Opinion
Argued April 7, 1978
August 18, 1978.
Zoning — Variance — Scope of appellate review — Abuse of discretion — Error of law — Findings of fact — Substantial evidence — Self-inflicted hardship.
1. In a zoning case where the court below took no additional evidence, review by the Commonwealth Court of Pennsylvania is to determine whether the zoning board committed an abuse of discretion or error of law and whether the findings of fact are unsupported by substantial evidence. [311]
2. A finding by a zoning board that a variance cannot be granted because the hardship existing was self-inflicted cannot stand when there is no discernible evidence in the record to support such determination. [311]
Argued April 7, 1978, before Judges CRUMLISH, JR., MENCER and ROGERS, sitting as a panel of three.
Appeal, No. 285 C.D. 1977, from the Order of the Court of Common Pleas of Montgomery County in case of Thomas McCarron, Legal Owner, and Clover Diversified Investments Corp., Equitable Owner v. The Zoning Hearing Board of the Borough of Lansdale, No. 76-06737.
Application to the Zoning Hearing Board of the Borough of Lansdale for variance. Application denied. Applicant appealed to the Court of Common Pleas of Montgomery County. Appeal dismissed. VOGEL, J. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
J. Edmund Mullin, with him Hamburg, Rubin, Mullin Maxwell, for appellants.
Richard W. Hollstein, with him Robert J. Kerns, and Landis, Williams Kern, for appellee.
Thomas McCarron and Clover Diversified Investments Corp. (Appellants) appeal the decision of the Zoning Hearing Board of the Borough of Lansdale (Board) denying them a variance to construct a single-family home on each of two lots. The variance was necessary because each lot has a frontage of 55 feet, while the applicable zoning requires 60 feet. The Board denied the variance on the grounds that any hardship had been created by Appellants when they subdivided the property. The Board found as a fact that the undersized lot had been created in 1960 or 1961 when Appellants subdivided a larger property and that hence any hardship was of their own creation. Upon appeal to the Court of Common Pleas, the decision of the Board was affirmed without the taking of any additional testimony.
Twenty feet of the frontage of these properties consists of the roadbed of a street which had been vacated by the Borough of Lansdale in 1960. One-half of the street reverted to the abutting property on either side. Apparently, Appellants had erroneously believed that the entire street inured to the benefit of the property and that its width was 75 rather than 55 feet.
Section 912(3) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 10912 (3), states that a variance shall not be granted where the hardship has been created by the appellant.
After close examination of the record hereto, we reverse the Board and remand this case to it for the taking of testimony to support its legal and factual conclusion. Where the court below received no additional evidence, our review is limited to a determination of whether the Board abused its discretion, committed an error of law, or made findings not supported by substantial evidence in the record. Berger v. Board of Supervisors of Whitpain Township, 31 Pa. Commw. 386, 376 A.2d 296 (1977). As there is no discernible evidence in the record to support the Board's finding that Appellants had created their own hardship by subdividing their property, we must reverse the Board and remand the case to it for further consideration.
Accordingly, we
ORDER
AND NOW, this 18th day of August, 1978, the decision of the Zoning Hearing Board of the Borough of Lansdale is reversed and this case is remanded to it for further consideration on the issue of whether Thomas McCarron and Clover Diversified Investments Corp., Appellants, created their own hardship when they subdivided their property.