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DANIEL R. MINNICK ET AL. v. ZONING HEARING BOARD (01/24/83)

decided: January 24, 1983.

DANIEL R. MINNICK ET AL.
v.
ZONING HEARING BOARD, TOWN OF MCCANDLESS ET AL. V.G. FREY, INC., APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Daniel R. Minnick and Mary D. Minnick; Joseph F. Sunseri and Valeri D. Sunseri; William A. Metzler and Anne M. Metzler; John A. Vanderslice and Dorothy R. Venderslice; and David M. Whistler and Loretta J. Whistler v. Zoning Hearing Board, Town of McCandless, Allegheny County, Pennsylvania, No. SA 601 of 1979.

COUNSEL

Richard P. Jacob, with him William L. Jacob, Jr., William L. Jacob, Jr. and Richard P. Jacob, P.A., for appellant.

Daniel R. Minnick, with him James W. Dunn, Jr., for appellee.

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

Author: Williams

[ 71 Pa. Commw. Page 334]

V. G. Frey, Inc. (Frey) has appealed from the denial of a zoning variance by the Court of Common

[ 71 Pa. Commw. Page 335]

Pleas of Allegheny County. The trial court's order reversed a decision by the Zoning Hearing Board of the Town of McCandless, which had granted Frey a variance from one of the dimensional requirements of the applicable ordinance.

In a general sense, the variance here in issue relates to a triangular lot that is owned by Frey and which was created by Frey's subdivision of a tract. In a more specific sense, however, the variance is concerned with a house that Frey has already erected on the lot. After Frey had completed the house, the McCandless zoning ordinance was judicially interpreted in a way that put Frey's house in violation of the ordinance's rear-yard requirement. Under those circumstances, Frey was compelled to seek a variance from that requirement, in order to legitimate the house already standing.

In September 1964, Frey obtained approval from McCandless and from Allegheny County for the subdivision and development of a tract of land. In accordance with the approved and recorded subdivision plan, "Greybrooke Plan No. 1," Frey proceeded to divide its tract into a series of building lots, one of which was a triangular or wedge-shaped parcel.

When the Frey subdivision plan was approved in 1964, the then existing McCandless zoning ordinance contained various dimensional restrictions relative to building lots in the area of the Frey tract.*fn1 Included among those restrictions was a requirement that any house to be erected had to provide for a "rear yard"

[ 71 Pa. Commw. Page 336]

    at least 40 feet deep. It seems, however, that the ordinance did not contain any specific provisions for triangular or other irregularly shaped lots; nor did the ordinance contain any express means of ascertaining what was the "rear yard" of an irregular lot.*fn2

In 1971, McCandless enacted a new zoning ordinance, Ordinance No. 587. Under the 1971 ordinance, the Frey subdivision was in a zoning district classified as "R-2," which meant that the area was limited to one-family and two-family residential structures. Among the dimensional restrictions in the new ordinance, insofar as an "R-2" district was concerned, was a retention of the 40 foot "rear yard" requirement. The 1971 ordinance, like its predecessor, contained no specific treatment of irregular lots; nor did the new ordinance express a means of determining the "rear yard" of an irregular lot.*fn3

By 1973, Frey had sold all of the lots in its subdivided tract except for the triangular parcel, which had been designated on the plan as "Lot 77." In late 1973 a contractor, with whom Frey had some connection in the building of houses on the lots, proposed to erect a house on Lot 77. The house proposed at that time was to have a front almost parallel to the adjacent street.*fn4 However, with the house so positioned, the property line directly to the rear of the house

[ 71 Pa. Commw. Page 337]

    would be only 26 feet away; which meant a rear yard significantly less than the 40 feet mandated by the 1971 ordinance.*fn5 Confronted by those circumstances, the contractor applied for a variance. In December 1973, that application was denied.

In 1976 there was a renewed effort, by Frey, to build a house on the triangular Lot 77. To that end, Frey submitted a new construction plan to the McCandless zoning officer. Frey proposed to erect a two-story, single family home positioned at a sharp angle to the street in front of the lot. By so positioning the house, the rear of the structure would not be pointed directly toward the property line on the northern side of the lot, as did the 1973 construction proposal. Rather, the rear of the structure would now be pointed directly toward the lot's apex in the east. By so positioning the house, Frey sought to create a rear yard consisting of the distance between the apex of the lot and the rear of the house, a distance exceeding the 40 feet mandated by the ordinance. In late September 1976, the McCandless zoning officer granted Frey a building permit to erect the house as proposed.

About September 30, 1976, Daniel R. Minnick, an owner of property adjoining Lot 77, learned that the building permit had been issued to Frey. On October 1, 1976, Minnick and other adjoining property owners went to the zoning officer to review the permit and the plan for the proposed house. Three days later, Minnick and the others sent a letter to the zoning officer and other municipal officials to protest the issuance of the permit. In that letter the ...


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