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HomeMy WebLinkAbout2005-1718 Civil LOWER ALLEN TOWNSHIP, APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ZONING HEARING BOARD OF LOWER ALLEN TOWNSHIP, APPELLEE V. BERNARD L. DRAISEY AND ESTHER E. DRAISEY, INTERVENORS 05-1718 CIVIL TERM IN RE: APPEAL FROM THE GRANT OF A VARIANCE BEFORE BAYLEY. J. AND GUIDO. J. OPINION AND ORDER OF COURT Bayley, J., November 14, 2005:-- Intervenors, Bernard L. Draisey and Esther E. Draisey, are the owners of 1552 Main Street in the village of Lisburn, Lower Allen Township, Cumberland County. The property is zoned R-1 under the Lower Allen Township Zoning Ordinance. In an R-1 zone, density on a property with an on lot water supply andlor sewage disposal system is restricted to one residential dwelling per gross acre.1 Intervenors have an on lot wel1.2 The property is .7 acres, with frontage of 186.4 feet on Main Street, and depths of 125 feet along the eastern boundary and 178 feet along the western boundary. There is a 1 Section 222-14(B)(1). 05-1718 CIVIL TERM dwelling house, block garage and other outbuildings located on the eastern side of the property. The current use of the property is a legal non-conforming use. A variance was sought to subdivide the property into two lots, one .3 acres and the other .4 acres. The existing improvements would be on the .3 acre lot. Another residence would be constructed on the .4 acre lot. The application was heard by a hearing officer of the Lower Allen Township Zoning Board, who granted the variance, finding: 3. The Applicant has requested a variance because both proposed lots will be less than one acre of area. 4. The unusual configuration of the subject property and the location of the improvements create an unnecessary hardship. 5. A variance is necessary to enable the reasonable development of subject property. 6. The unnecessary hardship has not been created by the Applicant. 7. The requested variance will not alter the essential character of the 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. 8. The requested variance will represent the minimum variance to afford rei ief. 9. The Zoning Hearing Board is authorized to attach reasonable conditions and safeguards to the granting of a variance. Lower Allen Township filed the within appeal. Having not taken additional evidence, our scope of review is whether there was an error of law or an abuse of discretion in the grant of the variance. See Great Valley School District v. Zoning Hearing Board of East Whiteland Township, 863 A.2d 74 (Pa. Commw. 2004). An abuse of discretion is where findings are not supported by substantial evidence. Id. 2 Their property is served by a public sewer. -2- 05-1718 CIVIL TERM Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. Under the Municipalities Planning Code at 53 P.S. Section 1091 0.2(a), and the Lower Allen Township Zoning Ordinance at Section 220-223(C), the requirements for the grant of a variance are: (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 particular 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. In granting any variance, the Zoning Hearing Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purpose of this chapter. Lower Allen Township maintains, inter alia, that there are no unique physical characteristics or conditions peculiar to the property imposing unnecessary hardship on -3- 05-1718 CIVIL TERM the owners that warrants the grant of the variance. We agree. The variance as granted would allow for another non-conforming use on a .4 acre tract, and would make the remaining use on the .3 acre tract even less conforming to the one acre requirement in the Zoning Ordinance. In Klanke v. Zoning Hearing Board of Adjustment of the City of Pittsburgh, 83 Pa. Commw. 441 (1984), an applicant sought to use a property as a three family dwelling. A zoning ordinance allowed for only a two family dwelling. The Commonwealth Court concluded that since the structure could be legally used as a two family dwelling, the applicant had not met a burden of proving unnecessary hardship, based on the physical characteristics of the property, of not being able to use it as a three family dwelling. In the present case, the residential use of the property is a legal non-conforming use. There is no unnecessary hardship created because another residence cannot be constructed on the property. The Zoning Hearing Board, citing Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 721 A.2d 43 (Pa. 1998), in which the Supreme Court of Pennsylvania stated that ". . . [t]he quantum of proof required to establish unnecessary hardship is indeed lesser when a dimensional variance, as opposed to a use variance, is sought," suggests that unnecessary hardship has somehow still been proven under this reduced burden of proof. Hertzberg, however, is not applicable because here the variance sought is for relief from a prohibited use of the property and not from a dimensional requirement. Contrary to the finding of the hearing officer, the irregular configuration of the property and the location of the improvements do not create an -4- 05-1718 CIVIL TERM unnecessary hardship because the lot itself is not large enough to allow two residences on the property. Accordingly, we conclude that the finding of the Zoning Hearing Officer that "[T]he unusual configuration of the subject property and the location of the improvements create an unnecessary hardship," is not supported by the substantial evidence, and that it was an error of law to grant the variance. Accordingly, the following order is entered.3 ORDER OF COURT AND NOW, this day of November, 2005, the grant of a variance for the property at 1552 Main Street, Lower Allen Township, Cumberland County, IS REVERSED. By the Court, Edgar B. Bayley, J. David H. Martineau, Esquire 321 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 For Lower Allen Township Dennis J. Shatto, Esquire 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 For the Zoning Hearing Board 3 This resolution makes it unnecessary to address the other issues raised in this appeal by Lower Allen Township. -5- 05-1718 CIVIL TERM Linus E. Fenicle, Esquire 2331 Market Street Camp Hill, PA 17011 For Bernard L. Draisey and Esther E. Draisey :sal -6- LOWER ALLEN TOWNSHIP, APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ZONING HEARING BOARD OF LOWER ALLEN TOWNSHIP, APPELLEE V. BERNARD L. DRAISEY AND ESTHER E. DRAISEY, INTERVENORS 05-1718 CIVIL TERM IN RE: APPEAL FROM THE GRANT OF A VARIANCE BEFORE BAYLEY. J. AND GUIDO. J. ORDER OF COURT AND NOW, this day of November, 2005, the grant of a variance for the property at 1552 Main Street, Lower Allen Township, Cumberland County, IS REVERSED. By the Court, Edgar B. Bayley, J. David H. Martineau, Esquire 321 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 For Lower Allen Township 05-1718 CIVIL TERM Dennis J. Shatto, Esquire 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 For the Zoning Hearing Board Linus E. Fenicle, Esquire 2331 Market Street Camp Hill, PA 17011 For Bernard L. Draisey and Esther E. Draisey :sal -2-