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VOLPE APPEAL. (03/13/56)

March 13, 1956

VOLPE APPEAL.


Appeal, No. 199, Jan. T., 1955, from order of Court of Common Pleas of Montgomery County, April T., 1953, No. 10, in re Appeal of Michael Volpe from Cheltenham Township Zoning Board of Adjustment. Order affirmed.

COUNSEL

Louis D. Stefan, with him Thomas B. M. Porter, Jr. and Foulke, Knight & Porter, for appellant.

David E. Groshens, with him John E. Landis and Samuel H. High, Jr., for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Arnold, JJ.

Author: Bell

[ 384 Pa. Page 375]

OPINION BY MR. JUSTICE BELL

This is an appeal from the refusal of a variance by (the Zoning Board and by) the Court of Common Pleas from a Zoning Ordinance adopted by the Commissioners of Cheltenham Township in 1929. The lower Court, after hearing evidence in addition to that which was presented before the Board of Adjustment, made findings of fact (almost all of which were admitted), which are substantially as follows:

The petitioner purchased at auction in 1944 or 1945 premises known as lots 14 and 15 on a plan of Suncrest, Cheltenham Township, Montgomery County. The lots are irregular but have a total area of approximately 32,500 square feet. The area was classified as "AA" residential in 1929; and by amendment adopted August 5, 1941, no building can be built on a lot unless the lot has an area of at least 20,000 square feet. On March 16, 1949, petitioner conveyed all of lot 15 and a triangular portion of lot 14 to Helen V. Foster, after he had constructed a dwelling thereon. The total area conveyed was 20,130 square feet. A portion of lot 14 was included in the conveyance in order to comply with the 20,000 square feet required by the Zoning Ordinance. Petitioner retained title to a rectangular portion of lot 14 containing an area of 12,448.42 square feet, or approximately 62% of the area required for a residence under the ordinance.

Petitioner desires a variance in order to construct a stone dwelling house on the remaining portion of his lot and agreed that if permitted to do so he will comply with all of the other portions of the Zoning Ordinance. Petitioner was engaged in the building business for 26 years and had actual knowledge of the zoning regulations when he took title in 1945 to lots 14 and 15. When petitioner sold his house and lot to

[ 384 Pa. Page 376]

Mrs. Foster he told her that a house could not be built on the remaining portion of his lot, but he intended either to buy the adjacent lot 13 or sell the remaining portion of his lot to Mrs. Foster or to the owner of the neighboring ground. Mrs. Foster and the owner of lot 13 purchased their properties in reliance on the provisions of the zoning ordinance. The owner of lot 13 offered and is still willing to pay to petitioner, petitioner's cost of the portion of lot 14 which he still owns, plus 6% interest, plus all of petitioner's outlays for taxes for the lot. Pttitioner is unwilling to sell. Both the Board of Adjustment and the lower Court concluded under these facts that petitioner had not proved unnecessary hardship and was not entitled to a variance.

By the Act of June 24, 1931, P.L. 1206, § 3107, as amended May 27, 1949, P.L. 1955, § 59, 53 PS § 19092-3107, and by the Ordinance passed pursuant thereto, the Board of Adjustment has the power, inter alia: "(3) To authorize, upon appeal, in specific cases, such variance from the terms of the ordinance as will not be contrary to the 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. ...

"Any person aggrieved by any decision of the board of adjustment ... may ... appeal to the court of common pleas of the county by petition, duly verified, setting forth that such decision is arbitrary, capricious, an abuse of discretion, or otherwise not in ...


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