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MARGARET BROWN SILAR ET AL. v. ZONING BOARD ADJUSTMENT SPRING GARDEN TOWNSHIP (10/04/79)

decided: October 4, 1979.

MARGARET BROWN SILAR ET AL., APPELLANTS
v.
ZONING BOARD OF ADJUSTMENT OF SPRING GARDEN TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of York County in case of Margaret Brown Silar, Ralph W. Kling, George L. Hartenstein, D.V.M., Elizabeth Runkle, Harry G. Carnahan, J. Lewis Brown, David E. Wilson, Robert D. Heckinger, Ernest Concino, Mary Shaffer, Raymond A. Delp, Nancy J. Doby and Robert Mobley v. Zoning Board of Adjustment of Spring Garden Township, No. 77-S-1365.

COUNSEL

William C. Gierasch, Jr., with him Michael W. King, and Stock and Leader, for appellants.

Michael J. Brillhart, with him Robert H. Griffith, and Markowitz, Kagen & Griffith, for intervenor.

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

Author: Blatt

[ 46 Pa. Commw. Page 341]

This is an appeal from an order of the Court of Common Pleas of York County which affirmed a decision by the Zoning Hearing Board of Spring Garden Township (Board) which granted a variance to John L. Heisler (applicant) to allow him to utilize a tract of land in a residentially zoned area as a used car lot. The appellants, who appeared as protestants before the Board, are owners of property in the immediate vicinity of the applicant's property.

Because the lower court took no additional evidence, our scope of review is, of course, limited to a determination as to whether or not the Board's findings are supported by substantial evidence and whether or not the Board committed an abuse of discretion or an error of law. Higgins v. Township of Radnor, 13 Pa. Commonwealth Ct. 195, 318 A.2d 761 (1974).

[ 46 Pa. Commw. Page 342]

The variance was granted by the Board pursuant to Section 912 of the Pennsylvania Municipalities Planning Code*fn1 (M.P.C.), 53 P.S. ยง 10912 which provides:

The board shall hear requests for variances where it is alleged that the provisions of the zoning ordinance inflict unnecessary hardship upon the applicant. Subject to the provisions of Section 801, the board may by rule prescribe the form of application and may require preliminary application to the zoning officer. 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 provisions of the zoning ordinance in the neighborhood or district in which the property is located;

(2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is ...


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