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JOHN A. CALDERAIO v. ZONING HEARING BOARD TOWNSHIP RIDLEY. TOWNSHIP RIDLEY (06/09/76)

decided: June 9, 1976.

JOHN A. CALDERAIO
v.
ZONING HEARING BOARD OF THE TOWNSHIP OF RIDLEY. TOWNSHIP OF RIDLEY, APPELLANT



Appeal from the Order of the Court of Common Pleas of Delaware County in case of John A. Calderaio v. Zoning Hearing Board of the Township of Ridley, No. 8096 of 1974.

COUNSEL

R. Paul Lessy, Township Solicitor, for appellant.

John F. Spall, County Solicitor, for appellee.

Judges Kramer, Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Wilkinson. Judge Kramer did not participate in the decision in this case.

Author: Wilkinson

[ 25 Pa. Commw. Page 122]

This is a zoning appeal from an order of the Court of Common Pleas of Delaware County which reversed a decision by the Zoning Hearing Board of Ridley Township (Board) and granted appellee a variance. We reverse.

Appellee is a developer who, in May, 1973, purchased a tract of land which included certain premises located at 300 Haverford Road, Ridley Township, Delaware County. The tract is situated in a residential zoning district which permits the erection of single family semi-detached dwellings, provided that they have side yards not less than ten feet in width. In order to construct on the premises the last in a series of such dwellings, appellee applied to the Board for a variance of four inches from the side yard requirement. The variance was granted and appellee began construction.

However, in late 1973, after 50% of the construction had been completed, an action to quiet title was filed against appellee by owners of property adjoining the Haverford Road premises who, under a theory of adverse possession, claimed ownership to a strip of land approximately four feet wide which comprised part of the premises' side yard. As a result, appellee requested the Board for an additional variance of four feet in order to obtain a certificate of occupancy needed to sell the dwellings, which had since been completed.

The Board denied the variance, concluding: "Any hardship demonstrated on this record has been self imposed in that applicant chose to proceed with the construction of the dwelling in question when he had reason to know that he might not have a sufficient land area to comply with the terms of the Zoning Ordinance. Applicant thus proceeded at his own risk."

[ 25 Pa. Commw. Page 123]

Specifically, the Board made the following finding of fact: "At all times throughout the construction of this dwelling applicant was fully aware of an adverse claim of substance to approximately four feet of the land required to permit him to erect a dwelling which would not be in violation of the Zoning Ordinance."

On appeal, however, the court below, without taking additional evidence, effectively held that the foregoing finding was not supported by substantial evidence and that the Board, therefore, abused its discretion. Accordingly, the court concluded that the hardship being suffered by appellee was not self-inflicted and ordered that a variance be granted.

In zoning appeals involving requests for variances, where the lower court has not taken additional evidence, our scope of review is limited to a determination of whether the Board abused its discretion or committed an error of law. Harper v. Zoning Hearing Board, 21 Pa. Commonwealth Ct. 93, 343 A.2d 381 (1975). Our review of the ...


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