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APPEAL LOUIS J. CUTILLO (11/14/75)

decided: November 14, 1975.

IN RE: APPEAL OF LOUIS J. CUTILLO, III AND LOUIS ARGYRIS FROM DECISION OF LOWER POTTSGROVE TOWNSHIP ZONING BOARD OF ADJUSTMENT. LOWER POTTSGROVE TOWNSHIP, APPELLANT


Appeal from the Order of the Court of Common Pleas of Montgomery County in case of In Re: Appeal of Louis J. Cutillo, III, and Louis Argyris from Decision of Lower Pottsgrove Township Zoning Board of Adjustment, No. 73-15290.

COUNSEL

R. Mark Faulkner, with him O'Donnell, Weiss, Mattei, Eschbach, Suchoza & Koury, for appellant.

Robert D. Reber, Jr., with him Ronald H. Reynier, and Reynier, Crocker, Allebach & Reber, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 21 Pa. Commw. Page 607]

It is unfortunate that the court below did not have the benefit of Judge Kramer's opinions in Robin Corporation v. Board of Supervisors of Lower Paxton Township, 17 Pa. Commonwealth Ct. 386, 332 A.2d 841 (1975), and Board of Commissioners of McCandless Township v. Beho Development Company, Inc., 16 Pa. Commonwealth Ct. 448, 332 A.2d 848 (1975), when it decided this case in December, 1974. Based on the principles set forth in those cases, we must reverse.

Appellees are equitable owners of a tract of land in an R-3 Residential District and desire to construct townhouses. This use is permitted in R-3; however, the zoning ordinance permits townhouses only when a public water supply is available. Appellees applied for a variance*fn1 and

[ 21 Pa. Commw. Page 608]

    offered convincing and uncontradicted testimony that an adequate private on-site water supply was available and a public water supply was not. The variance was denied by the zoning hearing board on the grounds that appellees had not shown that the property could not be used for the other permitted uses that did not require a public water supply. Appellees appealed to the court below.

The lower court properly concluded that a variance was not warranted. The opinion goes on to state:

"However, it should be kept in mind that to preserve the validity of a zoning ordinance in its application to the community in general, the variance provision of the enabling act functions as an 'escape valve' so that when the regulations which apply to all are unnecessarily burdensome to a few because of certain unique circumstances, a means of relief from the mandates of the ordinance is provided. See Pierce v. Zoning Board of Adjustment, 410 Pa. 262 (1963). Therefore, if a request for a variance is denied, indicating that there is nothing about the petitioner's land or his alleged hardship that is any different than that of everyone else with land similarly zoned, then his next most logical step is to attack the validity of the ordinance as it applies to everyone. See Anstine v. Zoning Board of Adjustment, 411 Pa. 33 (1963). It can be seen, therefore, that a challenge to the validity of a zoning ordinance is a natural and foreseeable outgrowth of a request for a variance. Since the appellants are here before the Court, and, since our scope of review is to determine whether or not the Zoning Board committed an abuse of discretion or an error of law, the Court will save all the parties involved the time and expense of taking the second step by deciding the constitutionality or validity of the section of the ordinance in question."

[ 21 Pa. Commw. Page 609]

We cannot concur that the lower court could consider this as more than a ...


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