Township of Haverford v. Zoning Hearing Board

344 A.2d 758, 21 Pa. Commw. 207, 1975 Pa. Commw. LEXIS 1171
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 9, 1975
DocketAppeal, No. 1532 C.D. 1974
StatusPublished
Cited by13 cases

This text of 344 A.2d 758 (Township of Haverford 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
Township of Haverford v. Zoning Hearing Board, 344 A.2d 758, 21 Pa. Commw. 207, 1975 Pa. Commw. LEXIS 1171 (Pa. Ct. App. 1975).

Opinions

Opinion by

Judge Kramer,

This is an appeal filed by the Township of Haverford (Township) from an order of the Court of Common Pleas of Delaware County, dated October 17, 1974, which affirmed an adjudication of the Zoning Hearing Board of Haverford Township (Board) granting a variance to Havwyn Manor, Inc. (Havwyn).

Havwyn is the owner of a tract of ground' consisting of 29.58 acres through which the boundary line between Haverford Township and Radnor Township runs. 10.7 acres of the tract are situated in Haverford Township and the remainder in Radnor Township. When Havwyn purchased the tract in 1969, the portion located in Rad-nor Township was zoned I-Institutional under that Township’s zoning ordinance. At the time of purchase, the tract was used primarily as a residence for nursing students at Villanova University during the school year, and as a residence for the Sisters of the Order of St. Francis during the summer. Havwyn decided to develop the entire acreage as an adult community limited to [210]*210residents 50 years of age or older, and proposed to construct buildings in the nature of townhouses with four units per building throughout the tract. Without going into unnecessary detail concerning the zoning procedure experience of Havwyn in Radnor, it need only be stated that at the times pertinent to this case, Havwyn was in the process of constructing 18 such buildings (with four units in each) providing a density of approximately 3.8 units per acre.

After having been denied building permits to complete its plan on the acreage (10.7 acres) situated in Haverford Township, and also having been denied a request for a rezoning of the Haverford Township portion, Havwyn revised its plan and filed a new application for a building permit on January 17, 1974, requesting permission to erect ten quadruplexes. At the time of the application, the property was located in an “AA” Residence District which permitted only single-family dwellings on a minimum of one-acre lots together with the usual front, rear, and side-yard requirements. After being denied the building permit, Havwyn filed an appeal with the Board, which held hearings and issued an adjudication granting a variance.

The 10.7 acres here in question is a rather narrow strip of land approximately 360 feet in width, running from north to south, by 1,180 feet in length, running from east to west. Topographically, the land rises in height some 50 feet from its southern boundary to its northern boundary. At its northerly side Havwyn has already received permission from Radnor Township to construct several of the quadruplexes on the boundary line between the two townships. Along most of the southerly boundary is an expansive parking lot, which is to the rear of the rectory, garage, church, convent and school of the Blessed John Neumann Church plant. It is apparent from the record that this parking lot is also used as a playground area for the children attending the [211]*211parochial school. On the westerly side, the plot is bounded by a public road, and on the easterly side, by vacant land.

At the hearing before the Board, Havwyn presented evidence to support its variance request which established that because of (1) the topography of the land; (2) the narrowness of the lot; (3) the front, rear and side-yard requirements of the zoning ordinance applicable to AA-Residential District; (4) the parking lot and church-school complex abutting the southern boundary; (5) the townhouse usage already under construction along the northern boundary; and (6) the high cost of utilizing the 10.7 acres located in Haverford Township under the AA-Residential District zoning requirements, it was impossible to develop this tract for single-family usage under the existing zoning classification.

Residents in the area presented evidence in opposition to the plan, but in fairness we must observe that this evidence was not based upon any adequate studies pertaining to the land. Havwyn also presented rather persuasive evidence to meet its burden of showing that the granting of the variance would not be contrary to the public health, welfare and safety. Also on record was the Haverford Township Comprehensive Development Plan and our review of the Plan indicates that Havwyn’s proposed development, providing for a density of 3.7 dwelling units per acre, did not violate the relevant density recommendations. In addition, the Delaware County Planning Commission issued a report specifically related to Havwyn’s proposed development in which the Commission recommended giving general approval to the proposal.

The Board, in carrying out its duties, found that under the Township’s zoning ordinance Havwyn could not reasonably utilize the property for the single-family usage designated in the ordinance because of the shape and topography of the tract located in Haverford Township, the expense of constructing single-family homes [212]*212under the building regulations and zoning requirements, and its location between the church parking lot and the other townhouses at the northern boundary. The Township appealed to the court below, which did not receive additional testimony or evidence. After argument, the court issued its order and opinion in which it affirmed the adjudication of the Board, based upon its conclusions that Havwyn had met its burden of proving unnecessary hardship caused by the unique physical circumstances peculiar to this piece of property and that the granting of the variance would not be contrary to the public health, welfare and safety.

Our scope of review in cases where the lower court has not taken additional evidence is to determine whether the Board committed an abuse of discretion or an error of law. Radnor Township v. Falcone, 16 Pa. Commonwealth Ct. 283, 328 A. 2d 216 (1974) and Dewald v. Board of Adjustment, City of Pittsburgh, 13 Pa. Commonwealth Ct. 303, 320 A.2d 922 (1974).

After having carefully reviewed this entire record, we find it difficult to improve upon the excellent opinion of the court below, and we agree with the lower court that the Board did not abuse its discretion or commit an error of law. The unique topography and location of this piece of property, adequately described in the record, was sufficient to permit the Board to grant the variance, and each finding of the Board is supported by substantial evidence in the record. We recognize that the case is a very close one and that the Board could have rendered a contrary result in its adjudication, but, as the appellate courts in this Commonwealth have stated so many times, we should not impose our preferences upon communities as super zoning boards of adjustment. This local Board is familiar with this property and, based upon the facts which were presented to it, the Board made a decision which the court below, within its discretionary power, could properly affirm.

[213]*213We believe both the Board and the court have, in a difficult case, capably applied our decisions in prior variance cases, as those decisions were summarized by Judge Blatt in Alfano v. Zoning Hearing Board of Marple Township, 14 Pa. Commonwealth Ct. 334, 336-37, 324 A. 2d 851, 852-53 (1974):

“A variance should, of course, be granted only in exceptional circumstances and the burden of proving its need is a heavy one. ...

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Bluebook (online)
344 A.2d 758, 21 Pa. Commw. 207, 1975 Pa. Commw. LEXIS 1171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/township-of-haverford-v-zoning-hearing-board-pacommwct-1975.