King v. Zoning Hearing Board

622 A.2d 435, 154 Pa. Commw. 109, 1993 Pa. Commw. LEXIS 123
CourtCommonwealth Court of Pennsylvania
DecidedMarch 9, 1993
DocketNo. 281 C.D. 1992
StatusPublished
Cited by2 cases

This text of 622 A.2d 435 (King v. 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
King v. Zoning Hearing Board, 622 A.2d 435, 154 Pa. Commw. 109, 1993 Pa. Commw. LEXIS 123 (Pa. Ct. App. 1993).

Opinion

CRAIG, President Judge.

Charles C. King (landowner) appeals a decision by Judge Corso of the Court of Common Pleas of Montgomery County that affirmed a decision of the Zoning Hearing Board of Towamencin Township that denied the landowner’s request for a variance to allow erection of a single-family dwelling on his undersized lot.

The sole issue raised on appeal is whether the board erred in concluding that, because the landowner purchased a lot he knew was not of sufficient area to permit the development of a single-family dwelling under the present zoning regulations, and because the landowner knew, or should have known that the original developer intended that the lot should be merged with an adjoining conforming lot, the landowner has not proved the existence of a hardship which would warrant the granting of a variance, under section 910.2 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended 53 P.S. § 10910.2.

FACTS

In 1978, the board had approved a subdivision plan for the development of “Brookdale Farms,” a residential community. The proposed development consisted of 94.402 acres of land, and the subdivision plan created 98 lots for single-family detached residential dwellings.

The landowner’s lot in question was not one of the 98 lots in the original subdivision plan, but was designated as “Parcel A” on the plan. (See Appendix A, following this opinion) Notes written upon the plan state that Parcel A was “to be conveyed to Thomas H. Jr., and Mary F. Keon,” the owners of one of the 98 lots, which adjoins Parcel A. (R.15-16a) In addition, on the plan a “Z” notation is superimposed upon the lot line between Parcel A and the Keon lot, allegedly indicating that the subdivider anticipated that the lots would be merged. But the Keons never purchased Parcel A.

The entire subdivision is located in a R-175 district. When the plan was approved in 1978, the minimum lot size require[112]*112ment for single-family dwellings in R-175 districts was 25,000 square feet. The Parcel A lot in question has an area of only 16,767 square feet. The present ordinance requires 30,000 square feet. In 1988 the landowner bought the Parcel A lot for $2,500.00. After unsuccessfully attempting to sell Parcel A to the abutting property owners, the landowner made the current application for a variance from the board to build a single-family dwelling on the lot.

At the board’s hearing, the landowner testified that, when he purchased the lot, he knew that it did not satisfy the minimum lot size requirement for the erection of a single-family dwelling in R-175 districts, and that he would need a variance in order to erect a single-family dwelling upon the property. However, the landowner testified that he was unaware of the notes on the plan. (R. 81-A)

The board heard expert testimony which indicated that Parcel A was never intended to be a part of the Brookdale plan. In addition, residents of Brookdale Farms testified that a conforming lot in the district would cost approximately $40,000.00 to $50,000.00.

The board denied the landowner’s request for a variance and the trial court affirmed that decision. This appeal followed.

ANALYSIS

Our scope of review, where the trial court takes no additional evidence, is limited to determining whether the board committed an abuse of discretion, error of law, or made necessary factual findings that are not supported by substantial evidence. City of Pittsburgh v. Zoning Hearing Board of Adjustment, 522 Pa. 44, 559 A.2d 896 (1989).

The landowner contends that, because the township originally approved the subdivision plan for Brookdale farms, which contained Parcel A, and did not require the subdivider to insure that Parcel A would be conveyed for a lawful use, the board erred in concluding that the hardship resulting from the [113]*113creation of the undersized lot was one self-imposed on the landowner.

Under Section 910.2 of the MPC, a zoning hearing board may grant a variance when the following criteria are met: (1) the zoning ordinance imposes an unnecessary hardship upon the applicant; (2) the hardship results from the unique physical characteristics of the property; (3) the physical conditions of the property preclude development in strict conformity with the zoning ordinance, and a variance is necessary for a reasonable use of the property; (4) the applicant did not create the hardship; (5) the variance will not alter the essential character of the neighborhood, impair the use or development of adjacent property, or be detrimental to the public welfare; and (6) the variance sought is the minimum variance that will afford relief.

In the present case, the board denied the landowner’s request for a variance because it found that the requirement of section 910.2(a)(3), that the hardship not be self-inflicted, had not been met.

In Volpe Appeal, 384 Pa. 374, 121 A.2d 97 (1956), the landowner purchased two adjacent plots of land, which he then subdivided. The two plots together measured 32,000 square feet in area. After the landowner subdivided the plots, he sold one plot, which measured 20,000 square feet, and retained the remaining 12,000 square foot lot. The ordinance required a minimum of 20,000 square feet to develop the land.

When the landowner requested a variance to build on his remaining 12,000 square foot lot, the board denied the variance, holding that the hardship created by the landowner’s subdivision was “self-inflicted.” The court in Volpe held that, because the landowner started out with conforming lots, and because the undersized lot was his own creation, he was not entitled to a variance.

The trial court here relied on Volpe in affirming the board, and concluded that the original subdivider of Brookdale Farms created the present hardship with his original subdivision plan, and that the present landowner, as a later purchaser of [114]*114the nonconforming lot, had constructive notice of the self-inflicted hardship.

The original subdivider made Parcel A substantially smaller in size than the other lots, and, from the notations on the map, intended to merge Parcel A with an adjoining, conforming lot. Thus, in one view, the original developer created a self-inflicted hardship, and the present landowner took the lot burdened with that same disability.

The landowner argues that, because the township approved the subdivision plan containing Parcel A in 1978, and did not take any action which would ensure a lawful use of the property, i.e., condition its approval of the subdivision plan upon conveyance of Parcel A to the abutting landowners, the responsibility for the present hardship lies with the township. In addition, the landowner claims that the township, by approving a plan upon which an undersized lot appeared, should be estopped from opposing any attempt by the present property owner to use the property in conformity with the zoning regulations.

Although there is no evidence in the record as to why Parcel A was not conveyed to the Keons, the trial court concluded that the intent of the subdivider was to not develop Parcel A but to merge it with the Keons’ property.

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Related

Sombers v. Stroud Township Zoning Hearing Board
913 A.2d 306 (Commonwealth Court of Pennsylvania, 2006)
Ruddy v. Lower Southampton Township Zoning Hearing Board
669 A.2d 1051 (Commonwealth Court of Pennsylvania, 1995)

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Bluebook (online)
622 A.2d 435, 154 Pa. Commw. 109, 1993 Pa. Commw. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-zoning-hearing-board-pacommwct-1993.