Otto v. Zoning Hearing Board

686 A.2d 36, 1996 Pa. Commw. LEXIS 454
CourtCommonwealth Court of Pennsylvania
DecidedOctober 31, 1996
StatusPublished

This text of 686 A.2d 36 (Otto 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
Otto v. Zoning Hearing Board, 686 A.2d 36, 1996 Pa. Commw. LEXIS 454 (Pa. Ct. App. 1996).

Opinion

SILVESTRI, Senior Judge.

Creedin H. Otto, Jr. (Otto) appeals a decision of the Court of Common Pleas of Cumberland County (trial court) which affirmed the decision of the Zoning Hearing Board of Hampden Township (ZHB) denying Otto’s application for variances. We reverse and remand.

[37]*37The factual and procedural, history is as follows. On March 20, 1978, Otto purchased the tract of land in question in Hampden Township known as 220 Silver Spring Road. This property is a rectangular lot approximately 500 feet long and 100 feet wide. The property is located in an Industrial-General (I-G) zoning district.1 Prior to enactment of the Zoning Ordinance on March 29,1984, the area was zoned residential. Otto has lived on the property since 1978, and as a nonconforming use since enactment of the Ordinance.

Otto also operates a welding business from his property. In connection with his welding business, Otto keeps a truck-mounted welder, lathe, air compressor, forklifts, jacks, trucks, two large trailers and various other equipment stored on the property. In October of 1993, Otto applied to the ZHB for a building permit, and pursuant thereto, constructed a metal storage building 42 feet wide by 83 feet long and 21 feet high at the rear of the property. The metal storage building is used by Otto to house the equipment for his welding business.

In May of 1994, Hampden Township notified Otto that he should seek approval for use of the property for business purposes notwithstanding that the use of the property is a permitted use in the I-G zoning district where the premises are located. On February 27, 1995, Otto filed an application with the ZHB together with a land development plan and a request for variances. The variances requested from the ZHB were as follows:

Section 14062, lot area and width; Section 1408.2.B3, side yard setbacks between industrial and residential uses; Section 1408.2.D4, buffer yard depth; Section 1608.45, fencing of commercial items to be stored; Section 1902.2.H6, off-street parking spaces, and Section 1905.47, width of driveway for'two-way traffic.

See R.R. 16a.

A hearing was then held before the ZHB. The testimony relative to the necessity of the variances was presented primarily by Michael D’Angelo, the land surveyor who pre[38]*38pared the land development plan submitted with the application of Otto to the ZHB. Otto himself also testified as to the necessity of the variances to allow him to conduct his welding business in accordance with the Zoning Ordinance.8

Subsequent to the hearing, the ZHB issued a decision denying the variances requested by Otto. The ZHB concluded that:

3. The applicant was given the opportunity to present his request for variances by showing that either there are unique physical circumstances or conditions of the premises which would pose a hardship to the applicant, and that the variances, if authorized, will represent the minimum variance which would afford relief and represent the least modification of the regulation in issue.
4. The applicant here has shown no hardship under any of the provisions of said section (2101.4) of the Zoning Ordinance which would authorize the granting of the variance as requested.9

Otto filed an appeal to the trial court of the denial of the variances by the ZHB.10 On February 5, 1996, the trial court, without taking any additional evidence, issued an opinion and order affirming the decision of the ZHB and denying the variances. This appeal followed.

Otto contends that there is not legally sufficient justification by the ZHB to warrant denial of the variances requested by him.11 Where, as here, no additional testimony was taken by the trial court, our review is limited to a determination of whether the ZHB abused its discretion or committed an error of law. Pennsylvania Northwestern Distributors, Inc. v. Zoning Hearing Board, 526 Pa. 186, 584 A.2d 1372 (1991); Smith v. Zoning Hearing Board of Bellevue, 152 Pa.Cmwlth. 427, 619 A.2d 399 (1992). An abuse of discretion occurs when necessary findings of fact are not supported by substantial evidence. Valley View Civic Assoc. v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983).

The requirements for a variance are set forth in Section 910.2 of the Municipalities Planning Code (MPC), 53 P.S. § 10910.2, Act of July 31,1968, P.L. 805, as amended, added by Section 910.2 of the Act of December 21, 1988, P.L. 1329, as follows:

(1) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the [39]*39particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located.
(2) That because of such physical circumstances or conditions, 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 the reasonable use of the property.
(3) That such unnecessary hardship has not been created by the appellant.
(4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.
(5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.

The ZHB concluded that there was “no hardship ... which would authorize the granting of the variances as requested.” However, the record reflects that the property is zoned I-G which permits operation of Otto’s welding business, and that such designated zoning requires a side yard setback of 150 feet and a buffer on each side of the property. Here, the subject property is 100 feet wide. Further, the narrowness of the property prohibits the land from being developed in strict conformity with the provisions of the zoning ordinance, and a variance is thus necessary to permit reasonable use of the property. This hardship is created by the shape of the lot and is not self-imposed or created by Otto. Since the lot size of 100 feet wide and 500 feet in depth pre-existed the zoning of the property in the I-G district, it cannot be said the hardship was self-imposed as contended by the ZHB. Thus, variances are required for side yard setbacks and buffers.

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Related

PA Northwestern Distributors, Inc. v. Zoning Hearing Board
584 A.2d 1372 (Supreme Court of Pennsylvania, 1991)
Smith v. Zoning Hearing Board
619 A.2d 399 (Commonwealth Court of Pennsylvania, 1992)
Valley View Civic Ass'n v. Zoning Board of Adjustment
462 A.2d 637 (Supreme Court of Pennsylvania, 1983)

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686 A.2d 36, 1996 Pa. Commw. LEXIS 454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/otto-v-zoning-hearing-board-pacommwct-1996.