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MALCOLM W. GEORGE v. ZONING HEARING BOARD UPPER MORELAND TOWNSHIP (12/29/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 29, 1978.

MALCOLM W. GEORGE, APPELLANT
v.
ZONING HEARING BOARD OF UPPER MORELAND TOWNSHIP, MONTGOMERY COUNTY, APPELLEE

Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Malcolm W. George v. Zoning Hearing Board of Upper Moreland Township, Montgomery County, No. 77-02645.

COUNSEL

Gregory S. Ghen, with him Stanford S. Hunn Associates, for appellant.

Mabel D. Sellers, with her Raymond Jenkins, and Jenkins, Tarquini & Jenkins, for appellee.

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

Author: Mencer

[ 39 Pa. Commw. Page 473]

Malcolm W. George has appealed from an order of the Court of Common Pleas of Montgomery County affirming a decision of the Zoning Hearing Board of Upper Moreland Township (Board) denying George's application for a variance or special exception from the requirements of the Upper Moreland Zoning Ordinance of 1939.

George is the owner of a 1.376-acre lot on which is located a single-family dwelling and a backyard storage building. His application to the Board sought (1) a variance to allow him to construct additions to his home and (2) permission to convert the storage building into living quarters for his mother-in-law. The Board denied both requests, the trial court affirmed, and this appeal followed.

[ 39 Pa. Commw. Page 474]

We find that the points raised by George are adequately discussed in the able opinion of President Judge Lowe writing for the trial court. George v. Zoning Hearing Board, 103 Mont. Co. L. Rep. 335 (1977). Only a few brief comments are necessary here.

With regard to George's first request, the Board found that the additions to the home could be constructed in compliance with the zoning ordinance if they were simply relocated. If so, the variance was properly denied. See J. Richard Fretz, Inc. v. Hilltown Township Zoning Hearing Board, 18 Pa. Commonwealth Ct. 471, 336 A.2d 464 (1975); Section 912(2) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10912(2). George contends that the Board was obliged to accept his uncorroborated assertion that relocation was impracticable. However, George had a heavy burden to prove his need for the variance, see J. Richard Fretz, Inc., supra, and the Board, as factfinder, had the power to reject even George's uncontradicted testimony if the Board found it to be lacking in credibility. See Richland Township v. Hellerman, 30 Pa. Commonwealth Ct. 438, 373 A.2d 1367 (1977).

With regard to George's second request, we note that Section 402 of the ordinance provides that "[a] lot area of not less than one (1) acre . . . shall be provided for every building hereafter . . . used in whole or part as a dwelling." (Emphasis added.) George desires to maintain two buildings as dwellings, but his 1.376-acre lot is incapable of providing one acre for each such building.*fn1 George's contention that the proposed

[ 39 Pa. Commw. Page 475]

    use is permitted by the ordinance is therefore without merit.*fn2

Order affirmed.

Order

And Now, this 29th day of December, 1978, the order of the Court of Common Pleas of Montgomery County, dated October 19, 1977, affirming a decision of the Zoning Hearing Board of Upper Moreland Township denying an application by Malcolm W. George for a variance or special exception is affirmed.

Disposition

Affirmed.


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