Marple Gardens, Inc. v. Zoning Board of Adjustment

303 A.2d 239, 8 Pa. Commw. 436, 1973 Pa. Commw. LEXIS 736
CourtCommonwealth Court of Pennsylvania
DecidedApril 13, 1973
DocketAppeal, No. 774 C.D. 1972
StatusPublished
Cited by30 cases

This text of 303 A.2d 239 (Marple Gardens, Inc. v. Zoning Board of Adjustment) 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
Marple Gardens, Inc. v. Zoning Board of Adjustment, 303 A.2d 239, 8 Pa. Commw. 436, 1973 Pa. Commw. LEXIS 736 (Pa. Ct. App. 1973).

Opinion

Opinion by

Judge Kramer,

This is a zoning case. It arises on appeal from the final order of the Court of Common Pleas of Delaware County dated July 25, 1972, in which the appeal of Marple Gardens, Inc. (Marple Gardens) was dismissed. The effect of the court order was to affirm the decision of the Zoning Board of Adjustment (Board) of the Township of Marple (Township) denying a variance to Marple Gardens.

In 1959 or 1960 (the record is not clear), Marple Gardens purchased 17.843 acres of unimproved land in the Township. At the time of the purchase, the land had been used as a nursery. At the time of its purchase, Marple Gardens was fully aware that the land was zoned R-l Residential (as it is still zoned to this date). The R-l Residential zoning classification permits a single-family residence with a minimum of 12,-000 square feet per lot. At the time of purchase, the property was located on a two-lane road, known as Lawrence Road. However, since the purchase, Lawrence Road has been widened to four lanes.

Sometime prior to March 19, 1968, Marple Gardens requested that the Township’s Commissioners rezone the property in question so as to permit apartment dwelling usage. This request was denied. On March 19, 1968, Marple Gardens applied for a permit to erect six “garden-type apartments containing approximately 350 units” on said property. The application was rejected by the Building Inspector on August 6, 1968. Marple Gardens then filed an appeal to the Township Zoning Board of Adjustment, in which it also requested a variance from the terms of the Township’s zoning ordinance. After hearing, the Board on November 26, 1968, rendered an adjudication and order in which it dismissed the appeal of Marple Gardens, thereby denying the request for a variance. Thereafter, Marple [439]*439Gardens appealed to the Court of Common Pleas of Delaware County on December 4, 1968. The court below took additional testimony and received additional evidence. After hearing, the court issued its opinion and order dated July 25, 1972, dismissing Marple Gardens’ appeal. It was from this order that an appeal was talien to this Court.

In considering the merits of this appeal, we must bear in mind the following principles which govern the disposition of variance cases. First, since the court below took testimony and received evidence in addition to the record made before the Board, on appeal to this Court, our review is to determine whether the court, rather than the Board, abused its discretion or committed an error of law. Error of law here includes constitutional questions. See Richman v. Zoning Board of Adjustment, 391 Pa. 254, 137 A. 2d 280 (1958); Drop v. Board of Adjustment, 6 Pa. Commonwealth Ct. 64, 293 A. 2d 144 (1972). Second, variances should be granted sparingly and only under exceptional circumstances. See McClure Appeal, 415 Pa. 285, 287, 203 A. 2d 534, 535 (1964); Crafton Borough Appeal, 409 Pa. 82, 87, 185 A. 2d 533, 536 (1962). Third, in order to establish a right to a variance, an applicant must prove (1) unnecessary hardship which is unique or peculiar to the applicant’s property, as distinguished from the hardship arising from the impact of the zoning act or regulations on the entire district, or even to hardship on the owner of the property and (2) that the proposed variance is not contrary to the public safety, health, morals or general welfare. See Gro Appeal, 440 Pa. 552, 269 A. 2d 876 (1970); Marple Township Appeal, 430 Pa. 113, 243 A. 2d 357 (1968); Drop v. Board of Adjustment, supra; Jackson v. York City Zoning Board, 5 Pa. Commonwealth Ct. 271, 290 A. 2d 438 (1972). Fourth, a variance will not be granted solely [440]*440because the petitioner will suffer an economic hardship if he does not receive a variance. See Bilotta v. Haverford Township Zoning Board of Adjustment, 440 Pa. 105, 270 A. 2d 619 (1970); O’Neill v. Zoning Board of Adjustment, 434 Pa. 331, 254 A. 2d 12 (1969); Andress v. Zoning Board of Adjustment, 410 Pa. 77, 188 A. 2d 709 (1963); Drop v. Board of Adjustment, supra. Fifth, a variance will not be granted to the applicant where he knew of the existing zoning regulations and the problems bringing about the hardship, or should have known them, at the time he purchased the property. See Gro Appeal, supra; Sposato v. Radnor Township Board of Adjustment, 440 Pa. 107, 270 A. 2d 616 (1970); McClure Appeal, supra.

Inasmuch as Marple Gardens also challenged the constitutionality of the ordinance, as it applies to the property in question, we are also guided by the words of the Supreme Court in Gro Appeal, supra, where the Court said: “The zoning power is one of the tools of government which, in order to be effective, must not be subjected to judicial interference unless clearly necessary. For this reason, a presumption of validity attaches to a zoning ordinance which imposes the burden to prove its invalidity upon the one who challenges it.” 440 Pa. at 557, 269 A. 2d at 879.

It is also basic law that one who attacks the constitutionality of a zoning ordinance in this Commonwealth has a very heavy burden. See Gaudenzia, Inc. v. Zoning Board of Adjustment, 4 Pa. Commonwealth Ct. 355, 287 A. 2d 698 (1972); Nagorny v. Zoning Hearing Board, 4 Pa. Commonwealth Ct. 133, 286 A. 2d 493 (1971); St. Vladimir’s Ukrainian Orthodox Church v. Fun Bun, Inc., 3 Pa. Commonwealth Ct. 394, 283 A. 2d 308 (1971). In this case, Marple Gardens has attempted to meet its burdens of proving that the court erroneously refused to grant it the variance re [441]*441quested or that this ordinance was unconstitutional as applied, by presenting the following:

1. Marple Gardens offered proof that it did not know that underlying the land at depths of from three feet to ten feet was rock which would inhibit the construction of buildings. The record, however, does not explain what difference, if any, there would be between the expense of constructing single-family dwellings (from the record between 35 and 50 such dwellings could be constructed on the subject land) and the construction of six mid-rise (four to five stories high) apartment buildings containing a total of 330 apartment units. We assume the cost of constructing foundations for the apartment houses would be less, but the record is silent as to the difference in costs. Hence, there is no supporting evidence to prove the alleged hardship. Furthermore, the record clearly shows that although the Marple Gardens may not have known the extent of rock under the surface on the subject land, it was aware of a stone quarry in close proximity to the land, which certainly should have put it on notice of a possible foundation problem.

2. Marple Gardens proved that a 30 inch drain was constructed by the State Highway Department, which spills surface water onto the property, subsequent to its purchase of the land. There is no mention whether there was an agreement or a condemnation proceeding under which Marple Gardens received damages. Furthermore, there is nothing in the record to explain what difference this drain pipe would malm when comparing construction of single-family dwelling houses with the proposed apartment complex.

3. Marple Gardens states that the terrain of the subject property has slopes with a gully at the center. Certainly this was patently clear to Marple Gardens when it purchased the property.

[442]*4424.

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303 A.2d 239, 8 Pa. Commw. 436, 1973 Pa. Commw. LEXIS 736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marple-gardens-inc-v-zoning-board-of-adjustment-pacommwct-1973.