Appeal, No. 281, March T., 1954, from order of County Court of Allegheny County, 1953, No. A-840, in Appeal of Catholic Cemeteries Association of the Diocese of Pittsburgh et al. Order reversed; reargument refused December 17, 1954. Appeal by applicant from decision of Zoning Board of Adjustment refusing to grant exception or variance for cemetery purposes. Before LENCHER, P.J. Adjudication filed sustaining appeal; exceptions to adjudication dismissed and final order entered. Township appealed.
John A. Metz, Jr., with him Metz, McClure, Hanna & MacAlister, for appellant.
Joseph R. Doherty, with him McCloskey, Best & Leslie, J. Frank McKenna, Jr., Clair V. Duff and Charles E. Hawkins, for appellees.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The appeal of the Township of Upper St. Clair is from the order of the court below directing the Board of Adjustment of Upper St. Clair Township to grant a certificate and permits to the Catholic Cemeteries Association of the Diocese of Pittsburgh and of Margaret E. Houston, Florence C. Riles and John R. Houston (appellees), for the use of approximately 185 acres of land in the Township as a cemetery. It is contended that the court below did not properly exercise its reviewable powers within the scope statutorily prescribed for appeals from a zoning board of adjustment.
On December 27, 1952, the Catholic Cemeteries Association of the Diocese of Pittsburgh, an appellee, acquired an option to purchase an area of approximately 185 acres of land known as the Houston Farm in the southwestern part of the Township containing in all about ten square miles. The Association then filed with the Board of Supervisors its application for a permit to lay out and establish a cemetery. At a regular meeting of the Board, a public hearing was held on a proposed ordinance which would amend the zoning law to allow non-profit cemeteries within the area "at such location as shall be permitted by the Board of Supervisors". The board of Supervisors, by vote, refused to pass or adopt the proposed ordinance. An appeal was then taken to the Board of Adjustment. The permit was again
refused, upon three grounds: (1) because the requested use was not within those permitted (2) to grant such permit as an exception or a variance would, in effect, be a re-zoning of the district which was beyond the power of the Board and (3) because the Board of Supervisors, in refusing to amend the Zoning Ordinance, clearly indicated the attitude of that legislative body concerning the requested use. This decision was reversed by the County Court of Allegheny County upon appeal and the Zoning Board of Adjustment was ordered and directed to grant the desired certificate and permits. The court below held that a literal enforcement of the provisions of the Ordinance would result in unnecessary hardships; that the variance is not contrary to the public interest; that the neighboring property owners are not sufficiently offended or hurt by the use of the land as a cemetery; and that the action of the Zoning Board of Adjustment was arbitrary, capricious and could not be sustained.
The Zoning Ordinance provides for three use districts: (a) Single Family Dwelling Districts (b) Multiple Dwelling Districts and (c) Commercial Districts. The Houston Farm is within the Single Family Dwelling District. In such district it was provided that land may be used and buildings may be erected, altered or used for single family dwellings, with garages, fences, and similar uses. Also, within the district, land may be used for farming with all of its necessary incidents. Churches and public schools are permitted at such locations authorized by the Board of Supervisors. Cemeteries are not mentioned in the Ordinance. Certain uses, such as slaughter houses, fertilizer manufacture, etc., are prohibited within the Township.
The grant of a certificate for the intended use must be predicated on a valid variance from the terms of the ordinance. The distinction between a variance and an
exception is set forth in Devereux Foundation, Inc., Zoning Case, 351 Pa. 478, 41 A.2d 744, where it is said (p. 483): "... An 'exception' in a zoning ordinance is one allowable where facts and conditions detailed in the ordinance, as those upon which an exception may be permitted, are found to exist. But zoning ordinances usually provide, as does the present one, for another kind of dispensation, also permitted by the statute, by which a 'variance' from the terms of the ordinance may be authorized in cases where a literal enforcement of its provisions would result in unnecessary hardship. ..." There are no facts and conditions detailed in this Ordinance permitting any exception in the case of a cemetery. The sole basis for the grant of such use must necessarily be a legal variance. Churches and public schools are the only permissible exceptions.
The power to grant variances is given to the Board of Adjustment by the Act of July 1, 1937, P.L. 2624, sec. 7, later re-enacted and amended by the Act of July 10, 1947, P.L. 1481, art. XX, sec. 2007, known as The Second Class Township Code, 53 PS 19093-2007. Section 2007 states: "Appeals to the board of adjustment may be taken by any person ... aggrieved or affected by any ... decision of [the supervisors] ... The Board of Adjustment shall have the following powers: ... (3) To authorize, upon appeal, in specific cases such variance from the terms of the ordinance as will not be contrary to public interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done." The action of the Board of Adjustment in refusing a variance was correct. To grant a variance for an area of 185 acres would, in effect, constitute a re-zoning of the area.
This principle was recognized in Lukens v. Ridley Township Zoning Board of Adjustment, 367 Pa. 608, 80 A.2d 765, where it was said (p. 613): "The Board of Adjustment was likewise correct in holding that a rezoning and a variance are fundamentally different; and that it has jurisdiction only when the petition is for a variance and not where it is for a re-zoning under the guise of a variance. The legislature expressly vested the power to zone in the Board of Township Commissioners (Act of May 27, 1949, P.L. 1955, Sec. 59, 53 P.S. § 19092-3101 et seq.) and did not 'empower a board of adjustment to set at naught the zoning statute and ordinance under the guise of a variance': Devereux Foundation, Inc., Zoning Case, 351 Pa. 478, 485, 41 A.2d 744. It appears that the Board of Adjustment would have the power and jurisdiction to consider, on appeal, a properly prepared petition for a variance in 1.66 acres in Tract No. 1, .29 acres in Tract No. 3, .74 acres in Tract No. 4 and .28 acres in Tract No. 5. A petition to change and reclassify approximately 16 acres in Tract No. 2 appears, because of the large acreage involved, to be an application for re-zoning and not for a variance, and if so, the application should be made to the Township Commissioners and not to the Board of Adjustment." (Italics in part supplied) Re-zoning is a legislative function only exercisable by the Board of Supervisors. The Supervisors had already refused an amendment to the zoning regulations. The Board of Adjustment may not usurp the legislative function of the Board of Supervisors and set at naught the provisions of the zoning ordinance under the guise of a variance: Devereux Foundation, Inc., Zoning Case, supra.
Furthermore, there is no evidence in the record to support the finding of the court below that to deny the requested use would result in unnecessary hardship.
The grant of a variance is limited to cases "where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship" and "will not be contrary to public interest." Many times this Court has said that in an appropriate case a variance will only be allowed when the difficulties and hardships are substantial and of compelling force: Kerr's Appeal, 294 Pa. 246, 253, 144 A. 81; Valicenti's Appeal, 298 Pa. 276, 148 A. 308; Devereux Foundation, Inc., Zoning Case, supra. The assertion of the court below that "a literal enforcement of the provisions of the ordinance would here result in unnecessary hardship" is substantiated by only two other statements found in its opinion. The court declared "it would probably be impossible to find a suitable tract of land within any reasonable distance of built-up areas that would not be in more or less proximity to residential properties", (Italics supplied) and "[the] (owners, appellees) in the case at bar are being completely deprived of the right to sell - as to the owners - and being completely deprived, as to the corporation, of their right to dedicate, maintain and use at least an equally important use, to wit, a religious use of burial grounds." Neither of these reasons is sufficient to support the claim of hardship. That it may probably be impossible to find another suitable tract is not the necessary hardship envisioned by the Act. The same is true of the other argument that the seller is being deprived of his sale and the corporation of the right to use the land as burial grounds. The equivalent argument could be made by one desirous of establishing a slaughter house or a fertilizer manufacturing company.
All question of financial hardship is effectively eliminated because the appellant Cemeteries Association had but an option to purchase the land, taken
with full knowledge of the existence of the Ordinance.
The single question, however, properly before the court below was whether or not the Board of Adjustment, in refusing the variance requested, was guilty of a manifest and flagrant abuse of discretion: Reininger Zoning Case, 362 Pa. 116, 66 A.2d 225. Such request was, in effect, an application for re-zoning. Furthermore, there is no evidence to support the finding of the court below that a denial of the use as a cemetery would result in unnecessary hardship. It was error to direct the issuance of the requested certificate and permits.
The order of the court below is reversed, at cost ...