: (1) that there are unique physical circumstances peculiar to the particular property and that the unnecessary hardship is due to such condition; (2) that the property cannot be developed in strict conformity with the provisions of the zoning ordinance; (3) that such unnecessary hardship has not been created by the applicant; (4) that the variance will not be detrimental to the public welfare and (5) that the variance will represent the minimum variance that will afford relief. In addition to these statutory mandates, variances are to be granted sparingly and only in exceptional circumstances. A peculiar economic hardship personal to the applicant is not sufficient. Levin v. Zoning Hearing Board of Township of Radnor, 11 Pa. Commw. 452, 314 A.2d 579 (1974).
Because the Board concluded that Kraiser failed to carry the burden of showing that the proposed use would not constitute a danger to the immediate neighborhood, we restrict our inquiry to consideration of whether the Board properly found the use constitutes a hazard to the health, safety and welfare of the surrounding community.
The pertinent evidence before the Board from which it drew its findings follows. Kraiser presented a licensed professional engineer. The Township also presented an engineer. It was established that past inundation of this tract and surrounding property had caused property damage. Kraiser's engineer agreed that the 236-feet 100-year flood level would completely cover the highest level of the surveyed fill but opined that a securely built structure would cause negligible damage to surrounding watershed properties. The Board, however, found factually that the first-floor level of the proposed duplex would be at the 238-feet topographical line, thus forcing the surplus water onto the adjacent area.
A flood frequency of 100 years does not mean that a flood of such a magnitude will happen only once in 100 years. What it does mean is that an analysis of the available hydrologic data indicates that the chances that a flood will occur in any particular year are 100 to one. The chances in each year are the same no matter whether the previous flood of such a magnitude occurred last year or 100 years ago. See Benchert, Zoning in the Flood Plain, 49, A.B.A.J. 258, n. 2 (1963).
The present grade of the property varies 231 1/2 feet to 235 1/2 feet.
We find in the record substantial evidence of flooding and drainage problems to support the conclusions of the Board and the trial court that a variance in these circumstances would be harmful to the community. Moreover, it can be properly concluded that building on the flood plain would increase flood height and conceivably increase the hazard to the inhabitants of other buildings both on and away from the zoned areas. The zoning ordinance strikes a satisfactory balance between a property owner's interest in developing his property as he wishes and the duty of the Board to regulate development of flood-prone land.
Kraiser's puzzlement is understandable. If he complies with the permitted conditional uses under the Flood Plain Ordinance, he finds himself for all practical purposes stuck with a useless property. But in the interest of all the residents, he must suffer along with other property owners who are likewise affected by the ordinance.
Accordingly, we
ORDER
AND NOW, this 30th day of August, 1979, the order of the Court of Common Pleas of Montgomery County, dated July 24, 1978, is hereby affirmed.