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HomeMy WebLinkAbout02-3982 CivilBOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP, APPELLANT ZONING HEARING BOARD OF EAST PENNSBORO TOWNSHIP, APPELLEE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-3982 CIVIL TERM IN RE: LAND USE APPEAL BEFORE BAYLEY, J. AND HESS, J. OPINION AND ORDER OF COURT Bayley, J., January 6, 2003:-- Evangalos Daskalakis has owned a single-family home on approximately thirty acres in East Pennsboro Township since September 8, 1997. The property is in a Residential Conservation Zoning District. Single-family detached dwellings are permitted with accessory uses except where excluded. Swimming pools are specifically excluded because of the environmentally sensitive mountain area in which the Conservation Zone is located. Daskalakis applied for a permit to install an in-ground swimming pool on his property.~ The Township Zoning Officer denied a permit. Daskalakis then applied for a variance before the Zoning Hearing Board of East Pennsboro Township. He testified before the Board that he is the owner and a chef of ~ The zoning classification excluding swimming pools was enacted before Daskalakis purchased his property. 02-3982 CIVIL TERM a restaurant. He is on his feet twelve to fourteen hours every day and needs a swimming pool for exercise and recreation. On April 15, 2002, the Zoning Hearing Board granted the variance. The Board of Commissions of East Pennsboro Township filed this appeal.: The appeal was briefed and argued without taking additional evidence. Our scope of review is to determine if the East Pennsboro Township Zoning Hearing Board abused its discretion or committed an error of law. Abuse of discretion occurs when the board's findings are not supported by substantial evidence. Substantial evidence is such evidence as a reasonable mind would accept as adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550 (1983). In Colton Real Estate Corp. v. West Conshohocken Zoning Hearing Board, 119 Pa. Commw. 205 (1988), the Commonwealth Court set forth the standard for obtaining a variance: (1) that the ordinance imposes unnecessary hardship on the property; (2) that the hardship stems from unique physical characteristics of the property; (3) that the variances would not adversely affect the health, safety or welfare of the general public; (4) that the hardship was not self-inflicted; and (5) that the variances sought are the minimum that will afford relief. (Emphasis added.) In the case sub judice, the Zoning Hearing Board made the following conclusions of law: 2. The applicant has a unique physical circumstance in the fact that the property is in excess of thirty acres of land with few surrounding : Daskalakis has not intervened. -2- 02-3982 CIVIL TERM residences and the physical circumstances of the property dictates a variance necessary and reasonable for the use of said property. 3. There is an unnecessary hardship in that the applicant is unable to use the property to the fullest extent, 4. The variance offers a minimal impact and impairment in the area and is the least possible interference with the zoning regulation and the variance does not alter the character of the neighborhood or impact the appropriateness of the surrounding areas. (Emphasis added.) In Kline Zoning Case, 395 Pa. 123 (1959), the applicant sought to enclosed a front porch in violation of a zoning ordinance. He applied for a variance. He testified that he wanted to enclose the porch because his wife suffered from asthma and hay fever and his young son had a severe respiratory aliment and also suffered from hay fever. An enclosed porch would provide comfort for his family. A zoning hearing board denied a variance. A court of common pleas reversed, holding that the zoning hearing board abused its discretion. The Supreme Court of Pennsylvania reversed the court, stating: Since the appellee has failed to show any unnecessary hardship to his property which would merit the granting of a variance, we conclude that the lower court was in error. The sole justification for the grant of a variance is that a strict application of the terms of the zoning statute will result in an unnecessary hardship ... There is no testimony in the record which meets the burden required ... Indeed, the record is even barren of competent medical testimony that the enclosed porch would contribute to the improvement of the physical condition of appellee's son and wife. Again we must reiterate, what we have said on enumerable occasions--zoning boards and the courts must not impose their concept of what the zoning ordinance should be, but rather their function is only to enforce the zoning ordinance in accordance with the applicable law. -3- 02-3982 CIVIL TERM We find that the East Pennsboro Township Zoning Hearing Board made an error when it concluded in support of its grant of a variance that Daskalakis has an unnecessary hardship to his property because he is unable to use it to the fullest extent. Clearly, Daskalakis is able to use his property for the purpose intended under the zoning ordinance. See O'Neill v. Zoning Board of Adjustment, 434 Pa. 331 (1969). Because there is no unnecessary hardship to the property that supports the granting of a variance, the following order is entered. ORDER OF COURT AND NOW, this day of January, 2003, the order of the Zoning Hearing Board of East Pennsboro Township granting Evangalos Daskalakis a variance, IS REVERSED. By the Court, Lisa Marie Coyne, Esquire For Appellant Austin F. Grogan, Esquire For Appellee :sal Edgar B. Bayley, J. -4-