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SAMUEL LEOPARDI AND GEORGIA LEOPARDI (08/05/85)

decided: August 5, 1985.

IN RE: SAMUEL LEOPARDI AND GEORGIA LEOPARDI, HIS WIFE. JAMES BARNESS AND LINDA BARNESS, HIS WIFE, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Beaver County in case of In Re: Samuel Leopardi and Georgia Leopardi, his wife, No. 2034 of 1981.

COUNSEL

Samuel C. Holland, Panner, Holland, Autenreith and Wolford, P.C., for appellants.

Robert J. Taylor, for appellees.

John P. Dohanich, for intervenor, Harmony Township Zoning Hearing Board.

Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. Concurring and Dissenting Opinion by Senior Judge Kalish.

Author: Doyle

[ 90 Pa. Commw. Page 618]

James and Linda Barness (Appellants) appeal from an order of the Court of Common Pleas of Beaver County which reversed the decision of the Harmony Township Zoning Hearing Board*fn1 (board) granting them a variance from the thirty foot minimum front yard depth requirement for lots in the R-1 district of Harmony Township.

Appellants applied for a building permit in order to add a twenty-four by twenty-six foot two-car garage and second-story room addition to their residence on Highview Avenue. The application was denied because the addition would have brought the front of their residence to within approximately fifteen feet of the lot line. Appellants then applied to the zoning hearing board for a variance, which was granted on September 8, 1981, following a hearing at which no opposition to Appellants' plans was presented.

[ 90 Pa. Commw. Page 619]

On October 6, 1981, a date within the allowable appeal period, but by which time construction of the addition had been nearly completed, Samuel and Georgia Leopardi (Appellees), owners of adjacent property on Highview Avenue, filed an appeal from the grant of the variance.*fn2 By order of the court of common pleas, the zoning hearing board held an additional transcribed hearing on April 29, 1982,*fn3 and on May 28, 1982, the board issued an opinion affirming its original decision. The court of common pleas, after conducting its own hearing and reviewing the matter de novo, reversed the zoning hearing board on November 17, 1982 and issued an order directing Appellants to either secure releases from all property owners on the block*fn4 or to bring the addition into conformity with the ordinance.

Where the trial court takes additional evidence pursuant to Section 1010 of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. § 11010, and exercises de novo review, our scope of review is limited

[ 90 Pa. Commw. Page 620]

    to determining whether the court abused its discretion or erred as a matter of law. Appeal of Conneaut or erred as a matter of law. Utility Constructors, Inc. et al. v. Sadsbury Township Supervisors et al., 86 Pa. Commonwealth Ct. 450, 485 A.2d 532 (1984). To establish entitlement to a variance, a landowner must show that the zoning regulation uniquely burdens his property so as to create an unnecessary hardship and that the variance will not have an adverse effect upon the public health, safety or welfare. ...


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