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WILLIAM KERNICK ET AL. v. ZONING HEARING BOARD MUNICIPALITY PENN HILLS ET AL. CARL T. VALENTI (02/06/81)

decided: February 6, 1981.

WILLIAM KERNICK ET AL.
v.
ZONING HEARING BOARD OF THE MUNICIPALITY OF PENN HILLS ET AL. CARL T. VALENTI, JR. AND NANCY VALENTI, HIS WIFE, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of William Kernick, David McQuiston, Edward L. Hughes, Gerald J. Krahling and Elizabeth Krahling, his wife, Cara L. Washabaugh, Jean Mansfield, Donna Shawfield, Willa Shawfield, Marilyn Smith, Doe Joyce, Lorraine Dezorte, William Berg and Bernice Berg, his wife, Gayle Murray, Robert Coch, Guido Santoliquido and Catherine Boyd v. Zoning Hearing Board of the Municipality of Penn Hills, No. S.A. 1380 of 1978.

COUNSEL

Gregg M. Rosen, for appellants.

D. R. Pellegrini, with him Jack Hickton, Metz, Cook, Hanna & Kelly, for appellee.

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

Author: Mencer

[ 56 Pa. Commw. Page 513]

Carl T. Valenti, Jr., and Nancy Valenti (appellants) have appealed from a decision of the Court of Common Pleas of Allegheny County which reversed the grant of a use variance by the Zoning Board of Penn Hills (Board) for a property in a residential zoning district. We affirm.

The property in question is a triangular tract of approximately one acre. It is presently zoned "R-1 Single Family Detached." The property is bounded on all three sides by highways. R-1 districts adjoin two sides of the property, and a "B-1 Business" district adjoins the third. The property presently contains one single-family residential unit. The Board granted a variance which would permit development of the property as a "B-2 Business" use. For the purposes of this opinion, the essential difference between B-1 and B-2 districts is that bars are permitted in the latter but prohibited in the former.

[ 56 Pa. Commw. Page 514]

Section 912 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10912, lists the prerequisites for the granting of a variance. The Board must find, inter alia, that "(2) . . . there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance" and that "(5) . . . the variance, if authorized, will represent the minimum variance that will afford relief." Id. It is well established that

     a variance may obtain only when an applicant proves that in the present zoning posture there exists unnecessary hardship unique or peculiar to the property and that the proposed variance is not contrary to the public health, safety, or general welfare. . . . A variance should be granted only in exceptional circumstances and the burden of proving its need is a heavy one.

Boulevard Land Corp. v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 584, 586, 303 A.2d 234, 235 (1973) (citations omitted).

In order to sustain this heavy burden, the applicant for a zoning variance must present evidence to satisfy the requirements of Section 912 of the MPC. The procedure for presenting this evidence is found in Section 908 of the MPC, 53 P.S. § 10908, which allows for representation by counsel, presentation of witnesses and documents, and cross-examination of adverse witnesses. Nonetheless, "[f]ormal rules of evidence shall not apply." Section 908(6), 53 P.S. § 10908(6). Both the procedural requirements of Section 908 and the substantive requirements of Section 912 must be satisfied before a variance may be granted.

In the present case, the appellants presented evidence through the sworn statement of their attorney. This may have ...


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