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RANDALL S. FIKE AND SUZANNE R. FIKE v. ROBERT BRYNILDSEN AND NANCY BRYNILDSEN (09/01/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 1, 1982.

RANDALL S. FIKE AND SUZANNE R. FIKE, APPELLANTS
v.
ROBERT BRYNILDSEN AND NANCY BRYNILDSEN, HIS WIFE, APPELLEES

Appeal from the Order of the Court of Common Pleas of Northampton County in case of Randall S. Fike and Suzanne R. Fike v. The Zoning Hearing Board of Bethlehem Township and Robert Brynildsen and Nancy Brynildsen, his wife, No. 1980-C-10195.

COUNSEL

T. E. Butterfield, Jr., Butterfield, Joachim, Brodt & Houser, for appellants.

Robert M. Davison, for appellees.

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

Author: Crumlish

[ 68 Pa. Commw. Page 515]

Randall and Suzanne Fike appeal from a Northampton County Common Pleas Court order which granted a dimensional variance to intervenors, Robert and Nancy Brynildsen. We vacate and remand.

In 1964, Bethlehem Township passed an ordinance regarding 10,000 square feet per dwelling unit and a minimum rear yard setback requirement of thirty-five feet. In 1966, the Township acquired the lot in question measuring 8,956 square feet. In 1980, the Brynildsens bought the lot intending to build a dwelling. They now seek a variance to reduce the overall square footage requirement and the rear-yard setback requirement to twenty-five feet. The lot had been previously dedicated to park use in a plan recorded in 1924.

[ 68 Pa. Commw. Page 516]

Where the trial court takes no additional evidence, we are limited to reviewing whether the Zoning Hearing Board abused its discretion or committed an error of law. Jenkintown Towing Service v. Zoning Hearing Board of Upper Moreland Township, 67 Pa. Commonwealth Ct. 183, 446 A.2d 716 (1982).

The trial court in this case took no additional evidence*fn1 and concluded that the record before it was sufficient upon which to review the actions of the Board. We disagree.

In Swift v. Zoning Hearing Board of East Hempfield Township, 33 Pa. Commonwealth Ct. 442, 382 A.2d 150 (1978), when addressing the issue of the propriety of the granting of a dimensional variance we noted the various factors that must be considered:

The law is clear that a variance from a zoning ordinance may be granted only in exceptional circumstances where the applicant proves that present zoning restrictions result in an unnecessary hardship unique or peculiar to the property and that the grant of a variance would not be adverse to the public health, safety, and welfare. A variance will not be granted to the applicant when he knew or should have known of the existing zoning regulations and the problems bringing about the hardship at the time he purchased the property. Such a hardship is self-inflicted. (Footnotes omitted.)

Id. at 444, 382 A.2d at 152. See also Grace Building Co. v. Zoning Hearing Board of Upper Merion Township, 38 Pa. Commonwealth Ct. 178, 392 A.2d 888 (1978). No evidence was offered as to whether the

[ 68 Pa. Commw. Page 517]

Brynildsens' hardship was self-inflicted,*fn2 Swift, or whether the purchase price was paid in anticipation of the granting of the variance.*fn3 See Board of Commissioners of the Township of Robinson v. Sandoz, 62 Pa. Commonwealth Ct. 433, 436 A.2d 1246 (1981).

The failure to keep a stenographic record and transcript of the proceedings before the Board*fn4 has further frustrated this Court in the exercise of its appellate review. Thus, on remand, the making of an adequate record is mandated. See Penn Township Board of Supervisors v. DeRose, 18 Pa. Commonwealth Ct. 626, 339 A.2d 859 (1975); Schelley v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 169, 302 A.2d 526 (1973); Camera, Jr., et al. v. Danna Homes, Inc., 6 Pa. Commonwealth Ct. 417, 296 A.2d 283 (1972).

Vacated and remanded.

[ 68 Pa. Commw. Page 518]

Order

The order of the Northampton County Common Pleas Court, No. 1980-C-10195 dated May 8, 1981 is vacated and remanded for proceedings consistent with this Opinion.

Judge Mencer did not participate in the decision in this case.

Disposition

Order vacated. Case remanded.


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