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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 888 of 1982.

COUNSEL

Jerry B. Landis, for appellants.

Stephen W. Trout, with him, Arthur J. 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 307]

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 to Appellants by the Zoning Hearing Board of the Borough of Forest Hills (Board). For the reasons set forth below, we reverse.

As the trial court took no additional evidence, we must determine whether the findings of the Board are supported by substantial evidence, and whether the Board abused its discretion or committed an error of law. Allegheny 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 with Filmore Road. The lot fronts on Carmel Court. In a previous zoning procedure, Appellants received approval to construct a swimming pool and a four-foot fence surrounding the pool in the rear yard of the lot.

[ 88 Pa. Commw. Page 308]

Without notifying the Zoning Officer or receiving zoning approval, Appellants erected the fence in another location in the side yard of the lot. The Zoning Officer, by letter dated April 6, 1982, notified Appellants that the location of the fence violated the setback requirements of Section 701.12 of the Forest Hills Zoning Ordinance (Ordinance), and ordered Appellants to remove the fence.

Appellants applied for zoning approval for the new fence location which the Zoning Officer denied, and then applied for a variance, requesting a hearing before the Board. Appellants contended that the fence did not violate the Ordinance; and in the alternative, if it did violate the Ordinance, that they were entitled to a variance.

The Board held that the fence was in direct violation of the setback provisions of Section 701.12, governing fences and walls on corner lots, and denied the variance because Appellants had not shown the ...


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