The opinion
Dissenting Opinion
by Judge Rogers :
I dissent because there is no evidence here to support the imposition of a gasoline service station upon the residential community of Circleville, North Huntingdon Township, contrary to the provisions of the Township zoning ordinance.
The appellee, the owuer of the house and lot 1 in suit *37 and her proposed purchaser, the South Penn Oil Company, required a variance from the township’s requirement that the property’s use should be for residential purpose only. To obtain a variance the appellee was required to prove that the property could not feasibly be used for any permitted purpose. Under the cases, infeasibility might be proved either (1) by a showing that the physical characteristics of the property were such that it could not in any case be used for the permitted purpose or that the physical characteristics were such that it could only be arranged for such purpose at prohibitive expense (Zoning Board of Adjustment v. Koehler, 2 Pa. Commonwealth Ct. 260 , 278 A. 2d 375 (1971); Forest Hills Borough Appeal, 409 Pa. 392 , 187 A. 2d 166 (1963)); or (2) by proving that the characteristics of the area were such that the lot has either no value or only a distress value for any purpose permitted by the zoning ordinances (Ferry v. Kownacki, 396 Pa. 283 , 152 A. 2d 456 (1959); Peirce v. Zoning Board of Adjustment, 410 Pa. 262 , 189 A. 2d 138 (1963)). Since the property here is a lot with a dwelling house erected on it, there was no physical deterrent to its continued use for residential purposes. No effort whatsoever was made to prove that the lot was either without value or of only distress value as a residential property. Indeed, there is nothing in the record tending to show that the lot has a greater value if permitted to be used for a gasoline service station, the usual and unavailing basis for cases of this nature. See DiSanto v. Zoning Board of Adjustment, 410 Pa. 331 , 189 A. 2d 135 (1963).
The only record of this case in the Zoning Hearing Board of North Huntingdon Township consists of the *38 Board’s minutes of a meeting of December 22, 1966. The record is silent as to whether there was any sworn testimony heard by the Board, but one of the briefs informs us that there were only unsworn statements made to the Board. In any case the minutes are as follows:
“Special meeting of Board of Adjustment, North Huntingdon Township, was held at the Town House at 9:00 p.m., December 22, 1966. All members were present.
“Mr. Hassan made the following remarks:
“1. Hardship on land use was not established. The solicitor for the petition did not make any claim of hardship and admitted there were none in so far as land use was concerned.
“2. Proposed gasoline service station is within 300 feet of Circleville School.
“3. Residential development of property is very favorable.
“4. Alleged commercial precedents in area are without basis.
“5. Maintain residential character of area.
“Mr. Dick presented the following in the form of a letter (attached so that original may be filed):
“After careful study of application of Florence M. Evans it is my opinion that a variance should be granted for the following reasons:
“1. When property is properly cleared, it will give greater visibility to motorists approaching the intersection.
“2. The dangers at this intei’section would be lessened by the illuminating lights of the service station.
“3. It would rid the township of a blighted piece of property.
“4. It would eliminate the possibility of children getting hurt on run-down and unkept property.
*39 “5. The property would bring in greater tax revenue.
“6. Tbe possible chance that tbis property would be used as a single family residence are poor due to: “(a) Possibility of tbe State widening tbe road to accomadate [sic] tbe increasing flow of traffic.
“(b) Tbe dangers of property damage at a busy intersection.
“(c) Tbe annoying sound of traffic.
“ ‘Tbe objections of tbe people in tbe area were taken into full consideration. Some of tbe objections bad merit. If there bad not already been commercial properties in tbe area, tbe picture could of changed. I recommend in order to protect tbe privacy of Mr. Flick’s property (707 Robbins Station Road) that Mrs. Evans plant a screen of shrubbery or stand of pines between rpoperties [sic].’
C. W. Dick
“Mr. Brown made tbe following remarks:
“1. Property as it is and has been for several years is definitely a hazard. There have been no efforts made to correct tbe problem.
“2. There is no reason to believe that traffic would increase at tbis intersection as tbe result of tbe proposed service station.
“3. The erection of tbe service station would be a distinct improvement.
“4. Proper shrubbery screening would assure privacy to adjacent property.
“A motion was made by Mr. Dick and seconded by Mr. Brown to grant tbe appeal for variance by Mrs. Evans. Contingent on tbe following:
“1. Approval is granted by tbe Board of Commissioners as required in Section 8.7 of tbe Zoning Ordinance.
*40 “2. Suitable shrubbery screening be placed at boundaries with adjacent properties.
“3. The historical marker identifying Three Springs Camp be maintained on premises.
“Dick and Brown voted in favor of the motion and Hassan voted against the motion.
“The Board of Adjustment thereby grants the appeal for variance by Florence Evans on the property at Clay Pike and Robbins Station Road.”
On appeal from the Board the court took evidence. This consisted of the testimony of residents of the neighborhood opposed to the application for variance and that of a real estate expert that the establishment of a gasoline service station on this lot would depress the value of the residential properties in the vicinity.
Indeed, the evidence produced in the court below, which stands unrebutted, is that the general neighborhood is 90 to 100 percent residential and that the only exceptions to residential use near the property are an elementary school across the street, a residence converted to funeral home use in the same block, and, at a greater distance, a building accommodating doctor’s offices. The appellee by cross-examination brought out that U. S. Route 30 is close and is developed commercially and that there is a supermarket and Dairy Queen ice cream establishment somewhere in the area. However, the record also shows that Circleville sits on a height above U. S. Route 30 and that the market and the ice cream shop are a mile distant. Not only the testimony but photographs in the record clearly prove that the immediate vicinity of this lot is a quiet residential neighborhood. Its description on this record would, in my judgment, make out a creditable case for enjoining the establishment of a gasoline service station at the location here proposed as a nuisance at common law. Prendergast v. Walls, 257 Pa. 547 , 101 A. 826 (1917); *41 Hohl v. Modell, 264 Pa. 516 , 107 A. 885 (1919); Pennell v. Kennedy, 338 Pa. 285 , 12 A. 2d 54 (1940).
I thinlr that the court below committed an abuse of discretion and that its order should be reversed.
Judges Mencer and Blatt join in this dissent.
The house is in poor condition. The appellee advances this as a reason for the grant of the variance (although her neglect *37 of the property is the cause) not as evidence of the infeasibility of its use as a residence, but in support of the irrelevant argument that the neighborhood would be better off with a well cared for gasoline station than a dilapidated house.