Opinion
Argued May 9, 1974
July 12, 1974.
Zoning — Scope of appellate review — Abuse of discretion — Error of law — Variance — Burden of proof — Unnecessary hardship — Economic hardship — Public welfare — Setback requirements — Self-inflicted hardship.
1. In a zoning case where the lower court takes no additional evidence, review by the Commonwealth Court of Pennsylvania is limited to a determination of whether the zoning board committed an abuse of discretion or error of law. [244]
2. An applicant for a variance from a zoning ordinance has the burden of proving more than an economic hardship but an unnecessary hardship unique and peculiar to the applicant's property and that the proposed variance is not contrary to public safety, health, morals or general welfare. [244-5]
3. One purchasing property in full awareness of set back requirements of existing zoning regulations cannot successfully seek a variance since any hardship is self-inflicted. [245]
Argued May 9, 1974, before Judges CRUMLISH, JR., WILKINSON, JR., and BLATT, sitting as a panel of three.
Appeal, No. 1027 C.D. 1973, from the Order of the Court of Common Pleas of Allegheny County, in case of In Re: Appeal of Robert Kalin, Diane Kalin, Philip Ritenouer, Thomas Kent, Virginia Kent, Bernard Hlister, Susan Hlister, Robert J. Bonenberger, Dolores Bonenberger, Louis Steiner, Irwin Wertz, Zelma Wertz, Morris Lindenbaum, Doris Lindenbaum, Jack Weisberger, Bernice Weisberger, Nicholas Ritunnano, Pauline Ritunnano, Joseph Rende, Joan Rende, Gilbert Rizzo, Berry Rizzo, James Barrett, Eunice Barrett, Domenic Lucchino and Rose Lucchino, from Decision of the Zoning Board of Adjustment of the City of Pittsburgh, No. SA 12 of 1973.
Application to Zoning Board of Adjustment of the City of Pittsburgh for variance. Variance granted in part. Protestants appealed to the Court of Common Pleas of Allegheny County. Appeal sustained. Variance denied. WEKSELMAN, J. Applicants appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
William G. Sutter, Jr., with him Sutter Sutter, for appellants.
Frank J. Lucchino, with him Lucchino, Gaitens Hough, for appellees.
This is an appeal from a decision and order of the Court of Common Pleas of Allegheny County which reversed the grant of a variance to Alfonso Marrone and Anthony Pompeo (Appellants) by the Zoning Board of Adjustment (Board) of the City of Pittsburgh.
On October 27, 1972, Appellants filed for building and occupancy permits which would allow them to erect two-family residential structures on a property situate at Susanna Court, Pittsburgh, Pennsylvania. The property on Susanna Court carries an R-2 zoning classification under the zoning ordinance of the City of Pittsburgh. This classification requires a thirty-foot (30) building line (set-back requirement) for dwellings in this area.
Appellants subdivided this parcel into five (5) building lots and sought to erect five (5) separate two-family dwellings. They then applied for variances to allow the erection of the dwellings with a fifteen (15) foot front yard set-back. After one hearing, Appellants amended their request and proposed a plan that would allow compliance with the thirty (30) foot set-back requirement as to one lot, and variances in set-back requirements ranging from three (3) to ten (10) feet as to the other four lots. The Board, on December 15, 1972, granted a variance which would permit a twenty-seven (27) foot set-back for one lot, a twenty-six (26) foot set-back for another, and twenty (20) foot set-back for the remaining two lots.
Being unhappy with this decision, Appellants appealed to the Court of Common Pleas of Allegheny County which reversed the Board and denied the variance. This decision is now to be resolved by us.
In a zoning case where the court below takes no additional testimony, as is the case here, review by the Commonwealth Court of Pennsylvania is limited to a determination of whether the zoning board committed an abuse of discretion or an error of law. Brunner v. Zoning Hearing Board of Upper Makefield Township, 12 Pa. Commw. 109, 315 A.2d 359 (1974).
An applicant for a variance to a zoning ordinance has the burden of proving that unnecessary hardship exists, unique or peculiar to the applicant's property, and that the proposed variance is not contrary to public safety, health, morals or general welfare. AFSO Builders, Inc. v. Zoning Board of the Township of Upper Darby, 12 Pa. Commw. 100, 314 A.2d 860 (1974).
It is also well-settled that a showing of economic hardship is not sufficient to allow a variance to a zoning ordinance. Mobil Oil Corp. v. Zoning Board of Adjustment, 5 Pa. Commw. 535, 291 A.2d 541 (1972).
We have reviewed the record and agree with the court below that Appellants did not establish that the hardship here, the topography of the property, is unique or peculiar to Appellants' property. In addition, it is to be noted that Appellants bought the property in full awareness of the existing zoning regulations, and hence they are barred from favorable considerations since the hardship herein is self-inflicted. Albert Levin v. Zoning Hearing Board of the Township of Radnor, 11 Pa. Commw. 452, 314 A.2d 579 (1974); C. E. Campbell v. Zoning Hearing Board of Plymouth Township, 10 Pa. Commw. 251, 310 A.2d 444 (1973).
Order affirmed.