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decided: September 11, 1986.


Appeal from the Order of the Court of Common Pleas of Chester County in the case of Mobil Oil Corporation v. The Zoning Hearing Board of Tredyffrin Township, No. 356 1/2 November Term, 1983.


John M. Phelan, with him, Richard C. Biedrzycki, Phillips and Phelan, for appellant.

John D. Snyder, with him, William H. Lamb, Lamb, Windle & McErlane, P.C., for appellee.

Judges Doyle and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 100 Pa. Commw. Page 481]

Mobil Oil Corporation (Mobil) appeals an order of the Court of Common Pleas of Chester County which affirmed a denial by the Tredyffrin Township Zoning Hearing Board (Board), of Mobil's application for a dimensional variance from the setback provision of the township's zoning ordinance.

Mobil operates a service station on an irregularly-shaped property which it leases within the township. In

[ 100 Pa. Commw. Page 482]

April 1983, Mobil applied for a dimensional variance under Section 1604.C of the township's zoning ordinance to allow it to construct a twenty-four by fifty foot canopy to shelter two self-service islands with which it planned to replace the one existing full-service island. The proposed canopy would extend ninety feet into the 100 foot setback requirement imposed upon the property. In May 1983, the Board denied Mobil's application and, although no appeal was taken from that decision, in July 1983 Mobil again applied for such a variance. At Mobil's request, hearings were held to permit it to introduce evidence as to any changes in circumstances which had occurred since the filing of the previously-denied variance request, and the Board thereafter denied the second application on the basis that the record would not support a decision to grant the requested variance. In affirming the decision of the Board, the common pleas court held that Mobil lacked standing to request a variance and also that, in any event, it had failed to prove such requisite hardship as would entitle it to such a variance.

Mobil first contends that the common pleas court abused its discretion and erred in considering Mobil's purported lack of standing to pursue the variance request. It was uncontroverted that Mobil was merely the lessee, and not the owner of the premises in question. Section 914 of the Municipalities' Planning Code (MPC), however, pertinently provides that requests for variances sought, as here, on the basis that the zoning ordinance inflicts unnecessary hardship may be filed "by any landowner or any tenant with the permission of [the] landowner." 53 P.S. ยง 10914. No challenge was raised as to Mobil's participation in the proceedings before the Board, and we believe, therefore, that any challenge to its standing based upon its purported failure to obtain the landlord's permission to seek the variance

[ 100 Pa. Commw. Page 483]

    was waived.*fn1 And, inasmuch as Mobil participated without objection before the Board and was clearly a party "aggrieved"*fn2 by the Board's decision, we perceive no impediment to its pursuing an appeal to the common pleas court. Moreover, because the court did not dismiss Mobil's appeal, but addressed the merits, we shall consider Mobil's challenge to the Board's decision.*fn3

In regard to Mobil's contention that there was not substantial evidence to support the Board's findings or its conclusion that Mobil had failed to make such requisite showing of hardship as would entitle it to a variance from the zoning ordinance,*fn4 Mobil argues that the Board capriciously disregarded competent testimony which was offered to establish the existence of such hardship.

We must first note the Board's previous unappealed decision denying the identical variance at issue here. A subsequent application for an identical variance may be

[ 100 Pa. Commw. Page 484]

    granted, of course, where evidence is adduced demonstrating a substantial change in conditions incident to the land itself. Filanowski v. Zoning Hearing Board of Adjustment, 439 Pa. 360, 266 A.2d 670 (1970). We do not believe, however, that Mobil was entitled to relitigate the entire hardship matter de novo within but several months after its initial application, but that it was limited to demonstrating a material change in circumstances during the time since its previous application.*fn5

Our review of the record indicates that the testimony by Mobil's witnesses was that the proposed plans were the same as those submitted and rejected a few months before. It also appears that Mobil's location had experienced an increase in sales in each of the several preceding years, albeit at a lower rate than at other Mobil or competitor stations. Although competitor stations were said to have a higher percentage of canopies, there was no evidence of a causal relationship directly linking the competitors' increased sales to canopies; for example, it also appears that a large number of such stations are self-service, and many also sell foods and grocery-type items which are not offered by Mobil stations. There was testimony that the station here concerned could suffer on a long term basis, but, taken in its entirety, the testimony does not compel the conclusion

[ 100 Pa. Commw. Page 485]

    that the viability of the enterprise was actually or likely to be endangered by the absence of the canopy.*fn6 The testimony of Mobil's witnesses, considered separately or together, was, we believe, insufficient to compel the conclusion that Mobil demonstrated the requisite hardship. Essentially, the hardship of which Mobil complains is an expected loss of profits, and, of course, diminution of profitability is insufficient to justify the grant of a variance. Pilot Oil Corp. Appeal, 86 Pa. Commonwealth Ct. 23, 483 A.2d 1049 (1984). Moreover, no significant evidence was adduced to prove any material change in circumstances between the time of the first variance application and the application here concerned.

[ 100 Pa. Commw. Page 486]

We will, therefore, affirm the order of the Court of Common Pleas of Chester County.


And Now, this 11th day of September, 1986, the order of the Court of Common Pleas of Chester County in the above-captioned matter is affirmed.



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