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PHILLIPS v. GRIFFITHS (01/02/51)

January 2, 1951

PHILLIPS, APPELLANT,
v.
GRIFFITHS



Appeal, No. 183, Jan. T., 1950, from decree of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1948, No. 3492, in case of Clifford S. Phillips et al. v. John E. Griffiths et al. Decree reversed.

COUNSEL

Roland J. Christy, for appellants.

Robert C. Kitchen, with him Wm. B. Farran, and Philips, Farran & McKeag, for appellees.

Before Drew, C.j., Stearne, Jones, Ladner and Chidsey, JJ.

Author: Drew

[ 366 Pa. Page 469]

OPINION BY MR. CHIFF JUSTICE DREW

Plaintiffs, Clifford S. and Anna Thompson Phillips, have appealed from a decree of the court of Common Pleas, No. 7, of the County of Philadelphia, dismissing a bill in equity to enjoin the use of a coach house by defendants as a residence in violation of a zoning ordinance of the City of Philadelphia.

Prior to February, 1947, the coach house had been part of a larger estate adjoining plaintiffs' property. In that year the house and a small area of ground surrounding it were separated from the estate and conveyed to one Gessner who, in September, 1948, sold it to defendants, John E. and Mary F. Griffiths. They immediately made repairs and alterations with the intention of converting the house into a private dwelling and, in January, 1949, occupied it as their residence. The property is located in a section zoned class "A" residential and the applicable zoning regulations require that a property, which the owners desire to use as a private dwelling, have a rear yard 25 feet deep and side years with a total width of 25 feet. Since defendants' rear yard is only 7 feet deep and the side yards together are but 14-1/2 feet wide, plaintiffs, in their bill, averred that defendants' present use of the coach house as a dwelling is a violation of the zoning ordinance and should be enjoined.

The learned chancellor found that the Board of Adjustment in June, 1947, had denied defendants' predecessor in title a variance from the terms of the zoning ordinance, when he sought to convert the coach house into a one family dwelling on the ground that the rear and side years measurements did not meet the minimum

[ 366 Pa. Page 470]

    requirements of the zoning regulations. The chancellor also found that defendants had been warned by the original owner before they purchased the property to look into the zoning ordinance concerning the coach house and told him that they would be careful to do so. During the sale negotiations defendants were represented by one Williams, a real estate broker, who knew of the refusal of the Board of Adjustment to grant the variance in June to the former owner, and at the settlement by one Rosenbaum who examined all the papers and the building permit on defendants' behalf. Defendants did not apply to the Board of Adjustment for a variance before renovating the coach house nor at any time prior to the bringing of plaintiffs' bill.

As noted by the learned court below, defendants' present use of their property is a clear violation of the zoning ordinance and there is little that can be said, from the technical standpoint, in their behalf. Nor are the equities in defendants' favor since they purchased the property after a warning by the former owner and with full knowledge that their proposed use of it might be enjoined. However plaintiffs' bill was dismissed in the belief that the instant case was controlled by the opinion of this Court in the Crawford Zoning Case, 358 Pa. 636, 57 A.2d 862, where we reversed a decree which dismissed an application for a variance by an owner who desired to convert a coach house in a class "B" residential section to a private dwelling. In that case, however, we were concerned solely with the question of whether the Zoning Board of Adjustment, and subsequently the Common Pleas Court of Delaware County, had abused its discretion in refusing to ...


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