decided: June 27, 1989.
GREGORY R. CHRIN AND CARYN M. CHRIN, HIS WIFE, APPELLANTS,
THE ZONING HEARING BOARD OF THE BOROUGH OF NAZARETH, NORTHAMPTON COUNTY AND BOROUGH OF NAZARETH, APPELLEES
Appeal from Common Pleas Court, Northampton County, Honorable Alfred T. Williams, Jr., Judge.
Raymond J. DeRaymond, Easton, for appellants.
Theodore R. Lewis, Coffin, Lewis and Walters, Easton, for appellee, Borough of Nazareth.
Barry and Palladino, (p.), JJ., and Barbieri, Senior Judge.
[ 127 Pa. Commw. Page 280]
Gregory R. Chrin and Caryn M. Chrin (landowners) appeal from an order of the Court of Common Pleas of Northampton County dismissing their appeal from a decision of the Zoning Hearing Board of the Borough of Nazareth (the Board).
Landowners own an irregularly-shaped lot located in the Borough of Nazareth (Borough). It is zoned R-7 (Medium Density Residential). Situated on the property is a three-unit multi-family dwelling*fn1, a lawn shed, a playhouse and a
[ 127 Pa. Commw. Page 281]
detached private garage which is the subject of this appeal.*fn2
The landowners applied for a zoning permit in order to construct a two-story dwelling unit on top of the garage for their own use.*fn3 The zoning officer denied that application. Landowners appealed that decision to the Board. Following a hearing on the matter, the Board concluded that landowners needed variances from the zoning ordinance's prohibition against rear dwellings and from certain of its dimensional requirements and that they had failed to establish the required unnecessary hardship. Landowners next appealed to the Court of Common Pleas of Northampton County which, without taking additional testimony, affirmed the Board. This appeal then followed.
When a trial court takes no additional evidence, this Court's scope of review is limited to determining whether the Board has committed a manifest abuse of discretion or error of law. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). An abuse of discretion can be found only if the Board's findings are not supported by substantial evidence. Id.
Landowners first argue that the Board should have permitted the construction of the proposed dwelling unit because it constitutes expansion of the multi-family dwelling use, which, according to them, is legally nonconforming in an R-7 District. Section 55.1 of the zoning ordinance, however, provides that a multi-family dwelling is a permitted use in an R-7 District. Therefore, owners of such uses do not have a constitutionally protected right of natural
[ 127 Pa. Commw. Page 282]
expansion. Immordino v. Zoning Hearing Board of Morrisville Borough, 65 Pa. Commonwealth Ct. 79, 441 A.2d 818 (1982).*fn4
Landowners next argue that the proposed construction should have been permitted pursuant to the principles announced in Yocum Zoning Case, 393 Pa. 148, 141 A.2d 601 (1958) and Grubb Appeal, 395 Pa. 619, 151 A.2d 599 (1959). In both of those cases, landowners were permitted to expand legally nonconforming structures when the proposed expansion did not result in an increase in the dimensional non-conformities that existed when the zoning ordinance was enacted. We note, however, that the use of the structures being expanded in those cases did not change. The structure which was the focus of the appeal in Yocum remained a two-family dwelling while that in Grubb remained a multi-family dwelling. As will be seen in the following discussion, that fact is significant.
Section 55.4 of the zoning ordinance contains a table which establishes the dimensional requirements for R-7 Districts. The pertinent part of the table appears as follows:
Minimum Minimum bldg. Maximum Side
Lot Lot coverage bldg. Front Side abutting Rear
Area Width of lot Height Yard Yard Street Yard
With Centralized Sewage Systems
Multi-family 8,000 sq. 200' 20% 35' 40' 40' 40' 60'
dwelling ft. plus
lot of 2
All other 7,000 60' 30% 35' 20' 10' 20' 30'
[ 127 Pa. Commw. Page 283]
In addition to the above requirements, Section 71.2(1) of the zoning ordinance provides that no accessory building shall be constructed within five feet of any rear lot line or within a front yard or side yard.
According to representations made by the landowners in the application for the building permit and in the sketch which they submitted to the Board, the property consists of 11,080 square feet of land and is 110 to 130 feet wide. The multi-family dwelling, which faces north onto West High Street, has a front yard that is twelve feet deep, a rear yard that is sixty feet deep, a side yard on its eastern facade that is thirty-four feet, eleven inches wide and another on its western facade that is eighteen feet, six inches wide. If these representations are accurate, the multi-family dwelling is presently nonconforming as to the minimum lot area, minimum lot width, front and side yard requirements.
The landowners are, in effect, proposing to convert the structure presently being used as a detached private garage into a single family dwelling with an integral private garage. As a result of that conversion, the multi-family dwelling would not for the first time, be in accordance with the rear yard requirement of the ordinance. This would be so even though the space between the rear lot line and the nearest roofed portion of the multi-family dwelling would remain sixty feet deep. The space would, in contravention of Section 71.5(2) of the zoning ordinance, be obstructed by a main building -- specifically, a single family dwelling -- as opposed to an accessory building.
Meanwhile, because the structure facing onto North Green Street will become a main building, it will, for the
[ 127 Pa. Commw. Page 284]
first time, be required to comply with the various dimensional requirements set forth in Section 55.4 of the Ordinance. Thus it, inter alia, must have 7,000 square feet of land area to comply with the minimum lot area requirement. There is, however, no land area available for this purpose because all of the property's 11,080 square feet of land and more were necessarily allocated to satisfying the minimum lot area requirement pertinent to the existing multi-family dwelling. Land area once counted for the purpose of meeting a particular requirement cannot be counted a second time for the purpose of meeting the same type of requirement with respect to other development. Appeal of John J. Bateman, 39 Pa. Commonwealth Ct. 579, 396 A.2d 72 (1979). Consequently, the conversion of the garage into a single family dwelling will result in yet another first-time violation of the dimensional requirements of the Ordinance.
Therefore, Yocum and Grubb differ in fact from the present case. Accordingly, we conclude that the Board was correct in its conclusion that the landowners could not, as a matter of right, proceed to construct the addition to the structure being used as a garage and to convert it into a single family dwelling. Instead, as the Board concluded, it was necessary that they first obtain variances from those dimensional requirements that would, for the first time, be violated as the result of the presence of a single family dwelling on the subject property, including those two mentioned in the above discussion.*fn5
[ 127 Pa. Commw. Page 285]
Section 89.1 of the Ordinance, which is patterned after Section 912 of the Municipalities Planning Code, 53 P.S. § 10912, provides:
1. Variances -- The Zoning Hearing Board shall hear requests for variances where it is alleged that the provisions of this Part 1 inflict unnecessary hardship upon the applicant . . . . The Board may grant a variance provided the following findings are made where relevant in a given case:
(1) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that the unnecessary hardship is due to such conditions, and not the circumstances or conditions generally created by the provisions of this Part 1 in the neighborhood or district in which the property is located;
(2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of this Part 1 and that the authorization of a variance is therefore necessary to enable the reasonable use of the property. (Emphasis added.)
In this case, the Board concluded that the landowners had failed to establish the "unnecessary hardship" required by the above provision. The landowners contend that that conclusion is erroneous. They assert that the lack of sufficient space in their present dwelling*fn6 to accommodate their growing family constitutes the requisite "unnecessary hardship".
The fact, however, that the property is presently the site of a three-unit multi-family dwelling establishes that the hardship of which the landowners complain is not related to the unique character of the land. Furthermore, it establishes that, if the subject property is developed in strict conformity
[ 127 Pa. Commw. Page 286]
with the zoning ordinance, a variance is not necessary to enable the landowners to make reasonable use of it.
Accordingly, the order of the court of common pleas is affirmed.*fn7
NOW, June 27, 1989, the order of the Court of Common Pleas of Northampton County, dated June 29, 1988, at No.1988-C-1098, is affirmed.