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SPOSATO v. RADNOR TOWNSHIP BOARD ADJUSTMENT (10/09/70)

decided: October 9, 1970.

SPOSATO
v.
RADNOR TOWNSHIP BOARD OF ADJUSTMENT, APPELLANT



Appeal from order of Court of Common Pleas of Delaware County, No. 11814, of 1967, in case of Richard P. Sposato v. Board of Adjustment of Radnor Township.

COUNSEL

Fronefield Crawford, Solicitor, with him Sondra K. Slade, and Crawford, Frazier & Diamond, for appellant.

John P. Trevaskis, Jr., with him Trevaskis, Doyle, Currie & Nolan, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell and Mr. Justice Roberts dissent.

Author: Jones

[ 440 Pa. Page 109]

Dr. James Westerman owns an 18.5 acre tract in Radnor Township which is presently zoned R-4 Residential. On December 31, 1965, Dr. Westerman agreed to sell the tract to Richard Sposato, the agreement of sale being contingent upon Sposato obtaining a zoning classification which would permit him to build garden apartments thereon. Following a public hearing on March 21, 1967, Sposato's proposal that the tract be rezoned was denied by the Board of Commissioners of Radnor Township.

Sposato next applied for a building certificate to permit the construction of 222-unit garden apartments. This application was denied since it was not a permitted use under the R-4 zoning and an appeal was filed with the Zoning Board of Adjustment of Radnor Township, claiming the right to a variance. Another hearing was held and the Board, on August 11, 1967, denied and dismissed the request for a variance. Sposato appealed from that decision to the Court of Common Pleas of Delaware County. Following the taking of additional testimony, the court below, on February 17, 1969, made new findings of fact, reversed the decision of the Board and directed that Sposato be issued the necessary building permits. This appeal followed.

Certain principles of law are well-settled in this area, and they are controlling in the instant case. First, in order to establish his right to a variance, the applicant must prove: (a) that the effect of the zoning ordinance is to burden his property with an unnecessary hardship which is unique to his particular property; and (b) that the variance would not have an adverse effect upon the public health, safety or welfare. O'Neill v. Zoning Bd. of Adjust., 434 Pa. 331, 254 A.2d 12 (1969); Cleaver v. Board of Adjust., 414 Pa. 367, 200 A.2d 408 (1964); Di Santo v. Zoning Bd. of Adjust., 410 Pa. 331, 189 A.2d 135 (1963). Second,

[ 440 Pa. Page 110]

    mere economic or financial hardship will not, per se, justify the grant of a variance. Cooper v. Board of Adjust., 412 Pa. 429, 195 A.2d 101 (1963); Andress v. Zoning Bd. of Adjust., 410 Pa. 77, 188 A.2d 709 (1963); Magrann v. Zoning Bd. of Adjust., 404 Pa. 198, 170 A.2d 553 (1961). Third, a purchaser who knew or should have known how his property was zoned cannot subsequently rely upon the economic hardship allegedly caused thereby in order to obtain a variance. O'Neill v. Zoning Bd. of Adjust., 434 Pa. 331, 254 A.2d 12 (1969); McClure Appeal, 415 Pa. 285, 203 A.2d 534 (1964); Dishler v. Zoning Bd. of Adjust., 414 Pa. 244, 199 A.2d 418 (1964); Crafton Borough Appeal, 409 Pa. 82, 185 A.2d 533 (1962). Fourth, where the lower court has taken additional testimony, this Court only decides whether that court abused its discretion or committed an error of law. Pyzdrowski v. Pgh. Board of Adj., 437 Pa. 481, 263 A.2d 426 (1970); Mason v. Schaefer, 410 Pa. 239, 189 A.2d 167 (1963); Upper St. Clair Twp. Appeal, 408 Pa. 416, 184 A.2d 263 (1962); Richman v. Zoning Bd. of Adjust., 391 Pa. 254, 137 A.2d 280 (1958).

The additional testimony taken by the lower court consisted of the submission of the written report of a civil engineer, Donald D. Meisel, and some very brief cross-examination of Meisel. The report was prepared at Sposato's request in an attempt to establish that the tract possesses unique physical characteristics which make it unfeasible to build single-family residences thereon. The lower court adopted the findings of that report virtually in haec verba and concluded, inter alia, that Sposato "has shown an unnecessary hardship, unique to that property, and the proposed apartment construction will not be detrimental to the public health, welfare, morals and safety of the community." This conclusion was based upon numerous specific findings of fact which all revolve about three general physical

[ 440 Pa. Page 111]

    characteristics of the tract: the property has slopes ranging from eight to fifteen per cent, with a total drop of forty-five feet from the highest point to the lowest point, a substantial portion of the land contains ...


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