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TOWNSHIP WASHINGTON v. WASHINGTON TOWNSHIP ZONING HEARING BOARD (11/04/76)

decided: November 4, 1976.

TOWNSHIP OF WASHINGTON, BERKS COUNTY, PENNSYLVANIA
v.
WASHINGTON TOWNSHIP ZONING HEARING BOARD, LEONARD A. GEHRINGER, NORMAN D. WHEELER AND CARL F. WEST AND WILLIAM H. MOON. WILLIAM H. MOON, APPELLANT



Appeal from the Order of the Court of Common Pleas of Berks County in case of Township of Washington, Berks County, Pennsylvania v. Washington Township Zoning Hearing Board, Berks County, Pennsylvania, Leonard A. Gehringer, Norman D. Wheeler and Carl F. West, No. 201 November Term, 1974.

COUNSEL

David H. Roland, with him Balmer, Mogel, Speidel & Roland, for appellant.

Paul R. Ober, with him Edelman, Schaeffer, Saylor, Readinger and Poore, for appellee.

President Judge Bowman and Judges Mencer and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 27 Pa. Commw. Page 511]

William H. Moon, appellant, has appealed from an order of the Court of Common Pleas of Berks County

[ 27 Pa. Commw. Page 512]

    which reversed the decision of the Washington Township Zoning Hearing Board (Board). The Board had granted his request for a variance with respect to a tract of approximately 140 acres with a two-story building located thereon which he owns in the Township. He had requested the variance so that the greater part of the building could be used for the processing and storing of plastic material. The building had been, and in part still is, used for the processing and storage of fruit crops.

The Board found that it is no longer economically feasible for the entire building to be used for the processing and storage of fruit crops and that the building is now suitable only for light industrial use, and it granted the requested variance. The lower court, however, held that Moon had not proven an unnecessary hardship and reversed the Board as a matter of law.

Our scope of review here, where the lower court did not take additional evidence, is limited to a determination of whether or not the zoning hearing board committed an abuse of discretion or an error of law. Radnor Township v. Falcone, 16 Pa. Commonwealth Ct. 283, 328 A.2d 216 (1974), and we agree with the court below that the Board here committed an error.

In order to establish his right to a variance, Moon had to prove that the effect of the zoning ordinance was to burden his property with an unnecessary hardship which is unique to his particular property, and that the variance, if granted, would not adversely affect the public health, safety or welfare. Abrams v. Zoning Hearing Board of the Borough of Danville, 21 Pa. Commonwealth Ct. 284, 344 A.2d 734 (1975); Alfano v. Zoning Hearing Board of Marple Township, 14 Pa. Commonwealth Ct. 334, 324 A.2d 851 (1974). In addition, (1) a variance will be granted only in exceptional

[ 27 Pa. Commw. Page 513]

    circumstances, with the burden of proving such circumstances being a heavy one; and (2) economic hardship, short of rendering a property practically ...


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