Valley View Civic Ass'n v. Zoning Board of Adjustment

HUTCHINSON, Justice,

dissenting.

The only issue here is whether appellant Alma Horen met her burden of proving that because of the particular physical surroundings, shape, or topography conditions of the specific structure or land involved, a literal enforcement of the provision of this title would result in “unnecessary hardship.” Philadelphia Zoning Code, § 14-802. See Walter v. Z.B.A., 437 Pa. 277, 263 A.2d 123 (1970); O’Neill v. Z.B.A., 434 Pa. 331, 254 A.2d 12 (1969). The variance here involved is a “use” variance. This Court has recognized that there is a distinction between use variances and dimensional variances in that a use variance carries a greater risk of injury to the public interest. O’Neill v. Z.B.A., 434 Pa. at 337-38, 254 A.2d at 16. See Pfile v. Borough of Speers, 7 Pa. Commonwealth Ct. 226, 234, 298 A.2d 598, 602 (1972). See also R. Anderson, Law of Zoning in Pennsylvania, § 17.47 (1982).

Thus, the Commonwealth Court has held:

Variances, especially those authorizing commercial uses in a residential district, should not be generously granted. McKay v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 29, 300 A.2d 810 (1973). A variance should be granted only in the exceptional case and the burden of proving its need is heavy. The Boulevard Land Corporation v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 584, 303 A.2d 234 (1973).

J. Richard Fretz, Inc. v. Hilltown Tp. Z.H.B., 18 Pa. Commonwealth Ct. 471, 473-474, 336 A.2d 464, 465-466 (1975).

Commonwealth Court held here:

Unnecessary hardship can be established by showing 1) that the physical characteristics of the property are such that it cannot be used for any permitted purpose or that it could be so used only at prohibitive expense or 2) that the characteristics of the area are such that the property has no value or has only distress value if used for a purpose *562permitted by the ordinance. Avanzato Appeal, 44 Pa. Commonwealth Ct. 77, 403 A.2d 198 (1979); Eighteenth & Rittenhouse Associates v. Zoning Board of Adjustment, 26 Pa. Commonwealth Ct. 554, 364 A.2d 973 (1976)....
In the instant case, Appellee presented evidence of hardship in the form of testimony that her property is surrounded by commercial uses. Furthermore, the Board found from a visual inspection of the block on which the property is located that other uses on the block include: another gas station, a beauty shop and barber shop, a haberdashery, a beer distributor, a trash removal business and at least seven occupied dwellings. Thus, evidence of hardship was essentially limited to the existence of commercial uses in the vicinity of Appellee’s property.
While the use of adjacent and surrounding land may be relevant in determining whether unnecessary hardship exists, we have noted in the past that it is not conclusive, absent a showing that the property is rendered practically valueless as zoned. Avanzato Appeal; Upper Moreland Township Board of Commissioners v. Zoning Board, 25 Pa. Commonwealth Ct. 626, 361 A.2d 455 (1976). We have carefully reviewed the record in this case and have found no evidence that the property cannot physically be used for residential purposes or that it has no value or only a distress value for residential use. The fact that Appellee proposes to continue to use the upper floors for residential purposes in itself strongly indicates to us that a use in conformity with the zoning ordinance may be possible here.

Valley View Civic Asso. v. Z.B.A., 67 Pa. Commonwealth Ct. 233, 236-237, 446 A.2d 993, 995 (1982) (emphasis in original) (footnote omitted).

I agree with Commonwealth Court that there is no evidence to support the Zoning Board’s finding that undue hardship required a use variance.1 I would therefore affirm.

. The factual findings of the Zoning Board of Adjustment must be supported by substantial evidence. Center City Residents Asso. v. Z.B.A., 48 Pa. Commonwealth Ct. 416, 410 A.2d 374 (1980). The *563record shows the applicant’s only testimony in support of her variance was from her architect who described commercial uses in the block surrounding the applicant’s property in the majority opinion. In the same block, however, there were seven residential dwellings. No witness testified that the commercial use of adjacent land prevented the use of this property for residential purposes. There was no evidence that the existing commercial uses were disharmonious with residential use of the subject property. No one testified that if the applicant’s property was restricted to residential use, it would have no value or distress value. In fact, the record is barren of any testimony which would support the grant of a use variance other than a description of the block which demonstrates mixed commercial and residential use. As the Commonwealth Court aptly observed, most telling is the fact that under the proposed variance the subject property would be used for both commercial and residential purposes. Consequently, Commonwealth Court correctly concluded that the record did not include substantial evidence to support the Board’s finding of unnecessary hardship. See e.g., Richman v. Philadelphia Z.B.A., 391 Pa. 254, 137 A.2d 280 (1958).