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William and Frances Goldstein v. the Zoning Hearing Board of the Township of Lower Merion

April 21, 2011

WILLIAM AND FRANCES GOLDSTEIN, APPELLANTS
v.
THE ZONING HEARING BOARD OF THE TOWNSHIP OF LOWER MERION



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Argued: February 8, 2011

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY JUDGE McCULLOUGH

William and Frances Goldstein (Landowners) appeal from the October 21, 2009, order of the Court of Common Pleas of Montgomery County (trial court) affirming the November 9, 2006, decision of the Zoning Hearing Board (Board) of Lower Merion Township (Township), which denied Landowners' application for a dimensional variance.

Landowners are the owners of real property located at 232 Tower Lane in Narberth, Pennsylvania (property). The property is located in the R-2 Residence District and consists of a single-family dwelling, patio, pool with a deck, and pool house. The pool house, at issue here, was constructed in 1982 with an eastern side setback of 12.5 feet. (Reproduced Record (R.R.) at 25a.) At that time, the main dwelling was set back 19.99 feet from the western property line. Id. Section 155- 24D(1) of the Lower Merion Zoning Ordinance (Ordinance) requires a side setback of 12 feet and a minimum aggregate side setback of 35 feet.

Thus, when the Landowners constructed the pool house they violated the aggregate side setback of 35 feet by 2.51 feet.*fn1 The Township did not cite Landowners for this violation. In 2006, Landowners constructed an addition to the west side of the dwelling that further reduced the western side setback from 19.99 to 12 feet. (R.R. at 5a.) Consequently, the aggregate side yard setback was reduced to 24.5 feet, which violates the aggregate side setback of 35 feet by 11.5 feet. The permit for the addition was contingent on the pool house being removed or permitted to remain by order of the Board.

On October 2, 2006, Landowners filed an application with the Board seeking a dimensional variance from the aggregate side yard setback requirement of section 155-24(D)(1) of the Ordinance in order that the pool house might remain in its current location. At the hearing before the Board, Landowners' attorney presented evidence that it would cost $55,000.00 to move the pool house, or, in the alternative, $95,000.00 to demolish and rebuild it. (R.R. at 22a.) In addition, both of Landowners' neighbors testified in support of the variance. (R.R. at 27a-29a.)

On November 9, 2006, the Board issued an opinion and order denying Landowners' application because Landowners did not meet their burden to prove all of the elements required for a variance pursuant to section 910.2 of the Municipalities Planning Code (MPC),*fn2 53 P.S. §10910.2. In particular, the Board concluded that Landowners did not demonstrate that there are any unique physical conditions on the property resulting in unnecessary hardship and that any hardship incurred as a result of constructing the pool house and addition was self-created.

Landowners appealed the Board's decision to the trial court. By order dated October 21, 2009, the trial court denied the appeal and affirmed the decision of the Board. Landowners now appeal to this Court.*fn3

A party seeking a variance must prove that unnecessary hardship will result if the variance is denied and that the proposed variance is not contrary to the public interest. Valley View Civic Association v. Zoning Hearing Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). Pursuant to section 910.2(a) of the MPC, the Board must consider all of the following factors, where relevant, in granting or denying a variance:

(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 the zoning ordinance 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 the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.

(3) That such unnecessary hardship has not been created by the appellant.

(4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of ...


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