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FERRY v. KOWNACKI. (06/30/59)

June 30, 1959

FERRY, APPELLANT,
v.
KOWNACKI.



Appeal, No. 111, March T., 1958, from order of County Court of Allegheny County, No. A707 of 1956, in case of James J. Ferry et al. v. Peter V. Kownacki et ux. Order affirmed. Appeal by protestants from decision of board of adjustment granting variance. Before BROSKY, J. Adjudication entered sustaining decision of board, and order entered. Protestants appealed.

COUNSEL

George F. Taylor, with him Taylor, McNaugher & Duerring, for appellants.

John A. Metz, Jr., with him Samuel N. Goldman, Joseph B. Mitinger, and Metz, Cook, Hanna & Kelly, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Bok

[ 396 Pa. Page 284]

OPINION BY MR. JUSTICE BOK

Appellees, Peter and Violet Kownacki, own a tract of land in Bethel Borough, Allegheny County, at the northwest corner of Baptist and Boroughton Library Roads which contains almost two acres and was purchased in 1946. The entire tract is zoned Residential-3, which prohibits the erection of a gasoline station.

The appellees sought a building permit to erect a gasoline station on the above property and, after the refusal of the building inspector to grant it, appealed to the board of adjustment. After a hearing, the board

[ 396 Pa. Page 285]

    granted the variance and appellants, taxpayer-owners of real estate in the immediate vicinity, took an appeal to the County Court of Allegheny County. A full hearing was held and after additional testimony had been presented the court sustained the board. This is an appeal from the court's order.

As we said in Edwards Zoning Case, 392 Pa. 188, 193, 140 A.2d 110 (1958), the scope of review by this Court in a zoning case "... is as on broad certiorari, and we inquire whether there is substantial evidence to support the findings of fact, whether the record is free from mistake of law, and whether there has been an abuse of discretion." Since the court below took additional testimony, the question before us is whether the court rather than the board abused its discretion or committed error. The rule about granting a variance is well stated in Richman v. Zoning Board of Adjustment, 391 Pa. 254, 137 A.2d 280 (1958):

"The sole justification for the grant of a variance is that a strict application of the terms of the zoning statute will result in an 'unnecessary hardship', and, even then, the variance can be granted only if 'the spirit of the ordinance shall be observed; the public health; the public safety; and the general welfare secured; and substantial justice done'. He who seeks a variance has the burden of proving justification for its grant. The 'hardship' which must be proven must be an 'unnecessary', not a 'mere' hardship, as well as 'unique or peculiar to [the property involved] as distinguished from the impact of the zoning regulations on the entire district'. The fact that an increase or decrease in value will result from the grant or refusal of a variance will not, standing alone, constitute a sufficient hardship.

"On an appeal from the grant or refusal of a variance we examine the record only to ascertain whether the action taken was ...


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