unnecessary hardship based on Unique topography of the land as well as surrounding uses
How later courts described this case
- unnecessary hardship based on Unique topography of the land as well as surrounding uses
- “rezoning is a purely legislative function reserved to the governing body under section 601 of the MPC”
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Judge Mencer:
I respectfully dissent. In a variance case, the crucial question is whether the property may be used in a reasonable manner within the restrictive provisions of the zoning ordinance. I can find nothing in this record to establish that the property cannot be utilized by the construction of permitted single-family dwellings on lots of a minimum of one acre. Admittedly, the erection of the proposed ten quadruplexes would be economically more feasible, but economic hardship, short of rendering property practically valueless, does not justify a variance. The Boulevard Land Corporation v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 584 , 303 A. 2d 234 (1973). The test is not whether the desired use of the property by its owner is the more desirable or even the best one. Marple Gardens, Inc. v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 436 , 303 A. 2d 239 (1973).
The majority concludes that the unique topography and location of the property in question were sufficient to permit the Board to grant the variance. I fail to understand the uniqueness of the topography where the prop *216 erty has a width of 360 feet and a length of 1180 feet and where in some areas it rises some 50 feet from its southern boundary to its northern boundary. Is 360 feet too narrow for the construction of single-family dwellings ? Is the grade such that landscaping and present-day construction methods cannot combine to build family dwellings on the land?
A variance should be granted only in exceptional circumstances, and the burden of proving its need is a heavy one. My examination of this record convinces me that Havwyn Manor, Inc., has not met that burden or established exceptional circumstances. I view this case as yet another instance where the applicant for a variance would only suffer a financial detriment from the refusal of the requested variance. I must conclude that such financial detriment is insufficient to warrant the grant of a variance.
Judge Blatt joins in this dissent.