Appeals from the Order of the Court of Common Pleas of Montgomery County, in case of Appeal of Humble Oil & Refining Company from the Decision of the Zoning Hearing Board of Plymouth Township, No. 71-14316.
Morris Gerber, with him Gerber, Davenport & Wilenzik, for appellants.
Stephen C. Yusem, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Judge Blatt concurs in the result. Dissenting Opinion by Judge Wilkinson.
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These are appeals from an order of the Court of Common Pleas of Montgomery County affirming the decision of the Zoning Hearing Board of Plymouth Township (Board) denying Carol Elizabeth Campbell and Humble Oil and Refining Company (Humble) a variance and also denying Humble's request for a declaration that the zoning classification applicable to the property in question here is invalid. We affirm.
It is well settled that where, as here, the lower court does not take additional testimony on appeal from the zoning board, but rather relies entirely on the record compiled before the board, the scope of our review is limited to a determination of whether or not the board committed an abuse of discretion or an error of law. Filanowski v. Zoning Board of Adjustment, 439 Pa. 360, 266 A.2d 670 (1970); Pyzdrowski v. Pittsburgh Board of Adjustment, 437 Pa. 481, 263 A.2d 426 (1970); Szmigiel v. Zoning Board of Adjustment, 6 Pa. Commonwealth Ct. 632, 298 A.2d 629 (1972).
Humble conditionally leased a tract of land, containing 36,349 square feet, presently occupied by Campbell's Oasis Bar and Restaurant and Oasis Motel, for the purpose of replacing the present enterprises with a gasoline service station. This property is located on the east side of Germantown Pike, adjacent to and north of the Norristown exit of the Pennsylvania Turnpike, and is owned by Carol Elizabeth Campbell, a widow, and members of her family.
The property has been zoned Shopping Center since 1960. Under the Plymouth Township Zoning Ordinance a gasoline filling station is a permitted use when authorized as a special exception only in districts zoned Commercial, and such use is not permitted in a district zoned as a shopping center. However, under the present zoning classification, the property can be used for
[ 10 Pa. Commw. Page 254]
many purposes, including: retail store, showroom, restaurant, cafe, soda fountain, dairy bar, snack bar, cafeteria, coffee shop, cocktail lounge, office, studio, beauty parlor, barbershop, investment office, travel agency, ticket office, self-service laundry, millinery shop, bowling alley, indoor recreational establishment, child day center, bakery, financial institution, municipal use, passenger bus station, taxicab stand, electric substation, telephone and telegraph office, post office, repair, upholstering, electrical repair, radio and tv repair, tailoring, stamp redemption center, motel, high rise apartment building, hotel, recreational facilities, office building, and tire, battery and accessory store.
Section 912 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, 53 P.S. § 10912 (MPC), enumerates the findings necessary for the grant of a variance:
"The board shall hear requests for variances where it is alleged that the provisions of the zoning ordinance inflict unnecessary hardship upon the applicant. Subject to the provisions of section 801 [53 P.S. § 10801], the board may by rule prescribe the form of application and may require preliminary application to the zoning officer. The board may grant a variance provided the following findings are made where relevant in a given case:
"(1) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that the unnecessary hardship is due to such conditions, and not the circumstances or conditions generally created by the ...