MacLean v. Zoning Bd. of Adjustment of Borough of Crafton
Citation | 185 A.2d 533,409 Pa. 82 |
Parties | Appeal of Robert MacLEAN v. The ZONING BOARD OF ADJUSTMENT OF the BOROUGH OF CRAFTON. Appeal of the BOROUGH OF CRAFTON. |
Decision Date | 13 November 1962 |
Court | United States State Supreme Court of Pennsylvania |
Gilbert E. Morcroft, Pittsburgh, for appellant.
Frank W. Ittel, John H. Demmler, Reed, Smith, Shaw & McClay, Pittsburgh, for appellee.
Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN, and KEIM, JJ.
This appeal is from an order of the County Court of Allegheny County which reversed the decision of the Zoning Board of Adjustment [Board] of the Borough of Crafton [Borough] which has denied a request for a variance from a zoning ordinance.
The subject real estate--a corner lot--extends 135 feet along Foster Avenue and 119.86 feet along Glenn Street in the Borough of Crafton. This property was purchased in 1958 by Robert MacLean. 1 In 1926 the Borough, by ordinance No. 691, zoned the area in which this real estate was located as a Residential District 'A' in which district the only permitted uses were one-family dwellings, two-family dwellings of the duplex or double-house type, multiple dwellings, churches, educational institutions, libraries and fraternal buildings, telephone central exchanges and accessory uses incidental to any of the principal uses not including the conduct of a business.
MacLean, desiring to conduct a gasoline service station business on the premises, in March 1960 petitioned the Borough Council to change the zoning of this property from a residential to a commercial district but Council refused to rezone the property.
On March 14, 1961 MacLean filed with the Borough building inspector an application for a building permit to erect a gasoline service station. This application was refused on the ground that the requested use was not a permitted use in a Residential 'A' District. Thereupon MacLean appealed to the Board requesting a variance. On May 12, 1961 the Board rejected MacLean's appeal and, on appeal to the County Court, that court remanded the record to the Board for further hearing and findings of fact. The Board on February 21 and March 1, 1962 conducted further hearings, made findings of fact and conclusions of law and again refused a variance. An appeal was then taken to the County Court and that Court, without hearing any additional testimony but after viewing the premises in person, reversed the Board and directed the grant of a variance. From that order the Borough has appealed.
MacLean has filed a motion to quash this appeal on the ground that the Borough, not having been a party-litigant in the County Court, has no standing to take this appeal. The record indicates beyond question that at each of the three hearing before the Board the Borough was a party, represented on record by counsel, that such counsel, examined and cross-examined witnesses and that the Borough presented witnesses on its behalf. Upon MacLean's appeal to the County Court no testimony was taken and there was no need nor necessity for the Borough's counsel to appear at any hearing. Moreover, it is indicated that the court, prior to viewing the property, invited counsel, including the Borough counsel, to attend such view with the court, an indication that the court certainly considered the Borough a party to the litigation.
In support of his motion to quash, MacLean relies on Alloy Metal Wire Co. Inc. Appeal, 329 Pa. 429, 198 A. 448. Under the tax assessment act applicable in Alloy, supra, political subdivisions, including boroughs, were permitted to become parties to assessment proceedings before the Board of Assessment, the Courts of Common Pleas and the Supreme or Superior court. Our Court construed that statute to require that a borough be a party in the Common Pleas court in order to appeal to the Supreme or Superior courts and quashed the appeal of the Borough from an order of a common pleas court which reduced the assessment on certain real estate. Mr. Justice (later Chief Justice) Kephart stated, inter alia (p. 431, 198 A. p. 449): In our view, the Borough in the case at bar actively participated in the proceedings before the Board and, in view of the fact that the court required no additional testimony but determined the matter on the testimony and record before the Board, further participation on the part of the Borough was unnecessary. On this record there exists a requisite participation by the Borough in the proceedings below so as to give the Borough a standing to take this appeal. Alloy, supra, does not control the instant situation. The motion to quash is refused.
On the posture of this litigation, the court below having taken no testimony, the question before that court and now before us is whether the Board committed a manifest abuse of discretion or an error of law. Mr. Justice Cohen, speaking for this Court, in Upper Providence Township Appeal, 407 Pa. 20, p. 22, 179 A.2d 194, p. 195, recently stated:
MacLean sought before the Board a variance. The circumstances under which a variance can be granted have been considered by this Court frequently in recent years. In Margram v. Zonning Board of Adjustment, 404 Pa. 198, pp. 200, 201, 170 A.2d 553, p. 554, we said: In Richman v. Philadelphia Zoning Board of Adjustment, 391 Pa. 254, 259, 262, 137 A.2d 280, 283, 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 may be observed, the public health, [the public] safety and 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 Furthermore, the power to grant a variance must be exercised sparingly and only under peculiar and exceptional circumstances. Sgarlat v. Kingston Borough Board of Adjustment, 407 Pa. 324, 330, 180 A.2d 769.
The instant record portrays a property which could be used for residential purposes but could be more gainfully used for the purposes of conducting a gasoline service station. While L. B. Shapero, a real estate developer and the real owner of this property,...
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