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ABRAHAM A. CONSTANTINO v. BOROUGH FOREST HILLS (03/21/85)

decided: March 21, 1985.

ABRAHAM A. CONSTANTINO, JR., AND ROSE A. CONSTANTINO, APPELLANTS
v.
BOROUGH OF FOREST HILLS, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Abraham A. Constantino, Jr. and Rose A. Constantino v. Borough of Forest Hills, No. SA 889 of 1982.

COUNSEL

Jerry B. Landis, for appellants.

Stephen W. Trout, with him, Arthur T. Murphy, Jr., for appellee.

Judges Rogers, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Judge Williams, Jr., did not participate in the decision in this case.

Author: Palladino

[ 88 Pa. Commw. Page 311]

Abraham and Rose Constantino (Appellants) appeal a decision of the Court of Common Pleas of Allegheny County (trial court) which affirmed the denial of a variance by the Zoning Hearing Board of the Borough of Forest Hills (Board).

[ 88 Pa. Commw. Page 312]

As the trial court took no additional evidence, we are limited to determining whether the findings of the Board are supported by substantial evidence and whether the Board committed an error of law or abused its discretion in denying the variance. Allegheny Page 312} West Civic Council, Inc. v. Zoning Board of Adjustment of the City of Pittsburgh, 80 Pa. Commonwealth Ct. 79, 471 A.2d 128 (1984).

The Board made the following findings of fact. Appellants reside at 6 Carmel Court, which is a corner lot formed by the intersection of Carmel Court and Filmore Road, and which fronts on Carmel Court. Appellants submitted an application to the Board for a variance to erect a ten-foot high fence in the rear yard of their lot, which would surround a proposed tennis court. The Board, after a hearing, denied the application because Appellants had not shown the requisite hardship necessary for the Board to grant a variance. Additionally, the Board held that the placement of the proposed ten-foot fence would violate the setback requirements for fences on corner lots.

In pertinent part, the applicable section of the Forest Hills Zoning Ordinance (Ordinance) states:

701.10 Fences and Walls: Except as provided in Sections 301.4, 301.6 and 701.12, fences or walls not exceeding five (5) feet in height may be erected in any side or rear yard, but no fence or wall, except retaining walls, as hereinbelow provided for, shall be located in any front yard beyond the actual front building line of the principal building.

An applicant for a variance must prove that because of the property's particular physical or topographical conditions, full adherence to the zoning ordinance or code would result in unnecessary hardship, and that the hardship is unique to the property. The evidence must show that the property cannot be used as zoned, and that a variance is necessary to permit reasonable use. Somerton ...


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