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H.A. STEEN INDUSTRIES v. ZONING HEARING BOARD BENSALEM TOWNSHIP. BENSALEM TOWNSHIP (01/11/80)

decided: January 11, 1980.

H.A. STEEN INDUSTRIES, INC.
v.
THE ZONING HEARING BOARD OF BENSALEM TOWNSHIP. BENSALEM TOWNSHIP, APPELLANT. H.A. STEEN INDUSTRIES, INC., APPELLANT V. THE ZONING HEARING BOARD OF BENSALEM TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County in case of H.A. Steen Industries, Inc. v. The Zoning Hearing Board of Bensalem Township, No. 78-1338-18-5.

COUNSEL

Leslie G. Dias, with him Henry F. Huhn, for appellant.

David H. Moskowitz, of Moskowitz & Zamparelli, P.C., with him Emil F. Toften & Associates, for appellee.

Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Mencer. This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Author: Mencer

[ 48 Pa. Commw. Page 470]

Bensalem Township (Township) and H.A. Steen Industries, Inc. (applicant) cross appeal from an order of the Court of Common Pleas of Bucks County which reversed the decision of the Bensalem Township Zoning Hearing Board (Board) and granted a variance to the applicant to erect a billboard. We affirm the lower court's order.*fn1

[ 48 Pa. Commw. Page 471]

The applicant, a corporation engaged in the business of outdoor advertising, seeks to erect a double-faced billboard on a narrow strip of land, roughly 33 feet by 395 feet, which remained following eminent domain proceedings for the construction of Interstate Highway 95. It is an unimproved, landlocked property bordered by the interstate highway on one side and Conrail railroad tracks on the other. The property is zoned M-1, Manufacturing and is surrounded by industrial zones except for a mixed manufacturing and residential zone across the interstate highway. Billboards are only permitted in an H-C, Highway Commercial zone.

The Township argues that the applicant failed to meet its burden of proving an unnecessary hardship, i.e., that there was no possibility that the property could be used in strict conformity with the provisions of the zoning ordinance and that the variance is necessary to enable reasonable use of the property. See J. Richard Fretz, Inc. v. Hilltown Township Zoning Hearing Board, 18 Pa. Commonwealth Ct. 471, 473-74, 336 A.2d 464, 465-66 (1975). Although there is no direct testimony indicating that the property cannot be used in conformity with the ordinance and that a billboard is the only reasonable use, it is evident from the very description of the property that a manufacturing or other permitted use is essentially impossible. The property is only 33 feet wide at its widest point. Access exists only through an agreement with the railroad and is limited to one day per month. In fact, it appears from the decision of the Board that it recognized the existence of a hardship.

The Township argues, however, that any hardship was self-imposed because the applicant had knowledge of the unique character of the land and the zoning regulation when it purchased the property and, therefore,

[ 48 Pa. Commw. Page 472]

    the variance was not justified. This was the Board's conclusion.

We have held that the mere fact that one purchases property with knowledge of the hardship does not necessarily preclude a variance. See Franklin Towne Realty, Inc. v. Zoning Hearing Board, 37 Pa. Commonwealth Ct. 632, 391 A.2d 63 (1978); Harper v. Zoning Hearing Board, 21 Pa. Commonwealth Ct. 93, 343 A.2d 381 (1975). As Judge Craig said in Zoning Hearing ...


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