Torak v. Board of Adjustment of Upper Merion Tp.
| Decision Date | 05 May 1971 |
| Citation | 277 A.2d 521,2 Pa.Cmwlth. 48 |
| Parties | Joseph L. TORAK et al., Appellants, v. BOARD OF ADJUSTMENT OF UPPER MERION TOWNSHIP, Appellee. |
| Court | Pennsylvania Commonwealth Court |
Petition for Allowance of Appeal Denied July 12, 1971.
Joseph L. Torak, King of Prussia, for appellants.
Gregory J. Dean, Norristown, for appellee.
Before BOWMAN, President Judge, and CRUMLISH, KRAMER WILKINSON, MANDERINO, MENCER and ROGERS, JJ.
The order affirming the Board of Adjustment of Upper Merion Township in denying appellant's request for a variance is affirmed upon the opinion of Judge William W. Vogel, written for the Court of Common Pleas of Montgomery County, reported at 92 Montg.Co.L.R. 136 (1970).
This case concerns itself with the expansion of a nonconforming building, utilized as a restaurant, located at 499 North Gulph Road, King of Prussia, Upper Merion Township Montgomery County, Pa. On or about June 3, 1968, the petitioners and applicants, Joseph L. Torak et al. hereafter referred to as Torak, applied for a building permit from the appropriate officials of Upper Merion Township, hereafter referred to as the Township, to expand their building and restaurant, the Colony Inn, an additional 1,242 square feet.
The petitioners are the owners of approximately one and four-tenths acres of land at the aforementioned site which was zoned 'AG', agricultural, by the Township in 1953. For sometime prior thereto the building was operated as a restaurant. It is agreed by all parties that the present floor area of the restaurant is 3,117 square feet.
After the application was denied, applicants forthwith appealed to the board of adjustment of Upper Merion Township, hereafter referred to as the Board, for a variance. [1] The variance sought an expansion of the building in excess of the 25 percent limitation of 779.24 square feet of the agreed floor area of 3,117 square feet namely, 1,242 square feet, or an additional square footage of 462.75 feet to be utilized as a restaurant facility. The petitioners sought to enclose a front porch of 704 square feet, plus a 538 square feet addition to the porch to accomplish their intended expansion of 1,242 square feet.
On September 10, 1968, a hearing was held before the Board. On October 22, 1968, the Board denied the petitioners' request for a variance and an appeal was taken to this court on October 28, 1968. After argument before the court en banc on January 3, 1969, this court on February 14, 1969, by its order sustained the board of adjustment. An appeal from the said order was taken by the applicants to the Supreme Court of Pennsylvania. Hence this opinion.
Three basic issues are presented by applicants in their appeal to the court: (1) Was the front porch of 704 square feet part of the actual building or restaurant? (2) Should a variance have been permitted because of unnecessary hardship? (3) Is the 25 percent limitation for extension of a nonconforming building as provided in the Upper Merion Township Zoning Ordinance of 1942, as amended, ordinance No. 15, art. XVI, § 1600(B), hereafter referred to as ordinance No. 15, unconstitutional?
Initially, consideration will be given to the front porch area question. At the hearing on September 10, 1968, one person, Thomas Sterner, and a tenant, Mr. J. Verdes, testified as to the use of the porch as a snack bar from around 1951 to 1968. A volunteer from the audience testified that the porch area was used as a restaurant in the summer time prior to 1953 and around 1942. Indeed, the applicants themselves had no information as to the use of the porch prior to the enactment of the zoning ordinance and had even demolished the same for future construction. Recognizing that the applicant has the burden of proof to determine the usage of the porch, the court is hard pressed, particularly when one observes the photographs of the porch and exhibit 'A--2', to see how such meager testimony as presented supports petitioners' contention that the porch area was an integral part of the building and should be considered as part of the same.
Thus, there is no reason to disturb the finding of fact by the Board that the porch was nothing more than a porch. In coming to this conclusion, the court, as well as the Board, is aided by the definitions set forth in the zoning ordinance at art. II, § 200. It defines the following: 'BUILDING--Any structure having enclosing walls and roof, permanently located on the land.' 'STRUCTURE--Any form or arrangement of building materials involving the necessity of providing proper support, bracing, typing, anchoring, or other protection against the forces of the elements.'
It would appear obvious from an analysis of the definitions in the ordinance, which does not define porch, that a porch is a structure and not a building since it does not have 'enclosing walls.' This porch had no enclosing walls other than the common building wall. See exhibit 'A--2'.
A similar determination was made in a former opinion of this court, namely, Ritt v. Zoning Board of Adjustment of Lower Merion Township, No. 62--11437, opinion filed July 25, 1963 (unreported). Thus, applicants' attempt to add 704 square feet to the building area by including the porch as a portion of the building in order to increase te measurement of the entire building to 3,821 square feet must fall.
Let us look at applicants' second contention. Initially, it is well-recognized that the burden of proving unnecessary hardship justifying a variance rests with the applicant: Andress v. Zoning Board of Adjustment, 410 Pa. 77, 188 A.2d 709 (1963); Richman v. Philadelphia Zoning Board of Adjustment, 391 Pa. 254, 137 A.2d 280 (1958).
Further, in considering this matter, it is well to recall the time-honored criterion which guides the appellate court's review, and the lower court's awareness, of the decision of a board of adjustment concerning a variance. As stated in Gross v. Zoning Board of Adjustment, 424 Pa. 603, at page 605, 227 A.2d 824, at page 826 (1967): 'Since no additional testimony was taken in the court below, our review is limited to the determination of whether or not the Board committed an error of law or was guilty of a manifest abuse of discretion: Brennen v. Zoning Board of Adjustment, 409 Pa. 376, 187 A.2d 180 (1963).' See also: Everson v. Zoning Board of Adjustment, 395 Pa. 168, 149 A.2d 63 (1959).
One other criterion of law is to be kept in mind in analyzing petitioners' request for a variance. As stated in Silverco, Inc., v. Zoning Board of Adjustment, 379 Pa. 497, 109 A.2d 147 (1954), and quoted in Fagan v. Zoning Board of Adjustment, 389 Pa. 99, at page 102, 132 A.2d 279, at page 281 (1957): 'In Silverco, Inc. v. Zoning Board of Adjustment, 379 Pa. 497, at pages 503 and 504, 109 A.2d 147, 150, opinion by Mr. Justice Bell, this Court declared that 'In order to obtain a variance * * * 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 * * *" (Italics Supreme Court's.)
In the present proceeding, it is seen that the applicant seeks an additional 462.75 square feet of expandable building area in addition to that permitted by the Board of 779.25 square feet or a total expansion of 1,242 square feet. The Board, in its decision, relied on art. XVI, § 1600(B), of the ordinance for its permitted extension. It states:
A review of the testimony of September 10, 1968, demonstrates unqualifiedly that applicants' only reason for expanding the present restaurant of 3,117 feet beyond the allowable 25 percent extension as permitted by § 1600(B) is economic. Further, the determination that the applicants should have been aware of the regulations and restrictions of the ordinance concerning extensions, as a result of having acquired the property in question around January, 1968, is rather apparent.
While this court rendered its decision on February 14, 1969, it relies on the established law reiterated recently on May 28 1969, by the Supreme Court in O'Neill v. Zoning Board of Adjustment, 434 Pa. 331, at page 334, 254 A.2d 12, at page 14 (1969), where it was stated: [2] ...
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