No. 296 January Term, 1977, Appeal from Order of the Commonwealth Court at No. 1659 C.D. 1975 Affirming Order of the Court of Common Pleas, Lancaster County, at Trust Book 43, Page 206
Blakinger, Grove & Chillas, Louis J. Farina, Lancaster, for appellant.
Hassel, Yost & Sorrentino, John L. Sampson, Lancaster, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Larsen, JJ. Nix, J., concurs in the result. Eagen, C. J., and Pomeroy, J., dissent. Manderino, J., took no part in the consideration or decision of this case.
This appeal arises from an order of the Commonwealth Court, affirming the order of the Court of Common Pleas of Lancaster County, which denied appellant, Bettie Lou Succa, a zoning variance. This court granted appellant's petition for allowance of appeal.
The facts surrounding this case are as follows. Prior to 1970, Rebekah S. Sheaffer was the owner of a .942 acre lot in Upper Leacock Township, Lancaster County. The lot contained a house and a barn. In February, 1970, Sheaffer leased the barn to appellant for use as a gift shop. Appellant spent approximately $10,000 on repairs and renovations of the barn and began operating a gift shop. In May, 1970, after the renovations had been completed, the township enacted a zoning ordinance that zoned the area residential, thus making the gift shop a nonconforming use, and establishing a minimum lot width of 75 feet. On June 18, 1971, Sheaffer agreed to sell the barn and that part of the .942 acre lot to appellant. She agreed to sell an area 60 feet
wide. Sheaffer then sold the entire.942 acre lot, subject to the sales agreement with appellant, to the Bareville Volunteer Fire Company, which owned an adjoining tract. Appellant applied to the Upper Leacock Township Zoning Board for a variance from the lot width requirement. The board granted the variance over the objection of the fire company. The township board of supervisors, appellee herein, brought an action in the Court of Common Pleas of Lancaster County against the zoning board, challenging the grant of the variance. Appellant was permitted to intervene. The court set aside the variance without taking additional evidence. Appellant appealed to Commonwealth Court, which affirmed the Court of Common Pleas. 26 Pa. Commw.Ct. 451, 363 A.2d 1330 (1976). We granted allowance of an appeal to determine whether it was proper to set aside the variance.
The Zoning Board acted under the authority of the Municipalities Planning Code, Act of July 31, 1968, P.L. 805, art. IX, § 912, 53 P.S. § 10912, which provides as follows:
"The board shall hear requests for variances where it is alleged that the provisions of the zoning ordinance inflict unnecessary hardship upon the applicant. . . . The board may grant a variance provided the following findings are made where relevant in a given case:
"(1) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that the unnecessary hardship is due to such conditions, and not the circumstances or conditions generally created by the ...