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BOROUGH BALDWIN v. JEROME T. BENCH (01/15/74)

decided: January 15, 1974.

BOROUGH OF BALDWIN, APPELLANT,
v.
JEROME T. BENCH, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Zoning Board of Adjustment of the Borough of Baldwin v. Jerome T. Bench, No. S.A. 539 of 1971.

COUNSEL

Francis A. Barry, with him John R. Luke, and Luke and Dempsey, for appellant.

James F. Malone, III, with him Brandt, McManus, Brandt & Malone, for appellee.

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

Author: Mencer

[ 11 Pa. Commw. Page 411]

This is an appeal from a decision of the Court of Common Pleas of Allegheny County reversing the Zoning Board of Adjustment of the Borough of Baldwin (Board) and granting the application of Jerome T. Bench (Bench) for a variance.

[ 11 Pa. Commw. Page 412]

In 1969, Bench acquired from his father a property known as 3460 Emma Jo Drive. Bench's father had planned and laid out fifteen lots surrounding Emma Jo Drive and had burdened the property acquired by Bench with a sewage easement for the benefit of the other lots. All of the lots are zoned "R-2", which essentially permits only single family dwellings. All lots located in an "R-2" zone must have a fifty-five (55) foot frontage and seven thousand (7,000) feet of area. Bench's lot at 3460 Emma Jo Drive has only a forty (40) foot frontage.

On March 4, 1971, Bench submitted to the Borough Building Inspector an application for a building permit to construct a single family dwelling on his lot. Bench received a permit on March 5, 1971. However, this permit was subsequently revoked. Bench then applied to the Board for a variance from the frontage requirement. The Board held a hearing, after which the variance request was denied. Bench appealed to the Court of Common Pleas of Allegheny County. The Court granted a hearing de novo. Upon the conclusion of the hearing, the Court reversed the decision of the Board. This appeal then followed.

In zoning cases in which the court below heard additional evidence, our scope of review is limited to a determination of whether the lower court committed an error of law or abused its discretion. McKay v. Board of Adjustment, 8 Pa. Commonwealth Ct. 29, 300 A.2d 810 (1973). We hold that the lower court erred in granting a variance when the evidence failed to establish any unnecessary hardship on the part of Bench. We, therefore, reverse.

It is well established that a variance from a zoning ordinance may be granted only in exceptional circumstances when the applicant sustains the heavy burden of proving that there exists under present zoning restrictions

[ 11 Pa. Commw. Page 413]

    an unnecessary hardship unique or peculiar to the property, and that the proposed variance would not be contrary to the public health, safety, or general welfare. The Boulevard Land Corporation v. Zoning Board of ...


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