Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Thomas McCarron, Legal Owner, and Clover Diversified Investment Corporation, Equitable Owner v. The Zoning Hearing Board of the Borough of Lansdale and the Borough of Lansdale, No. 76-06737.
Richard W. Hollstein, with him George W. Braun, Clark, Ladner, Fortenbaugh & Young, for appellant.
Marc D. Jonas, Hamburg, Rubin, Mullin & Maxwell, for appellee.
President Judge Crumlish and Judges Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt.
The Borough of Lansdale (Borough) appeals here from an order of the Court of Common Pleas of Montgormery County which directed that variances from the local zoning ordinance be granted to the appellees, Thomas McCarron and Clover Diversified Investments Corp. (hereinafter referred to as "owners").
The owners sought variances for permission to erect single-family dwellings on two lots which lacked the required 60-foot frontage in a zoned area in the Borough of Lansdale. The Zoning Hearing Board of the Borough of Lansdale (Board) denied the variances, and the common pleas court affirmed that decision. The owner appealed to this Court*fn1 and we remanded the case to the Board for the purpose of taking additional testimony on the question of whether or not the owner was guilty of a self-imposed hardship. After taking such testimony the Board once again denied the variances, the owner again appealed to the common pleas court and, after argument, the appeal was sustained and the Borough was directed to grant the variances. This appeal followed.
The two properties involved here were included in a large tract of land on a plan which received subdivision approval from the Borough in 1960. The plan shows that the subject lots are in a Residential
B District across Spruce Street from each other with side yards bordering 17th Street. The plan erroneously states the width of the two lots as 75 feet when in actuality they were only 35 feet wide. At the same time the subdivision plan was approved, 17th Street was opened and then vacated, causing 20 feet of the 40-foot street to pass to the subject lots thereby increasing them in width from 35 feet to 55 feet each. Therefore, as the lots currently exist, they are five feet short of the 60-foot requirement set out in the zoning ordinance.
The Board found after the remand hearing that the owners had caused their own hardship by creating the undersized lots and therefore were not entitled to variances. The owners have consistently maintained that, at the time of the subdivision approval, both the Borough and the owners were under the mistaken belief that the vacating of 17th Street would result in the reversion of the entire 40 feet of the street to the subject properties thereby making them 75 feet wide as shown in the approved plan. They argue, therefore, that the hardship suffered by them is not, in fact, self-created but is rather the product of a mutual mistake affirmatively sanctioned by the Borough.
The Board was apparently unable to determine whether or not the Borough was aware that the 75 feet shown on the plan included that portion supposedly gained by the vacation of the street, and it concluded that the owners were solely responsible for the creation of the undersized lots and must therefore bear the consequences. The common pleas court reversed the Board's decision after concluding that "this is a classic case of the dead ...