McKay v. Board of Adjustment
McKay v. Board of Adjustment
Opinion of the Court
Opinion by
Mary E. McKay, in her capacity as Secretary to and by authority of the Township Commissioner of North Huntingdon, Westmoreland County, appealed the order of the Court of Common Pleas of Westmoreland County which upheld the North Huntingdon Township Board of Adjustment’s grant of a variance to Florence M. Evans who sought to use her property as a gasoline service station.
Evans entered into an agreement of sale in 1962 and in 1964 applied for a variance under the applicable zoning provisions.
Appellant contends (1) that the application of the R.-2 single family dwelling zoning classification of the tract in question does not create an unnecessary hardship upon the property which is unique and peculiar to it; and hence the variance should not have been granted; and (2) that the court below abused its discretion in upholding the Board’s decision because it failed to make specific findings of fact as required by the zoning ordinance and because the lower court itself also failed to make specific findings of fact.
We disagree with appellant’s contentions and hold that the order of the lower court must be affirmed.
The importance of our scope of review once again is manifest in this zoning appeal. Where, as here, the court below took additional testimony, our function on appeal is to determine whether the court below committed an error of law or abused its discretion. Durkin Contracting Co. v. Zoning Bd. of Adjustment, 6 Pa. Commonwealth Ct. 211, 293 A. 2d 622 (1972); Drop v. Board of Adjustment, 6 Pa. Commonwealth Ct. 64, 293 A. 2d 144 (1972).
We arc not unmindful of the burden placed upon an applicant to prove unnecessary hardship that is unique and peculiar to the property and that the proposed use will not be contrary to the public interest.
The court below considered both the evidence presented before the Board and also considered the additional evidence adduced at its de novo hearing. The uncontroverted facts establish that there are commercial uses erected in the immediate area; specifically, uses such as: a funeral home with a parking lot; a medical-professional center and an apartment building. All of these are under the blessing of variances. Also in the immediate vicinity are a school with a playground area, a fire station, and a tract on which a trailer home is located.
Proximate to the property is a commercial area and commercial establishments such as a Dairy Queen snack bar and a supermarket abound in other areas.
There was some testimony that the property is suitable for residential purposes and that the proposed use would increase traffic but this was controverted by testimony that the property is not suitable for residential use.
In consideration of this evidence, the Board
On this record and on the additional testimony taken, the court below found that the location of the premises, the nature of the traffic conditions, the surrounding area which included the funeral home, fire station, school, trailers and apartments combined to impose a unique and particular hardship on this property. The court also found that the area of the premises is developed on a commercial basis; that the intended use was not detrimental to the public welfare of the neighborhood and that the hardship was not self-inflicted. The court en banc, on exceptions, agreed.
A reviewing court will not substitue its findings for those of the lower court where there is competent, credible evidence in the record upon which the decision of the court could be based. Township of Lower Yoder v.
This case is for the most part factually similar to Pfile. There is one distinction which merits reference. There an application for a variance Avas filed but the landowner had knowledge of the zoning restriction when he bought the land. This is not so in the case at bar. The Board in Pfile, however, had initially denied the variance whereas here the Board granted the variance and the court, after the de novo hearing, sustained the Board.
In Pfile, supra, it was stated at 7 Pa. Commonwealth Ct. at 234, 298 A. 2d at 603, that “[generally, economic or financial hardship is not in itself sufficient to sustain the granting of a variance, but ‘. . . this doctrine has only been applied where it is a question of more profits from one type of development as opposed to another type of development.’ [Citation] However, when, on rcure occasions, the record appears to show ‘property hardship’ in the sense of total loss of usability for any of the permitted uses, a use variance Avill be affirmed . . . [citations].” We agree with the court below that the evidence shows that such property hardship does exist in this case.
Further, this is not a self-inflicted hardship situation which was found in Gro Appeal, 440 Pa. 552, 269 A. 2d 876 (1970). There it was said: “only in a case . . . which arises after the property has been sold to a new owner who has paid a high price for the property because he assumed that a variance which he anticipated would justify his price, do we hold that the owner cannot prove that the hardship which burdens his land was unnecessary rather than self-inflicted.” Gro Appeal, 440 Pa. at 560, 269 A. 2d at 880-1. The agreement of sale which bound Evans was executed prior to the enactment of the present zoning ordinance. Oro is not in point.
We have no doubt that the Board and especially the court clearly demonstrate that both tribunals considered the command of the ordinance and on the basis of the evidence adequately articulated the result.
Affirmed.
It is significant to note that the zoning ordinance under which the application for variance was made was not adopted until July 9, 1964. Prior to that time, Evans had applied for a special use permit for the same tract under the then applicable zoning ordinance.
It is not entirely clear from the record precisely how many trailers are located there but it is clear that there is at least one.
The vote of the Board was 2-1 in favor of granting the variance.
The variance was granted subject to the conditions that suitable screening shrubbery be placed at the boundaries and an identifying historical marker be maintained.
Dissenting Opinion
Dissenting Opinion
I dissent because there is no evidence here to support the imposition of a gasoline service station upon the residential community of Circleville, North Huntingdon Township, contrary to the provisions of the Township zoning ordinance.
The appellee, the owuer of the house and lot
The only record of this case in the Zoning Hearing Board of North Huntingdon Township consists of the
“Special meeting of Board of Adjustment, North Huntingdon Township, was held at the Town House at 9:00 p.m., December 22, 1966. All members were present.
“Mr. Hassan made the following remarks:
“1. Hardship on land use was not established. The solicitor for the petition did not make any claim of hardship and admitted there were none in so far as land use was concerned.
“2. Proposed gasoline service station is within 300 feet of Circleville School.
“3. Residential development of property is very favorable.
“4. Alleged commercial precedents in area are without basis.
“5. Maintain residential character of area.
“Mr. Dick presented the following in the form of a letter (attached so that original may be filed):
“After careful study of application of Florence M. Evans it is my opinion that a variance should be granted for the following reasons:
“1. When property is properly cleared, it will give greater visibility to motorists approaching the intersection.
“2. The dangers at this intei’section would be lessened by the illuminating lights of the service station.
“3. It would rid the township of a blighted piece of property.
“4. It would eliminate the possibility of children getting hurt on run-down and unkept property.
“6. Tbe possible chance that tbis property would be used as a single family residence are poor due to: “(a) Possibility of tbe State widening tbe road to accomadate [sic] tbe increasing flow of traffic.
“(b) Tbe dangers of property damage at a busy intersection.
“(c) Tbe annoying sound of traffic.
“ ‘Tbe objections of tbe people in tbe area were taken into full consideration. Some of tbe objections bad merit. If there bad not already been commercial properties in tbe area, tbe picture could of changed. I recommend in order to protect tbe privacy of Mr. Flick’s property (707 Robbins Station Road) that Mrs. Evans plant a screen of shrubbery or stand of pines between rpoperties [sic].’
C. W. Dick
“Mr. Brown made tbe following remarks:
“1. Property as it is and has been for several years is definitely a hazard. There have been no efforts made to correct tbe problem.
“2. There is no reason to believe that traffic would increase at tbis intersection as tbe result of tbe proposed service station.
“3. The erection of tbe service station would be a distinct improvement.
“4. Proper shrubbery screening would assure privacy to adjacent property.
“A motion was made by Mr. Dick and seconded by Mr. Brown to grant tbe appeal for variance by Mrs. Evans. Contingent on tbe following:
“1. Approval is granted by tbe Board of Commissioners as required in Section 8.7 of tbe Zoning Ordinance.
“3. The historical marker identifying Three Springs Camp be maintained on premises.
“Dick and Brown voted in favor of the motion and Hassan voted against the motion.
“The Board of Adjustment thereby grants the appeal for variance by Florence Evans on the property at Clay Pike and Robbins Station Road.”
On appeal from the Board the court took evidence. This consisted of the testimony of residents of the neighborhood opposed to the application for variance and that of a real estate expert that the establishment of a gasoline service station on this lot would depress the value of the residential properties in the vicinity.
Indeed, the evidence produced in the court below, which stands unrebutted, is that the general neighborhood is 90 to 100 percent residential and that the only exceptions to residential use near the property are an elementary school across the street, a residence converted to funeral home use in the same block, and, at a greater distance, a building accommodating doctor’s offices. The appellee by cross-examination brought out that U. S. Route 30 is close and is developed commercially and that there is a supermarket and Dairy Queen ice cream establishment somewhere in the area. However, the record also shows that Circleville sits on a height above U. S. Route 30 and that the market and the ice cream shop are a mile distant. Not only the testimony but photographs in the record clearly prove that the immediate vicinity of this lot is a quiet residential neighborhood. Its description on this record would, in my judgment, make out a creditable case for enjoining the establishment of a gasoline service station at the location here proposed as a nuisance at common law. Prendergast v. Walls, 257 Pa. 547, 101 A. 826 (1917);
I thinlr that the court below committed an abuse of discretion and that its order should be reversed.
The house is in poor condition. The appellee advances this as a reason for the grant of the variance (although her neglect
Reference
- Cited By
- 15 cases
- Status
- Published