Miller v. Zoning Hearing Bd. of Ross Tp.

• Decision Date: 25 October 1994
• Citation: Miller v. Zoning Hearing Bd. of Ross Tp., 167 Pa.Cmwlth. 194, 647 A.2d 966 (Pa. Commw. Ct. 1994)
• Parties: Richard MILLER and Lucia Miller, his wife, Appellants, v. ZONING HEARING BOARD OF ROSS TOWNSHIP and the Township of Ross.
• Court: Pennsylvania Commonwealth Court

Page 966

647 A.2d 966

167 Pa.Cmwlth. 194

Richard MILLER and Lucia Miller, his wife, Appellants, v.ZONING HEARING BOARD OF ROSS TOWNSHIP and the Township of Ross.

Commonwealth Court of Pennsylvania.

Argued March 1, 1994.

Decided Aug. 29, 1994.

Reargument Denied Oct. 25, 1994.

Pamela G. Cochenour, for appellants.

C. Donald Gates, Jr., for appellees.

Before CRAIG, President Judge, and PELLEGRINI, J., and RODGERS, Senior Judge.

CRAIG, President Judge.

Richard and Lucia Miller, the appellants here, ask that we reverse the decision of Judge Penkower of the Court of Common Pleas of Allegheny County affirming the decision of the Zoning Hearing Board of Ross Township to deny the Millers' request for a variance to operate a dental office in an R-1 District.The Millers contend that their property, which is surrounded by roads, is unsuitable for residential purposes and cannot be utilized for any of the permitted uses because of the lot's configuration.We affirm.

The facts, as found by the board, are as follows.The Millers purchased a plot of land at 102 Three Degree Road, zoned R-1 Residential.Richard Miller is a dentist and he intended to convert the house on the lot into a residential dentist office on the bottom floor with an apartment to rent upstairs.The Millers do not intend to reside on the property.

The Millers applied for a variance for the proposed use, which the board denied after a hearing.In the common pleas court, Judge Farino affirmed the board's decision, and the Millers appealed to this court.This court remanded the case because the board had not supplied sufficient findings of fact to allow meaningful appellate review.Miller v. Zoning Hearing Board of Ross Township(No. 1104 C.D.1988, filed January 6, 1989).

On remand, the board provided the following supplemental Findings of Fact:

1.The property at 102 Three Degree Road is approximately a quarter acre lot zoned R-1 which appellant purchased with the intention of opening a community dental office with an upstairs rental apartment.

2.Appellant purchased the property fully aware of the zoning restrictions, which precluded his operating a dental office at the premises.

3.The home on the property was previously occupied as a residence by a woman whose husband had died and who moved because the property became too much of a burden on her to keep up.

4.Appellant purchased the property after it was on the sales market for about ten years, and after a prior potential purchaser was denied an application for a similar variance to conduct a commercial activity on the premises.The prior potential purchaser did not proceed with the deal.

5.Appellant has no intention of living at the premises, already owning and occupying a resident in Shaler.

6.Appellant presently rents space on Babcock Boulevard for his dental office.

7.The premises is situated like an island, bounded by Perry Highway, Three Degree Road, Third Street and Reel Avenue.

[8. ¹]The corners of Perry Highway and Three Degree Road across from the premises are occupied by a restaurant, the restaurant's parking lot and a gas station.

[9.]A heavy volume of traffic exists in front of the premises along Perry Highway and Three Degree Road.The traffic problem has extended into the Reel Avenue, Second and Third Street roads surrounding the premises as drivers attempt to avoid the heavy traffic at the intersection.

[10.]The proposed dentist office would have access from either Three Degree Road or Reel Avenue, with hours from 9 to 5 on Mondays through Fridays.

[11.]The area behind the premises is a well established family residential neighborhood the residents of which who feel that preservation of the residential character will be threatened through allowing a commercial activity in the premises.

[12.]The residents in the Second Street and Reel Avenue area have adapted to the heavy traffic volume by having warning signs as to the presence of children erected by the Township, by erecting fences to restrict their children's access to the streets and by generally exercising more care and caution in traversing their neighborhood.However, they feel that the area is at a point where its residential character is threatened by the possibility of any more traffic.

[13.]The occupants of the homes behind the premises, Reel Avenue and Second Street, believe that the granting of a variance to allow a commercial activity in the premises will exacerbate the existing heavy traffic problem which threatens the safety of the neighborhood children and will open the area to increasing expansion of commercial usage, thereby destroying the long-standing residential nature of their neighborhood.

[14.]The premises was in the past and can be at present used as a residence and is not rendered completely useless by virtue of being in an R-1 zoning district.

The Millers again appealed to the common pleas court.Judge Penkower reviewed the supplemental findings of fact and affirmed the board.The trial court did not receive additional evidence.Now the Millers have appealed to this court.

Our standard of review in zoning cases where the trial court has not taken evidence is limited to determining whether the board made findings of fact that are not supported by the evidence or made an error of law.Vanguard Cellular Systems, Inc. v. Zoning Hearing Board of Smithfield Township, 130 Pa.Commonwealth Ct. 371, 568 A.2d 703(1989), petition for allowance of appeal denied, 527 Pa. 620, 590 A.2d 760(1990).

The only permitted use in the R-1 District is the "single family detached dwelling"(SFDD).Several accessory uses are allowed, but those are not at issue here.The ordinance defines "dwelling" as follows:

A: Dwelling: A building containing one (1) or more dwelling units.

B: Dwelling Unit: Any room or group of rooms located within a residential building and forming a single, habitable unit with facilities used or intended to be used for living, sleeping, cooking and eating by one (1) family.

The ordinance then imposes the following regulations on a SFDD:

1.Single family detached

Single family detached dwellings on individual lots with no public or community open space.All dwelling units shall be situated on permanent masonry foundations, including footings constructed below the frost line.

Parking: Two (2) off-street spaces per dwelling unit, provided at least one (1) parking space shall be in a garage.

The Millers want a variance to keep a residential use on the second floor of the house, but to also have a professional office on the first floor.In fact, although there is no evidence of any commercial use presently taking place on the lot, the record indicates that the Millers had a second-floor tenant at the time of the public hearing.

The ordinance makes provisions for the type of use sought by the Millers.This type of use is called a "Dwelling in Combination," and it is a permitted use in the C-2 and C-3 Commercial Districts.The following use regulations apply to a dwelling in combination:

7.Dwelling in Combination

Dwelling in combination with an...