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MARPLE GARDENS v. ZONING BOARD ADJUSTMENT AND JOHNSON (04/13/73)

decided: April 13, 1973.

MARPLE GARDENS, INC.
v.
ZONING BOARD OF ADJUSTMENT AND JOHNSON, ET AL., INTERVENORS



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Marple Gardens, Inc. v. Board of Zoning Adjustment of Marple Township, and Dorothy E. Johnson, et al., Intervening Defendants, No. 15440 of 1968.

COUNSEL

Louis F. Floge, with him Melvin G. Levy, Louis J. Sinatra, Schnader, Harrison, Segal & Lewis, and Levy and Levy, for appellant.

Murray S. Eckell, Special Counsel, with him Eckell, Sparks, Vadino, Auerbach & Monte, for appellee.

Edward A. Sevastio, for intervenors.

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

Author: Kramer

[ 8 Pa. Commw. Page 438]

This is a zoning case. It arises on appeal from the final order of the Court of Common Pleas of Delaware County dated July 25, 1972, in which the appeal of Marple Gardens, Inc. (Marple Gardens) was dismissed. The effect of the court order was to affirm the decision of the Zoning Board of Adjustment (Board) of the Township of Marple (Township) denying a variance to Marple Gardens.

In 1959 or 1960 (the record is not clear), Marple Gardens purchased 17.843 acres of unimproved land in the Township. At the time of the purchase, the land had been used as a nursery. At the time of its purchase, Marple Gardens was fully aware that the land was zoned R-1 Residential (as it is still zoned to this date). The R-1 Residential zoning classification permits a single-family residence with a minimum of 12,000 square feet per lot. At the time of purchase, the property was located on a two-lane road, known as Lawrence Road. However, since the purchase, Lawrence Road has been widened to four lanes.

Sometime prior to March 19, 1968, Marple Gardens requested that the Township's Commissioners rezone the property in question so as to permit apartment dwelling usage. This request was denied. On March 19, 1968, Marple Gardens applied for a permit to erect six "garden-type apartments containing approximately 350 units" on said property. The application was rejected by the Building Inspector on August 6, 1968. Marple Gardens then filed an appeal to the Township Zoning Board of Adjustment, in which it also requested a variance from the terms of the Township's zoning ordinance. After hearing, the Board on November 26, 1968, rendered an adjudication and order in which it dismissed the appeal of Marple Gardens, thereby denying the request for a variance. Thereafter, Marple

[ 8 Pa. Commw. Page 439]

Gardens appealed to the Court of Common Pleas of Delaware County on December 4, 1968. The court below took additional testimony and received additional evidence. After hearing, the court issued its opinion and order dated July 25, 1972, dismissing Marple Gardens' appeal. It was from this order that an appeal was taken to this Court.

In considering the merits of this appeal, we must bear in mind the following principles which govern the disposition of variance cases. First, since the court below took testimony and received evidence in addition to the record made before the Board, on appeal to this Court, our review is to determine whether the court, rather than the Board, abused its discretion or committed an error of law. Error of law here includes constitutional questions. See Richman v. Zoning Board of Adjustment, 391 Pa. 254, 137 A.2d 280 (1958); Drop v. Board of Adjustment, 6 Pa. Commonwealth Ct. 64, 293 A.2d 144 (1972). Second, variances should be granted sparingly and only under exceptional circumstances. See McClure Appeal, 415 Pa. 285, 287, 203 A.2d 534, 535 (1964); Crafton Borough Appeal, 409 Pa. 82, 87, 185 A.2d 533, 536 (1962). Third, in order to establish a right to a variance, an applicant must prove (1) unnecessary hardship which is unique or peculiar to the applicant's property, as distinguished from the hardship arising from the impact of the zoning act or regulations on the entire district, or even to hardship on the owner of the property and (2) that the proposed variance is not contrary to the public safety, ...


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