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JACK REES v. ZONING HEARING BOARD INDIANA TOWNSHIP AND GEORGE RONCEVICH (01/16/74)

decided: January 16, 1974.

JACK REES, APPELLANT,
v.
ZONING HEARING BOARD OF INDIANA TOWNSHIP AND GEORGE RONCEVICH, JR., PROPERTY OWNER, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Jack Rees v. Zoning Hearing Board of Indiana Township, No. S.A. 1 of 1969.

COUNSEL

Ruth F. Cooper, for appellant.

Clifford A. Weisel, with him Albert C. Odermatt, Jr. and Weisel, Xides & Conn, for appellees.

President Judge Bowman and Judges Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Crumlish, Jr. did not participate. Opinion by Judge Mencer.

Author: Mencer

[ 11 Pa. Commw. Page 463]

This is an appeal by Jack Rees (Rees) from an order of the Court of Common Pleas of Allegheny County affirming a decision of the Indiana Township Zoning Hearing Board (Board) granting the application of George Roncevich, Jr. (Roncevich) for a variance.

On September 9, 1968, Roncevich, as the equitable owner under an agreement of sale of a certain lot on Saxonburg Boulevard in Indiana Township, applied to the township zoning officer for a permit to construct a garage for the storage of road equipment which he uses in his excavating and trucking business. His application was rejected because the property was zoned "R-1" and his proposed use was not permitted in such a zone by the township zoning ordinance.

Roncevich appealed to the Board, requesting a variance from the zoning ordinance. His appeal was rejected and he then appealed to the lower court. The lower court remanded the case to the Board because it had not made a record. The Board reheard the case and granted Roncevich's request for a variance subject to certain conditions. The lower court then affirmed the decision of the Board.

At this point, Rees, the owner of a nursing home next to Roncevich's property, as intervenor, appealed to this Court. We remanded the case to the Board since it had failed to formulate findings of fact and conclusions of law. The Board then complied with our order and again granted the variance and the case went before the lower court for the second time. The lower court, after taking additional testimony,*fn1 affirmed the

[ 11 Pa. Commw. Page 464]

    decision of the Board. Rees's appeal to this Court then followed.

We must first note our scope of review. In zoning cases in which the lower court heard additional testimony, our review is limited to a determination of whether the court below committed an error of law or abused its discretion. McKay v. Board of Adjustment, 8 Pa. Commonwealth Ct. 29, 300 A.2d 810 (1973).

Section 912 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, 53 P.S. ยง 10912, has adopted as its criteria for the granting of a variance the requirements mandated by Pennsylvania case law. Myriad are the cases which hold that an applicant for a variance must prove that there exists unnecessary hardship unique or peculiar to his property and that the variance is not contrary to the public health, safety or general welfare. In addition, the courts have held that a variance should only be granted in exceptional circumstances and the burden ...


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