Appeal from the Order of the Court of Common Pleas of Bucks County in case of J. Richard Fretz, Inc. v. Hilltown Township Zoning Hearing Board, No. 74-2569-08-5.
Ian A. Abarbanel, with him Weber and Abarbanel, for appellant.
Charles S. Wilson, with him Charles S. Wilson & Associates, for appellee.
Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.
[ 18 Pa. Commw. Page 473]
The question raised in this appeal of a landowner is whether the Zoning Hearing Board of Hilltown Township, Bucks County, whose action was affirmed by the court below, abused its discretion or committed an error of law in refusing the appellant's application to establish stores and offices in a residential zoning district.
One seeking a variance has the burden of proving that an unnecessary hardship, unique or peculiar to his property, is imposed by the zoning regulations sought to be avoided and that the variance is not contrary to public health, safety or the general welfare. Marple Gardens, Inc. v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 436, 303 A.2d 239 (1973); Jacobs v. Philadelphia Zoning Board of Adjustment, 1 Pa. Commonwealth Ct. 197, 273 A.2d 746 (1971). Unnecessary hardship may be established, as the appellant here attempted, by showing that the physical characteristics of the property are such that it cannot be used for any purpose permitted by the ordinance. Borough of Ingram v. Sinicrope, 8 Pa. Commonwealth Ct. 448, 303 A.2d 855 (1973). Variances, especially those authorizing commercial uses in a residential district, should not be generously granted. McKay v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 29, 300 A.2d 810 (1973). A variance should be granted
[ 18 Pa. Commw. Page 474]
only in the exceptional case and the burden of proving its need is heavy. The Boulevard Land Corporation v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 584, 303 A.2d 234 (1973). Departing from case law and directing our attention to the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10101 et seq., too often ignored or overlooked in variance cases, we find at Section 912, 53 P.S. § 10912 the following:
". . . The [zoning hearing] board may grant a variance provided the following findings are made where relevant in a given case:
"(1) That there are unique physical circumstances or conditions . . . peculiar to the particular property, and that the unnecessary hardship is due to such conditions, and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located;
"(2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property." (Emphasis supplied.)
The appellant, J. Richard Fretz, Inc., purchased two adjoining lots in Hilltown Township, Bucks County, denominated lots 7 and 8 on a plan of lots recorded in the Office of the Recorder of Deeds of Bucks County in Plan Book 13, page 42. Each lot contained about one acre of land, and both were, when the appellant purchased them in June 1973, located in a zoning district the regulations of which restrict the use of land to residences on 30,000 square foot lots. Mr. J. ...