Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Filberto J. Vito and Virginia J. Vito, his wife v. Zoning Hearing Board of the Borough of Whitehall and Borough of Whitehall, No. SA 737 of 1978.
James R. Duffy, for appellant.
No appearance for appellee.
Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Craig.
[ 73 Pa. Commw. Page 271]
The Borough of Whitehall has brought this appeal from a decision of the Court of Common Pleas of Allegheny County which reversed its Zoning Hearing Board's denial of a variance for the invasion of a rear yard area by an additional garage.
The appellee Vito family owns an oddly shaped corner lot. Although the zoning ordinance requires a rear yard depth of 40 feet, because of the shape of the property and a previous variance to build a screened porch, there is currently only a rear yard depth of sixteen and one-half feet. Their dwelling presently includes an integral double garage. The appellees want to build an additional twelve-by-twenty foot attached garage, which would reduce the rear yard depth to only six and one-half feet.
[ 73 Pa. Commw. Page 272]
In reversing the board's denial of the variance request, the trial court adopted the findings of the referee, who had recommended granting the variance for two reasons: (1) two other variances had already been granted to the Vitos in the eighteen years they had owned the property,*fn1 and (2) the proposed garage would cause no harm to the borough or its residents.
The board had no obligation to grant a third variance merely because two had previously been granted. Just as grants of variances to one's neighbors do not, as a matter of law, furnish a property owner with any legal justification for a variance, previous variances do not oblige the board to grant yet another. Each must be judged on its own merits. Drop v. Board of Adjustment, 6 Pa. Commonwealth Ct. 64, 293 A.2d 144 (1972); Christner v. Zoning Board of the Borough of Mount Pleasant, 40 Pa. Commonwealth Ct. 87, 397 A.2d 30 (1979).
A party seeking a variance must meet the threshold requirement of demonstrating that the zoning ordinance imposes an unnecessary hardship*fn2 stemming from unique circumstances of the property.
The record does not indicate the requisite hardship. Here the trial court, by adopting the referee's decision, balanced the interests of the community and the owners; however, the balancing test is not a proper one.
The correct test in this type of case is not whether the proposed use is a more desirable use than the use ...