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BEST v. ZONING BOARD ADJUSTMENT. (05/02/58)

May 2, 1958

BEST, APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT.



Appeal, No. 177, March T., 1957, from order of County Court of Allegheny County, 1953, No. A 1317, in case of Pauline G. Best v. Zoning Board of Adjustment of the City of Pittsburgh. Order affirmed; reargument refused June 3, 1958.

COUNSEL

William Claney Smith, for appellant.

J. Howard Devlin, Assistant City Solicitor, for appellee.

Frank A. McFerran, Jr., with him Sherman T. Rock and Paul, Lawrence & Rock, for intervenors.

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

Author: Cohen

[ 393 Pa. Page 108]

OPINION BY MR. JUSTICE COHEN

In this appeal we are called upon to determine the constitutionality of the single-family dwelling provision of the Pittsburgh zoning ordinance as applied to the property of the appellant.

The appellant, Pauline G. Best, is the owner of a home at 1008 Morewood Avenue, Pittsburgh, which contains twenty-two rooms and seven baths. The property is located in a "C" zoned district of the city and may be used only as a single-family dwelling. Within 200 feet of the home is a district in which multipleunit dwellings are permitted. In 1950 the appellant applied for a variance and for a permit to allow occupancy by fifteen tenants. The application was denied as was an appear taken to and heard by the zoning board of adjustment. A further appeal was heard by the County Court of Allegheny county at which time the petition of the Morewood-Shadyside Civic Association to intervene as a respondent was granted.

Appellant's argument to the court below was twofold. First, we contended that she was entitled to a variance because of the financial hardship imposed upon her in maintaining the property as a single-family home and second, that the zoning ordinance as applied to her property was unreasonable, arbitrary, discriminatory

[ 393 Pa. Page 109]

    and confiscatory, and therefore unconstitutional. The county court found that the appellant's home was not economically feasible for use as a single-family dwelling and that the use proposed by the appellant would not be adverse to the public health, safety or morals of the community. However, the court held that the proposed use would be adverse to the general welfare and contrary to the public interest, and for this reason concluded that the decision of the board of adjustment denying a variance was just and proper and that the zoning ordinance did not result in an unconstitutional invasion of plaintiff's property rights. From the order of the court below sustaining the decision of the zoning board of adjustment this appeal has been taken.

The contentions of the appellant with respect to the refusal of her request for a variance are without merit and, indeed, are not urged on this appeal. When appellant purchased the Morewood house she knew or should have known of the provisions of the zoning ordinance restricting the property to use as a one-family dwelling and of the large expenditures required to maintain and keep up the property. Thus, appellant took the property with the conditions of economic hardship staring her in the face, and she cannot now be heard to complain. Ward's Appeal, 289 Pa. 458, 472, 137 Atl. 630 (1927)(concurring opinion). Cf. Edwards Zoning Case, 392 Pa. 188, 140 A.2d 110 (1958). Moreover, as we said in Michener Appeal, 382 Pa. 401, 406-407, 115 A.2d 367 (1955): "The law is well established that a variance may be granted only where a property is subjected to a hardship unique or peculiar to itself as distinguished from one arising from the impact of the zoning regulations on the entire district." See Act of June 24, 1931, P.L. 1206, § 3107, as amended, 53 P.S. § 58107. The financial hardship suffered

[ 393 Pa. Page 110]

    by the appellant in this case is no different from that endured by the owners of other large homes in the neighborhood who through the appellee Civic Association have actively opposed appellant's request for a variance.

Appellant's attack upon the constitutionality of the application of the Pittsburgh zoning ordinance to her property presents an issue which requires clarification.

Zoning is the legislative division of a community into areas in each of which only certain designated uses of land are permitted so that the community may develop in an orderly manner in accordance with a comprehensive plan.*fn1 The authority of the legislature to permit the zoning of land is derived, as is all legislative authority, from the governmental power of the Commonwealth*fn2 - the ...


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