Cardamone v. Whitpain Township Zoning Hearing Board

771 A.2d 103, 2001 Pa. Commw. LEXIS 195, 2001 WL 326880
CourtCommonwealth Court of Pennsylvania
DecidedApril 5, 2001
Docket2020 C.D. 2000
StatusPublished
Cited by7 cases

This text of 771 A.2d 103 (Cardamone v. Whitpain Township Zoning Hearing Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cardamone v. Whitpain Township Zoning Hearing Board, 771 A.2d 103, 2001 Pa. Commw. LEXIS 195, 2001 WL 326880 (Pa. Ct. App. 2001).

Opinion

KELLEY, Judge.

Nancy Cardamone appeals from an order of the Court of Common Pleas of Montgomery County (trial court) which dismissed Cardamone’s appeal from a decision of the Zoning Hearing Board of Whit-pain Township (Board) and affirmed the Board’s decision. We affirm.

Cardamone is the owner of property located at 876 Rabbit Run Road, Blue Bell, Pennsylvania, and is located in a R 2 residential zoning classification. A one-story, single-family dwelling and a freestanding garage are located on the property. The property is one hundred and twenty feet wide and three hundred feet deep. The topography of the property is flat.

On September 28,1999, Cardamone filed an application for a dimensional variance. The dimensional variance was needed because Cardamone wanted to subdivide the property into two lots thereby creating a *104 rear lot. The rear lot would be sold to a local builder for profit. • Cardamone planned to widen the existing driveway and create a thirty-seven foot wide common driveway for the two-lot subdivision. To accomplish this task, Cardamone would have to remove the existing garage and several large mature trees.

Section 160-203.2 of the Whitpain Township Zoning Ordinance of 1950 (Ordinance), as amended, requires that each flag or rear lot have access to a public street by having a width of not less than twenty-five feet each when a common driveway for two lots with a cross easement is utilized. Cardamone’s property only has forty feet of frontage on the public road; therefore, she cannot meet the zoning requirements under Section 160-203.2 of the Ordinance. .Accordingly, Cardamone requires a dimensional variance to allow for a fee-simple access strip for the rear lot of twelve feet instead of the required twenty-five feet under the Ordinance. Cardamone also requested a dimensional variance for the aggregate frontage on the road to be thirty-seven feet instead of the required fifty feet.

A public hearing was held before the Board. After taking testimony from Car-damone and several protesting neighbors, the Board voted unanimously against Car-damone’s dimensional variance request. The Board found that Cardamone did not prove that the property is subject to any unique physical conditions, that an unnecessary hardship existed, that her proposal would not have an adverse effect on the public welfare and that the property is subject to any legal hardship sufficient to justify the grant of a variance.

Cardamone appealed the Board’s decision to the trial court. Without taking any additional evidence, the trial court determined that the Board did not abuse its discretion by denying Cardamone’s dimensional variance request. In reaching its decision to affirm the Board’s decision, the trial court considered the standard set forth by our Supreme Court in Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998), for determining whether unnecessary hardship has been established when a dimensional variance is requested. This appeal followed.

Herein, Cardamone raises the issue of whether the Board committed an abuse of discretion or an error of law in denying Cardamone’s request for dimensional variances in accordance with the standards set forth in Hertzberg.

Initially, we note that in an appeal from the grant or denial of a zoning variance where, as here, the trial court has not taken any additional evidence, this Court’s scope of review is limited to a determination of whether the zoning hearing board committed an error of law or abused its discretion. Hill District Project Area Committee, Inc. v. Zoning Board of Adjustment of the City of Pittsburgh, 162 Pa.Cmwlth. 323, 638 A.2d 278, petition for allowance of appeal denied, 538 Pa. 629, 646 A.2d 1182 (1994). An abuse of discretion will only be found where the zoning board’s findings are not supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Teazers, Inc. v. Zoning Board of Adjustment of the City of Philadelphia, 682 A.2d 856 (Pa.Cmwlth. 1996).

Pursuant to Section 910.2 of the Pennsylvania Municipalities Planning Code (MPC), 1 in order to qualify for a variance, *105 an applicant must establish that (1) an unnecessary hardship stemming from unique physical characteristics or conditions will result if the variance is denied; (2) because of such physical circumstances or condition, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and a variance is necessary to enable the reasonable use of the property; (3) the hardship has not been created by the applicant; (4) granting the variance will not alter the essential character of the neighborhood nor be detrimental to the public welfare; and (5) the variance sought is the minimum variance that will afford relief. See also Hertzberg.

In Hertzberg, with respect to the application of the first part of the test regarding whether or not unnecessary hardship will result from the denial of the variance, our Supreme Court held that to justify the grant of a dimensional variance, courts may consider multiple factors. Hertzberg, 554 Pa. at 264, 721 A.2d at 50. The factors include economic detriment to the applicant if the variance was denied, the financial hardship created by any work necessary to bring the building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood. Id.

Herein, Cardamone argues that she is entitled to the grant of the requested dimensional variances because the application of Section 160-203.2 of the Ordinance to her property inflicts an unnecessary hardship upon the property and because the proposed relief, if granted, will not have an adverse impact on the health, safety and welfare of the Township. Car-damone contends that she presented substantial evidence that she is entitled to the grant of the requested dimensional variances in accordance with Hertzberg and this Court’s decision in Talkish v. Zoning Board of Harborcreek Township, 738 A.2d 50 (Pa.Cmwlth.1999), petition for allowance of appeal granted, 562 Pa. 631, 757 A.2d 366 (2000). 2

Cardamone argues that her property is large enough, wide enough and deep enough to accommodate two single family lots which would be consistent with the character of the neighborhood in which the property is located. Cardamone contends that the physical characteristic of the property, which has limited frontage on a public road, prevents the subdivision of the property without the requested dimensional relief.

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Bluebook (online)
771 A.2d 103, 2001 Pa. Commw. LEXIS 195, 2001 WL 326880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cardamone-v-whitpain-township-zoning-hearing-board-pacommwct-2001.