Summary
In Magrann v. Zoning Board of Adjustment, 404 Pa. 198, 170 A.2d 553, we said (pp. 200, 201): "It is well established that a variance should be granted only where it is not contrary to the public interest and where the property involved is subjected to an unnecessary hardship unique or peculiar to itself, and not to general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance.
Summary of this case from Crafton Borough AppealOpinion
April 20, 1961.
May 22, 1961.
Municipalities — Zoning — Variance — Zoning board of adjustment — Discretion — Abuse.
1. In a zoning case a variance should be granted only where it is not contrary to the public interest and where the property involved is subjected to an unnecessary hardship unique or peculiar to itself, and not to general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance. [200]
2. The authority of a zoning board of adjustment is not an arbitrary one and it may grant a variance only for reasons that are substantial, serious and compelling. [200]
3. It was Held, in the circumstances, that a zoning board of adjustment had abused its discretion in granting a variance. [199-201]
Appeals — Review — Court of common pleas — Zoning case — Scope of review.
4. Where a court of common pleas does not take additional evidence in hearing an appeal from a decision of a zoning board of adjustment on an application to grant a variance, the sole question for determination by the court is whether or not the board abused its discretion or committed an error of law in making its decision. [200]
Argued April 20, 1961. Before JONES, C. J., MUSMANNO, JONES, COHEN, BOK and EAGEN, JJ.
Appeal, No. 248, Jan. T., 1961, from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1959, No. 4036, in case of Thomas J. Magrann et al. v. Zoning Board of Adjustment et al. Order affirmed.
Proceeding on appeal by protestants from the granting of a variance by zoning board of adjustment.
Order entered sustaining appeal, opinion by REIMEL, J. Intervenor appealed.
Allan M. Tabas, with him Tabas, Smith, Ocks Fisher, for appellant.
Stanley F. Mankas, with him Bellwoar, Rich Mankas, for appellees.
The appellant is the owner of premises located in a D-Residential zone in the City of Philadelphia. The zoning board of adjustment granted a use variance permitting the commercial use of the property as a gas station. The lower court reversed the board's order. This appeal followed.
No additional testimony was heard by the court below, therefore, the sole question for determination, is whether or not the zoning board abused its discretion or committed an error of law in granting the variance: Upper St. Clair Twp. Grange Zoning Case, 397 Pa. 67, 152 A.2d 768 (1959). We agree with the court below that the board's decision constituted an abuse of discretion.
The land involved is a corner lot fronting 100 feet on one public street and 150 feet on the other. A small portion of the land is occupied by a building presently used as an ice distribution depot, which is a nonconforming use. For many years before, it was used as an ice storage house. The appellant purchased the property in December 1959, without making any investigation into its zoning classification. He proposes to demolish the existing structure and erect a gasoline service station. He maintains that the land cannot be used for purposes consistent with the area zoning because there is no market for modern or new homes in the area, and that it is not economically advisable to continue using the premises as an ice distribution depot.
It is well established that a variance should be granted only where it is not contrary to the public interest and where the property involved is subjected to an unnecessary hardship unique or peculiar to itself, and not to general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance. Nothing less than a showing of hardship, special and peculiar to the property involved, will empower the zoning board to permit a variance: Michener Appeal, 382 Pa. 401, 115 A.2d 367 (1955); Smolow v. Zoning Board of Adjustment, 391 Pa. 71, 137 A.2d 251 (1958). The authority of the board is not an arbitrary one and it may grant a variance only for reasons that are " 'substantial, serious, and compelling' ": Ventresca v. Exley, 358 Pa. 98, 100, 56 A.2d 210 (1948). The only evidence in support of the granting of the variance in this instance is that the appellant will suffer an economic hardship, if not permitted to pursue his plans. In his petition of appeal to the zoning board of adjustment, the reason stated in support of the application is that the present classification "causes appellant and petitioner to suffer a severe financial hardship." In his testimony before the board, he admitted that the land is suitable for the erection of residences, specifically a series of row houses, twelve or thirteen in number. His contention, pure and simple, is that the requested variance should be granted in order to enhance the value of his lot, even though the use intended might well depreciate the value of other residential properties in the immediate area. This does not constitute the type of unnecessary hardship which is sufficient reason to grant a variance: Pincus v. Power, 376 Pa. 175, 101 A.2d 914 (1954); Cresko Zoning Case, 400 Pa. 467, 162 A.2d 219 (1960).
On the same side of the street as the land involved, there are single and twin private residences ranging in market values between $12,000 and $20,000. Directly across the street is a solid row of houses of comparatively recent construction of values ranging from $10,200 to $12,250.
The order of the court below is affirmed.