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COLTON REAL ESTATE CORPORATION v. WEST CONSHOHOCKEN ZONING HEARING BOARD (08/31/88)

decided: August 31, 1988.

COLTON REAL ESTATE CORPORATION, APPELLANT
v.
WEST CONSHOHOCKEN ZONING HEARING BOARD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Colton Real Estate Corporation v. West Conshohocken Zoning Hearing Board, No. 87-06500.

COUNSEL

Gregory J. Dean, for appellant.

Edward F. Kane, for appellee.

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

Author: Craig

[ 119 Pa. Commw. Page 206]

Colton Real Estate Corporation appeals an order of the Court of Common Pleas of Montgomery County, affirming a decision of the West Conshohocken Zoning Hearing Board that denied Colton's request for use and height variances to accommodate a sign. The order must be vacated and the case remanded for additional consideration by the board.

The basic facts, which are not disputed, are as follows. In 1982, Colton purchased a parcel of land located in the Borough of West Conshohocken from the executor of the estate of Albert H. Bien. The lot was part of a larger tract of land that the Commonwealth of Pennsylvania had condemned in 1952 for the construction of the Schuylkill Expressway and the Conshohocken access ramps. The parcel is landlocked and about 7,994 square feet in area; it extends 380 feet along the southern edge of the right-of-way of the westbound lanes of the expressway; the northern boundary runs about 379 feet along the rear of residences. The expressway is thirty feet above the property.

As indicated by a finding of the board, which is consistent with site plans in the record, the parcel constitutes a narrow triangular wedge, having 380-foot sides roughly parallel to the expressway, a short 38-foot base to the east and an apex coming to a point at its westerly end.

Colton filed a zoning application to erect, on the triangular landlocked parcel, a sixty-foot free-standing advertising sign. On April 8, 1987, the board held hearings on Colton's requests for variances from use and height restrictions.

Because the parcel is in an R-2 Residential District, the proposed sign apparently is not a permitted use, and section 113-65 of the Zoning Ordinance prohibits any structure more than thirty-five feet high. Section

[ 119 Pa. Commw. Page 20796]

-9C of the borough's Sign Ordinance prohibits signs more than fifteen feet above ground level; the board permitted Colton, at the time of hearing, to amend its application to include a variance request as to the Sign Ordinance height limit. The record does not indicate what power, if any, the board possesses with respect to granting variances as to the Sign Ordinance, which apparently exists separately from the Zoning Ordinance.

The board issued its decision denying the requested variances on April 8, 1987, holding that Colton had not established "the requisite hardship necessary to grant a variance. . . ." Colton appealed the board's decision to the Court of Common Pleas, which affirmed the board's denial.

Because the Court of Common Pleas took no additional evidence, our scope of review is restricted to whether the board abused its discretion or committed an error of law. Abuse of discretion occurs only if the board's findings are not supported by substantial evidence. Valley View Civic Association v. Zoning Hearing Board, 501 Pa. 550, 462 A.2d 637 (1983).

In order to obtain the requested variances, Colton must sustain the stringent burden of proving (1) that the ordinance imposes unnecessary hardship on the property; (2) that the hardship stems from unique physical characteristics of the property; (3) that the variances would not adversely affect the health, safety or welfare of the general public; (4) that the hardship was not self-inflicted; and (5) that the variances sought are the minimum that will afford relief. Vacca v. Zoning Hearing Board of Dormont, 82 Pa. Commonwealth Ct. 192, 475 A.2d 1329 (1984); 53 P.S. ยง 10912.

Unnecessary Hardship

In Poster Advertising Company v. Zoning Board of Adjustment, 408 Pa. 248, 182 A.2d ...


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