Appeal from the Order of the Court of Common Pleas of Delaware County in case of In Re: Appeal of Anthony Falcone from Order of Radnor Township Zoning Hearing Board, No. 3346 of 1973.
Eugene H. Evans, with him Fronefield, DeFuria & Petrikin, for appellant.
Reese A. Davis, with him Robert E. Porter and Greenwell, Porter, Smaltz & Royal, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.
[ 16 Pa. Commw. Page 284]
This is an appeal by Radnor Township (Township) from a decision of the Court of Common Pleas of Delaware County, which reversed an order of the Radnor Township Zoning Hearing Board (Board) and granted Anthony Falcone (Falcone) a variance.
Falcone is the owner of a tract of land located in an "R-5 Residence District" of the Township. Multiple
[ 16 Pa. Commw. Page 285]
dwellings or apartment buildings are a permitted use in an R-5 Residence District. Falcone applied for a permit to construct an apartment building on his property. The structure proposed by Falcone would contain 97 units (the maximum permitted on the subject property) and would be eight stories high and 220 feet long. The Township's Director of Licenses and Inspections refused to issue the permit because section 902(d) of the Township Zoning Ordinance (ordinance) limits the height of apartment buildings in R-5 Residence Districts to four stories or 40 feet and section 902(e) of the ordinance restricts the greatest horizontal dimension of such a building to 160 feet. On February 1, 1973, Falcone appealed to the Board for a variance from these sections. A hearing was held on February 22, 1973 and the Board, on March 23, 1973, affirmed the order of the Director of Licenses and Inspections and dismissed Falcone's appeal. On April 3, 1973, Falcone filed an appeal from the Board's decision with the lower court, and on April 17, 1973 the Township filed its notice of intervention. Before the court below Falcone argued (1) that the height and dimension regulations involved are unconstitutional and (2) that the Board either committed an error of law or abused its discretion by refusing to grant the requested variance. The court below, on January 28, 1974, held that the regulations involved are constitutional, but that the Board had abused its discretion in refusing the variance. The lower court, therefore, reversed the Board and granted the requested variance.
In its appeal to this Court, the Township argued that the Board did not abuse its discretion or commit an error of law in refusing the variance.*fn1
[ 16 Pa. Commw. Page 286]
In a zoning case such as this, where a variance is requested and the court below took no additional testimony, our scope of review is limited to a determination of whether the Board abused is discretion or committed an error of law. See Dewald v. Board of Adjustment, City of Pittsburgh, 13 Pa. Commonwealth Ct. 303, 320 A.2d 922 (1974).
Falcone argued before the Board that his request for a variance should be granted because the facts in his case met the conditions set forth in section 912 of the Pennsylvania Municipalities Planning Code (Code), Act of July 31, 1968, P.L. 805, as ...