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SPADARO v. ZONING BOARD ADJUSTMENT. (01/05/59)

January 5, 1959

SPADARO, APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT.



Appeal, No. 278, Jan. T., 1958, from order of Court of Common Pleas No. 4 of Philadelphia County, June T., 1957, No. 7351, in case of Nellie Spadaro v. Zoning Board of Adjustment. Order affirmed.

COUNSEL

Pershing N. Calabro, with him Joseph Alessandroni, for appellant.

Leonard L. Ettinger, Deputy City Solicitor, with him Matthew W. Bullock, Jr., Assistant City Solicitor, James L. Stern, Deputy City Solicitor, and David Berger, City Solicitor, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.

Author: Jones

[ 394 Pa. Page 376]

OPINION BY MR. JUSTICE BENJAMIN R. JONES.

This is an appeal from the action of the court below in affirming the refusal of the Philadelphia Zoning Board of Adjustment to grant a variance for the use of appellant's premises as a three family multiple dwelling.

Appellant filed an application for a permit to use the premises 819 N. 64th Street, located in a "C" Residential District, as a three family multiple dwelling and for the erection of a one story rear addition. The addition was a stone replacement of a legally existing wooden structure. However, the contemplated construction would have extended the present structure approximately one foot deeper into the rear yard. The conversion to the three family unit was refused because the side yard was only ten feet, six inches in minimum width and an open court was only eight feet in minimum width, whereas the ordinance requires the minimum width of both a side yard and an open court to be at least fourteen feet for such a use.*fn1 The one story rear addition was refused because, as part of a three family multiple dwelling application, the open court minimum width must be at least fourteen feet.*fn2

[ 394 Pa. Page 377]

The Zoning Board of Adjustment refused to issue either the zoning variance for the proposed construction or the use variance for the three family dwelling requested by appellant. On appeal, the court below remanded the case to the Board for a re-hearing.

In the interim, the appellant filed an application for the use of the premises as a two family dwelling and for the construction of the rear addition, requested in the first application, as part of a two family dwelling. Since the open court and side yard of the property complied with the requirements of the ordinance for such a use, a use permit was issued for the two family unit and a zoning permit was issued for a rear addition.*fn3 The property, which is the subject of this appeal, is thus presently being used as a two family dwelling and the rear addition has already been legally built as part of the two family dwelling.

On a re-hearing of the first application, the Board again refused to issue the use variance for a three family dwelling for the reasons outlined in the initial denial, namely, because the property was deficient in side yard and open court requirements. The court below, without taking any additional testimony, affirmed the Board's refusal, and the present appeal was taken. The only issue raised in this appeal is whether or not the Board abused its discretion in refusing to grant the variance for the use of the premises as a three family unit.

The Board found that the 800 block of North 64th Street contains twenty-nine semi-detached dwellings and that only four of them have permits for multifamily occupancy, the last of which was granted in 1949. It also found that the property was ...


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