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ZONING HEARING BOARD TOWNSHIP UPPER CHICHESTER v. RONALD PETROSKY AND PATRICIA PETROSKY. TOWNSHIP UPPER CHICHESTER (10/21/76)

decided: October 21, 1976.

ZONING HEARING BOARD OF THE TOWNSHIP OF UPPER CHICHESTER, DELAWARE COUNTY, PENNSYLVANIA
v.
RONALD PETROSKY AND PATRICIA PETROSKY. TOWNSHIP OF UPPER CHICHESTER, DELAWARE COUNTY, PENNSYLVANIA, APPELLANT



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Ronald Petrosky and Patricia Petrosky v. Zoning Hearing Board of the Township of Upper Chichester, Delaware County, Pennsylvania, No. 11992 of 1974.

COUNSEL

Peter J. Nolan, with him Nelson J. Sack, for appellant.

Ronald J. Klimas, with him Eckell, Sparks, Vadino, Auerbach and Monte, for appellees.

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

Author: Blatt

[ 26 Pa. Commw. Page 615]

This is an appeal by the Township of Upper Chichester (Township) from a decision and order of the Court of Common Pleas of Delaware County reversing an adjudication of the Township Zoning Hearing Board (Board) and thereby granting a variance from setback and boundary line requirements to Ronald and Patricia Petrosky.

On May 9, 1973, Ronald Petrosky requested appropriate permits from the Township so that he might erect a garage to be used to store his dump trucks on a tract of land which he had made arrangements to purchase. The tract was located in a part of the township zoned for light industrial use. On May 12, 1973, zoning, building, and use permits were issued by the Township for a 40 feet by 40 feet masonry garage to "store trucks only." The property was finally conveyed to the Petroskys on July 11, 1973,

[ 26 Pa. Commw. Page 616]

    and soon thereafter construction on the garage structure was begun. Although the Township building inspector had visited the site three times during the construction and had even assisted in the location of the footing for the building, the structure was clearly being constructed in violation of setback and boundary line requirements. There is no evidence, however, that the Petroskys were aware that construction was proceeding in the face of these violations. Construction, therefore, was completed without objection from the Township at an approximate cost of $15,000.

Seven months later, apparently after receiving protests from neighbors in a bordering residential district, the Township revoked the permits and ordered the Petroskys either to remove the structure or alter it so as to comply with zoning requirements. The Petroskys then commenced actions in the court below asserting a right to maintain their existing structure and use. By stipulation of the parties, however, the matter was first submitted to the Board in an application for a variance.

When applying for a variance from zoning requirements, an applicant must sustain the heavy burden of proving that the present requirements will result in an unnecessary hardship unique to the property and that the variance requested will not adversely affect the public health, safety, or welfare. Borough of Latrobe v. Sweeney, 17 Pa. Commonwealth Ct. 356, 331 A.2d 925 (1975). In the presence of certain conditions, however, a property owner may acquire a vested right to building and zoning permits which were issued in violation of zoning regulations. Heidorn Appeal, 412 Pa. 570, 195 A.2d 349 (1963); Moyerman v. Glanzberg, 391 Pa. 387, 138 A.2d 681 (1958). In Department of Environmental Resources v. Flynn, 21 Pa. Commonwealth Ct. 264, 344 A.2d

[ 26 Pa. Commw. Page 617720]

(1975), we enumerated five factors which entitled the property owners there to a vested right in permits ...


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