decided: January 13, 1983.
WILLIAM L. SHELLEY ET AL., APPELLANTS
THE ZONING HEARING BOARD OF CARLISLE, APPELLEE
Appeal from the Order of the Court of Common Pleas of Cumberland County in the case of William L. Shelley, W. L. Hall, Louis F. Del Duca, Charles W. Rogers and Georgette Rogers v. The Zoning Hearing Board of Carlisle, No. 1696-1980, and in the case of Constance B. Ruby, t/a Walnut Bottom Tavern v. The Zoning Hearing Board of Carlisle, No. 1783-1980.
Frances H. Del Duca, Faller & Del Duca, for appellants.
Dale F. Shughart, Jr., Fowler, Addams & Shughart, for appellee, Constance B. Ruby, t/a Walnut Bottom Tavern.
Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 71 Pa. Commw. Page 154]
In this zoning appeal, a group of protesting neighbors appeals the order of the Court of Common Pleas of Cumberland County which, in substantially affirming
[ 71 Pa. Commw. Page 155]
the decision of the Carlisle Zoning Hearing Board, held that owner Constance B. Ruby could rebuild the Walnut Bottom Tavern which had been partially destroyed by fire.
Under the Carlisle Zoning Ordinance, the tavern was a nonconforming use in an R-2 Residential District. After the fire, the township refused the owner's request for a building permit to rebuild the tavern, citing Section 901.1 of the Zoning Ordinance,*fn1 which provides:
In the event that a non-conforming use in any district is destroyed or partially destroyed by fire, explosion or other cause, or otherwise damaged to the extent of fifty (50%) percent or more of either its assessed valuation (as determined from the Assessment Rolls effective at the date of damage or destruction) or its bulk of all buildings, structures, and other improvements on the lot, such non-conforming uses shall terminate and the lot shall thereafter be used only for conforming uses.
After the township refused to issue the permit, the owner appealed to the board. The board found that the fire damage of $51,133 exceeded 50% of the tavern's assessed value*fn2 of $5,320, but, recognizing that application of the assessed value measurement often would lead to "arbitrary and unreasonable" results,*fn3 it simply read "assessed value," as used in
[ 71 Pa. Commw. Page 156]
the ordinance as if it meant "fair market value." After finding that the fair market value of the tavern before the fire was $140,000, the board concluded, and the common pleas court agreed, that Section 901 did not prohibit reconstruction of the tavern.
The neighbors assert that: (1) the board had no power to interpret "assessed value" in the ordinance's Section 901.1 as "fair market value"; and (2) the owner failed to challenge the general validity of that ordinance section under Section 1004 of the Pennsylvania Municipalities Planning Code (MPC).*fn4
The owner, in response, concedes that (1) the board had no power to interpret "assessed value" as "fair market value;"*fn5 and (2) that the owner failed to challenge the general validity of Section 901.1 under Section 1004 of the MPC. However, the owner contends that she properly challenged the validity of the ordinance, not generally, but as it affected her specific property. She asserts that, because the application of the ordinance section to her particular situation would be confiscatory and therefore unconstitutional, she is entitled to a variance either under Section 912 of the MPC*fn6 or Section 1004 of the MPC.
Section 1004 of the MPC is the exclusive mode*fn7 "for testing the constitutionality of a zoning restriction
[ 71 Pa. Commw. Page 157]
on its face as well as applied to a specific property where a variance is unavailable due to the cause of the alleged confiscation or the nature of the rezoning requested." Beekhuis v. Zoning Hearing Board of Middletown, 59 Pa. Commonwealth Ct. 307, 313, 429 A.2d 1231, 1235 (1981), in citing President Judge Crumlish's concurring opinion in Robin Corp. v. Board of Supervisors of Lower Paxton Township, 17 Pa. Commonwealth Ct. at 399, 338 A.2d at 848 (1975).
Section 1004 of the MPC allows a landowner to submit his challenge either to the zoning hearing board or to the governing body of the municipality. Beekhuis v. Zoning Hearing Board of Middletown.
Subsection 1004(2) provides, in relevant part:
The submissions [regarding the validity of an ordinance] shall be governed by the following: (a) The landowner shall make a written request to the board or governing body that it hold a hearing on his challenge. The request shall contain a short statement reasonably informing the board or the governing body of the matters that are in issue and the grounds for the challenge. . . .
Here the attorney then representing the owner sent a letter to the Chief Code Enforcement Officer of the Borough of Carlisle, and requested, in relevant part:
Pursuant to your letter of February 13, 1980, I am writing to advise you that on behalf of Constance Ruby, owner of the Walnut Bottom Tavern, we are filing an appeal before the Carlisle Zoning Hearing Board, requesting the issuance of a building permit.
The Walnut Bottom Tavern desires to seek relief from the non-conforming damage clause section [Section 901.1] of the Carlisle Zoning Ordinance. This appeal is necessitated by
[ 71 Pa. Commw. Page 158]
your Solicitor's opinion, which was adopted by your Planning Commission, that since the structural damage to the Walnut Bottom Tavern exceeds 50% of its assessed valuation, a building permit will not be issued to Mrs. Ruby to allow her to reconstruct the tavern.
Merely notifying a municipality that a landowner desires to seek "relief" from a provision in a zoning ordinance does not inform that municipality "of the matters that are in issue and the grounds for the challenge," as required by Section 1004(2). Appeal of American Medical Centers, Inc., 54 Pa. Commonwealth Ct. 573, 422 A.2d 1192 (1980). Therefore, we conclude that the owner never raised a challenge to the validity of the ordinance section to the board under MPC Section 1004 in any respect, and therefore we will not now consider that challenge on appeal. Cutler v. Newtown Township Zoning Hearing Board, 27 Pa. Commonwealth Ct. 430, 367 A.2d 772 (1976).
We next consider the owner's only alternative avenue for relief -- a variance under Section 912 of the MPC. The statutory requirements for a variance, found in Section 912, must be met when seeking a variance. A and D, Inc. v. Zoning Hearing Board of East Nottingham Township, 32 Pa. Commonwealth Ct. 367, 379 A.2d 654 (1977).*fn8 Here, however, the attorney then representing the owner never requested a variance or presented evidence indicating that the
[ 71 Pa. Commw. Page 159]
owner was entitled to one under Section 912.*fn9 Parties seeking a variance -- even the so-called "validity variance" -- must prove the existence of an unnecessary hardship resulting when the unique or special physical characteristics of the situation make development for any permitted use realistically impossible, so that owner is deprived of use of the property, and that burden is a particularly heavy one when the variance is sought to permit a commercial use in a residential district. Appeal of American Medical Centers, Inc.
Obviously, the pre-existing nonconforming use status of a property cannot constitute the requisite unique set of circumstances in itself, nor can the event of a fire satisfy that requirement of a variance.
Accordingly, the order of the court of common pleas must be reversed because the owner failed properly to challenge the validity of Section 901.1, and she also failed to request or introduce evidence justifying the granting of a variance under Section 912 of the MPC.*fn10
[ 71 Pa. Commw. Page 160]
Now, January 13, 1983, the order of the Court of Common Pleas of Cumberland County is reversed.