decided: June 24, 1966.
Appeal from order of Court of Common Pleas of Montgomery County, No. 63-7562, in case of H. Durston Saylor, III, May M. Saylor, his wife, and Haverford Civic Association v. F. R. Drayton, Jesse L. Stetler and Julius Zieget, comprising Zoning Board of Adjustment of Lower Merion Township et al.
H. Durston Saylor, II, with him John J. Dautrich, for protestants, appellants.
Robert S. Ryan, with him Lewis H. Van Dusen, Jr., and Drinker, Biddle & Reath, for zoning board, appellee.
Joseph F. Keener, Jr., with him Elkins Wetherill, and Henderson, Wetherill & O'Hey, for property owners, intervenor-appellees.
Bell, C. J., Musmanno, Cohen, Eagen, O'Brien and Roberts, JJ. Mr. Justice Jones took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Cohen joins in this dissenting opinion.
Author: Per Curiam
[ 421 Pa. Page 623]
The Court being equally divided, the order of the lower court is affirmed.
Dissenting Opinion by Mr. Justice Roberts:
In my view, the variance granted by the court below was grounded on a misapprehension of law and should be set aside and the case remanded for consideration under the correct standard.
The record discloses that William J. Vogt and Helen M. Vogt, his wife, purchased the premises known as 558 Montgomery Avenue, Haverford, Montgomery County, Pennsylvania by deed dated January 29, 1959. At that time the building was not in conformity with the prevailing "R-4" zoning under which only "single-family detached dwellings" were permitted, having been converted into a three unit apartment house by a prior owner.
On January 28, 1963, the Vogts were notified by the township to terminate the multi-family occupancy of the building. Thereupon, the Vogts applied to the zoning board of adjustment of the township for a variance to permit continued use of the premises as an apartment house. The board, relying on the decision in Sheedy v. Zoning Board of Adjustment, 409 Pa. 655, 187 A.2d 907 (1963), granted the variance whereupon H. Durston Saylor, his wife, and the Haverford Civic Association, the protestants in the proceedings, appealed the board's order to the Court of Common Pleas of Montgomery County.
[ 421 Pa. Page 624]
The court, relying on the record made in the proceedings before the board, concluded that Sheedy was not controlling and remanded the case for further testimony and a supplemental decision "upon the issue of whether or not the property is reasonably saleable for single family dwelling purposes." Saylor v. Lower Merion Township, 83 Montg. Co. L.R. 130, 136 (1963).
On remand, after hearing additional testimony, the board found that the Vogts had failed to establish that the property was not reasonably saleable as a single family dwelling and concluded in light of the opinion of the court of common pleas that the application for a variance should be refused.
The Vogts then appealed and the case came again before the court of common pleas which upon reconsideration concluded that the case was controlled by the decision in Sheedy. Consequently, the original decision of the zoning board of adjustment which granted the variance was reinstated. We granted appellants' petition for certiorari under Rule 68 1/2.
My examination of the record in the instant case leads me to conclude that both the board and the court below failed to apply the correct standard in determining that the Vogts were entitled to a variance. Both appear to have treated the decisions in Sheedy v. Zoning Board of Adjustment, supra, and Hasage v. Philadelphia Zoning Board of Adjustment, 415 Pa. 31, 202 A.2d 61 (1964), as establishing a separate category of variance law applicable to purchasers of nonconforming property. I do not agree; both Sheedy and Hassage represent merely the application of traditional principles to specific factual configurations.
Since the record discloses that the Zoning Board of Adjustment of Lower Merion Township did not treat the present petition for a variance as subject to those principles, I would remand. The petition should
[ 421 Pa. Page 625]
be considered on its own facts by the application of the traditional test; namely, has the applicant shown: (1) unnecessary hardship which is unique and peculiar to his property, as distinguished from hardship arising from the impact of zoning regulation in general upon the entire district, and (2) that the proposed variance is not contrary to the public safety, health, morals or general welfare. See, e.g., Ferry v. Kownacki, 396 Pa. 283, 152 A.2d 456 (1959); Moyerman v. Glanzberg, 391 Pa. 387, 138 A.2d 681 (1958).
Accordingly, I dissent.
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