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SILVERCO v. ZONING BOARD ADJUSTMENT. (11/15/54)

November 15, 1954

SILVERCO, INC., APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT.



Appeal, No. 279, Jan. T., 1953, from order of Court of Common Pleas No. 2 of Philadelphia County, June T., 1952, No. 741, in case of Silverco, Inc. v. Zoning Board of Adjustment and Department of Licenses and Inspection, City of Philadelphia, and James Dougherty et al. Order affirmed. Appeal by property owner from decision of Zoning Board of Adjustment revoking certificate of variance. Order entered dismissing appeal, opinion by CARROLL, J. Property owner appealed.

COUNSEL

C. Brewster Rhoads, with him Sidney L. Wickenhaver, Mortin E. Rotman, Montgomery, McCracken, Walker & Rhoads and Dennis, Rotman, Gorson & Cohen, for plaintiff, appellant.

James L. Stern, Deputy City Solicitor, with him Matthew W. Bullock, Jr., Assistant City Solicitor, jerome J. Shestack, First Deputy City Solicitor and Abraham L. Freedman, City Solicitor, for City of Philadelphia, defendant, appellee.

Morris B. Levitt, with him William Kendall, for intervenors, appellees.

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

Author: Bell

[ 379 Pa. Page 499]

OPINION BY MR. JUSTICE BELL

On December 6, 1951, Silverco, Inc. applied to the Zoning Board of Adjustment for a variance and requested a use registration permit for the use of premises located at the Southeast corner of Swanson and Wolf Streets for cattle pens and a storage of hides. The premises are located in a district zoned "Industrial", a classification which does not permit the establishment of the proposed use without the grant of a variance. The petitioner did not propose to use the premises as a slaughter house, but only for the storage of live cattle and hides. All slaughtering operations and subsequent tanning of hides were to be conducted elsewhere.

Although the area was zoned Industrial, many nonconforming uses and variances had in fact converted most of the area to the "least restricted" uses. The nearest residences are 600 to 100 feet away, with intervening industrial buildings or plants, including the alcohol distilling plants of Continental Distilleries and Publicker Alcohol Co. and an oil plant of Wilson-Martin, and a glue and fertilizer factory. Petitioner proposed to store the live cattle in 8 separate pens located 100 to 200 feet from the perimeter of the area and surrounded by a cyclone fence of steel mesh. It likewise proposed to lock the cattle securely within pens and had elaborate detailed plans to safely, so far as humanly possible, loadk, unload and pen the cattle. Protestants feared that cattle would escape and endanger

[ 379 Pa. Page 500]

    the neighborhood; also that offensive odors would permeate the air. Witnesses for petitioner testified that no offensive odor is given off by hides when they are treated, as petitioner planned, with sale and chlorinated lime; that they cannot be smelled beyond 50 feet, and that they are not palatable to roaches or vermin because of the salt. This is in contrast to other industrial activities conducted in the immediate neighborhood, some of which give off obnoxious odors.

Petitioner advised the Board of Adjustment that it had signed a contract to purchase the premises provided the requested variance was granted. Petitioner was consequently a conditional purchaser whose position and rights were equivalent to those of an owner who desired a variance for the same purposes. Elkins Park Impr. Assoc. Zoning Case, 361 Pa. 322, 328, 64 A.2d 783, 785; 62 C.J.S. § 227(12)b.

A proper notice of the proposed hearing was posted; the evidence was conflicting on the question of whether the notice remained posted for 10 days as required by § 31 of the Philadelphia Zoning Ordinance of August 10, 1933.

On January 23, 1952, the Zoning Board of Adjustment, after hearing petitioner's evidence at a public hearing at which no protestants appeared, and after a physical inspection of the premises by members of the Board, unanimously granted the variance "on condition that all work is to be performed inside the building; that cattle will be housed at all times and never left to roam outside the building." Unfortuantely no record of the testimony nor any statement or findings of pertinent and material facts was made by the Board to show the grounds of its decision or to justify its action in granting a variance, as required by the Act of May 6, 1929, P.L. 1551, § 8: Valicenti's Appeal, 298 Pa. 276, 148 A. 308; Imperial Asphalt Corporation of

[ 379 Pa. Page 501]

    original Board of Adjustment on the grounds: (1) that the proposed uses would be offensive to the community because of noxious odors; (2) that serious injury and bodily harm could result from escaping cattle; and (3) that the property had not been adequately posted (for a period of ten days) prior to the original hearing.

The evidence on behalf of the protestants showed merely apprehension of danger and of noxious odors, and conflicted with the sworn positive and convincing testimony to the contrary by witnesses for Silverco. Moreover, the fact that over 1000 protestants signed a petition for revocation would not, of itself, be sufficient because, as this Court said in Lindquist Appeal, 64 Pa. 561, 565, 73 A.2d 378: "It is clear that a board of adjustment does not properly exercise its discretion if it considers the number of protestants rather than the nature and quality of their objection."

With respect to the third ground, the testimony of two witnesses that they did not see the posted notice was negative testimony which was not of sufficient character, quality and breadth to overcome the positive testimony of "posting."

We therefore hold that the evidence was not adequate to sustain the grounds or reasons given by the second Board of Adjustment for revoking he variance.

However, that merely brings us to the most important issue in this case, namely, did Silverco prove facts which were sufficient under the decisions of this Court to justify the grant of a variance. On the record there is nothing to show that either the first or second Board of Adjustment or the Court below gave adequate, if any, consideration to this basic question. We deem it wise, therefore, to once again call attention to the pertinent principles which are here involved.

When Silverco, relying upon the variance granted January 23, 1952, by the (first) Board of Adjustment,

[ 379 Pa. Page 503]

    purchased the premises for $800,000., it knew or should have known that anyone aggrieved by the action or order of the Board of Adjustment could appeal therefrom in 30 days to the Court of Common Pleas. It therefore took whatever risks were involved if such an appeal were taken and were successful.*fn*

Moreover, the new (or second) Board of Adjustment, within the 30 day period, to wit, on February 14, 1952, notified Silverco of its intention to hold further hearings, obviously with the intent to affirm, or alter, or revoke the action of the prior Board. We hold that the second Board of Adjustment had this power of review provided it exercised it within 30 ...


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