Board of Adjustment v. Bomgardner

195 A.2d 356, 412 Pa. 601

• Court: Supreme Court of Pennsylvania
• Decided: November 27, 1963
• Docket: Appeal, 28
• Status: Published

Opinions

Opinion by

Me. Justice Robebts,

Appellants seek a zoning variance for a parcel of land at the northwest corner of 17th and Berryhill Streets in Harrisburg. This parcel consists of a large dwelling facing 17th Street, five contiguous vacant lots, each sixteen feet wide, and another residence fronting on Berryhill Street. The property is situated in an area designated in the zoning ordinance (approved October 3, 1950) as R-5, the least restrictive residential classification. Permission was sought to use the real estate for the erection and operation of a gasoline service station, a purpose not authorized by the ordinance classification for this zone.¹

The board of adjustment refused to grant the variance.² On appeal to the Court of Common Pleas of Dauphin County, the decision of the board was affirmed without taking additional testimony.

The following circumstances detailed in the opinion of the court below are fully supported by the evidence and are pertinent to this determination: “There have been no changes of the type and character of the zoned area in which the premises in question are located since the enactment of the zoning ordinance referred to above. Diagonally across the intersection of 17th Street and Berryhill Street, in an area zoned for heavy industry, there was erected, since the enactment of the ordinance, a large brick building used by the Megs Corporation for the manufacturing of macaroni products. The building was erected on land upon which there was formerly a lumber yard, surrounded by a high board fence.

“There is presently erected on the premises, for which the variance is sought, a large three story brick dwelling house. Several undeveloped lots adjoin the building. The building is in a very poor state of repairs. The premises were a part of an estate of a decedent who died February 10, 1957 and have not been occupied since that date. Continual and concerted efforts have been made by the heirs of the decedent to dispose of the property. Their efforts in this respect, however, have been in vain until on or about March 8, 1961, when an agreement of sale was entered into with the California Oil Company for a total sum of $35,000. The agreement was contingent upon the procurement of a variance.”

Appellants vigorously urge that the board’s action in refusing the variance was arbitrary and capricious and an abuse of its discretion and that it erred in concluding that the hardship presented was merely an economic one. It is contended also that the board failed to give proper consideration to the physical characteristics of the property and the unnecessary, “unique or peculiar” hardship imposed by the zoning classification, as well as the poor state of repair of the dwellings and “the unsuccessful efforts for oyer a five year period to acquire a purchaser.” It is further argued that the zoning classification, as applied to the property in question, “is inappropriate because the characteristics, size, location, etc., of the property in relation to the surrounding properties is radically different.” It is asserted that because of “such things as present traffic conditions, the mixed character of the neighborhood, physical condition of the properties in relation to other properties, etc.,” the parcel in question “should be considered unique and the surrounding neighborhood would not be adversely affected if a variance had been granted.”

Our examination of the record satisfies us that appellants’ contentions, in the light of prevailing decisions of this Court, are without legal force. Recently, this Court, in Sheedy v. Zoning Board of Adjustment, 409 Pa. 655, 187 A. 2d 907 (1963), reaffirmed the controlling principles in determining the propriety of the grant or refusal of a variance. The board here correctly applied these principles to the factual circumstances before it. We agree with the conclusions reached by the court below: “The only substantial hardship proved in this case is that unless the variance is granted, the appellants will not be able to sell the premises in question for the purpose of erecting thereon a gas station for a purchase price of |35,000. This circumstance, the Supreme Court of Pennsylvania said in Pincus v. Power, 376 Pa. 175, 181 (1954), does not constitute an unnecessary hardship.”³

“. . . We have examined the record and conclude there is evidence to sustain the findings of the Board of Adjustment and that the proceedings are free from a violation of law and any abuse of discretion.”

In the absence of a showing of a clear abuse of discretion or an error of law on the part of the board, we must conclude, as did the court below, that the board of adjustment properly refused the variance, and that decision must be sustained.

Order affirmed.

1 The ordinance (section 12, subsection 14) permits gasoline filling and service stations in an area classified as a general business zone.

2 Section 18(h) of the ordinance empowers the zoning board to grant variances in instances where such grant “. . . will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardships, so that the spirit of the ordinance will be observed and substantial justice done.” (This power of the Board stems from §4122 of the Third Class City Code, Act of June 23, 1931, P. L. 932, added June 28, 1951, P. L. 662, §41, 53 P.S. §39122.

3 A more recent case on this point is Andress v. Zoning Board of Adjustment, 410 Pa. 77, 88, 188 A. 2d 709, 714 (1963).