Opinion
Argued October 7, 1981
February 4, 1982.
Zoning — Scope of appellate review — Abuse of discretion — Error of law — Variance — Burden of proof — Traffic hazard — Evidentiary weight — Minimum variance required.
1. In a zoning case where the lower court took no evidence, review by the Commonwealth Court of Pennsylvania is to determine whether the zoning board abused its discretion, or committed an error of law. [416]
2. A dimensional variance may only be granted if it is established that the zoning ordinance imposes an unnecessary hardship on the property due to the unique physical characteristics of the property, that the variance if granted would not adversely affect public health, safety or welfare, that the hardship was not created by the party seeking the variance and that the variance sought is the minimum that will afford relief. [416]
3. When substantial evidence supports a determination by the factfinder in a zoning case that a requested variance would create a safety risk to vehicular and pedestrian traffic and that the variance requested was not the the minimum necessary to afford the applicant a reasonable use of the property, such determination will not be disturbed on appeal. [417]
Argued October 7, 1981, before Judges MENCER, WILLIAMS, JR. and MacPHAIL, sitting as a panel of three.
Appeal, No. 91 C.D. 1981, from the Order of the Court of Common Pleas of Allegheny County in case of Appeal of Charles L. Solow and Marianne Solow, his wife from Decision of Zoning Hearing Board of the Borough of Whitehall, No. SA 1207 of 1980.
Application with the Zoning Hearing Board of the Borough of Whitehall for dimensional variance. Application denied. Applicant appealed to the Court of Common Pleas of Allegheny County. Appeal sustained. Variance ordered granted. PAPADAKOS, A.J. Borough appealed to the Commonwealth Court of Pennsylvania. Held: Reversed. Board order reinstated.
James P. Duffy, for appellant.
Edward P. Zemprelli, for appellees.
Charles L. Solow and Marianne Solow (appellees) are the owners of property located at the intersection of Provost and Weyman Roads in the Borough of Whitehall (appellant) in Allegheny County. They applied for dimensional variances from the Borough zoning ordinance to permit the construction of a Stop Go Food Store on their property. Such a facility is a permitted use in the commercial district in which the property is located.
The application was heard before the Borough's Zoning Hearing Board (Board) on August 12, 1980. The Board, on September 18, 1980, adopted a decision denying the requested variances. Although the Board found that the "imposition of the front yard and rear yard line requirements for the property results in no buildable area for the property" and that "there is no possibility that the vacant Solow property can be developed in strict conformity with the ordinance," it denied the application. It did so because it also found that the requested variances "would increase the safety hazard for vehicular and pedestrian traffic to an unjustifiable level" and because "the [appellees] provided no evidence to show that the magnitude of the variances requested is the least modification of the prescribed regulations to grant the [appellees] a reasonable use of the land. . . ."
The appellees appealed the Board's decision to the Court of Common Pleas of Allegheny County. Without taking further evidence, that court reversed the Board's decision on December 10, 1980 and directed it to grant the requested variances. This appeal followed.
Where the court below has taken no additional evidence, this court's scope of review is limited to a determination of whether or not the Board committed an abuse of discretion or an error of law. Eighteenth Rittenhouse Associates v. Zoning Board of Adjustment, 26 Pa. Commw. 554, 364 A.2d 973 (1976). The elements of proof for a party seeking a variance are: (1) that the ordinance as written imposes unnecessary hardship on his property, (2) that the hardship is due to the unique physical characteristics of the property, (3) that the variance would not have an adverse impact on the health, safety or welfare of the general public, (4) that the hardship must not be created by the party seeking the variance, and (5) that the variance sought must be the minimum that will afford relief. Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, § 912, 53 P. S. § 10912; Township of Salisbury v. Rummel, 44 Pa. Commw. 581, 406 A.2d 808 (1979).
On the evidence presented before the Board, we cannot say that it improperly denied the appellees' application. There was, at best, conflicting evidence presented concerning the impact the requested variances would have on the general public. The mayor of the Borough testified that the requested variances would increase traffic hazards at the intersection. He testified that the local police had expressed a similar belief. The appellees, on the other hand, offered insufficient evidence to prove that the requested variances would not create a safety risk to vehicular and pedestrian traffic. The burden being on the appellees to prove no adverse effect to the general public, the Board could well conclude that the burden was not met.
The weight to be accorded evidence presented concerning the requested variances was for the Board. Center City Residents Association v. Zoning Board of Adjustment, 48 Pa. Commw. 416, 410 A.2d 374 (1980). A zoning hearing board's findings and conclusions in connection with the refusal of an application for a variance will not be disturbed on appeal where they are supported by ample evidence in the record concerning increased dangers to pedestrian and vehicular traffic. See Boulevard Land Corporation v. Zoning Board of Adjustment, 8 Pa. Commw. 584, 303 A.2d 234 (1973).
Nor did the appellees carry their burden to prove that the variances they requested were the minimum variances necessary to afford them relief. The appellees presented evidence that they proposed to build the smallest Stop Go Food Store that could be considered commercially viable. However, they did not prove, nor did they attempt to prove, that the smallest commercially viable Stop Go Food Store required the least modification of the ordinance necessary to afford them a reasonable use of their land, giving consideration to the several commercial uses permitted in the district.
We conclude that the appellees failed to carry their burden of proof before the Board, which neither committed an abuse of discretion nor an error of law. Accordingly, we reverse the order of the lower court.
ORDER
AND NOW, this 4th day of February, 1982, the order of the Court of Common Pleas of Allegheny County, dated December 10, 1980, reversing the decision of the Zoning Hearing Board of the Borough of Whitehall and sustaining the appeal of Charles L. Solow and Marianne Solow, his wife, is hereby reversed, and the decision of the Board denying the variance application of Charles L. Solow and Marianne Solow, his wife, is hereby reinstated.
Judge PALLADINO did not participate in the decision in this case.