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STANLEY A. MCCLINTOCK AND AVIS E. MCCLINTOCK v. ZONING HEARING BOARD FAIRVIEW BOROUGH (08/09/88)

decided: August 9, 1988.

STANLEY A. MCCLINTOCK AND AVIS E. MCCLINTOCK, APPELLANTS
v.
THE ZONING HEARING BOARD OF FAIRVIEW BOROUGH, APPELLEE



Appeal from the Order of the Court of Common Pleas of Erie County in the case of Stanley A. McClintock and Avis E. McClintock, his wife v. The Zoning Hearing Board of Fairview Borough, No. 3125-A-1986.

COUNSEL

Eugene J. Brew, Jr., McClure, Miller & White, for appellants.

David M. Keck, for appellee.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith.

Author: Smith

[ 118 Pa. Commw. Page 449]

Stanley and Avis McClintock (Appellants), husband and wife, appeal from the order of the Court of Common Pleas of Erie County which affirmed Appellee Fairview Borough Zoning Hearing Board's (Board) decision to grant a variance to their neighbor, David B. Wiley (Wiley). Questions presented for review are whether the Board's finding of hardship upon which it granted the instant variance was supported by substantial evidence and, whether the trial court, without taking additional evidence, erred in affirming the Board. The trial court's decision is reversed.

Wiley initially sought a building permit to attach a two-car garage to the side of his house adjacent to Appellants' property.*fn1 This permit was denied by the borough zoning officer since it contravened the municipality's zoning ordinance regarding side yard setback requirements. Wiley then appealed to the Board for a side yard variance.*fn2 Notice of appeal was duly advertised

[ 118 Pa. Commw. Page 450]

    and public hearing held before the Board on August 6, 1986. Evidence at hearing included testimony by Wiley and Appellants as well as an on-site inspection by the Board which tentatively granted a side yard variance on August 6, 1986. Appellants appealed to the trial court which affirmed the Board without taking additional evidence. Appeal followed to this Court.

Where no additional evidence is taken by the trial court, as here, this Court's scope of review is limited to determining whether the Board committed a manifest abuse of discretion or an error of law in granting the instant variance. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983); Municipality of Monroeville v. Zoning Hearing Board of Monroeville, 92 Pa. Commonwealth Ct. 55, 498 A.2d 481 (1985). An abuse of discretion can be found only if the Board's findings of fact are not supported by substantial evidence, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association. Appellants challenge as an abuse of discretion and error of law the Board's finding of hardship which they contend is not supported by substantial evidence since a request for a side yard variance to construct a two-car rather than a one-car garage does not constitute sufficient hardship.

Section 912 of the Pennsylvania Municipalities Planning Code (MPC)*fn3 delineates criteria to determine whether a variance should be granted and provides in pertinent part that the property must possess unique physical circumstances; that those circumstances, in combination with the regulations, must cause unnecessary

[ 118 Pa. Commw. Page 451]

    hardship which constitutes an unreasonable inhibition of the property's usefulness; that the hardship must not be self-inflicted; that the granting of a variance must not have an adverse impact on the general public's health, safety and welfare; and that the variance sought must be the minimum variance to afford relief. Jenkintown ...


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