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APPEAL DAVID FIORI FROM DECISION FALLS TOWNSHIP ZONING HEARING BOARD. DAVID FIORI (10/27/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 27, 1982.

IN RE: APPEAL OF DAVID FIORI FROM DECISION OF FALLS TOWNSHIP ZONING HEARING BOARD. DAVID FIORI, APPELLANT

Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal of David Fiori from Decision of Falls Township Zoning Hearing Board, No. 78-5976-06-2.

COUNSEL

Richard P. McBride, with him Herbert K. Sudfeld, Jr., Power, Bowen & Valimont, for appellant.

Samuel M. Snipes, for appellee.

President Judge Crumlish, Jr. 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

[ 69 Pa. Commw. Page 464]

David Fiori appeals a Bucks County Common Pleas Court order upholding the Falls Township Hearing Board's (Board) denial of his variance application. We reverse and remand.

Fiori, the legal owner*fn1 of an unimproved trapezoidal, half-acre lot which is zoned High Density Residential-Elderly (HR-E),*fn2 applied for a variance to build a Dairy Queen Soft Ice Cream store, not a permitted use. The surrounding area is essentially commercial in character.*fn3

[ 69 Pa. Commw. Page 465]

The Board concluded that the variance was not necessary to enable Fiori to use his property reasonably and that the proposed use would impact undesirably on the environs. The court below affirmed on the record. Fiori argues that the Board abused its discretion in failing to approve the variance and that its findings of fact were not supported by the evidence.

Our scope of review, where the court below took no additional evidence, is limited to determining whether the Board's findings are supported by substantial evidence or whether the Board legally erred. Bruni v. Zoning Hearing Board of Plymouth Township, 52 Pa. Commonwealth Ct. 526, 529, 416 A.2d 111, 112 (1980).

Whether a variance should be granted is determined by applying the standards found in Section 912 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10912,*fn4 keeping in mind that a variance authorizing a commercial use in a residential district should not be granted generously. J. Richard Fretz, Inc. v. Hilltown Township Zoning Hearing Board, 18 Pa. Commonwealth Ct. 471, 473, 336 A.2d 464, 466 (1975). When an appellant seeks a variance to develop a vacant lot contrary to the zoning scheme, he is required to prove convincingly that the characteristics are such

[ 69 Pa. Commw. Page 466]

    that the lot has either no value or only a distress value for any permitted purpose. Ephross v. Solebury Township Zoning Hearing Board, 25 Pa. Commonwealth Ct. 140, 144, 359 A.2d 182, 184 (1976). Mere economic hardship, short of rendering the property practically valueless, does not justify a variance. BP Oil, Inc. v. Zoning Hearing Board of the Borough of Brookhaven, 37 Pa. Commonwealth Ct. 258, 264, 389 A.2d 1220, 1223 (1978).

Fiori first disputes the Board's conclusion that a variance is not necessary to enable him to reasonably use his property. Fiori's expert witness, George J. Donovan, a registered land planner, testified that, under the requirements of the HR-E district, it was not possible to locate any permitted use on the subject lot, and that, in the five years preceding the application, there had been no new housing construction in the surrounding area. Fiori, a licensed real estate broker, testified that, although the property had been listed for sale for five years, there had been absolutely no interest expressed in the lot for residential use. Further, he testified that he could see no likelihood of residential development of the lot. The record, with unrefuted testimony that the property could not be developed for any permitted use, is devoid of evidence supporting the Board's finding that Fiori admitted that, without a variance, other uses were feasible for the property. Hence, we conclude: (1) that the Board's finding lacks evidential support, and (2) that the property cannot be developed in conformity with the ordinance, thus creating a substantial hardship peculiar to the property.

Fiori also contests the Board's conclusion that the variance would alter the neighborhood's essential character, that development of adjacent property for elderly housing would be substantially impaired, and that detriment to the public health, safety and welfare

[ 69 Pa. Commw. Page 467]

    would result. This conclusion is apparently based on a projected increase in traffic and on a certain resident's expressed concern regarding both pedestrian safety and the interruption of sleep caused by any additional noise generated by the proposed use. Fiori's expert testified that the Dairy Queen store would be compatible with the surrounding commercial use and would, in fact, constitute an improvement of the area. No testimony, expert or otherwise, was proffered to demonstrate any specific adverse effects which the proposed use would have on the neighborhood.*fn5 Furthermore, no testimony was presented to establish that any significant increase in neighborhood traffic would result from the Dairy Queen store, or that any such increase would be detrimental to the public health, safety or welfare. Additionally, the same resident who voiced concern over hours of operation and loss of sleep due to increased noise made it clear that he was not objecting to the variance and, following Fiori's response to his concerns, indicated his satisfaction that the store would present no problem.

Finally, we are convinced that the hardship was not created by Fiori,*fn6 and that the variance represents the minimum variance necessary to afford relief.

Reversed and remanded.

Order

Bucks County Common Pleas Court order No. 78-5976-06-2, dated December 30, 1980, is hereby reversed,

[ 69 Pa. Commw. Page 468]

    and the case is remanded with directions that the Common Pleas Court direct the Falls Township Zoning Hearing Board to issue the requested variance.

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

Disposition

Reversed and remanded with direction to grant variance.


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