Vitale v. Zoning Hearing Bd. of Upper Darby Tp.

• Decision Date: 05 January 1982
• Citation: 438 A.2d 1016,63 Pa.Cmwlth. 604
• Parties: Peter VITALE, et al. v. ZONING HEARING BOARD OF UPPER DARBY TOWNSHIP et al. Appeal of Nicholas MICOZZIE.
• Court: Pennsylvania Commonwealth Court

Page 1016

438 A.2d 1016

63 Pa.Cmwlth. 604

Peter VITALE, et al. v. ZONING HEARING BOARD OF UPPER DARBY TOWNSHIP et al. Appeal of Nicholas MICOZZIE.

Commonwealth Court of Pennsylvania.

Argued Nov. 18, 1981.

Decided Jan. 5, 1982.

Joseph P. Mylotte, Curran, Mylotte, David & Fitzpatrick, Joseph P. Ryan, Curran, Mylotte, David & Fitzpatrick, Media, for appellants.

George Koudelis, Upper Darby, Henry B. Fitzpatrick, Jr., Liebert, Short, Fitzpatrick & Lavin, Philadelphia, for appellees.

Before CRUMLISH, President Judge, and MacPHAIL and PALLADINO, JJ.

MacPHAIL, Judge.

Nicholas Micozzie (Appellant) has appealed to this Court from an order of the Court of Common Pleas of Delaware County which reversed the decision of the Zoning Hearing Board of Upper Darby Township (Board) and granted a variance to Appellees ¹ for the construction of forty-four apartment units on a 3.21-acre tract.

The record discloses that the tract in question is located in an R-1 residential district which permits single family detached dwellings as the only permissible residential structure. ² The tract is bounded on the south by a nursing home, on the east by Darby Creek and across the creek by the Mercy Catholic Medical Center, on the west by four single family dwellings, one of which is owned by Appellees, and on the north by a 200-unit apartment complex also owned by Appellees and developed pursuant to a use variance. The tract is landlocked and has as its primary topographical feature a 65-foot slope, down to Darby Creek at up to a 20% grade. The slope occurs over approximately 200 feet of the 420-foot east-west dimension of the property.

Appellees' application for a use variance was denied after two hearings before the Board on the grounds that Appellees failed to establish that the variance requested was the minimum necessary to provide relief and that any unnecessary hardship was self-created since Appellees purchased the subject property knowing of its zoning restrictions. Appellees appealed to the court of common pleas which reversed, concluding that Appellees had established that unnecessary hardship existed under the R-1 zoning restrictions as a direct result of unique physical features of the land, that there was no self-created hardship, that Appellees need not establish that the variance requested was the minimum needed to afford relief and that the proposed apartments would not adversely affect the surrounding community.

In his appeal to this Court, Appellant contends that the Board acted within its discretion and in accordance with law in denying Appellees' variance application.

Before we address the merits of this appeal, however, we must respond to Appellees' renewed request that this appeal be quashed on the ground that Appellant lacks standing in this Court. Appellees previously filed a motion to quash in this matter which was denied, after oral argument, on April 30, 1980 by this opinion writer. It is a general rule that it is improper for a trial judge, absent new evidence, to overrule an interlocutory order by another judge of the same court in the same case. Commonwealth v. Tyson, 57 Pa.Commonwealth Ct. 569, 427 A.2d 283 (1981). We adopt the same rule with regard to pre-argument applications filed with this Court. In the interest of judicial economy and efficiency there must be a degree of finality to determinations on pre-argument motions. See Commonwealth v. Eck, 272 Pa.Superior Ct. 406, 416 A.2d 520 (1979). We, accordingly, will not review the order of this Court denying Appellees' motion to quash.

Turning to the merits of the appeal before us, where, as here, the court of common pleas did not take additional evidence, our review is to determine if the Board abused its discretion, committed errors of law, or if its findings are not supported by substantial evidence in the record. Township of Haverford v. Zoning Hearing Board of Haverford Township, 55 Pa.Commonwealth Ct. 209, 423 A.2d 757 (1980).

Section 912 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10912 sets forth five requirements which must be satisfied before a variance may be granted: 1) the property must possess unique physical conditions which create an unnecessary hardship in complying with the applicable zoning regulations; 2) that due to those physical conditions a variance is necessary to enable reasonable use of the property; 3) that the unnecessary hardship is not self-created; 4) that the grant of a variance would not alter the character of the neighborhood, impair appropriate use of adjacent property or be detrimental to the public welfare; and 5) that the variance represents the minimum variance that will afford relief and will least modify the applicable zoning regulation.

Unnecessary hardship may be established by proof "that the physical or topographical features of the property are such that it cannot be used for the permitted purpose or that the physical features are such that the property can be arranged for such use only at a prohibitive expense. Marlowe v. Zoning Hearing Board of Haverford Township, 52 Pa.Commonwealth Ct. 224, 232, 415 A.2d 946, 950 (1980).

We think it is clear, as the court below found, that unnecessary hardship has been established in this case. Appellees produced expert testimony that only seven single family dwellings could be developed on the tract and that access would have to be acquired by demolishing the house owned by Appellees which is contiguous to the subject tract and constructing a road through to the now landlocked property. ³ The cost of each house, including substantial sub-foundation work, necessary due to the slope of the property, and a pro rata share of the access road costs, was estimated at $92,837.50. Recent home sales in the vicinity ranged from a low of.$23,500 to $50,000. While a mere showing of economic hardship will not justify the grant of a variance, Alfano v. Zoning Hearing Board of Marple Township, 14 Pa.Commonwealth Ct. 334, 324 A.2d 851 (1974), we believe that the...