Opinion
April 13, 1949.
May 23, 1949.
Appeals — Scope — Certiorari — Zoning case — Refusal of variance — Constitutional law — Equal protection of law.
1. On appeal by a property owner from an order of the common pleas sustaining the action of a board of adjustment in refusing to grant a certificate of variance from a zoning classification, the record is reviewed as on certiorari to see whether the proceeding is free from mistake of law. [117-19]
2. The courts will not interfere with the exercise of an administrative duty by the officials entrusted therewith unless it is shown that the action taken has been arbitrary, capricious and unreasonable or clearly in violation of positive law. [118]
3. On appeal by a property owner to the court of common pleas from an order of a board of adjustment refusing to grant a certificate of variance, the only question before the court is whether the zoning board of adjustment was guilty of a manifest and flagrant abuse of discretion. [117]
4. The fact that the granting of a variance from a zoning ordinance will give the applicant added advantage and financial benefit is immaterial in determining whether the variance should be granted; so also is the fact that there are other properties similarly situated to that of the applicant. [117-19]
5. A zoning board's refusal to permit a use of property which is prohibited by a valid ordinance does not constitute a denial of the equal protection of the laws to the applicant. [119]
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 30, Jan. T., 1949, from order of Common Pleas, Northampton Co., Nov. T., 1945, No. 159, in re Application for Certificate of Occupancy for Premises known as 500 Paxinosa Avenue, Easton. Order affirmed.
Appeal by applicant from refusal of variance by Zoning Board of Adjustment. Before BARTHOLD, P. J.
Appeal dismissed and petition of applicant for rehearing denied. Applicant appealed.
Calvin S. Smith, with him Smith, Paff, Van Sickle Gafford, for appellant.
George F. Coffin, Jr., for appellee.
Edward J. Fox, Jr., with him Fox Oldt, for intervenor appellee.
This is an appeal from an order of the Court of Common Pleas of Northampton County affirming the refusal by the Zoning Board of Appeals of the City of Easton of the appellant's application for an occupancy permit in circumstances which would have required the granting of a variance.
In a case of this nature, the only question properly before the court below was whether the Board of Adjustment, in refusing the variance requested, was guilty of a manifest and flagrant abuse of discretion: Berman v. Exley, 355 Pa. 415, 417, 50 A.2d 199; Jennings' Appeal, 330 Pa. 154, 157, 198 A. 621; Valicenti's Appeal, 298 Pa. 276, 281, 148 A. 308; Liggett's Petition, 291 Pa. 109, 117, 139 A. 619. Appellate court review of the action of the lower court is limited as on certiorari. In Triolo v. Exley, 358 Pa. 555, 558, 57 A.2d 878 (a zoning case), Mr. Justice PATTERSON, speaking for this Court said, — "The scope of appellate review in the instant case is as on certiorari: [citing cases]. Only where the record clearly establishes an arbitrary, capricious or unreasonable determination or a clear violation of positive law will appellate courts interfere with the exercise of an administrative duty by officials entrusted therewith: Floersheim Appeal, 348 Pa. 98, 100, 34 A.2d 62." None of the specified grounds for appellate interference is present here.
The instant appeal rests on no more than the appellant's factual controversy with the manner of the zoning board's earlier administration of the ordinance in respect of several other properties which she alleges were situated similarly to her own in relation to the zoned area although she "failed to prove that a permit was granted [in the other instances] or that the board approved of the [alleged] changes." The utter irrelevancy of such assertions, even if true, is manifest: see Ventresca v. Exley, 358 Pa. 98, 102, 56 A.2d 210; Valicenti's Appeal, supra, at pp. 283-284; New Castle City v. Withers, 291 Pa. 216, 222, 139 A. 860; Hasley's Appeal, 151 Pa. Super. 192, 193-195, 30 A.2d 187. Moreover, the applicant made no attempt to show that the refusal of a variance would cause her exceptional practical difficulty or undue hardship. See Huebner v. Philadelphia Saving Fund Society, 127 Pa. Super. 28, 36, 192 A. 139. She was content to rest her request for a variance on the immaterial grounds of "added advantage and financial benefit" that would accrue to her if she were permitted to rent her single dwelling as three apartments. See Jennings' Appeal, supra, at p. 158; Fleming v. Prospect Park Board of Adjustment, 318 Pa. 582, 584, 178 A. 813. The findings made by the hearing judge have ample support in the evidence and were confirmed by the court en banc. Under the facts so established, there is not the slightest basis for the appellant's allegation that the board's administration of the ordinance worked a want of due process as to her.
The requested occupancy permit, which, if granted, would have allowed the appellant's conversion of a single dwelling in an "A" residence district into three apartments contrary to the express restrictions of the zoning ordinance, would necessarily have required the granting of a variance. The board's refusal, therefore, of something to which the applicant had neither legal claim nor right was incapable, in the circumstances, of amounting to a denial of the equal protection of the laws. The record is barren of any evidence of discrimination against the appellant. As the learned President Judge of the court below pertinently pointed out with respect to the cases cited and relied upon by the appellant in this connection ( Yick Wo v. Hopkins, 118 U.S. 356, and Snowden v. Hughes, 321 U.S. 1), — "These cases and others in the same category are clearly distinguishable from the case before us, in that they are concerned with the denial of a right to which the particular claimant was entitled on the face of applicable ordinances or statutes, while in the case at bar claimant asserts that she has been wrongfully deprived of the right to do an act expressly forbidden by ordinance. To state such a doctrine as the latter is to refute it."
Order affirmed at appellant's costs.