Appeal from the Order of the Court of Common Pleas of Montgomery County in case of The Board of Commissioners of Upper Moreland Township v. The Zoning Hearing Board of Upper Moreland Township and Daniel S. Bready, No. 74-12343.
Gilbert P. High, Jr., with him High, Swartz, Roberts & Seidel, for appellant.
S. Gerald Corso, with him Raymond Jenkins, for appellee.
Judges Crumlish, Jr., Kramer and Wilkinson, Jr., sitting as a panel of three. Opinion by Judge Kramer.
[ 22 Pa. Commw. Page 362]
This is an appeal by Daniel S. Bready from an order of the Court of Common Pleas of Montgomery County, dated February 4, 1975, which sustained an appeal by the Board of Commissioners of Upper Moreland Township and reversed a decision of the Township's Zoning Hearing Board, which had granted him a variance.
On May 30, 1974, Bready applied for a variance to permit the construction of three duplexes in an R-3 residential zone of the Township. At the hearing before the Board, Bready testified that he did not believe that single-family
[ 22 Pa. Commw. Page 363]
houses (permitted by the ordinance) could be built at a marketable price in the particular neighborhood involved. This was the only evidence which had any conceivable bearing upon the hardship which must be shown to justify a variance. See Township of Haverford v. Spica, 16 Pa. Commonwealth Ct. 326, 328 A.2d 878 (1974).
The Township appeared before the Board as a protestant, and, after receiving notice that the Board had approved Bready's variance application, the Township appealed to the lower court. The lower court sustained the Township's appeal without taking additional evidence, and our scope of review is thus limited to determining whether the Board committed an abuse of discretion or an error of law. Grace Building Co., Inc. v. Hatfield Township, 16 Pa. Commonwealth Ct. 530, 329 A.2d 925 (1974).
The opinion of the lower court notes that, at argument before that court, Bready's counsel "conceded that a variance should not have been granted". Our examination of the record indicates that Bready's counsel had little choice but to concede this point, since the evidence simply did not support a variance. Having abandoned his request for a variance, Bready nonetheless urged the lower court to hold that the requirements for a special exception authorizing construction of the duplexes had been met.
The relevant portion of the Township's ordinance ...