Appeal, No. 33, April T., 1955, from order of Court of Common Pleas of Erie County, Sept. T., 1954, No. 106, in case of J. A. Root v. City of Erie Zoning Board of Appeals. Order affirmed. Appeal by applicant from decision of zoning board refusing building permit. Before EVANS, P.J.
M. Coughlin, with him Gerald J. Weber, for appellant.
A. Grant Walker, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 180 Pa. Super. Page 39]
This is an appeal from an order of the lower court reversing an order of the Zoning Board of Appeals of the City of Erie and ordering the issuance of a building permit to permit the construction of an office front to an existing building. No. 254, the property in question, is located on the north side of West Eighth Street in a commercial district. In such a district there may be constructed one and two family dwellings, lodging houses, multiple dwellings, hotels or hospitals, and there may be erected or alterations may be made to buildings for business use, which includes the right to manufacture products, the major portion of which are to be sold at retail on the premises. The zoning ordinance provides that the building line of any such structure or alterations to an existing structure shall be
[ 180 Pa. Super. Page 40]
set back at least ten feet from the street line. The permit here authorized will permit the alteration of the present building so as to add to the front thereof a well designed and artistic business front within the ten foot setback space. The testimony revealed that approximately half of the buildings on the north side of the 200 block are now and have been since the passage of the zoning ordinance in 1937 built out to the street line. No. 254 is abutted on the east by an apartment house, owned by the only objector, which apartment house is built out to the street line. Immediately abutting 254 to the west is a frame house, the owner of which does not object to the granting of this permit. Immediately abutting this last mentioned property, on its west, are store structures built out to the street line. No. 254 and the property abutting it to the west are within a well, both sides of which are blanked by the walls of existing structures built out to the street line. Other evidence was introduced over objection to show that many other structures in the nearby blocks are likewise built out to the street line. The lower court, in its opinion, said: "This particular property is within three city blocks of the heart of a rapidly growing city which at the time of the census taken in 1950 had in excess of 130,000 people."
The matter was treated, both in the lower court and in the argument before us, as a variance. A consideration of Ordinance 7933, Vol. V, of the City of Erie, the zoning ordinance, will show that § 904, in appropriate language, provided for the granting of a variance by the board of appeals and then further provided for special exceptions, as follows: "In the exercise of its power the Board may, among other variances, modifications and interpretations, authorize a permit to be issued:
[ 180 Pa. Super. Page 41]
"15. For such variation of the area requirements of this ordinance as the Board may deem necessary to secure an appropriate improvement of a lot of such restricted area, size or shape that it cannot reasonably be improved without modification of the strict application of the provisions of this ordinance, provided such lot, at the time of the passage of this ordinance, either was held under a separate ...