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CHARLES C. ALFANO v. ZONING HEARING BOARD MARPLE TOWNSHIP AND HOMER C. SMITH AND MARJORIE D. SMITH (07/11/74)

decided: July 11, 1974.

CHARLES C. ALFANO, APPELLANT,
v.
ZONING HEARING BOARD OF MARPLE TOWNSHIP AND HOMER C. SMITH AND MARJORIE D. SMITH, APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Charles C. Alfano v. Zoning Hearing Board of Marple Township and Homer C. Smith and Marjorie D. Smith, No. 6672 of 1972.

COUNSEL

Joseph P. Mylotte, with him Ackerman and Mylotte, for appellant.

Herbert Goldfeld, for appellee, Zoning Hearing Board.

Richard H. Gross, for appellees, Smith and Smith.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.

Author: Blatt

[ 14 Pa. Commw. Page 335]

Since 1954 Charles C. Alfano has been the owner-occupant of a fifteen acre tract of land located in Marple Township (Township), Delaware County. The projected completion of Relocated Route 580 will cut the tract into two parcels, with eleven acres on one side of the road and four acres on the other side. The total tract is currently subject to two different zoning classifications, in both of which single family dwellings are the only permitted residential construction. It is bounded on the north by a cemetery, on the west by an undeveloped area, on the east by an apartment complex and on the south by Old Marple Road, which will become part of the new expressway. On the northwestern portion of the tract there is a steep incline with grades ranging from twenty to fifty percent.

[ 14 Pa. Commw. Page 336]

On March 24, 1972, Alfano applied to the Township's Director of Code Enforcement for a building permit to construct on the fifteen acre tract ten apartment buildings with a total of 210 apartment units. The application was rejected and Alfano then appealed to the Township's Zoning Hearing Board (Board), also applying for a variance. Following a hearing, the Board denied the variance and Alfano appealed that decision to the Court of Common Pleas of Delaware County, where intervention by neighboring residents (intervenors) was permitted. The lower court remanded the case to the Board for the taking of additional testimony, after which it was returned to the court. Thereafter, without hearing any additional evidence, the court below affirmed the order of the Board and the variance was again refused. We must affirm.

Where, as here, the court below has taken no additional evidence, our scope of review is limited to a determination of whether or not the Board committed an abuse of discretion or an error of law. Brunner v. Zoning Hearing Board of Upper Makefield Township, 12 Pa. Commonwealth Ct. 109, 315 A.2d 359 (1974).

In considering the merits of this case, we must keep in mind certain principles which govern the disposition of variance cases. A variance should, of course, be granted only in exceptional circumstances and the burden of proving its need is a heavy one. The Boulevard Land Corporation v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 584, 303 A.2d 234 (1973). In order to establish his right to a variance, an applicant must prove: (1) that the effect of the zoning ordinance is to burden his property with an unnecessary hardship which is unique to his particular property; and (2) 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, 270 A.2d 616 (1970). An applicant can establish the existence

[ 14 Pa. Commw. Page 337]

    of an unnecessary hardship "(1) by a showing that the physical characteristics of the property were such that it could not in any case be used for the permitted purpose or that the physical characteristics were such that it could only be arranged for such purpose at prohibitive expense . . . or (2) by proving that the characteristics of the area were such that the lot has either no value or only a distress value for any purpose permitted by the zoning ordinance. . . ." Philadelphia v. Earl Scheib Realty Corp., 8 Pa. Commonwealth Ct. 11, 17, 301 A.2d 423, 426 ...


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