Appeal from the Order of the Court of Common Pleas of Bucks County in case of Louis S. Rubin v. Upper Southampton Township Zoning Hearing Board, No. 73-3110-09-6.
Carl K. Zucker, with him Reuben E. Cohen and Cohen, Shapiro, Polisher, Shiekman & Cohen, for appellant.
Robert C. Steiger, for appellee.
Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 19 Pa. Commw. Page 471]
This is a zoning appeal. In June of 1972, Appellant, Louis S. Rubin, filed an application for a zoning permit for the development of a 10.34 acre tract in Upper Southampton Township as a 96 unit apartment complex.*fn1 The permit was refused by the Township's zoning officer because apartments are not a permitted use within the R-2 Residential district (single family dwellings) in which the property is located. An appeal to the Township Zoning Hearing Board followed, wherein Appellant requested a variance for the apartment use. The zoning board denied a variance finding neither a unique hardship nor the unmarketability of the property as it is presently zoned. Appellant duly appealed to the lower court which affirmed without taking additional evidence.
In appeals like this where the court below did not consider additional evidence, our scope of review is limited to a determination of whether the zoning board committed a manifest abuse of discretion or erred as a matter of law. Radnor Township v. Falcone, 16 Pa. Commonwealth Ct. 283, 328 A.2d 216 (1974); Dewald v. Board of Adjustment, City of Pittsburgh, 13 Pa. Commonwealth Ct. 303, 320 A.2d 922 (1974). Appellant urges us to undertake an independent fact-finding function in this case because there is evidence of an "exclusionary" intent by the Township in attempting to frustrate Appellant's application by burdensome administrative delays. We disagree. At most,
[ 19 Pa. Commw. Page 472]
the zoning officer's initial reluctance to provide Appellant with zoning application forms reflects an honest misunderstanding of the appropriate vehicle of relief, namely, a rezoning application rather than a variance, and any delay caused by the mandamus action did not infect the zoning board proceedings. In any case, such an expanded scope of review can only be undertaken by an appellate court where the zoning board has committed a fundamental error of law which renders its findings of fact inadequate. Here we find no such error and hence review the zoning board's findings for substantial evidence.
The standards governing the grant or denial of a variance are firmly established. As so ably stated by our sister Judge Blatt in Alfano v. Zoning Hearing Board of Marple Township, 14 Pa. Commonwealth Ct. 334, 336-337, 324 A.2d 851, 852-53 (1974), a case of remarkable factual similarity to the instant appeal:
"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 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 ...