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

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. § 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 ...


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