Durkin Contracting Co. v. Zoning Board of Adjustment

Dissenting Opinion by

Judge Blatt:

Although I concur with the dissenting opinion of Judge Rogers, I must also record my own disagreement with the majority’s holding pertaining to unnecessary hardship, and would also query the failure of the court below to make findings of fact and conclusions of law after hearing the case de novo.

There is a heavy burden on the applicant in a variance case to prove that an unnecessary hardship will result if a variance is not granted. Altemose Construction Company v. Zoning Hearing Board, 3 Pa. Commonwealth Ct. 328, 281 A. 2d 781 (1971). The applicant *219in this case, however, clearly did not carry that burden. Before the Zoning Board of Adjustment (Board), the applicant introduced no evidence tending to prove unnecessary hardship. At the hearing before the lower court, a real estate expert did testify on behalf of the applicant that the types of buildings which could be erected on this property were limited. But neither he, nor any other witness, at any time, testified that the property could not be used as zoned. As in Marple Township Appeal, 430 Pa. 113, 114, 243 A. 2d 357 (1968), where the record was “completely barren as to any evidence demonstrating that the land in question cannot possibly be used within the permissible uses enumerated under the present zoning classification . . .”, we should hold as was held in that case that “[sjince appellees have failed to so demonstrate, the variance should have been denied by the court below.” Actually, far from producing evidence that the property could not be used within the permissible uses in an L-2 Industrial District, the applicant’s witnesses were asked merely what the “highest and best use” would be for the property. Such testimony points only to the possibility of an economic hardship, and an “[ejconomic hardship does not constitute such a unique, unnecessary hardship peculiar to the property involved that will in itself justify the issuance of a variance. . . .” DiSanto v. Zoning Board of Adjustment of Lower Merion Township, 410 Pa. 331, 334, 189 A. 2d 135, 137 (1963).

When a community enacts a zoning ordinance it is presumed to have acted to establish a rationally planned system for land use, and the purpose of placing a heavy burden of proof on the applicant in variance cases is that a lesser standard would negate the plan of the zoning ordinance by permitting landowners to use their land for any use which they can show would be the most profitable. I would hope that the majority’s opinion does not signal a turn from requiring the landowner *220applicant for a variance to carry the heavy burden of proving “unnecessary hardship” to permitting the application of the lighter standard of “highest and best use.”

The majority correctly points out that by considering additional testimony the lower court was required to hear the case de novo and to determine the case on its merits. The lower court appeared confused on this matter, however, as evidenced by the fact that it failed to include in its opinion any findings of fact and conclusions of law. “The obvious purpose in delineating the findings of fact is to facilitate appellate review. Likewise, the final decision shall contain conclusions of law.” Beebe v. Media Zoning Hearing Board and Hibberd, 5 Pa. Commonwealth Ct. 29, 33, 288 A. 2d 557, 559 (1972).

1 would hold that the lower court abused its discretion by granting a variance when the evidence was clearly insufficient to establish an unnecessary hardship. In the alternative, I would remand the case to the lower court in order to enable it to make findings of fact and conclusions of law so that we might have a complete record to review.