Lipari v. Zoning Hearing Board

516 A.2d 110, 101 Pa. Commw. 302, 1986 Pa. Commw. LEXIS 2601
CourtCommonwealth Court of Pennsylvania
DecidedOctober 17, 1986
DocketAppeals, Nos. 1560 C.D. 1986 and 1382 C.D. 1986
StatusPublished
Cited by8 cases

This text of 516 A.2d 110 (Lipari 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
Lipari v. Zoning Hearing Board, 516 A.2d 110, 101 Pa. Commw. 302, 1986 Pa. Commw. LEXIS 2601 (Pa. Ct. App. 1986).

Opinion

Opinion by

Judge Craig,

This zoning appeal presents an example of the issue which classically arises in our review of variances: Where a zoning hearing board has granted variances allowing (1) a high-rise apartment building in a residential district in which only single-family and two-family dwellings are listed as permitted residential uses, and (2) a 60% increase in building height over the maximum allowable height, are those variances supported by findings which demonstrate any unique physical circumstances or conditions peculiar to the particular property which would result in hardship—inability to make a reasonable use of the property—if the variances were not granted?

The trial courts opinion well summarized the background facts of this case by stating: “The subject of this appeal is a tract of land situated at the southeast corner of Ninth and Washington Streets in Easton, which has been donated to The Antonian, Ltd. by St. Anthony’s Catholic Church. The property is located in an R-MD, residential-medium density, zoning district. The Antonian, Ltd., a non-profit corporation, planned to build upon that site a federally subsidized seven-story apartment building for the elderly.”

“In order to construct the building as planned, The Antonian, Ltd. applied to the Zoning Hearing Board of the City of Easton for use, height and yard variances, and a special exception for reduction of required parking.”

According to section 1335.01 of the Easton Zoning Ordinance, the only permitted principal uses in the RMD residential district, aside from public facilities, are single-family dwellings, two-family dwellings, churches [305]*305and church schools. High-rise apartment buildings are therefore prohibited; although special exception sections 1309.18 and 1335.03 provide for conditional approval of garden type apartments, those provisions are not applicable here because they relate only to low-rise multiple dwellings.

The elderly housing high-rise proposal is for a building which would contain fifty housing units and be sixty-four feet high, a 60% increase in height beyond the forty-foot maximum allowed for multi-family dwelling by section 1335.04 of the zoning ordinance.

The Antonians special exception request is one which seeks to reduce the minimum number of required off-street parking spaces from one per housing unit (fifty) to forty-three, under section 1309.24 of the zoning ordinance, allowing reduction of off-street parking space, minimum with respect to “public housing for the elderly.”

Pursuant to a hearing, the zoning hearing board granted all of the variances sought, as well as the special exception for off-street parking. Objecting residents of the neighborhood appealed to the Court of Common Pleas of Northampton County. Without receiving any additional evidence, that court affirmed the boards decision, and the objectors have appealed to this court.1

The trial judge, noting that he had received no additional testimony concerning the merits of the appeal, correctly expressed the scope of judicial review as follows:

With the state of the record thus clarified, our standard of review is clear: where the court [306]*306has not taken additional evidence, the decision of the Zoning Hearing Board must not be disturbed unless the court finds an abuse of discretion or an error of law. Valley Forge Industries, Inc., Appeal, 406 Pa. 387, 177 A.2d 450 (1962); Waber v. Zoning Board, 41 Pa. Commonwealth Ct. 565, 400 A.2d 893 (1979).
The role of a court in a zoning appeal is limited. The need for and enactment of zoning ordinances is a matter wisely left, for the most part, to the discretion of the duly elected officials of local government.
It is the function of the zoning board to determine whether the evidence satisfies that test and the courts will not disturb that determination unless it is not supported by substantial evidence, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjustment, supra at 559, 462 A.2d at 640.

For the substantive principles governing the use, height and yard variances involved in this case, the trial judge appropriately referred to section 912 of the Pennsylvania Municipalities Planning Code (MPC),2 53 P.S. §10912. In Township of Falls v. Zoning Hearing Board of Falls Township, 91 Pa. Commonwealth Ct. 551, 554-5, 498 A.2d 13, 14-15 (1985), this court summarized the judicial understanding of the statutory variance principles in section 912 by stating:

The applicant for a variance has the heavy burden of proving (1) that the ordinance imposes [307]*307unnecessary hardship on the property and (2) that the proposed variance will not be contrary to the public interest. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983).
An applicant can prove unnecessary hardship either
(1) by showing that the physical characteristics of the property were such that it could not in any case be used for the permitted purpose or that the physical characteristics were such that it could only be arranged for such purpose at prohibitive expense. . . . ; or (2) by proving that the characteristics of the area were such that the lot has either no value or only a distress value for any purpose' permitted by the zoning ordinance. (Citations omitted.)
Philadelphia v. Earl Scheib Realty Corp., 8 Pa. Commonwealth Ct. 11, 17, 301 A.2d 423, 426 (1973).
Under section 912 of the MPC, 53 P.S. §10912, those physical circumstances of the property must be such that there is ‘no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable reasonable use of the property.’

Unfortunately, the board’s findings of fact and the record establish that the applicant foiled to meet its burden to justify the variances by showing that its land was valueless, or that it could not be used for the one- or two-family dwelling uses which constitute the principal permitted uses in this residential district.

Searching the board’s findings for any indication of unnecessary hardship with respect to the land itself, we [308]*308find only facts relating to the undoubted desirability of the subsidized project. Finding No. 5 adopted the testimony of the church pastor, who confirmed that “there was a need for housing for the elderly” and further stated “that such project would be the best use of the subject site, since the area is used infrequently as a playground.” That finding discloses no hardship of the kind required by law for a variance.

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Cite This Page — Counsel Stack

Bluebook (online)
516 A.2d 110, 101 Pa. Commw. 302, 1986 Pa. Commw. LEXIS 2601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lipari-v-zoning-hearing-board-pacommwct-1986.