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APPEAL PETER DINU AND MARY DINU (11/08/82)

decided: November 8, 1982.

APPEAL OF PETER DINU AND MARY DINU, HIS WIFE, FROM DECISION OF ZONING HEARING BOARD OF SPRINGFIELD TOWNSHIP. PETER DINU AND MARY DINU, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Appeal of Peter Dinu and Mary Dinu, his wife, from Decision of Zoning Hearing Board of Springfield Township, No. 81-5861.

COUNSEL

John M. Sewell, for appellants.

Thomas M. Garrity, Wisler, Pearlstine, Talone, Craig & Garrity, for appellee.

President Judge Crumlish, Jr. and Judges Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Macphail.

Author: Macphail

[ 69 Pa. Commw. Page 596]

Peter and Mary Dinu (Appellants) appeal from an order of the Court of Common Pleas of Montgomery County which dismissed their appeal from the denial of a variance application by the Zoning Hearing Board of Springfield Township (Board). We affirm.

[ 69 Pa. Commw. Page 597]

The record in this case reveals that Appellants are the equitable owners*fn1 of a tract of land on which a vacant elementary school is located. The property is located in a "C" Residential zone which permits, inter alia, single family dwellings, two family detached and semi-detached dwellings and, by special exception, multiple family dwellings.*fn2 The property borders on an "I" Industrial zone to the rear and has vacant lots on either side which are also zoned "C" Residential. Single family dwellings are located directly across the street along the front of the property.

Appellants filed an application, which the Board treated as a request for a variance,*fn3 to allow the conversion of a portion of the existing structure into a residence and the remainder into a commercial facility to be used in connection with the operation of a toy distribution business. Following two hearings on the application, the Board denied the relief requested and, on appeal, the common pleas court affirmed. Appellants subsequently perfected their appeal to this Court.

Our scope of review in a case of this nature where the court of common pleas took no additional evidence, is to determine whether the Board abused its discretion, committed an error of law or made fact findings

[ 69 Pa. Commw. Page 598]

    which are not supported by substantial evidence of record. Township of Haverford v. Zoning Hearing Board of Haverford Township, 55 Pa. Commonwealth Ct. 209, 423 A.2d 757 (1980).

In order to establish their right to a variance, Appellants must show that the zoning ordinance uniquely burdens the property with an unnecessary hardship and that the variance would not adversely affect the public health, safety or welfare. Borough of Emmaus v. Schuler, 48 Pa. Commonwealth Ct. 100, 409 A.2d 444 (1979). An unnecessary hardship may be shown by proof that 1) the physical characteristics of the property are such that it cannot be used for any permitted purposes or that it could only be used for such purposes at prohibitive expense or 2) the characteristics of the area are such that the property has either no value or only a distress value for any permitted purpose. Avanzato Appeal, 44 Pa. Commonwealth Ct. 77, 403 A.2d 198 (1979). Variances, especially those allowing a commercial use in a residential district, should only be granted under exceptional circumstances. Pfile v. Borough of Speers, 7 Pa. Commonwealth Ct. 226, 298 A.2d 598 (1972). ...


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