Cutler v. Newtown Township Zoning Hearing Board

367 A.2d 772, 27 Pa. Commw. 430, 1976 Pa. Commw. LEXIS 1238
CourtCommonwealth Court of Pennsylvania
DecidedDecember 8, 1976
DocketAppeal, No. 91 C.D. 1976
StatusPublished
Cited by10 cases

This text of 367 A.2d 772 (Cutler v. Newtown 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
Cutler v. Newtown Township Zoning Hearing Board, 367 A.2d 772, 27 Pa. Commw. 430, 1976 Pa. Commw. LEXIS 1238 (Pa. Ct. App. 1976).

Opinion

Opinion by

President Judge Bowman,

This is an appeal by Stuart H. Cutler and Corinne G. Cutler, his wife, from an order of the Court of Common Pleas of Bucks County, dated December 19, 1975, affirming the Newtown Township Zoning Hearing Board’s (Board) denial of an application for a variance. We will affirm.

On August 8, 1973, the appellants purchased a parcel of land comprising approximately twelve acres in [432]*432Newtown Township, Bucks County, Pennsylvania, from one John Woll who retained the remaining ninety-three acres surrounding appellants ’ property. Prior to the purchase, on July 31,1973, Mr. Cutler had visited the township zoning officer and was advised that he could not conduct horse shows on his property, zoned R-l, since twenty-five acres of land were required for such use by Section 901.4(f), of the New-town Township Zoning Ordinance.1

Upon occupying the premises in September of 1973, appellants began extensive renovations, including the conversion of a two-story chicken house into a four-unit apartment building. This was done without applying for any zoning or building permits. Some time during October of 1973, the appellants were visited by a zoning officer and were verbally warned to cease work on the project inasmuch as apartments were not permitted in R-l districts by Section 402.2 of the Ordinance.2 Appellants nevertheless completed the conversion of the structure and occupied it with [433]*433tenants. By a letter dated December 10,1973, the zoning officer issued a cease and desist order.

On April 1, 1974, appellants appealed the order, such appeal consisting of an application for a variance pursuant to Section 1208 of the ordinance to operate the four apartments.3 The application was denied. On appeal, the lower court, without taking additional evidence, affirmed. In such a case, the scope of review of this Court is limited to a determination of whether the Board abused its discretion or committed an error of law. Camaron Apartments, Inc. v. Zoning Board of Adjustment, 14 Pa. Commonwealth Ct. 571, 324 A.2d 805 (1974).

As noted, the Board had before it only an application for a variance to operate the apartments. However, before both the court below and this Court, the appellants have raised several new issues,' including two constitutional attacks on the ordinance. The first question to be resolved is whether these arguments are properly before this Court.

The general rule is that matters not raised before the fact-finding body will not be heard for the first time on appeal. Sojtori v. Zoning Hearing Board, 6 Pa. Commonwealth Ct. 552, 296 A.2d 532 (1972) and cases cited therein. However, as pointed out by the court below, this rule has been qualified in variance cases, Robin Corp. v. Board of Supervisors, 17 Pa. Commonwealth Ct. 386, 332 A.2d 841 (1975); National Land & Investment Co. v. Board of Adjustment, 419 Pa. 504, 215 A.2d 597 (1965); Eller v. Board of Adjustment, 414 Pa. 1, 198 A.2d 863 (1964). Within the guidelines of these cases, the appellants’ arguments may be tested.

[434]*434The appellants first assert that Section 901.4(f) of the ordinance, which requires a minimum of twenty-five acres for the keeping of horses for other than the private use of the landowner, is invalid on its face as a confiscatory deprivation of their property without just compensation. We must conclude that this issue is not properly before us. National Land, Eller and Robin, supra, do not provide to one who requests a variance an unlimited right to raise new issues on appeal. The rationale behind the allowance of new constitutional arguments on appeal is that a variance application “implies a challenge to the legality of the zoning ordinance as it applies to a specific piece of property.” National Land, supra, at 511, 215 A.2d at 602. Where, as here, appellants have requested only a variance to operate apartments, it stretches the imagination to conclude that this application “implies” an attack on a wholly separate provision of the ordinance regarding acreage requirements for the keeping of horses. The issue has not been properly raised. See Board of Commissioners v. Beho Development Co., 16 Pa. Commonwealth Ct. 448, 332 A.2d 848 (1975); Shuttle Development Corp. v. Township of Upper Dublin, 19 Pa. Commonwealth Ct. 510, 338 A.2d 777 (1975). Moreover, even if a variance to operate horse shows and a breeding farm had been applied for, this challenge to the ordinance would not be properly before us. Section 1004 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §11004, on “substantive challenges,” and Section 912 of the MPC, 53 P.S. §10912, on requests for variances, provide for mutually exclusive remedies. Robin, supra. An application for a variance is proper only where unique physical circumstances or conditions, such as topography, create the hardship by the strict application of the ordinance, whereas the request for a curative [435]*435amendment pursuant to Section 1004 is the proper remedy when the alleged confiscation does not result from unique circumstances or when a variance is not otherwise properly available. Robin, supra. Even though cast in the terms of an underlying variance claim, appellants’ argument that Section 901.4(f) is “per se unconstitutional” is a classic example of a challenge which must be made pursuant to one of the procedures set forth in Section 1004 of th'e MPC. It seeks to void the application of the provision throughout the whole township and it does not arise from any unique circumstances or conditions of the appellants’ land.4

We are in agreement with the opinion of the court below as to the merits of the challenge to Section 901.4 (f) of the ordinance. Appellants had the burden of overcoming the presumption of constitutionality. Ellick v. Board of Supervisors, 17 Pa. Commonwealth Ct. 404, 333 A.2d 239 (1975). Section 901.4 is not unconstitutional on its face. Appellants produced no evidence that they were deprived of all reasonable use of their property. Nor, in the alternative, did they produce any evidence that the provision was not rationally related to the public health, safety, or general welfare. Had it been called upon to do so, the township may well have established that rational relationship.

[436]*436Appellants’ second contention is that the failure of Section 402.2 of the ordinance to permit apartments in the R-l district is unconstitutional.

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Bluebook (online)
367 A.2d 772, 27 Pa. Commw. 430, 1976 Pa. Commw. LEXIS 1238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cutler-v-newtown-township-zoning-hearing-board-pacommwct-1976.