Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal of James H. Voortman and Jane P. Voortman, his wife, v. Bucks County Zoning Hearing Board, No. 1471 March Term, 1971.
J. Lawrence Grim, Jr., with him Grim & Grim, for appellants.
Richard A. Rosenberger, with him Souder, Rosenberger & Bricker, for appellee.
Judges Crumlish, Jr., Kramer, and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 21 Pa. Commw. Page 130]
This is an appeal by James H. Voortman and Jane P. Voortman, husband and wife, from an order of the Court of Common Pleas of Bucks County which affirmed the denial by the Bucks County Zoning Board of a variance from a public sewer requirement sought by the Voortmans to expand their nonconforming mobile home park.
The Voortmans are owners of a 21.5 acre tract in Richland Township upon which they presently operate a twenty unit mobile home park named Cherry Mobile Home Park. At all times pertinent to this appeal, Richland Township did not have a zoning ordinance and so the terms of the Bucks County Zoning Ordinance of 1969 controlled. Under this ordinance, the Voortman property was zoned R-C (residential-conservation) which does not permit mobile home parks; but since the Voortmans' twenty unit mobile home park predated the ordinance, it was allowed to continue as a nonconforming use. In August of 1970, the Voortmans decided to expand this use by the addition of twenty mobile homes -- the maximum
[ 21 Pa. Commw. Page 131]
expansion permitted by Section 920(b)(3) of the county zoning ordinance. They applied for and were subsequently granted a permit by the Bucks County Department of Health to construct an on-site septic sewage system to complement their existing on-site system. Since Section 450(13)(L) of the ordinance requires mobile home parks to be furnished with public sewage, however, the Voortmans were compelled to apply to the zoning board for a variance from this requirement. After six hearings and two remands by the lower court for a supplementation of the record spanning a period of three and one-half years, the board denied the variance. Its decision was essentially based upon findings questioning the validity of percolation and ground water level tests which formed the basis of the on-site sewage permit previously issued by the Department of Health; the adequacy of the Voortman tract to accommodate the 100% reserve area required by the Department of Health regulations for onsite septic systems; the potential pollution of neighboring wells by the proposed system; and upon a finding that it would be feasible for the Voortmans to construct a package treatment plant for the additional twenty mobile home units, the effluent from which could be piped 800 feet to the nearest perennial running creek. The board thus concluded that the Voortmans had failed to establish the requisite unnecessary hardship for a variance because their objection to the package treatment plant proffered by the board meant merely a financial hardship. Implicit in its decision, additionally, was the conclusion that the approval of the Department of Health of the on-site system proposed by the Voortmans did not give adequate assurance of the protection of the health and safety of adjacent property owners. An appeal was timely taken to the court below which, in turn, affirmed the board.*fn1 This appeal followed. We reverse.
[ 21 Pa. Commw. Page 132]
Since the lower court did not take additional evidence, our review of the zoning board's decision is to determine whether it abused its discretion or committed an error of law. Dewald v. Board of Adjustment, City of Pittsburgh, 13 Pa. Commonwealth Ct. 303, 320 A.2d 922 (1974).
"It is, of course, well settled in this Commonwealth that an applicant seeking a variance for an expansion of a nonconforming use must still meet the ordinary requirements for the grant of a variance, i.e., that the refusal to grant the variance would cause an unnecessary hardship peculiar to that property and that the grant of the variance would not be contrary to the health, safety and general welfare of the community. Walter v. Philadelphia Zoning Board of Adjustment, 437 Pa. 277, 263 A.2d 123 (1970)." (Emphasis in original.) Snyder v. Zoning Hearing Board, Borough of Zelienople, 20 Pa. Commonwealth Ct. 139, 341 A.2d 546 (1975).
The central argument of the Voortmans on appeal is that the requirement of public sewage, or more specifically a properly installed package treatment plant which could cost them as ...