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DONALD SABER AND JANE SABER v. ZONING HEARING BOARD BOROUGH ROARING SPRING. NEWS PRINTING COMPANY ROARING SPRING (05/29/87)

decided: May 29, 1987.

DONALD SABER AND JANE SABER, HIS WIFE, ET AL.
v.
THE ZONING HEARING BOARD OF THE BOROUGH OF ROARING SPRING. NEWS PRINTING COMPANY OF ROARING SPRING, APPELLANT



Appeal from the Order of the Court of Common Pleas of Blair County, in case of Donald Saber and Jane Saber, his wife; Arthur Kanode and Drucilla Kanode, his wife; H. K. Rhodes and Marion Rhodes, his wife v. The Zoning Hearing Board of The Borough of Roaring Spring, No. 1855 C.P. of 1985.

COUNSEL

T. Dean Lower, for appellant.

Benjamin I. Levine, Jr., with him, Jolene Grubb Kopriva, Levine, Reese & Serbin, for appellees.

Judges MacPhail and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 106 Pa. Commw. Page 391]

News Printing Company (Appellant) appeals an order of the Court of Common Pleas of Blair County which reversed a decision of the Zoning Hearing Board of the Borough of Roaring Spring (ZHB) granting Appellant permission to extend the hours of operation at its loading dock. We affirm.

Appellant's commercial printing business, which has been in operation since before the adoption of a zoning ordinance, is located partially in a commercial district and partially in a residential district. In 1975, Appellant applied for a variance to construct a loading dock on its existing structure in the residential zone. The ZHB granted the variance, subject to conditions including the restriction of loading and unloading to the hours of 7:30 am to 5:30 pm.

In 1985, Appellant applied for a variance to extend the hours of operation at the loading dock to 7:30 am to 10:30 pm. After a hearing before the ZHB, the hours were extended to 7:30 am to 9:30 pm. Local residents, Appellees herein, appealed the decision to the court of common pleas arguing that the extended hours would have an adverse effect on the health, safety and general welfare of the neighborhood. The trial court conducted a de novo hearing and concluded that the Appellant had not demonstrated a hardship which would require the variance and that the extension of hours from the original variance would reduce the value of surrounding properties, provide additional risk to neighborhood children, disturb the use and enjoyment of property by residents, and alter the character of the neighborhood. The decision of the ZHB was reversed and the 1975 variance restriction reinstated. Appellant's appeal of this order is now before our Court.

[ 106 Pa. Commw. Page 392]

Our scope of review, when the trial court has taken additional evidence in a zoning appeal, is to determine whether the court committed an abuse of discretion or error of law. Knake v. Zoning Hearing Board of the Borough of Dormont, 74 Pa. Commonwealth Ct. 265, 459 A.2d 1331 (1983).

Appellant argues that the trial court erroneously concluded that it did not meet the five requirements for a variance as set forth in Section 912 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10912. Under Section 912, an applicant for a variance must establish that (1) the ordinance imposes an unnecessary hardship on the property; (2) the hardship results from unique physical characteristics of the property; (3) granting the variance would not have an adverse impact on the health, safety and welfare of the general public; (4) the hardship is not self-inflicted; and (5) the variance sought is the minimum that will afford relief. Bellosi v. Zoning Hearing Board of Clifton Heights Borough, 96 Pa. Commonwealth Ct. 83, 506 A.2d 997 (1986). The reasons for granting a variance must be substantial, serious and compelling. Valley View Civic Ass'n v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983).

We agree with the trial court that Appellant has not established the requisite unnecessary hardship for the grant of a variance and that the variance is not necessary to enable a reasonable use of the property. See Section 912(1) and (2). Appellant claims that due ...


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