Opinion
Argued September 18, 1981
November 13, 1981.
Zoning — Scope of appellate review — Abuse of discretion — Error of law — Variance — Burden of proof — Unnecessary hardship — Side yard requirements.
1. In a zoning case where the lower court took additional evidence, review by the Commonwealth Court of Pennsylvania is to determine whether that court abused its discretion or committed an error of law. [360]
2. A variance from zoning ordinance requirement may be granted if the applicant therefor proves that the restrictions uniquely burden his property creating an unnecessary hardship peculiar to that property and that the grant of the variance will not adversely affect public health, safety or welfare. [360]
3. When the construction of a residence, a permitted use under a zoning ordiance, is not rendered impossible by side yard requirements complained of and when no evidence indicates that compliance with such requirements would be possible only at prohibitive expense, discretion is abused in granting a variance from such requirements. [361-2]
Argued September 18, 1981, before Judges BLATT, CRAIG and MacPHAIL, sitting as a panel of three.
Appeal, No. 844 C.D. 1980, from the Order of the Court of Common Pleas of Northumberland County in case of Helen Berthelsen Willis v. The Zoning Hearing Board of the Township of Coal, No. CC-78-3021.
Application with the Coal Township Zoning Hearing Board for side yard variance. Application denied. Applicant appealed to the Court of Common Pleas of Northumberland County. Appeal sustained. Permit ordered issued. KREHEL, P.J. Township appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
James J. Rosini, for appellant.
Jack C. Younkin, for appellee.
The appellant, the Township of Coal (Township), appeals an 4order of the Court of Common Pleas of Northumberland County which reversed a decision of the Township's Zoning Hearing Board (Board) denying a variance from the Township's zoning requirements. The variance had been requested by the appellee, Helen Berthelsen Willis, so that she might erect a two-story family dwelling, 24 feet wide and 48 feet long, on her residentially zoned lot, which measures approximately 31 feet 5 inches wide by 100 feet long. Both sides agree that Section 4.110 of the Township's Zoning Ordinance (Ordinance) requires side yards of 5 feet on the eastern side of the lot and 10 feet on the western side. The building which the appellee desires to construct, however, would leave only about 3 feet for a side yard on the eastern side and, perhaps, 4 feet 5 inches on the western side. To be in compliance with the Ordinance, of course, the building could be not more than 16 feet wide; 8 feet narrower than she wants her building to be.
There are some ambiguities in the record as to the exact dimensions of the appellee's lot.
The Board denied the appellee's request for a variance and she appealed to the Court of Common Pleas where a hearing was held, de novo, and an opinion and order were filed by that court sustaining the appeal and directing the Board to issue a building permit. The appellant appeals this order.
Our scope of review in a zoning case where, as here, the court below received additional testimony and evidence, is to determine whether or not that court abused its discretion or committed an error of law. Cohen v. Zoning Board of Adjustment of the City of Pittsburgh, 53 Pa. Commw. 311, 417 A.2d 852 (1980); Overstreet v. Zoning Hearing Board of Schuylkill Township, 49 Pa. Commw. 397, 412 A.2d 169 (1980); Citizens For a Clean Environment v. Zoning Hearing Board of Hanover Township, 23 Pa. Commw. 12, 350 A.2d 419 (1976). And, the applicant for a variance has the burden of proving both (1) that the zoning ordinance uniquely burdens his property so as to create an unnecessary hardship peculiar to the property in question, and (2) that the variance will not have an adverse effect upon the public health, safety or welfare. John R. Greene Associates v. Zoning Hearing Board of Lower Allen Township, 56 Pa. Commw. 605, 425 A.2d 175 (1981); Board of Supervisors of Solebury Township Appeal, 49 Pa. Commw. 267, 412 A.2d 163 (1980); McKay v. Board of Adjustment, 8 Pa. Commw. 29, 300 A.2d 810 (1973); see Section 912 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 10912.
The issue here is, keeping in mind our scope of review, whether or not the court below erred in finding that the Ordinance created an unnecessary hardship on the appellee's property.
We find no merit in the appellee's argument that the "de minimus" doctrine should apply in this case. The facts here, as well as the type of area zoned, differ from the cases cited in the appellee's brief. We note the statement in one of those "de minimus" cases, West Bradford Township v. Evans, 35 Pa. Commw. 167, 171, 384 A.2d 1382, 1384 (1978), and recapitulate that:
[W]e wish to emphasize that this is a rather unique case, and should not be construed as the beginning of a marked departure from the traditional law of variances.
In John R. Greene Associates, a "traditional zoning case," factually similar to the present case, we upheld the lower court's decision to deny a variance for a 6-foot departure from side yard requirements. Here, the appellee seeks a 7-foot-7-inch departure.
We have previously held that a variance from side yard requirements will not be granted unless the said requirements make construction of an otherwise permitted building on the property impossible or unless such permitted use is possible only at a prohibitive expense. John R. Greene Associates; see Kernick v. Zoning Hearing Board of the Municipality of Penn Hills, 56 Pa. Commw. 512, 425 A.2d 1176 (1981); Schaaf v. Zoning Hearing Board of the Borough of Edinboro, 22 Pa. Commw. 50, 347 A.2d 740 (1975). The court below, however, itself noted that a residence narrower than the appellee desired could be constructed on the appellee's property in strict conformity with the provisions of the Ordinance's side yard requirements. A permitted use or construction on the appellee's property, therefore, was not impossible, and no evidence was produced to show that such use would involve a prohibitive expense. The finding of the court that the proposed construction was not feasible was clearly not sufficient to prove either an unnecessary hardship or prohibitive expense. We must hold, therefore, that the court erred in its conclusions and abused its discretion in granting the variance. See John R. Greene Associates.
In addition, the record reveals that testimony was given by the appellee's expert witness indicating that a 16-foot-wide home, either mobile, prebuilt or standard, could be placed or constructed on the appellee's lot. The same witness also testified that the neighborhood here concerned had a number of half-double homes, with each such home being only 12 feet 6 inches in width.
This finding was based on testimony by the appellee's expert witness, who was a realtor and not an architect, that a 16-foot-wide home was not "architectually sound."
ORDER
AND NOW, this 13th day of November, 1981, the March 26, 1980 order of the Court of Common Pleas of Northumberland County in the above-captioned matter is reversed and the Zoning Hearing Board of Coal Township's decision of November 8, 1978, and order of November 9, 1978 denying the appellee herein a variance is reinstated.