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GARY L. BUTCH v. EAST LACKAWANNOCK TOWNSHIP ZONING APPEAL BOARD. EAST LACKAWANNOCK TOWNSHIP (06/09/83)

decided: June 9, 1983.

GARY L. BUTCH
v.
EAST LACKAWANNOCK TOWNSHIP ZONING APPEAL BOARD. EAST LACKAWANNOCK TOWNSHIP, APPELLANT



Appeal from the Order of the Court of Common Pleas of Mercer County in case of Gary L. Butch v. East Lackawannock Township Zoning Appeal Board, No. 344 C.D. 1981.

COUNSEL

Timothy R. Bonner, Wherry, Ketler and Bonner, for appellant.

James A. Stranahan IV, Stranahan and Stranahan, for appellee.

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

Author: Doyle

[ 75 Pa. Commw. Page 35]

Before this Court is an appeal by East Lackawannock Township from a decision and order of the Court of Common Pleas of Mercer County requiring the East Lackawannock Township Zoning Appeal Board (Board) to grant a variance to Gary L. Butch (Appellee). We reverse.

In February of 1981, Appellee began to excavate his property for the purpose of constructing a building. Prior to the commencement of actual construction, a member of the Board informed him that he would need a setback variance just as he had obtained previously for the construction of another building on that property. Accordingly, Appellee submitted a variance application. Said application was not specific as to the actual distance of the variance desired. On March 13, 1981, a hearing was held at which no one opposed the proposed variance. Following the hearing, Appellee, based on his impression that the variance he sought had been granted, started actual construction of his building. On March 18, Dorothy Hurtt, a Board member, informed Appellee that he would have to stop work because he had not yet received a building permit and because the building was only eighteen feet from his property line abutting Hope Mill Road*fn1 while the variance which had been granted was for a setback of thirty-five feet.*fn2 Appellee received formal notice of the grant of the variance the following day. Thereafter, Appellee filed an appeal in the court of common pleas for the purpose of obtaining a variance which would permit him to keep the building where it was. Because no record had

[ 75 Pa. Commw. Page 36]

    been made of the March 13 Board proceeding, the court remanded the matter to the Board for the development of an official record of what had transpired. The hearing held for this purpose, by agreement of the parties, was conducted before a single member of the Board on April 21, 1981. Following the hearing, a decision was issued affirming the thirty-five foot setback line variance and denying any further variance.

Appellee again appealed the Board's action to the court of common pleas. This time the court, without taking additional evidence, reversed the Board and ordered a variance issued to allow Appellee to continue construction of his building at its present location.*fn3 The common pleas court's decision was predicated on a number of factors. First and foremost was its determination that four findings of fact and a conclusion of law crucial to the Board's decision were not supported by substantial evidence. The factual determinations of the Board struck down by the court were (1) Appellee's father had specifically requested a thirty-five foot variance at the March 13, 1981 hearing; (2) the Board did not make a decision on the variance request at that meeting; (3) the building is only eighteen feet from the property line, and (4) Appellee did not offer any factual testimony sufficient to permit a conclusion that he was entitled to a variance to permit construction of the building at its current location. The Board's conclusion of law was that to grant the variance desired by Appellee would create unreasonable safety risks and would be "against the interests of the public's safety, general welfare, property and aesthetic rights and contrary to the preservation

[ 75 Pa. Commw. Page 37]

    of the general character of the area and objectives of proper zoning." The court went on to conclude that Appellee had, to date, incurred expenses of nearly $7,000 in constructing the building,*fn4 that his actions resulted from "the conduct of the [B]oard" and that a denial of the variance which he sought would therefore result in unnecessary hardship of a nature sufficient to warrant issuance of the variance.

In its appeal to this Court the Township asserts that (1) the Board's findings of fact were supported by substantial evidence and should not have been disturbed by the court of common pleas; (2) any hardship accruing to Appellee as the result of a denial of the variance is self-incurred by virtue of his proceeding with construction without a variance or permit and therefore cannot constitute grounds for issuance of a variance, and (3) the court of common ...


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