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MILTON GOTTLIEB AND BARBARA ANNETTE GOTTLIEB v. ZONING HEARING BOARD LOWER MORELAND TOWNSHIP AND SYLVAN POOLS (12/15/75)

decided: December 15, 1975.

MILTON GOTTLIEB AND BARBARA ANNETTE GOTTLIEB, HIS WIFE,
v.
ZONING HEARING BOARD OF LOWER MORELAND TOWNSHIP AND SYLVAN POOLS, INC. AND HARVEY GOODMAN AND CAROL S. GOODMAN, HIS WIFE. MILTON GOTTLIEB AND BARBARA ANNETTE GOTTLIEB, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Milton Gottlieb and Barbara Annette Gottlieb, his wife, v. Zoning Hearing Board of Lower Moreland Township and Sylvan Pools, Inc., and Harvey Goodman and Carol S. Goodman, his wife, No. 74-638.

COUNSEL

Marc D. Jonas, with him Morris Gerber and Gerber, Davenport & Wilenzik, for appellants.

Randolph A. Warden, with him Silverman and Warden, for appellee.

Carl T. Bogus, with him Alan R. Squires, and Steinberg, Greenstein, Richman & Price, for intervening appellees.

Judges Kramer, Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 22 Pa. Commw. Page 366]

This is an appeal from a decision of the Court of Common Pleas of Montgomery County affirming the grant of a variance to Mr. and Mrs. Harvey Goodman by the Zoning Hearing Board (Board) of Lower Moreland Township (Township). We must reverse.

This controversy arises out of the construction by the Goodmans of a swimming pool on the Goodman property in 1973. In their original application to the Township for a building permit, the Goodmans described the proposed pool as encompassing an area 18 by 38 feet, and a building permit was issued pursuant to this application. Shortly thereafter, however, and without any notification to the Township the proposed area specifications for the pool were enlarged to 20 feet by 40 feet and when the pool was built, the Goodmans added a concrete pad and a sliding board alongside the pool, again with no notice to the Township.

After the pool and the adjoining pad and slide had been installed, Mr. and Mrs. Gottlieb, the adjacent property

[ 22 Pa. Commw. Page 367]

    owners, employed a surveyor to determine whether or not the Goodmans had observed the setback requirements of the Township's zoning ordinance, which were that "[n]o part of the perimeter of a swimming pool structure shall be within eight (8) feet of any property line." The survey disclosed that the distance from the inside of the swimming pool wall to the Gottlieb property line at the nearest point was seven feet, three inches. The pool wall was indicated to be seven inches thick at the top and eleven inches at the bottom, and eleven and a half inches of coping or paving surrounded the top of the wall. In addition, the concrete pad actually extended over the Gottlieb property line. Upon being informed of this latter fact, the Goodmans had the pad cut back so that it then extended to within about seven inches of the Gottlieb line. They also applied for a variance to relieve them from compliance with the Township's setback requirement, and, after an evidentiary hearing on that application, the Board issued its decision on December 20, 1973 granting the variance. The Board noted that the Goodman's mistake in locating the pool was innocent and unintentional. It also concluded that the violation of the ordinance was "de minimis" and that enforcement of the setback ordinance would work an undue hardship. The variance was granted because, in the Board's opinion it would not "alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of the adjacent property, nor be detrimental to the public interest or welfare." The Gottliebs appealed from the Board decision to the lower court, which affirmed without taking additional evidence. Our scope of review, therefore, is to determine whether or not the Board committed an abuse of discretion or an error of law and whether or not the findings of fact are supported by substantial evidence. Soble Construction Company v. The Zoning Hearing Board of the Page 368} Borough of East Stroudsburg, 16 Pa. Commonwealth Ct. 599, 329 A.2d 912 (1974).

The threshold inquiry necessarily involves a determination as to how the required setbacks should be measured under a proper interpretation of the zoning ordinance. The Board and the lower court both measured the setbacks from the inside wall of the swimming pool, and therefore determined that the existing setbacks were deficient by only five to nine inches, an amount considered to be "de minimis." The Gottliebs, on the other hand, argue that the coping and concrete pad are also part of the "swimming pool structure" so that setbacks should be measured from their respective perimeters. We must agree with them.

To declare that the edge of the inside wall of the pool is the "perimeter of the swimming pool structure" is tantamount to saying that only the inside of the swimming pool constitutes the structure, an interpretation obviously impossible. The more difficult question, however, is whether the "swimming pool structure" consists only of the pool's walls, with the setbacks ...


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