Opinion
Argued November 20, 1980
February 6, 1981.
Zoning — Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805 — Variance Burden of proof — Scope of appellate review.
1. In order to grant a zoning variance, the zoning hearing board must find, among other things, that there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the variance, if authorized, will represent the minimum variance that will afford relief. [514]
2. A zoning variance may be obtained only when the applicant proves that in the present zoning posture there exists unnecessary hardship unique or peculiar to the property and that the proposed variance is not contrary to the public health, safety or general welfare; a variance should be granted only in exceptional circumstances and the burden of proving its need is a heavy one. [514]
3. Under Section 912 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, in a variance case, where none of the parties alleges that the property can not be developed as presently zoned or that the variance requested was the minimum variance that would afford relief, the zoning board abuses its discretion granting the variance. [514-15]
4. Where the Court of Common Pleas has reversed the zoning hearing board in a variance case without taking additional evidence, the scope of review of the Commonwealth Court of Pennsylvania is limited to whether the board committed an error of law or an abuse of discretion. [515]
Argued November 20, 1980, before Judges MENCER, ROGERS and PALLADINO, sitting as a panel of three.
Appeal, No. 2436 C.D. 1979, from the Order of the Court of Common Pleas of Allegheny County in the case of William Kernick, David McQuiston, Edward L. Hughes, Gerald J. Krahling and Elizabeth Krahling, his wife, Cara L. Washabaugh, Jean Mansfield, Donna Shawfield, Willa Shawfield, Marilyn Smith, Doe Joyce, Lorraine Dezorte, William Berg and Bernice Berg, his wife, Gayle Murray, Robert Coch, Guido Santoliquido and Catherine Boyd v. Zoning Hearing Board of the Municipality of Penn Hills, No. S.A. 1380 of 1978.
Application for variance to the Zoning Board of Penn Hills. Variance granted. Objectors appealed to the Court of Common Pleas of Allegheny County. Appeal sustained. WATSON, J. Applicants appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Gregg M. Rosen, for appellants.
D. R. Pellegrini, with him Jack Hickton, Metz, Cook, Hanna Kelly, for appellee.
Carl T. Valenti, Jr., and Nancy Valenti (appellants) have appealed from a decision of the Court of Common Pleas of Allegheny County which reversed the grant of a use variance by the Zoning Board of Penn Hills (Board) for a property in a residential zoning district. We affirm.
The property in question is a triangular tract of approximately one acre. It is presently zoned "R-1 Single Family Detached." The property is bounded on all three sides by highways. R-1 districts adjoin two sides of the property, and a "B-1 Business" district adjoins the third. The property presently contains one single-family residential unit. The Board granted a variance which would permit development of the property as a "B-2 Business" use. For the purposes of this opinion, the essential difference between B-1 and B-2 districts is that bars are permitted in the latter but prohibited in the former.
Section 912 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 10912, lists the prerequisites for the granting of a variance. The Board must find, inter alia, that "(2) . . . there is no possiblity that the property can be developed in strict conformity with the provisions of the zoning ordinance" and that "(5) . . . the variance, if authorized, will represent the minimum variance that will afford relief." Id. It is well established that
a variance may obtain only when an applicant proves that in the present zoning posture there exists unnecessary hardship unique or peculiar to the property and that the proposed variance is not contrary to the public health, safety, or general welfare. . . . A variance should be granted only in exceptional circumstances and the burden of proving its need is a heavy one.
Boulevard Land Corp. v. Zoning Board of Adjustment, 8 Pa. Commw. 584, 586, 303 A.2d 234, 235 (1973) (citations omitted).
In order to sustain this heavy burden, the applicant for a zoning variance must present evidence to satisfy the requirements of Section 912 of the MPC. The procedure for presenting this evidence is found in Section 908 of the MPC, 53 P. S. § 10908, which allows for representation by counsel, presentation of witnesses and documents, and cross-examination of adverse witnesses. Nonetheless, "[f]ormal rules of evidence shall not apply." Section 908(6), 53 P. S. § 10908(6). Both the procedural requirements of Section 908 and the substantive requirements of Section 912 must be satisfied before a variance may be granted.
In the present case, the appellants presented evidence through the sworn statement of their attorney. This may have satisfied the procedural requirements of Section 908, but the evidence presented did not satisfy the substantive requirements of Section 912 because none of the parties alleged that the property could not be developed as presently zoned or that the variance requested was the minimum variance that would afford relief.
See R. Ryan, Pennsylvania Zoning Law and Practice § 9.4.14 (1970). But see Glenfield Borough v. C. E. Motors, Inc., 22 Pa. Commw. 115, 347 A.2d 732 (1975) ( unsworn statements of counsel before a zoning hearing board are not competent evidence).
In a case such as this, where the Court of Common Pleas has reversed the Board without taking additional evidence, our scope of review is limited to whether the Board committed an error of law or an abuse of discretion. Cook v. Zoning Hearing Board of Ridley Township, 47 Pa. Commw. 160, 408 A.2d 1157 (1979). Because no evidence was introduced to show that the statutory prerequisites for the granting of a variance had been satisfied, we must affirm the holding of the court below that the board committed an error of law or abuse of discretion in granting the variance in this case.
Order affirmed.
ORDER
AND NOW, this 6th day of February, 1981, the order of the Court of Common Pleas of Allegheny County which reversed the grant of a use variance to Carl T. Valenti, Jr., and Nancy Valenti, his wife, by the Zoning Hearing Board of Penn Hills, is hereby affirmed.