Young v. Pistorio

Decision Date31 July 1998
Citation715 A.2d 1230
PartiesWalter YOUNG, Appellant, v. Charles PISTORIO, Jane L. Shelton and Bensalem Zoning Hearing Board.
CourtPennsylvania Commonwealth Court

James J. McMaster, Newtown, for appellant.

Marvin L. Portney, Bristol, for appellee.

Before FLAHERTY and LEADBETTER, JJ., and NARICK, Senior Judge.

NARICK, Senior Judge.

The issue before this Court is whether an applicant for a variance met his burden of proving that unique physical conditions of a subject property caused unnecessary hardship, thus, allowing the zoning board the authority to grant a variance.

Walter Young (Young) appeals from the order of the Court of Common Pleas of Bucks County that affirmed the decision of the Bensalem Township Zoning Hearing Board (ZHB) granting variances requested by Charles Pistorio and Jane L. Shelton (Applicants). We affirm.

On September 15, 1995, Applicants submitted an application for variances on their property known as Bucks County Tax Parcel No. 2-62-639-1 (subject property). The 21,643 square foot tract is located on Route 13 and backs into Interstate 95 in Bensalem Township. Because the subject property is located on a curve, it is almost the shape of a quarter section of a circle. The subject property is zoned GC-General Commercial and the only structure on the property is an advertising sign. Applicants sought relief from the Bensalem Township Zoning Ordinance in order to construct a storage facility for the purpose of warehousing products, which are sold on an adjacent property, also owned by Applicants. 1

The ZHB held a hearing and voted unanimously to grant the variances, with the condition that the subject parcel be combined with Applicant's adjoining property.

Young filed an appeal, citing fifteen errors committed by the ZHB. Following a conference, during which the trial court advised counsel to limit the issues, the parties agreed to confine the trial court's review to the following challenges 2:

a) The property in question is capable of reasonable use without any variance.

b) There are no physical conditions or circumstances unique or peculiar to the subject property which constitute an unnecessary hardship.

d) There was no unnecessary hardship shown by the Pistorios to justify the granting of any variance.

e) To the extent any variance was warranted, which is denied, the variances granted were not the minimum variance that would provide the requisite level of relief.

f) The variances granted and the condition attached to them will result in the subdivision or re subdivision or combination of lots, which is a power reserved in the governing body (Bensalem Township Council) and not held by the Zoning Hearing Board.

g) The variances granted were granted without the required notice to all the owners of property within 400 feet of the boundaries of the combined lots, as required by the Zoning Ordinance.

h) The variances granted will allow the construction of an accessory building on a lot other than the lot where the principal building or use is located in violation of the Zoning Ordinance.

i) The ordinances granted will allow the construction of a building that will allow the expansion of a use on an adjoining lot that is at least in part illegal or non-conforming under the applicable provisions of the Zoning Ordinance.

o) The decision of the Zoning Hearing Board was otherwise arbitrary, capricious, an abuse of discretion and/or contrary to law.

Without taking additional evidence, the trial court, after carefully reviewing the evidence and testimony presented to the ZHB, affirmed the grant of a variance, holding that Applicants had met their burden of proving an unnecessary hardship based upon the unique physical condition of the subject property. The trial court also held that the ZHB had not abused its discretion in attaching the condition that the two properties owned by Applicants be joined, citing Whary v. Zerbe Township Zoning Hearing Board, 683 A.2d 1294 (Pa.Cmwlth.1996).

On appeal to this Court, 3 Young again raises the same issues as presented by the trial court. We shall review these in seriatim.

Young first argues that the trial court erred in affirming the ZHB because the property is capable of reasonable use without any variance because no physical conditions or circumstances are unique or particular to the subject property which would constitute an unnecessary hardship. We do not agree. Section 910.2 of the Pennsylvania Municipality Planning Code states that:

(a) The board shall hear requests for variances where it is alleged that the provisions of the zoning ordinance inflict unnecessary hardship upon the applicant. The board may by rule prescribe the form of application and may require preliminary application to the zoning officer. The board may grant a variance, provided that all of the following findings are made where relevant in a given case:

(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,...

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6 cases
  • In re Thompson
    • United States
    • Pennsylvania Commonwealth Court
    • 30 Marzo 2006
    ...made by the municipal body which hears the testimony, evaluates the credibility of the witnesses and serves as fact finder. Young v. Pistorio, 715 A.2d 1230 (Pa.Cmwlth.1998); Collier Stone Company v. Zoning Hearing Board for the Township of Collier, 710 A.2d 123 (Pa.Cmwlth.1998). The review......
  • Nowicki v.
    • United States
    • Pennsylvania Commonwealth Court
    • 6 Mayo 2014
    ...that create an unnecessary hardship are irregularity, narrowness, shallowness, and exceptional topography. See, e.g., Young v. Pistorio, 715 A.2d 1230, 1232 (Pa.Cmwlth.1998) (unique physical conditions peculiar to the property were found where the property was located on a curve and shaped ......
  • Taliaferro v. DARBY TP. ZONING HEARING BD.
    • United States
    • Pennsylvania Commonwealth Court
    • 13 Abril 2005
    ...by substantial evidence, R.R. at 141a; Supplemental Reproduced Record at 26b, it will not be disturbed. See Young v. Pistorio & Bensalem Zoning Hearing Bd., 715 A.2d 1230 (1998). A. Relying on Leon E. Wintermyer Inc. v. Workers' Comp. Appeal Bd. (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002), ......
  • SCRUB v. ZONING BD. OF ADJUST. OF PHILA.
    • United States
    • Pennsylvania Commonwealth Court
    • 5 Abril 1999
    ...is limited to a determination of whether the Board committed an abuse of discretion or an error of law in granting a variance. Young v. Pistorio, 715 A.2d 1230 (Pa.Cmwlth.1998). Moreover, a decision to grant or deny a motion to quash an appeal is a question of law and, therefore, within thi......
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