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McCarry v. Haverford Twp. Zoning Hearing Bd.

Commonwealth Court of Pennsylvania

April 15, 2015

Kevin McCarry, Appellant
v.
Haverford Township Zoning Hearing Board

Argued October 6, 2014

Page 382

Appealed from No. 13-1363. Common Pleas Court of the County of Delaware. Fizzano Cannon, J.

David L. Rohde, Drexel Hill, for appellant.

William E. Malone, Jr., Media, for appellee.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge (P), HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Page 383

ROCHELLE S. FRIEDMAN, JUDGE

Kevin McCarry appeals from the January 30, 2014, order of the Court of Common Pleas of Delaware County (trial court), affirming the decision of the Haverford Township Zoning Hearing Board (ZHB) to deny McCarry's application for a dimensional variance. We affirm.[1]

McCarry is the executor of the estate of his parents, James A. McCarry, Jr. and Barbara A. McCarry. The estate includes a parcel of property (Lot 1) at 1142 Bon Air Road, located in the R-4 zoning district in Haverford Township. Lot 1 contains a house and a garage with access to Bon Air Road. McCarry owns Lot 2, an undeveloped, landlocked lot located immediately behind Lot 1. (ZHB's Findings of Fact, Nos. 1-2, 7.a.) McCarry and the ZHB agree that Lot 1 and Lot 2, which have separate folio numbers and tax bills, are separate and distinct properties. ( Id., No. 7.e; McCarry's Br. at 16; ZHB's Br. at 8.)

McCarry proposes to build a house on Lot 2. Because Lot 2 is landlocked, McCarry sought to subdivide a 38-foot section of Lot 1 in order to provide Lot 2 with the minimum street frontage required to build a house. However, the existing house on Lot 1 has a front setback that is 25.72 feet from the right-of-way, 4.28 feet

Page 384

shorter than the 30-foot minimum setback required by section 182-206C(5)(a) of the Zoning Ordinance of the Township of Haverford (Ordinance).[2] (ZHB's Findings of Fact, No. 7.b.-c.) Lot 1's nonconforming setback prevents McCarry from subdividing the lot because section 182-713B of the Ordinance[3] prohibits the subdivision of a lot that contains a nonconforming building. Therefore, McCarry, as executor, filed an application with the ZHB requesting a dimensional variance from section 182-713B of the Ordinance to subdivide Lot 1. ( Id., Nos. 4-5.)

On November 1, 2012, the ZHB held a public hearing on the variance application.[4] Joseph Pavone, whose property on Bon Air Road borders Lot 1 and Lot 2 to the east, testified that a large, open space slopes downhill to Bon Air Road and that, consequently, the houses on that street " take on tremendous amounts of water" when it rains. (N.T., 11/1/12, at 50-51.) Pavone further testified that the impervious surface of McCarry's planned house on Lot 2 would exacerbate the rainwater runoff problem. ( Id. at 51.) Paul Downey, another resident of Bon Air Road, and Stephen D'Emilio, a local ward commissioner, also testified that McCarry's proposed house on Lot 2 would exacerbate the rainwater ...


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