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MCCLURE APPEAL. (09/29/64)

September 29, 1964

MCCLURE APPEAL.


Appeal, No. 124, Jan. T., 1964, from order of Court of Common Pleas of Delaware County, Dec. T., 1962, No. 514, in re appeal of Sally Gibbs McClure, Doris Smagala, Gilbert Bitting et al. from decision of Board of Adjustment of Township of Radnor. Order reversed.

COUNSEL

Joseph Sharfsin, with him R. Paul Lessy, for appellants.

John B. H. Carter, with him Holbrook M. Bunting, Jr., and Edward W. Madeira, Jr., for appellees.

Before Bell, C.j., Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Jones

[ 415 Pa. Page 286]

OPINION BY MR. JUSTICE JONES

In December 1960 the Fidelity-Philadelphia Trust Company (Fidelity), applied to the building inspector of Radnor Township (Township), in Delaware County for a permit to erect a branch bank building, with accessory outside drive-in, parking and other facilities, upon a tract of land located at the northwest corner of Lancaster and Airdale Avenue in Rosemont.*fn1 Under the township zoning ordinance this tract of land was in a residential area. Upon denial of the permit,*fn2 Fidelity

[ 415 Pa. Page 287]

    requested the board of adjustment of the township (Board), to grant variances under the zoning ordinance. The Board refused and the Court of Common Pleas of Delaware County sustained the Board. Fidelity excepted to the court's action and, in June 1962, the court, stating the "only testimony presented before the [Board] was in the form of statements of counsel for [Fidelity] and no witnesses were called to testify on behalf of [Fidelity]",*fn3 vacated its previous order and remanded the matter to the Board "for the taking of admissible, competent and relevant testimony".

The Board then held several hearings at which considerable testimony was taken on behalf of Fidelity as well as protesting residents in the vicinity and, after such hearings, the Board granted the variances and the court sustained the Board. From the court's order this appeal has been taken.

In determining this appeal, certain principles, well settled in this area of the law, must guide us. First, since the court below took no additional testimony, our scope of review is to determine whether the Board committed a manifest abuse of discretion or an error of law: Brennen v. Zoning Bd. of Adjustment, 409 Pa. 376, 379, 187 A.2d 180; Crafton Borough Appeal, 409 Pa. 82, 85, 86, 185 A.2d 533. Second, the Board's power to grant a variance from a zoning ordinance "is to be sparingly exercised and only under peculiar and exceptional circumstances": Sgarlat v. Kingston Borough Bd. of Adjustment, 407 Pa. 324, 330, 180 A.2d 769; Cresko Zoning Case, 400 Pa. 467, 471, 162 A.2d

[ 415 Pa. Page 288219]

. Third, in order "to obtain a variance the law is well settled that a petitioner must prove (1) the variance will not be contrary to the public interest; and (2) unnecessary hardship will result if it is not granted": Silverco, Inc. v. Zoning Bd. of Adjustment, 379 Pa. 497, 503, 109 A.2d 147, and cases therein cited. Fourth, a variance should be granted, assuming it is not contrary to the public interest, only "where the property involved is subjected to an unnecessary hardship unique or peculiar to itself, and not to general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance": Magrann v. Zoning Bd. of Adjustment, 404 Pa. 198, 200, 170 A.2d 553. Fifth, a rezoning cannot be accomplished under the guise of a variance: Richman v. Zoning Bd. of Adjustment, 391 Pa. 254, 259, 137 A.2d 280. Lastly, one who seeks a variance cannot be heard to ...


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