Appeal from the Order of the Court of Common Pleas of Allegheny County in case of L. Jay Weitzel v. Zoning Hearing Board of the Township of Indiana, No. SA 1485 of 1981.
Ira Weiss, for appellants.
P. Ronald Cooper, Reding, Rea & Cooper, P.C., for appellee.
President Judge Crumlish, Jr. and Judges MacPhail and Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
[ 77 Pa. Commw. Page 110]
Indiana Township appeals an Allegheny County Common Pleas Court order reversing the Board's denial of a use variance. We vacate and remand.
L. Jay Weitzel, having prior notice of a zoning restriction, bought a three-story school building situated on approximately two acres in an area zoned R-2 Suburban Residential. He applied for a use variance to renovate the building for use as a business and professional office complex.
The Board denied the variance. The common pleas court, without taking additional evidence, reversed the Board. Our scope of review, where the trial court took no additional evidence, is limited to a determination of whether the Board abused its discretion, committed an error of law or made fact findings which are not supported by substantial evidence. Appeal of Dinu, 69 Pa. Commonwealth Ct. 595, 452 A.2d 95 (1982); Township of Haverford v. Zoning Hearing Board of Haverford Township, 55 Pa. Commonwealth Ct. 209, 423 A.2d 757 (1980).
Section 912 of the Pennsylvania Municipalities Planning Code (MPC)*fn1 controls. The five (5) elements which must be established to grant a variance are:
(1) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that the unnecessary hardship is due to such conditions, and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located;
[ 77 Pa. Commw. Page 111]
(2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is ...