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MCKAY v. BOARD ADJUSTMENT (02/27/73)

decided: February 27, 1973.

MCKAY
v.
BOARD OF ADJUSTMENT



Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Mary E. McKay v. North Huntingdon Township Board of Adjustment, No. 203 January Term, 1967.

COUNSEL

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

Thomas R. Ceraso, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Rogers. Judges Mencer and Blatt join in this dissent.

Author: Crumlish

[ 8 Pa. Commw. Page 31]

Mary E. McKay, in her capacity as Secretary to and by authority of the Township Commissioner of North Huntingdon, Westmoreland County, appealed the order of the Court of Common Pleas of Westmoreland County which upheld the North Huntingdon Township Board of Adjustment's grant of a variance to Florence M. Evans who sought to use her property as a gasoline service station.

Evans entered into an agreement of sale in 1962 and in 1964 applied for a variance under the applicable zoning provisions.*fn1 In 1965 the deed was executed. After a hearing held in 1966 a variance was granted. McKay

[ 8 Pa. Commw. Page 32]

    appealed to the Court of Common Pleas which after taking additional testimony affirmed the decision of the Board. Exceptions were taken and the Court of Common Pleas, sitting en banc, declared it was without jurisdiction to hear the case. This Court on appeal on that issue determined that the lower court did, in fact, have jurisdiction and remanded it for a hearing on the exceptions. McKay v. Board of Adjustment, 2 Pa. Commonwealth Ct. 609, 279 A.2d 376 (1971). On remand, the lower court sitting en banc once again upheld the Board's decision to grant the variance. That ruling is the subject of this appeal.

Appellant contends (1) that the application of the R-2 single family dwelling zoning classification of the tract in question does not create an unnecessary hardship upon the property which is unique and peculiar to it; and hence the variance should not have been granted; and (2) that the court below abused its discretion in upholding the Board's decision because it failed to make specific findings of fact as required by the zoning ordinance and because the lower court itself also failed to make specific findings of fact.

We disagree with appellant's contentions and hold that the order of the lower court must be affirmed.

The importance of our scope of review once again is manifest in this zoning appeal. Where, as here, the court below took additional testimony, our function on appeal is to determine whether the court below committed an error of law or abused its discretion. Durkin Contracting Co. v. Zoning Bd. of Adjustment, 6 Pa. Commonwealth Ct. 211, 293 A.2d 622 (1972); Drop v. Board of Adjustment, 6 Pa. Commonwealth Ct. 64, 293 A.2d 144 (1972).

We are not unmindful of the burden placed upon an applicant to prove unnecessary hardship that is unique and peculiar to the property and that the proposed use will not be contrary to the public interest.

[ 8 Pa. Commw. Page 33]

    the following reasons: (1) the clearing of the property will afford greater visibility to motorists approaching the intersection; (2) the illuminating lights of the service station would lessen the dangers at this intersection; (3) it would rid the township of a blighted piece of property; (4) it would eliminate the possibility of children getting injured on run-down and unkept property; (5) it would increase tax revenue; (6) the possibility that the property would be used as a single family residence is poor because of (a) the possibility of the state widening the road; (b) the dangers of property damage at a busy intersection; (c) the annoying sound of traffic; (7) the property has been and is presently a hazard with no effort made to correct that problem; (8) there is no reason to believe that traffic would increase; (9) the service station would be a distinct improvement and could be erected in such a way as to insure privacy to adjacent property.*fn4

On this record and on the additional testimony taken, the court below found that the location of the premises, the nature of the traffic conditions, the surrounding area which included the funeral home, fire station, school, trailers and apartments combined to impose a unique and particular hardship on this property. The court also found that the area of the premises is developed on a commercial basis; that the intended use was not detrimental to the public welfare of the neighborhood and that the hardship was not self-inflicted. The court en banc, on exceptions, agreed.

[ 8 Pa. Commw. Page 35]

A reviewing court will not substitue its findings for those of the lower court where there is competent, credible evidence in the record upon which the decision of the court could be based. Township of Lower Yoder v. Page 35} Weinzierl, 2 Pa. Commonwealth Ct. 289, 276 A.2d 579 (1971).

This case is for the most part factually similar to Pfile. There is one distinction which merits reference. There an application for a variance was filed but the landowner had knowledge of the zoning restriction when he bought the land. This is not so in the case at bar. The Board in Pfile, however, had initially denied the variance whereas here the Board granted the variance and the court, after the de novo hearing, sustained the Board.

In Pfile, supra, it was stated at 7 Pa. Commonwealth Ct. at 234, 298 A.2d at 603, that "[g]enerally, economic or financial hardship is not in itself sufficient to sustain the granting of a variance, but '. . . this doctrine has only been applied where it is a question of more profits from one type of development as opposed to another type of development.' [Citation] However, when, on rare occasions, the record appears to show 'property hardship' in the sense of total loss of usability for any of the permitted uses, a use variance will be affirmed . . . [citations]." We agree with the court below that the evidence shows that such property hardship does exist in this case.

Further, this is not a self-inflicted hardship situation which was found in Gro Appeal, 440 Pa. 552, 269 A.2d 876 (1970). There it was said: "only in a case . . . which arises after the property has been sold to a new owner who has paid a high price for the property because he assumed that a variance which he anticipated would justify his price, do we hold that the owner cannot prove that the hardship which burdens his land was unnecessary rather than self-inflicted." Gro Appeal, 440 Pa. at 560, 269 A.2d at ...


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