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BOARD COMMISSIONERS UPPER MORELAND TOWNSHIP v. DECISION AND ACTION ZONING BOARD UPPER MORELAND TOWNSHIP (07/30/76)

decided: July 30, 1976.

BOARD OF COMMISSIONERS OF UPPER MORELAND TOWNSHIP, APPELLANT
v.
DECISION AND ACTION OF THE ZONING BOARD OF UPPER MORELAND TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Board of Commissioners of the Township of Upper Moreland v. Zoning Hearing Board of Upper Moreland Township, No. 75-5242.

COUNSEL

Mabel D. Sellers, with her Raymond Jenkins, S. Gerald Corso, and Jenkins & Acton, P.C., for appellant.

Albert T. Dermovsesian, with him Donald A. Semisch, and Semisch and Dermovsesian, for appellee.

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

Author: Kramer

[ 25 Pa. Commw. Page 628]

This is an appeal by the Township of Upper Moreland from an order of the Court of Common Pleas of Montgomery County, dated July 22, 1975, which dismissed the Township's appeal from an order of the Zoning Hearing Board of the Township of Upper Moreland. The Board's order granted use, area, width, front-yard and side-yard variances to Edward H. Heller for the construction of a duplex. We affirm the order of the court of common pleas.

The subject property is apparently*fn1 located in a district where residential uses are required. Duplexes are not permitted, except as conversions of pre-existing buildings. The neighborhood is an old one, where many nonconforming uses with nonconforming lot characteristics exist, including duplexes and commercial establishments. Much of this development occurred prior to the existence of zoning restrictions.

Our scope of review where the court of common pleas has not received additional evidence is limited to determining whether the Board abused its discretion or committed an error of law. AFSO Builders, Inc. v. Zoning Hearing Board of the Township of Upper Darby, 12 Pa. Commonwealth Ct. 100, 314 A.2d 860 (1974).

Preliminarily we note that the Township has conceded that because of the small size of Heller's lot the ordinance does not permit any construction in strict conformity with the applicable restrictions. Consequently, the Township does not question the area, front-yard and width variances granted to Heller. The Township's appeal is limited to a challenge of the use

[ 25 Pa. Commw. Page 629]

    and side-yard variances. We also note, as did the court of common pleas, that the Board was in error to the extent that it found support for the variances in those portions of the ordinance which purport to ban all new duplex construction in the Township. The Board was of the opinion that in this respect the ordinance was exclusionary and unconstitutional. Without commenting upon the correctness of this conclusion, we point out that a challenge on such a basis is controlled by Sections 609.1 and 1004 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยงยง 10609.1, 11004. Shuttle Development Corporation v. Township of Upper Dublin, 19 Pa. Commonwealth Ct. 510, 338 A.2d 777 (1975); Robin Corporation v. Board of Supervisors of Lower Paxton Township, 17 Pa. Commonwealth Ct. 386, 332 A.2d 841 (1975). Accordingly, we will not consider as supportive of its decision those portions of the Board's adjudication which deal with the facial constitutionality of the ordinance. This question was not properly before the Board.

The requirements for a variance have been explicitly defined:

"To obtain a variance, a property owner must prove (1) that an unnecessary hardship unique to the property exists; and, (2) that the variance, if granted, would not be contrary to ...


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