Appeal of Gro
| Decision Date | 09 October 1970 |
| Parties | Appeal of Joseph GRO from the Decision of the Board of Adjustment of the Township of Upper Darby, Delaware County, Pennsylvania. Appeal of Leslie MILLS and Mary Jane Mills, Vernon Bellamy and Rita Bellamy, William Bouvier and Dorothy Bouvier, Vincent Christy and Alice Christy, Joseph Mullen and Mary Mullen, Edward D. C. Lynch and Elizabeth Lynch. |
| Court | Pennsylvania Supreme Court |
Franklin J. Seyfert, Seyfert & Emuryan, Median, for appellants.
Donald J. Orlowsky, ReDavid, Orlowsky, Natale & Anderman, Media, for appellee, Joseph Gro.
Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.
This is a zoning appeal from a decision of the lower court granting a variance to permit the erection of fifty-nine apartment units. The appellants, a group of residents in the Township of Upper Darby, are opposed to the construction of such apartments.
The property has frontage of 353 feet along Ashurst Avenue and a depth of 120 feet along the northerly side of the property and a depth of 123 feet along the sougherly side.
Ashurst Avenue is currently only partially paved and in poor condition and is not a through street along the subject property, with a deadend at the Pennsylvania Railroad tracks along the south side of the property, and ending on the north side at Primos Avenue.
The entire rear portion of the property, varying from five to eight feet in depth, is currently zoned Manufacturing-Industrial (M) and the remainder of the tract is zoned R--2 Residential under the Upper Darby Zoning Ordinance.
Under Section 203 of the Upper Darby Zoning Ordinance, when a zoning district boundary line divides a property held in single and separate ownership, the regulations as to the use in the less restricted district are permitted to extend an additional 50 feet into the more restricted district.
As a result of the aforesaid boundary tolerance provision, approximately 46 percent of the subject property can be legally developed under the Manufacturing-Industrial regulations, and under said regulations, apartment use is permitted by special exception.
All of the property abutting the rear or east side of the subject property is zoned 'M' all the way out to Oak Avenue, a distance of approximately 1,200 feet. In this area are located the industrial concerns of Franklin Printing, Crucible Steel, Building Units, Clifton Builders Supply, and other industrial uses.
To the south side, the subject property is bounded by the Penn Central Railroad tracks, elevated about eight feet, which carry approximately 70 scheduled commuter trains per day on the Philadelphia-West Chester Branch.
On the opposite side of the railroad tracks is located a shopping center, zoned B-Business, running all the way out to Providence Road.
On that north side of the subject property is located the Primos-Secane Swim Club.
On the west or front side, the subject property is bounded by Ashurst Avenue along the side of which flows the Muckinipates Creek, and on the opposite side of the creek is located unimproved ground.
Because of the topography of the ground, and its adjoining Mucknipates Creek, extensive grading, roadwork, retaining walls and other improvements would be required to prepare the site for either single family residential or apartment development, the cost of site improvements alone being estimated at a minimum of $44,000.
Because of the irregular shape of the ground and its topography, a maximum of six single-family dwellings could be constructed on the property. Appellee testified that he paid $40,000 for the property. Therefore, after adding together the $40,000 appellee paid for the land and the approximate $44,000 cost of improvements and dividing by six, the court found that the cost of ground and improvement costs would be $14,000 per lot.
Based on expert testimony that a five-to-one ratio usually exists in the real estate industry between cost of home and cost of ground and site improvement, the court found that the site and improvement costs would require the construction of homes in the $70,000 price range. The court found that there would be no marketability for single family homes in the $70,000 price range on the immediate area of the appellee's property because of the adjoining industrial use, railroad tracks, and neighboring residential area which was composed of homes in the $18,000 price range. Therefore, the court concluded that the property involved is subject to a unique and unnecessary hardship, thereby justifying the granting of a variance.
If that were all the facts in the case, we might agree with the lower court.
In Richman v. Zoning Bd. of Adj., 391 Pa. 254 at 259, 137 A.2d 280, at 283 (1958), we said:
'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,' and, even then, the variance can be granted only if 'the spirit of the ordinance shall be observed; the public health; the public safety; and the general welfare secured; and substantial justice done'. * * * He who seeks a variance has the burden of proving justification for its grant. The 'hardship' which must be proven must be an 'unnecessary,' not a 'mere' hardship, * * * as well as 'unique or peculiar to (the property involved) as distinguished from the impact of the zoning regulations on the entire district.''
Although it frequently has been stated that economic or financial hardship is not in itself sufficient to sustain the granting of a variance, Cooper v. Board of Adjustment, 412 Pa. 429, 195 A.2d 101 (1963); Jasy Corp. v. Board of Adjustment, 413 Pa. 563, 198 A.2d 854 (1964), this doctrine has only been applied where it is a question of more profits from one type of development as opposed to another type of development.
In the instant case, there was evidence that Appellee could not develop this land for residential purposes at a profit because there would be no market for homes in the price range he would need to construct in order to make a profit on his $84,000 investment. Thus, the case is similar to the situation in Garbev Zoning Case, 385 Pa. 328, 122 A.2d 682 (1956), where we emphasized the following facts:
'Appellant's land is not suited for residential purposes because of the difficult problems presented by Naylor's Run, the storm and sanitary sewers crossing part of it, the heavy traffic along Garrett Road, the railroad which borders the property, the railroad freight area adjoining the property on the east, the unsightly elevated trolley bridge along the north side of Garrett Road with almost constant noise from passing trains, and the limited access to the tract.
'It would not be economically feasible or practical to build houses on this tract.'
Similarly, in the case of Ferry v. Kownack, 396 Pa. 283, 152 A.2d 456 (1959) However, unlike the situations in Garbev or Ferry, appellee purchased the subject premises in April of 1968 with full knowledge that the area in which the subject premises were situated was zoned for residential use. Moreover, the record indicates the property was worth $40,000, the price appellee paid, only if the property was granted the anticipated variance. The following colloquy is quoted from the cross-examination of Mr. deGrouchy, appellee's expert witness:
we hpheld the granting of a variance to permit the construction of a gas station where the record showed that the property in question could not be developed for residential purposes because there was no market at all because of the prohibitive costs imposed by the terrain.
'Q From your examination of this could you state any particular attributes that this property would have that would bring the forty thousand instead of the eighteen that similar properties in the area would bring?
The zoning power is one of the tools of government which, in order to be effective, must not be subjected to judicial interference unless clearly necessary. For this reason, a presumption of validity attaches to a zoning ordinance which imposes the burden to prove its invalidity upon the one who challenges it. Nat. Land & I. Co. v. Easttown Bd. of A., 419 Pa. 504, 215 A.2d 597 (1965), and cases there cited.
Under such circumstances, that which we said in Crafton Borough Appeal, 409 Pa. 82, 185 A.2d 533 (1962) is apposite:
'When (the purchaser) acquired the property he did so with the conditions of (the now claimed) economic hardship staring (him) in the face, and (he) cannot now be heard to complain (citing cases).'
In order for a hardship to be unnecessary, it cannot be self-inflicted. Here, the appellee, by paying $40,000 for the land, created circumstances which made it impossible profitably to construct single family residences upon the property for a price at which they could be sold. He gambled that he could obtain a variance which would make his purchase profitable. The case is, therefore, somewhat similar on its facts to the...
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Wilson v. PLUMSTEAD TP. ZONING HEARING BD.
...a high price for the property under the false assumption that he would receive a variance. Id. at 1332-33 (quoting Appeal of Gro, 440 Pa. 552, 560, 269 A.2d 876, 880-81 (1970)). Likewise, here, Landowner purchased the Property under a false assumption, or with prior knowledge, that he could......
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Vacca v. Zoning Hearing Bd. of Borough of Dormont
...of the seller's appeal from the board's denial of his requested variance. Hence, the history here is similar to that in Appeal of Gro, 440 Pa. 552, 269 A.2d 876 (1970), where the Supreme Court held: Only in a case such as this, which arises after the property has been sold to a new owner wh......