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KATZIN v. MCSHAIN (06/24/52)

June 24, 1952

KATZIN, APPELLANT,
v.
MCSHAIN



Appeal, No. 77, Jan. T., 1952, from order of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1950, No. 4277, in case of Louis Katzin v. John McShain, Chairman et al., constituting the Philadelphia Zoning Board of Adjustment. Order affirmed.

COUNSEL

Philip Richman, with him Richman & Richman, for appellant.

James L. Stern, Assistant City Solicitor, with him Abraham L. Freedman, City Solicitor, for appellees.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Musmanno

[ 371 Pa. Page 252]

OPINION BY MR. JUSTICE MUSMANNO

The plaintiff, whose property in Philadelphia is located in an area zoned "A" Commercial, applied to the Philadelphia Zoning Board of Adjustment for a certificate permitting him to use the property for storing and parking trucks. The Board, after a full hearing, which included consideration of the protests of some sixty neighboring homeowners, rejected the request. Katzin then appealed to Common Pleas Court No. 4 in Philadelphia County which, after conducting another hearing on the same subject matter, also refused the requested permission, stating, inter alia: "... it would seem to be clear that the Zoning Board of Adjustment was fully justified in refusing permission for such parking and storage of trucks on the ground that the 'public health, safety and general welfare' would not be secured and substantial justice done to the people of the neighborhood by the granting of the permit. There was no 'manifest and flagrant abuse' of the discretion in the Board in refusing appellant's application. Their opinion shows that there would be unnecessary hardship

[ 371 Pa. Page 253]

    to the people of the neighborhood if the requested use were permitted"

Katzin now appeals to this Court contending that the Zoning Board of Adjustment was without discretion to refuse a certificate so long as the permit applied for came within the uses permitted within an "A" Commercial district. This contention is without merit, since the power to conduct a hearing necessarily includes the authority to render a decision on the evidence presented.

The zoning ordinance was passed pursuant to the Enabling Act of May 6, 1929, P.L. 1551, 53 P.S. 3829, section 3 of which provides, in part: "... Such regulations shall be made in accordance with a comprehensive plan, and designed to lessen congestion in the streets, to secure safety from fire, panic and other dangers, to promote health and the general welfare, to provide adequate light and air, to prevent the overcrowding of land, to avoid undue concentration of population, to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements."

There is a simple answer to the appellant's contention that there is here an unconstitutional delegation of police power to the Board of Adjustment and that answer is that the ascertainment of facts must necessarily be accomplished by a fact-finding body with authority to hear witnesses, analyze the evidence and render a decision based on ...


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