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HARRY B. ARENA v. NORRISTOWN BOROUGH ZONING BOARD ADJUSTMENT (04/22/71)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 22, 1971.

HARRY B. ARENA, ELIZABETH VETOLL, SIBARCO STATIONS, INC.
v.
NORRISTOWN BOROUGH ZONING BOARD OF ADJUSTMENT

Appeal from the order of the Court of Common Pleas of Montgomery County, No. 68-7562 in case of In Re: Appeal of Harry B. Arena and Elizabeth Vetoll and Sibarco Stations, Inc. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.

COUNSEL

Philip D. Weiss, with him Desmond J. McTighe and McTighe, Koch, Brown & Weiss, for appellant.

Mark E. Weand, Jr., with him Timoney, Knox, Avrigian & Hasson, for appellee.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer, and Rogers. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 2 Pa. Commw. Page 286]

This is an appeal from an Order of the Common Pleas Court of Montgomery County which upheld the decision of the Norristown Board of Adjustment. It is without merit.

Appellants are owners or parties of interest of two contiguous plots located at the edge of the "B" Residential area of Norristown and fronting on one of the main traffic arteries of the Borough. To the east and

[ 2 Pa. Commw. Page 287]

    its conclusion will be affirmed." Polizzi v. Zoning Bd. of Adjustment, 420 Pa. 405, 407, 218 A.2d 226 (1966).

The findings of the Board on the hardship issue are clearly set out as follows: "It is true that extensive commercial development has been undertaken in the immediate vicinity and that the area in general is less desirable for residential use than it was prior to the construction of Logan Square. However, there are numerous residential properties in the area to the north and west, and the condition complained of affects the whole neighborhood and not merely the applicant's properties. This is a general hardship, not a unique one, and therefore the situation should be remedied by a revision of the general zoning regulation and not by grant of special privileges to single owners." Where the hardship alleged is a matter for general legislation in the form of reconsideration of general zone boundaries, neither the Board nor the court should usurp the legislative function on a case by case basis absent the showing that a particular property is subject to such hardship as to prohibit the permitted zoned use. English v. Zoning Board of Adjustment, 395 Pa. 118, 148 A.2d 912 (1959); Ryan, Pennsylvania Zoning, ยง 6.2.7 (1970). There being sufficient evidence to substantiate a finding that the alleged hardship was common to the whole neighborhood, we hold that the Board was justified in refusing to grant the requested variance.

Turning to appellants' argument that the "B" Residential classification is unconstitutional as applied to appellants, they rely in part upon Pierce v. Zoning Board of Adjustment, 410 Pa. 262, 189 A.2d 138 (1963). However, the portion of the case dealing with constitutionality reads in part: "Pierce well argues that the position of the Board is: 'We are inclined to agree that your land is being confiscated; however, the land of your neighbors is equally being confiscated; therefore there is nothing unique in the confiscation taking place

[ 2 Pa. Commw. Page 289]

    with respect to your land. . . .' As a practical matter, if this variance be denied, Pierce's land is being confiscated. . . . 410 Pa. at 267." The matter before us presents no question of confiscation. The appellants have occupied and enjoyed the use of their property for the residentially zoned purposes approximately twenty years and continue to do so. They do not allege that because of the changing conditions they can no longer live there nor that they could not sell their property for the permitted use. We can conceive of no theory by which we could hold a zoning ordinance unconstitutional merely because a property owner situated on the border of a commercial zone is not permitted to use his residentially zoned property for a more profitable commercial use.

Affirmed.

Disposition

Affirmed.

19710422

© 1998 VersusLaw Inc.



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