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LUCIANY v. ZONING BOARD ADJUSTMENT. (04/18/60)

April 18, 1960

LUCIANY, APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT.



Appeal, No. 336, Jan. T., 1959, from order of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1956, No. 5621, in case of Peter Luciany v. Zoning Board of Adjustment. Order affirmed.

COUNSEL

Philip Richman, with him Francis S. Goglia, and Alex Bonnie, for appellant.

Levy Anderson, First Deputy City Solicitor, with him Lenard Wolffe, and Matthew W. Bullock, Jr., Assistant City Solicitors, and David Berger, City Solicitor, for appellee.

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

Author: Cohen

[ 399 Pa. Page 177]

OPINION BY MR. JUSTICE COHEN.

We have for review an order of the Court of Common Pleas No. 1 of Philadelphia County, which affirmed the Zoning Board of Adjustment of the City of Philadelphia in its refusal to grant a variance.

The property in question, a three-story building, is located on a narrow residential street in a D-1 residential district in Philadelphia.*fn1 From 1928 to 1944 it was used by a furniture moving company as a garage and as a storage place for barrels, boxes and other packing containers. The appellant took occupancy of the property in 1944, and has used it since that time, without zoning board approval, for the storage of structural steel in connection with his ornamental iron works. Both the appellant's and the furniture company's uses fail to conform to the zoning restrictions of the district, but since the furniture company's use began prior to 1933, it was maintained as a legal nonconforming use under the zoning ordinance of 1933.*fn2

[ 399 Pa. Page 178]

In 1956, after an investigation by the city, appellant filed an application with the zoning board*fn3 to secure an authorization to use the premises for the storage of iron and steel bars of varying sizes and weights which could be "handled manually," and for the storage of a small truck and equipment. Upon the refusal of the zoning board to grant a variance, appellant appealed to the court of common pleas. That court remanded the case to the zoning board for the purpose of taking additional testimony and making additional findings. The zoning board again rejected the application on the grounds that appellant had not demonstrated a nonconforming use and had not shown justification for a variance. Upon the return of the case to the lower court, the decision of the zoning board was affirmed and this appeal followed.

Since evidence was taken only before the zoning board, the sole question for our determination is whether or not the zoning board abused its discretion or committed an error of positive law in arriving at its determination in refusing a variance. Upper St. Clair Township Grange Zoning Case, 397 Pa. 67, 152 A.2d 768 (1959); Schmidt v. Philadelphia Zoning Board of Adjustment, 382 Pa. 521, 114 A.2d 902 (1955); Walker v. Zoning Board of Adjustment, 380 Pa. 228, 110 A.2d 414 (1955).

Appellant's first contention is that he is entitled to a use permit as a matter of right. It is clear he is not entitled to such under the zoning provisions of the 1956 ...


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