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ALLEN W. AND MARY ANN STEWART v. ZONING HEARING BOARD RADNOR TOWNSHIP AND ALDEN T. LEAVENWORTH (10/07/87)

decided: October 7, 1987.

ALLEN W. AND MARY ANN STEWART, ELMER PIZZI AND AMS AFFILIATES, INC., APPELLANTS
v.
THE ZONING HEARING BOARD OF RADNOR TOWNSHIP AND ALDEN T. LEAVENWORTH, APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County, in case of Allen W. and Mary Ann Stewart, Elmer Pizzi and AMS Affiliates, Inc. v. The Zoning Hearing Board of Radnor Township and Alden T. Leavenworth, No. 85-6322.

COUNSEL

David L. Harbaugh, with him, Allen W. Stewart and John P. Kopesky, Of Counsel: Morgan, Lewis & Bockius, for appellants.

John J. Mahoney, with him, Fronefield Crawford, Jr., Of Counsel: Crawford, Wilson and Ryan, P.C., for appellee, Alden T. Leavenworth.

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

Author: Barry

[ 110 Pa. Commw. Page 112]

Allen W. and Mary Ann Stewart, Elmer Pizzi, and AMS Affiliates, Inc. (appellants) appeal from an order of the Court of Common Pleas of Delaware County. The trial court, without taking additional testimony, affirmed an order and opinion of the Radnor Township Zoning

[ 110 Pa. Commw. Page 113]

Hearing Board (Zoning Hearing Board) granting Alden T. Leavenworth*fn1 (appellee) a dimensional variance for subdivision of his property located at 318 Edgehill Road, Wayne, Pennsylvania.

On January 2, 1985, appellee submitted to Radnor Township a proposal to subdivide his two acre residential property into separate one acre lots. On February 25, 1985, the Radnor Township Board of Commissioners approved the proposed subdivision subject to four conditions. One of the conditions was that appellee obtain a dimensional variance from the Zoning Hearing Board.*fn2 The Zoning Hearing Board found that appellee was entitled to a variance, under the principle of de minimis, from Radnor Township's one acre lot requirements from R-1 residential property.

Since no additional testimony was presented to the trial court, our review is to determine whether the Zoning Hearing Board's action of granting a variance was an abuse of discretion or error of law. Independent Fire Co. No. 1 v. Borough of South Williamsport Zoning Hearing Board, 98 Pa. Commonwealth Ct. 153, 510 A.2d 410

[ 110 Pa. Commw. Page 114]

(1986). The appellants allege that the Zoning Hearing Board's grant of a variance based on de minimis is in error. They contend that the de minimis principle applies only to situations where strict enforcement of legislatively prescribed zoning standards would create substantial, unique and unnecessary hardships not to situations based merely on profit expectations from a subdivision of residential property. They also contend that the de minimis principle is limited to cases where a non-complying structure already exists and would result in needless demolition with no countervailing benefit to the community absent the dimensional variance. We disagree.

Traditionally, to establish a right to a variance, a landowner must show that the effect of ...


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