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APPEAL BOARD SUPERVISORS SOLEBURY TOWNSHIP v. ZONING HEARING BOARD SOLEBURY TOWNSHIP. BOARD SUPERVISORS SOLEBURY TOWNSHIP (02/07/80)

decided: February 7, 1980.

IN RE: APPEAL OF THE BOARD OF SUPERVISORS OF SOLEBURY TOWNSHIP, BUCKS COUNTY, PENNSYLVANIA, ETC. R & L MARINO BROS., INC.
v.
THE ZONING HEARING BOARD OF SOLEBURY TOWNSHIP. BOARD OF SUPERVISORS OF SOLEBURY TOWNSHIP, APPELLANT. IN RE: APPEAL OF THE BOARD OF SUPERVISORS OF SOLEBURY TOWNSHIP, BUCKS COUNTY, PENNSYLVANIA, ETC. R & L MARINO BROS., INC., APPELLANT V. THE ZONING HEARING BOARD OF SOLEBURY TOWNSHIP, APPELLEE



Appeals from the Order of the Court of Common Pleas of Bucks County in case of R & L Marino Bros., Inc. v. The Zoning Hearing Board of Solebury Township, No. 78-5362-10-5 and the case of In Re: Appeal of the Board of Supervisors of Solebury Township, Bucks County, Pennsylvania from the Solebury Township Zoning Hearing Board in Regard to Application of R & L Marino Bros., Inc., No. 78-5397-04-5.

COUNSEL

Stuart N. Cohen, with him, of counsel, Butera, Hess, Beausang & Moyer, for appellant.

Carl L. Lindsay, Jr., for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer. Judge DiSalle did not participate in the decision in this case.

Author: Mencer

[ 49 Pa. Commw. Page 269]

R & L Marino Bros., Inc. (Marino) and the Board of Supervisors of Solebury Township (Township) have cross-appealed an order of the Court of Common Pleas of Bucks County, which affirmed the grant of a variance to Marino to erect an apartment building, subject to certain conditions.*fn1 Marino challenges both the imposition of a density condition attached to the variance and the constitutionality of the ordinance, and the Township challenges the grant of the variance.

Marino is the equitable owner of 7.28 acres of undeveloped land which is located on Route 202 between an existing Holiday Inn and about 28 acres of Pennsylvania Fish and Game Commission land. To the rear of Marino's land are single-family houses within a subdivision. The land is situated in an R-2 zoning district which permits single-family residential use on minimum 2-acre lots, among other uses. Marino applied for a variance in order to construct a 4-story, 70-unit apartment building with onsite parking, an outside swimming pool, and a tennis court.

[ 49 Pa. Commw. Page 270]

Where the court below receives no evidence, as here, our review on appeal is limited to a determination of whether the Board has abused its discretion or committed an error of law. Ottaviano v. Zoning Board Page 270} of Adjustment of Philadelphia, 31 Pa. Commonwealth Ct. 366, 376 A.2d 286 (1977).

An applicant is entitled to a variance only where he establishes (1) that the zoning regulation uniquely burdens his property so as to create an unnecessary hardship and (2) that the variance would not have an adverse effect upon the public health, safety or welfare. H.A. Steen Industries, Inc. v. Zoning Hearing Board of Bensalem Township, 39 Pa. Commonwealth Ct. 451, 396 A.2d 66 (1978); Hankin v. Zoning Hearing Board of West Norriton Township, 35 Pa. Commonwealth Ct. 164, 384 A.2d 1386 (1978). See also Section 912 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10912.

Marino presented expert testimony that the topography of the property, the nearby commercial uses, especially the Holiday Inn, and the heavy volume of traffic on Route 202 make the property unsuitable for development in conformity with the present zoning. In addition, there was testimony that there was no market for the property as zoned. Finally, there was evidence that the proposed use would not be detrimental to the public welfare. After a careful review of the record, we conclude that there is sufficient evidence to support the Board's conclusion that a variance was justified and that the Board did not abuse its discretion.

Marino argues, however, that the Board abused its discretion by imposing conditions upon the grant of the variance which require Marino to comply with the provisions of the Township's Residential Development District (RDD) and which limit the development to 49 apartment units.

Section 912 of the MPC provides that, in granting a variance, "the board may attach such reasonable conditions and ...


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