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APPEAL WALTER C. CZOP (06/22/79)

decided: June 22, 1979.

APPEAL OF WALTER C. CZOP, INC. FROM DECISION OF THE UPPER PROVIDENCE TOWNSHIP ZONING HEARING BOARD. APPEAL OF WALTER C. CZOP, INC. WALTER C. CZOP, INC., APPELLANT


Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Appeal of Walter C. Czop, Inc. from Decision of the Upper Providence Township Zoning Hearing Board, No. 77-15946.

COUNSEL

Donald J. Martin, with him James J. Himsworth, Jr., for appellant.

Clarke F. Hess, with him, of counsel, Butera, Hess, Beausang & Moyer, for appellee.

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

Author: Mencer

[ 43 Pa. Commw. Page 500]

This appeal is from an order of the Court of Common Pleas of Montgomery County which affirmed a decision of the Upper Providence Township Zoning Hearing Board denying a validity variance application by the appellant, Walter C. Czop, Inc., We affirm.

Pursuant to an agreement of sale dated May 10, 1977, the appellant agreed to purchase an 84.9-acre tract owned by Margaret Missimer Fitzgerald, Harold Missimer, and Howard Missimer for $500,000. From at least 1912 until approximately 1974 the property, located in Upper Providence Township, Montgomery County, was utilized as a dairy farm. When that use became unprofitable, the present owners commenced crop farming.

The agreement of sale was conditioned upon a zoning change which would enable the appellant to develop the land more profitably. Presently, the land is zoned R-1, which permits only agricultural use or single homes on a lot no smaller than 40,000 square feet. An application to rezone the tract to R-2, cluster development, was denied by the Upper Providence Board of Supervisors on February 7, 1977. On March 9, 1977, the appellant filed an application for a validity variance, the denial of which is the subject of this appeal.

[ 43 Pa. Commw. Page 501]

Applicable here is what Judge Wilkinson, Jr., wrote in A & D, Inc. v. Zoning Hearing Board, 32 Pa. Commonwealth Ct. 367, 369-70, 379 A.2d 654, 656 (1977):

Appellant is in this case seeking a validity variance. Such a variance is based on the theory that an otherwise valid ordinance is confiscatory when applied to a particular tract of land, in that it deprives the owner of any reasonable use of his property. Township of Neville v. Exxon Corp., 14 Pa. Commonwealth Ct. 225, 322 A.2d 144 (1974). The statutory requirements for a variance, found in Section 912 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10912, must be met when seeking a validity variance. These requirements may be summarized as follows: (1) the ordinance imposes an unnecessary hardship on the property; (2) the hardship results from the unique physical characteristics of the property; (3) the granting of a variance will not have an adverse impact on the health, safety and welfare of the general public; (4) the hardship must not be self-inflicted; and, (5) the variance sought is the minimum variance that will afford relief. See Marple Gardens, Inc. v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 436, 303 A.2d 239 (1973).

We have examined this record and have reached the conclusion that the trial court was absolutely correct in its ruling in this case, and we are of the view that we cannot better express the basis for the ruling than did the trial court. Accordingly, we set forth here a substantial portion of Judge ...


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