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ROBERT C. BOYD v. WILKINS TOWNSHIP BOARD ADJUSTMENT (07/21/71)

decided: July 21, 1971.

ROBERT C. BOYD
v.
WILKINS TOWNSHIP BOARD OF ADJUSTMENT



Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. A 1869 of 1968, in case of Robert C. Boyd and Sara B. Boyd, his wife, v. Township of Wilkins Board of Adjustment.

COUNSEL

Ewing C. Bashor, for appellant.

Ira R. Hill, with him Reed, Smith, Shaw & McClay, for appellee and intervenors.

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

Author: Manderino

[ 2 Pa. Commw. Page 325]

Robert and Sara Boyd have appealed to this court from a decision of the Court of Common Pleas of Allegheny County which affirmed the action of the Board of Adjustment of Wilkins Township, denying the Boyds a variance from the side yard requirements of the Wilkins Township Zoning Ordinance.

In February of 1968, the Boyds purchased a lot in a plan known as the Penhurst Plan in Wilkins Township from the Amore Construction Company, which company then erected a dwelling house on the lot for the Boyds. The plot plan submitted to the Building Inspector by Amore did not show a side porch on the house which was a part of the completed construction. Owners of a lot adjoining the Boyds objected to the side porch because it extended into the side yard area required by the Zoning Ordinance. Section 4.4 of the Wilkins Township Zoning Ordinance requires that each side yard, in the district involved here, have a width of at least ten feet. In this case, it is undisputed that

[ 2 Pa. Commw. Page 326]

    the width of the side yard because of the extension of the side porch is only 7.4 feet. The Boyds filed an application for a variance with the Zoning Board of Adjustment. The Board denied the request and on appeal to the Court of Common Pleas of Allegheny County, after a hearing de novo on the matter, the Board's decision was affirmed.

Since the lower court held a hearing de novo, our scope of review is to determine whether or not the lower court committed an error of law or an abuse of discretion. Pyzdrowski v. Pittsburgh Board of Adjustment, 437 Pa. 481, 263 A.2d 426 (1970). This Court can find neither an error of law nor an abuse of discretion in the lower court's opinion and order.

The Boyds have requested a variance. The law of this Commonwealth is clear that there are two criteria which must be met before a variance can be granted: (1) unnecessary hardship upon and which is unique or peculiar to the property involved, as distinguished from the hardship arising from the impact of the zoning ordinance on the entire district; and (2) that the proposed variance is not contrary to the public safety, health, morals, or general welfare. O'Neill v. Zoning Board of Adjustment, 434 Pa. 331, 254 A.2d 12 (1969); Di Santo v. Zoning Board of Adjustment, 410 Pa. 331, 189 A.2d 135 (1963).

An applicant seeking a variance has the burden of proving that he has met both of the above criteria. Richman v. Zoning Board of Adjustment, 391 Pa. 254, 137 A.2d 280 (1958). The Boyds have obviously not met this heavy burden. The Township Ordinance requires that every house in the district where the Boyds live have at least a ten foot side yard. This "hardship" is in no way unique to the Boyds' property nor have ...


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