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O'NEILL v. PHILADELPHIA ZONING BOARD ADJUSTMENT (ET AL. (03/13/56)

March 13, 1956

O'NEILL
v.
PHILADELPHIA ZONING BOARD OF ADJUSTMENT (ET AL., APPELLANT).



Appeals, Nos. 255 and 296, Jan. T., 1955, from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1954, No. 7499, in case of Mary F. O'Neill v. Philadelphia Zoning Obard of Adjustment, Nadia Chilkovsky and City of Philadelphia. Order reversed.

COUNSEL

James L. Stern, Deputy City Solicitor, with him Matthew W. Bullock, Jr., Assistant City Solicitor, and Abraham L. Freedman, City Solicitor, for City of Philadelphia, appellant.

Robert K. Greenfileld, with him Thomas F. Devine and Folz, Bard, Kamsler, Goodis & Greenfield, for individual appellant, Nadia Chilkovsky.

John E. Krout, with him Drinker, Biddle & Reath, for appellees.

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

Author: Chidsey

[ 384 Pa. Page 381]

OPINION BY MR. JUSTICE CHIDSEY

Appellant, Nadia Chilkovsky, the equitable owner of premises 271 South Van Pelt Street, Philadelphia, under an agreement to purchase, filed an application for a permit with the Zoning Division of the Department of Licenses and Inspections to use the property as a ballet school in conjunction with her private dwelling. The Zoning Division denied the permit because the proposed use was not permitted in the particular district and appellant thereupon appealed to the Zoning Board of Adjustment. After a public hearing at which neighboring property owners appeared both in support of and in opposition to the application, the Board unanimously granted a variance subject to the following conditions: "... that entrance to the school shall be from Manning Street [a side street] only; that hours of operation shall be from 9:00 A.M. to 8:00 P.M.; no school operations on Sundays or holidays; also provided that no signs are erected: also, all music to be restricted to one (1) piano or recording only, and no sub-leasing to others for similar or other uses.".

From this decision one of the Protestants, Mary F. O'Neill, appellee herein, appealed to the Court of Common

[ 384 Pa. Page 382]

Pleas No. 5 of the County of Philadelphia, pursuant to the Act of May 6, 1929, P.L. 1551, 53 PS ยง 3829. Appellants, Chilkovsky and the City of Philadelphia, were permitted to intervene. The court, as authorized by the Act, took additional testimony and entered an order reversing the Board on the ground that the applicant had not shown the unnecessary hardship prerequisite to the granting of a variance. From this order both Mrs. Chilkovsky and the City have appealed.

The premises in question are situated in a district zoned Residential "F" under the Philadelphia Zoning Ordinance of 1933, as amended, in which district, although the permissible uses are limited essentially to single or multiple family dwellings, hotels, police and fire stations and telephone exchange buildings are also included within that category. From 1927 to September, 1954 the Philadelphia Transportation Company occupied the first floor of the property as a commercial garage for its executives' cars and the second floor was used as a one-family apartment. Inasmuch as this use predated the zoning ordinance by eight years, it was permitted as a nonconforming use. In the same block as the subject premises a number of properties formerly used for commercial purposes have been remodeled and converted into attractive homes which are used exclusively for residential purposes. There are also five commercial uses, consisting of a plumbing supply house, a printer's shop, a piano studio, a floor covering office and a photographic business.

Appellant Chilkovsky, a concert dancing teacher outstanding in her profession, proposed to partition off the first floor in order to use the front portion for her personal car and the rear as a private ballet school for classes of seven or eight children considered specially gifted in this art. She has ...


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