Appeal of McClure

• Decision Date: 29 September 1964
• Citation: 203 A.2d 534,415 Pa. 285
• Parties: Appeal of Sally Gibbs McCLURE, Doris Smagala, Gilbert Bitting, Christopher Moran, Joseph Walsh, and Mrs. George Ward from the Decision of the Board of Adjustment of the Township of Radnor.
• Court: Pennsylvania Supreme Court

Page 534

203 A.2d 534

415 Pa. 285

Appeal of Sally Gibbs McCLURE, Doris Smagala, Gilbert

Bitting, Christopher Moran, Joseph Walsh, and Mrs.

George Ward from the Decision of the

Board of Adjustment of the

Township of Radnor.

Supreme Court of Pennsylvania.

Sept. 29, 1964.

Joseph Sharfsin, Philadelphia, R. Paul Lessy, Chester, for appellants.

J. B. H. Carter, Holbrook M. Bunting, Jr., Edward W. Madeira, Jr., Philadelphia, for appellees.

Before BELL, C. J., and JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

JONES, Justice.

In December 1960 the Fidelity Philadelphia Trust Company, [Fidelity], applied to the building inspector of Radnor Township, [Township], in Delaware County for a permit to erect a branch bank building, with accessory outside drive-in, parking and other facilities, upon a tract of land located at the northwest corner of Lancaster and Airdale Avenues in Rosemont. ¹ Under the Township zoning ordinance this tract of land was in a residential area. Upon denial of the permit, ² Fidelity requested the Board of Adjustment of the Township, [Board], to grant variances under the zoning ordinance. The Board refused and the Common Pleas Court of Delaware County sustained the Board. Fidelity excepted to the court's action and, in June 1962, the court, stating the 'only testimony presented before the [Board] was in the form of statements of counsel for [Fidelity] and no witnesses were called to testify on behalf of [Fidelity]', ³ vacated the previous order and remanded the matter to the Board 'for the taking of admissible, competent and relevant testimony'.

The Board then held several hearings at which considerable testimony was taken on behalf of Fidelity as well as protesting residents in the vicinity and, after such hearings, the Board granted the variances and the court sustained the Board. From the court's order this appeal has been taken.

In determining this appeal, certain principles, well settled in this area of the law, must guide us. First, since the court below took no additional testimony, our scope of review is to determine whether the Board committed a manifest abuse of discretion or an error of law: Brennen v. Zoning Bd. of Adjustment, 409 Pa. 376, 379, 187 A.2d 180; Crafton Borough Appeal, 409 Pa. 82, 85, 86, 185 A.2d 533. Second, the Board's power to grant a variance from a zoning ordinance 'is to be sparingly exercised and only under peculiar and exceptional circumstances'; Sgarlat v. Kingston Borough Bd. of Adjustment, 407 Pa. 324, 330, 180 A.2d 769; Cresko Zoning Case, 400 Pa. 467, 471, 162 A.2d 219. Third, in order 'to obtain a variance the law is well settled that a petitioner must prove (1) the variance will not be contrary to the public interest; and (2) unnecessary hardship will result if it is not granted': Silverco, Inc. v. Zoning Bd. of Adjustment, 379 Pa. 497, 503, 109 A.2d 147, 150, and cases therein cited. Fourth, a variance should be granted, assuming it is not contrary to the public interest, only 'where the property involved is subjected to an unnecessary hardship unique or peculiar to itself, and not to general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance': Magrann v. Zoning Bd. of Adjustment, 404 Pa. 198, 200, 170 A.2d 553, 554. Fifth, a rezoning cannot be accomplished under the guise of a variance: Richman v. Zoning Bd. of Adjustment, 391 Pa. 254, 259, 137 A.2d 280. Lastly, one who seeks a variance cannot be heard to complain of a hardship involved when the same condition was present to his knowledge when he purchased the property: Upper St. Clair Twp. Grange Zoning Case, 397 Pa. 67, 71, 72, 152 A.2d 768; Cresko Zoning Case, supra, 400 Pa. 472, 162 A.2d 219.

The land upon which Fidelity desires to construct a branch bank has been for many years zoned 'R-4', i. e., a residential area in which the land uses are single family dwellings, a municipal building and a telephone control office. If allowed by the Board as special exceptions, other uses in an 'R-4' area are agriculture, a nursery, a greenhouse, the keeping and raising of livestock, a club, a fraternity house, a lodge, a hospital or sanitarium as well as religious, educational or philanthropic purposes. Moreover, certain so-called 'accessory uses' are permitted, by way of special exceptions, such as a 'professional office or studio' of members of certain specified professions, provided that such uses are carried on 'by members of the family in rooms which are located in a dwelling in which the petitioner resides'.

The property in question, irregular in shape, was described by the court below as 'practically an island surrounded by four streets, namely, Lancaster Avenue on the south, County Line Road on the north, Airdale Avenue of the east and Converse Avenue on the west'. ⁴ County Line Road--the boundary between Radnor and Lower Merion Township--is entirely residential in character and well-kept and well-maintained single family dwellings occupy both sides of County Line Road in the vicinity of the property in question. While two blocks to the north of County Line Road is the Rosemont Station of the Pennsylvania Railroad and a block away are a diner and two gasoline stations, our examination of the record leads us to agreed with the court below that the use of the property as a branch bank 'would constitute the first commercial inroad into this particular section of Radnor Township.'

In its initial rejection of the requested variance, the Board's findings, inter alia, were (a) the possible use of the land as a residence comparable to those in the neighborhood was 'practically nil' and that the restriction of this land to residential purposes constituted a 'hardship', (b) that Fidelity's knowledge of the zoning restriction of use of this land when it was purchased was 'irrelevant', (c) that the use of the land sought by Fidelity is not the only 'alternative solution' and (b) because of the 'intensity of proposed commercialism, increased traffic in the adjoining residential side street [County Line Road], and the risk of undue business use deteriorating an otherwise first quality residential neighborhood', the location of the branch bank on this land would not be in the public interest. ⁵

In granting the variance, the Board while, in the main, reiterating its previous findings, concluded the location of the branch bank was in the public interest, relying in large measure on a traffic survey of a Mr. Raber of the Pennsylvania Department of Highways. ⁶

An analysis of both the opinions of the Board and the court is of interest: (a) that which controlled the shift in positions was the testimony of the Highway Department as to the traffic conditions on County Line Road; (b) the fact that Fidelity knew when it purchased this land of the restricted use thereof under the...