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FAGAN v. ZONING BOARD ADJUSTMENT. (05/27/57)

May 27, 1957

FAGAN, APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT.



Appeal, No. 195, Jan. T., 1957, from order of Court of Common Pleas No. 6 of Philadelphia County, June T., 1956, No. 9171, in case of Robert and Alvin Fagan, trading as Fagans' Market, v. Zoning Board of Adjustment. Order affirmed.

COUNSEL

William Cohen, for appellants.

Leonard L. Ettinger, Deputy City Solicitor, with him Gordon Cavanaugh, Assistant City Solicitor, David Berger, City Solicitor, Lenard L. Wolffe, Assistant City Solicitor and James L. Stern, Deputy City Solicitor, for appellee.

Before Jones, C.j., Musmanno, Arnold, Jones and Cohen, JJ.

Author: Arnold

[ 389 Pa. Page 100]

OPINION BY MR. JUSTICE ARNOLD

This appeal involves the narrow issue as to whether the court below erred in affirming the action of the Philadelphia Zoning Board of Adjustment refusing appellants' application for a variance.

The case comes before us on the broadest form of certiorari, since the Enabling Act of May 6, 1929, P.L. 1551, 53 PS ยง 3822 et seq. is silent regarding appeals. As stated in Garner v. Zoning Board of Adjustment, 388 Pa. 98, 130 A.2d 148, at page 100, our scope of review is to determine "... if the evidence sustains the findings of the court below, or if there is a manifest abuse of discretion or violation of law ..." See also Schmidt v. Philadelphia Zoning Board of Adjustment, 382 Pa. 521, 114 A.2d 902; Walker v. Zoning Board of Adjustment, 380 Pa. 228, 110 A.2d 414.

[ 389 Pa. Page 101]

Since 1946 the appellants have occupied the premises located at 2500-2502 Ridge Avenue, Philadelphia, in an area designated as "A" commercial. In March, 1956, they acquired the adjoining building at 2504 Ridge Avenue and applied for a permit to raze the existing three-story building and for a variance to erect thereon a one-story building. A variance was necessary, since the proposed structure would occupy 100% of the lot. This addition was to be used in the expansion of their business as well as to provide personal facilities for their employes.

The Philadelphia General Code of Ordinances, Sections 14-303 (3), (b) and (g), regulates the "open areas" zones. Subsection (g) requires at least an zones. Subsection (g) requires at least an eight foot rear yard minimum depth, and subsection (b) requires the "open area" to constitute at least 20% of the total square footage of lots. As previously stated, the proposed structure would utilize 100% of the lot, and leave no "open area."

It is within the police power to regulate "open area" zoning, and the validity of such regulation cannot be questioned. The Enabling Act expressly granted such power to zone for the purpose of promoting the health, safety, morals and general welfare of the community. In a highly commercialized and industrialized society, it is necessary that municipalities have power to regulate "open area" zoning so as to maintain the orderly function of metropolitan living. To declare otherwise would indeed be injurious to the health, safety and welfare of our citizens. It would unnecessarily subject them to the inhalation of noxious odors and gases; overcrowding of certain areas; denial of ...


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