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COMMISSIONERS PLYMOUTH TOWNSHIP v. RAYMOND E. WANNOP (06/05/74)

decided: June 5, 1974.

COMMISSIONERS OF PLYMOUTH TOWNSHIP, APPELLANT,
v.
RAYMOND E. WANNOP, APPELLEE



Appeal from the Order of the of Appeal of Raymond E. Wannop from Decision of Court of Common Pleas of Montgomery County in case Plymouth Township Hearing Board, No. 71-8197.

COUNSEL

Arthur Lefkoe, with him, of counsel, Wisler, Pearlstine, Talone, Craig & Garrity, for appellant.

Roger B. Reynolds, Jr., for appellee.

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

Author: Mencer

[ 13 Pa. Commw. Page 238]

On February 23, 1971, Raymond E. Wannop (Wannop) filed an application for a variance with the Zoning Hearing Board of Plymouth Township (Board), Montgomery County, to permit the erection of a gasoline service station on a tract of ground 200 feet square which is presently zoned "A Residential."

The tract in question is situate just south of Township Line Road which divides Plymouth Township and Whitpain Township. North of the tract, in Whitpain Township, is the Blue Bell Office Campus, zoned "Administrative-Research." East of the tract, across Walton Road in Plymouth Township, on land zoned "A and B Residential" with a special exception for religious and educational use, is the church, school, rectory, and convent of the Epiphany Roman Catholic Church. Directly east and south of the church is a residential development called Arrowhead which is zoned "B Residential." South of the tract, along both sides of Walton Road, the land is zoned "A Residential." West of the tract, in Plymouth Township, is land zoned "Campus Industry."

Wannop owns not only the tract which is the subject of the variance application, but also a home to the south and land to the west thereof. Immediately south of Wannop's home is a home owned by his brother.

[ 13 Pa. Commw. Page 239]

The Board held hearings on the application and, on June 21, 1971, entered an order denying the application. Wannop appealed from this order to the Court of Common Pleas of Montgomery County which sustained the appeal, reversed the Board, and directed the issuance of permits for the construction of a gasoline service station. This appeal followed and we reverse the court below.

Although the court below did not hold an additional hearing, it did view the tract in question and the surrounding area and also permitted Wannop to submit a copy of a decision of the Board, dated December 20, 1972, pertaining to the property adjacent to the subject tract. Since additional evidence was considered by the court below, our review is not whether the Board, but whether the Court, abused its discretion. Marple Township Appeal, 440 Pa. 508, 269 A.2d 699 (1970); Beebe v. Media Zoning Hearing Board, 5 Pa. Commonwealth Ct. 29, 288 A.2d 557 (1972).

Here, as in most variance cases, the difficult aspect is the application of established rules or principles to the particular factual situation that prevails. We recently summarized these rules in Surrick v. Upper Providence Township Zoning Hearing Board, 11 Pa. Commonwealth Ct. 607, 613-14, 314 A.2d 565, 568 (1974), when we wrote: "When seeking a variance, an applicant must prove '(a) that the effect of the zoning ordinance is to burden his property with an unnecessary hardship which is unique to his particular property; and (b) that the variance would not have an adverse effect upon the public health, safety or welfare.' Sposato v. Radnor Township Board of Adjustment, 440 Pa. 107, 109-110, 270 A.2d 616, 617 (1970). 'A variance should be ...


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