Appeal from the Order of the Court of Common Pleas of Chester County in case of In Re: Application of BCL, Inc., No. 37 June Term, 1976.
Patrick C. O'Donnell, with him John E. Good, for appellant.
William J. Gallagher, with him Randy L. Sebastian, and MacElree, Harvey, Gallagher & Kean, Ltd., for appellee.
Judges Wilkinson, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge Wilkinson, Jr. Judge DiSalle dissents.
West Bradford Township (Township) appeals an order of the Court of Common Pleas of Chester County reversing a decision of the West Bradford Zoning Hearing Board (Board) which denied a variance to BCL, Inc. (appellee) to construct two single-family dwellings on two nonconforming sized lots.
The lots in question, located in Romansville Road in the Township are two of 10 lots of a subdivision plan approved by the Township in 1963. These lots were also included in a larger subdivision plan, approved by the Township in 1967, which contemplated the development of 13 additional lots located to the rear of the original 10 fronting Romansville Road. All 23 lots contained 20,000 square feet in conformity with the Township zoning ordinance then in effect. On April 14, 1970 the Township enacted a new zoning ordinance which increased the minimum lot area in the district to 43,000 square feet. From that time two separate lots fronting Romansville Road as well as all 13 lots added in the 1967 plan have remained undeveloped.
On February 26, 1976 appellee filed a request for a zoning variance to build two single-family dwellings on the two lots located on Romansville Road, numbered 38 and 86. At a hearing on April 15, 1976, the
Township objected to the granting of a variance contending the applicant could create conforming lots by combining, lots 38 and 86 with lots in the back development, numbered 80 and 37. The applicant rejected this proposal on the ground the combination would create odd-shaped lots and would not be a reasonable use of the property. Specifically, combining lots 86 and 80 would create a lot approximately 438 feet deep and 100 feet wide and combining lots 38 and 37 would create an L-shaped lot. At the time of the variance request lots 86 and 38 were owned by the appellee and lots 80 and 37 were owned by Dan Mack, Ltd., these lots having been conveyed to BCL, Inc. on February 6, 1976. Counsel for the applicant, however, said it would agree as a condition of the variance that lots 80 and 37 would be reconveyed to BCL, Inc. and further stated that for the purpose of consideration of a variance the Board should consider lots 80 and 37 as owned by the applicant, BCL, Inc.
The Board denied the variance. The Court of Common Pleas of Chester County, without taking additional evidence, reversed the Board finding it was improper for the Board to consider the availability of contiguous lots to meet the zoning requirements when considering the element of undue hardship and that the Board erred in its conclusion that Section 508(4) of the Pennsylvania Municipalities Planning Code (PMPC)*fn1 affects the right of an applicant to seek a variance where he fails to complete development within three years after the approval of the subdivision plan.
In a zoning case where the court below, as here, takes no additional evidence, our review is limited to whether the Board abused its discretion or committed an error of ...