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decided: January 17, 1974.


Appeal from the Order of the Court of Common Pleas of Delaware County, in case of In Re: Appeal of Albert Levin from the Order of the Zoning Hearing Board of the Township of Radnor of June 30, 1972, No. 7894 of 1972.


Anthony R. Semeraro, with him Mullray, Ryan & Semeraro, for appellant.

Philip J. O'Malley, for appellee.

Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Kramer. Judge Rogers concurs in the result only.

Author: Kramer

[ 11 Pa. Commw. Page 454]

This is an appeal filed by Albert Levin (Levin) from an order dated February 6, 1973, of the Court of Common Pleas of Delaware County dismissing Levin's appeal to that court from an adjudication (dated June 30, 1972) of the Radnor Township Zoning Hearing Board (Board). The Board's order, in effect, upheld the refusal of the Township's Director of Licenses and Inspections to issue a certificate of occupancy, which had been requested by Levin in an application for a variance to construct six multi-family buildings containing 84 units and a swimming pool.

The record discloses that Levin purchased the 6.91 acres of vacant land in question on March 26, 1957, at which time the land was zoned R-5, which would have permitted the proposed construction. On April 27, 1960, Radnor Township (Township) rezoned the tract from R-5 to R-4. Under the R-4 zoning classification, single-family dwellings can be constructed on minimum lots of 7,000 square feet; thus mathematically permitting between 35 and 40 dwellings on the tract. In 1970, the Township refused Levin's request for a zoning change to C-O, which would have permitted an office building use, and noted that its Planning Commission at that time believed that an R-5 apartment use would be preferable. In 1972 the Township again refused the request of Levin to rezone the tract back to R-5. Thereafter, Levin filed the subject application seeking a variance which in effect would have permitted

[ 11 Pa. Commw. Page 455]

    construction of the 84 units as though the tract were zoned R-5.

At the hearing before the Board, it was developed that the westerly boundary of the Levin tract abuts an area zoned R-5, which, however, contains five single-family dwelling usages and one small four-unit apartment house. To the north, the Levin tract abuts another R-5 zoned area, the actual usage of which contains seven single-family dwellings, one four-unit apartment, and one church. To the east, the tract abuts properties which are a combination of single-family and multi-family usages. It should be noted that the easterly property line is quite close to a C-1, commercial zoned area. To the south, the property abuts a right-of-way of the Pennsylvania Department of Highways which formerly was a railroad right-of-way. This right-of-way is elevated approximately 15 feet and separates other R-4 property to the south by what was picturesquely called "The China Wall." To complete the discussion, it should be noted that the Levin tract completely envelops three separate lots, all of which are used by single-family dwellings on the northeasterly portion of the tract. We believe it is fair to say that although the Levin tract abuts R-5 districts on two sides, the abutting properties on three sides are used both for single and multi-family residences, and the fourth side is effectively isolated by the elevated right-of-way.

Levin, in his attempt to support the granting of a variance, adequately proved that because of surface and subsurface water problems, certain construction hardships exist in any development (whether single-family or multi-family) of this tract of land. The record also shows that the Levin tract receives the water drainage from a 35-acre water shed. The record indicates that because of the water problems, the construction of basements for either single-family dwellings or for

[ 11 Pa. Commw. Page 456]

    multi-family structures would not be practical. It was fairly well established that to prevent subsidence and the cracking of foundations due to the soil condition, there would be a need for special caissons and grade beams, which would increase the cost of construction of single-family dwellings approximately $1,400 per building. Although Levin's brief submits only one question, i.e., whether the Board abused its discretion and committed an error ...

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