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DROP v. BOARD ADJUSTMENT (07/07/72)

decided: July 7, 1972.

DROP
v.
BOARD OF ADJUSTMENT



Appeal from the Order of the Court of Common Pleas of Westmoreland County, in case of Ronald F. Drop v. North Huntingdon Township Board of Adjustment, No. 825 October Term, 1968.

COUNSEL

John Campfield, with him A. C. Scales, Thomas P. Cole, II, and Scales and Shaw, for appellant.

Robert M. Stefanon, for appellee.

Judges Crumlish, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 6 Pa. Commw. Page 65]

Ronald Drop, appellee, sought a variance for construction of an 8-unit apartment building on a R-2 residentially zoned tract owned by him in North Huntingdon Township, Westmoreland County. After the denial

[ 6 Pa. Commw. Page 66]

    of his request by the North Huntingdon Township Board of Adjustment, appellee was granted a rehearing before the Board by the Court of Common Pleas of Westmoreland County. The Board again denied the variance, and on appeal the Court of Common Pleas, after a full evidentiary hearing, ordered the Township to grant the variance. Hence this appeal.

Where, as here, the Court of Common Pleas, on appeal from the decision of the Board, takes additional testimony, it must decide the case on its merits. On appeal from that decision, the issue before us is whether the court, not the Board, manifestly abused its discretion or committed an error of law. Pyzdrowski v. Pittsburgh Board of Adjustment, 437 Pa. 481, 263 A.2d 426 (1970); Pantry-Quik, Inc. v. Zoning Board of Adjustment, 1 Pa. Commonwealth Ct. 326, 274 A.2d 571 (1971).*fn1

"In considering the merits of this appeal, we bear in mind the following principles which govern the disposition of variance cases: first . . . our scope of review [see above] . . . second, variances should be granted only sparingly and only under exceptional circumstances; n.2 third, in order to obtain a variance, the petitioner must prove (1) that the variance will not be contrary to the public interest and (2) that unnecessary hardship will result if the variance is not granted; n.3 fourth, a variance will not be granted solely because

[ 6 Pa. Commw. Page 67]

    the petitioner will suffer an economic hardship if he does not receive one. n.4 Especially is a variance not to be granted when the petitioner purchased the property with the knowledge of the existing zoning regulation or when he should have been aware of the zoning regulation." n.5 (footnoted citations omitted). O'Neill v. Zoning Board of Adjustment, 434 Pa. 331, 334-35, 254 A.2d 12 (1969). See also, Torak v. Board of Adjustment of Upper Merion Township, 92 Montg. Co. L. R. 136 (1970), aff'd per curiam, 2 Pa. Commonwealth Ct. 48, 277 A.2d 521 (1971). [ILLEGIBLE FOOTNOTE]

The record compiled before the court below compels two conclusions: That the appellee failed to demonstrate hardship sufficient to warrant a variance; and, that the appellee purchased the ...


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