Posted by: Patricia Salkin | September 22, 2015

PA Appeals Court Holds Landlocked Nature of Adjoining Property Did Not Constitute Unnecessary Hardship that would Warrant Dimensional Variance to Estate

Kevin McCarry was the executor of the estate of his parents, James A. McCarry, Jr. and Barbara A. McCarry. The estate included a parcel of property (Lot 1), containing a house and a garage with access to Bon Air Road, and Lot 2, an undeveloped, landlocked lot located immediately behind Lot 1. McCarry wanted to build a house on Lot 2, but because Lot 2 was landlocked, McCarry sought to subdivide a 38–foot section of Lot 1 in order to provide Lot 2 with the minimum street frontage required to build a house. The existing house on Lot 1 had a front setback that is 25.72 feet from the right-of-way, which was 4.28 feet shorter than the 30–foot minimum setback required by section 182–206C(5)(a) of the Zoning Ordinance of the Township of Haverford. He therefore filed an application with the ZHB requesting a dimensional variance from section 182–713B of the Ordinance to subdivide Lot 1. The ZHB concluded that McCarry failed to meet the requirements for a dimensional variance because he did not prove the existence of an unnecessary hardship on the subject property, and that granting McCarry’s requested variance would have the effect of contributing to the rainwater runoff problem on Bon Air Road. The Court of Commons Pleas, Delaware County, affirmed the ZHB’s order and McCarry appealed.

Although Lot 2 was landlocked, McCarry and the ZHB agreed that Lot 1 and Lot 2 were separate and distinct properties. Thus, McCarry’s argument that Lot 2’s landlocked nature created an unnecessary hardship ignored the requirement at section 910.2(a) of the MPC that such hardship must result from a unique physical condition that is “peculiar to the particular property.” Since, “peculiar to the particular property” refers to the property that is the subject of the requested variance (Lot 1), McCarry’s hardship claim failed because Lot 1 would not suffer from any unnecessary hardship due to the denial of the dimensional variance. As to his argument that held the ZHB erred in denying a de minimis variance, the court held where the requested variance represented a deviation of between six and seven percent the ZHB was within its discretion in denying it. The decision of the Court of Common Pleas was therefore affirmed.

McCarry v Haverford Township Zoning Hearing Board, 113 A.3d 381 (PA Commwlth 4/15/2015)

The opinion can be accessed at: http://law.justia.com/cases/pennsylvania/commonwealth-court/2015/247-c-d-2014.html


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