Appeal from the Order of the Court of Common Pleas of Westmoreland County, in case of Paul B. Sweeney v. The Zoning Board of Adjustment of Latrobe Borough, Westmoreland County, Pennsylvania, No. 61 January Term, 1972.
Robert P. Lightcap, with him Lightcap, McDonald & Moore, for appellant.
William C. Stillwagon, for appellee.
Judges Wilkinson, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 17 Pa. Commw. Page 357]
This is a zoning appeal from the decision of the Court of Common Pleas of Westmoreland County reversing the order of the Latrobe Borough Zoning Board of Adjustment
[ 17 Pa. Commw. Page 358]
(Board) denying a use variance to Dr. Paul B. Sweeney (Sweeney).
The lower court took the case on an agreed set of facts which revealed that on April 23, 1970, Sweeney, a dentist, and the appellee herein, purchased two lots in an R-2 Residential Zone of the Borough of Latrobe. He planned to build thereon his family residence, with a dental office as a permitted accessory use, and he obtained a building permit for construction with use restricted such that the dental office could not be operated unless Sweeney personally took residence in the building. Upon completion of the office and first floor of the residence in June of 1971, Sweeney began using the dental office but failed to take up residence. Instead, the living quarters were rented to one of his dental assistants. Sweeney was, therefore, ordered by the zoning officer to take immediate occupancy. He, however, having been unable to finance the completion of the second floor of the residential part of the building and thus having been unable to persuade his family to occupy the completed first floor, applied to the Board for a variance to permit him to rent the living quarters of the building temporarily while maintaining his dental office there as before. The Board denied the variance on the grounds that the above personal and economic reasons were insufficient to establish the necessary hardship.
On appeal, the court below reviewed the extensive stipulation of facts and reversed the Board's denial of the variance. The Borough of Latrobe then followed with an appeal to this Court.
In a zoning case where the court below takes no evidence, as was true here, but reaches a conclusion on an agreed set of facts, our scope of review is limited to a determination of whether the lower court abused its discretion or committed an error of law. Cf. Camp Hill Development Co., Inc. v. Zoning Board of Adjustment, 13 Pa. Commonwealth Ct. 519, 319 A.2d 197 (1974).
[ 17 Pa. Commw. Page 359]
In a case such as this, an applicant for a variance from a zoning ordinance must sustain a heavy burden of proving that the present zoning classification will result in unnecessary hardship unique to his property and that the variance requested would not adversely affect public health, safety and welfare. Commissioners of Plymouth Township v. Wannop, 13 Pa. Commonwealth Ct. 237, 320 A.2d 455 (1974). Here, Sweeney ...