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ANDRESS v. ZONING BOARD ADJUSTMENT. (01/21/63)

January 21, 1963

ANDRESS, APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT.



Appeal, No. 340, Jan. T., 1962, from order of Court of Common Pleas No. 6 of Philadelphia County, March T., 1961, No. 865, in case of George W. Andress, Georginna Andress, his wife, George R. Schultze et al. v. Zoning Board of Adjustment of City of Philadelphia. Order reversed; reargument refused March 28, 1963.

COUNSEL

Robert G. Hess, with him Howland and Hess, for protestants, appellants.

Matthew W. Bullock, Jr., Assistant City Solicitor, with him Carl K. Zucker, Assistant City Solicitor, James L. Stern, Deputy City Solicitor, and David Berger, City Solicitor, for Zoning Board of Adjustment, appellee.

Jerome B. Apfel, with him Blank, Rudenko, Klaus & Rome, for applicant, appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.

Author: Bell

[ 410 Pa. Page 80]

OPINION BY MR. CHIEF JUSTICE BELL

This is an appeal from an Order of the Court of Common Pleas which, without taking testimony, affirmed the decision of the Zoning Board to grant a variance for the erection of an apartment house.

Appellee, C M C Construction Company, a land development company (hereinafter called "C M C") purchased the parcel of land here involved at the same time that it purchased three neighboring (but not contiguous) parcels in 1956. The lot in question is zoned "A" Residential. It has the shape of a trapezium.*fn1 Although its frontage on Verree Road is 395 feet, its maximum depth is only 90 feet,*fn2 and its area is approximately 19,000 square feet. To the rear is a Philadelphia Electric Company's right-of-way (for high tension wires) which it acquired in 1942.

C M C applied to the Zoning Board of Adjustment for (1) a variance to erect on these premises a sixteen unit, two story, "V" shaped apartment and (2) a variance with respect to rear yard and side yard minimum requirements. The Board, after a hearing, granted the variance because compliance with the "A" Residential provisions of the Zoning Ordinance created inherent hardships in the use of this property. Moreover, because of the irregular size and shape of this vacant lot and because of the front and rear yard minimum open space requirements of the ordinance, a single

[ 410 Pa. Page 81]

    family dwelling cannot be profitably built thereon, unless a variance for open space requirements is granted.

This property is in an "A" Residential District. Single-family dwellings and many other kinds of buildings are allowed in this district, but these permissive buildings do not include an apartment house.

Since no testimony was taken in the Court below, the test on appeal to this Court is whether the zoning Board of Adjustment clearly abused its discretion or committed an error of law: Brennen v. Zoning Board of Adjustment, 409 Pa. 376, 187 A.2d 180; Poster Advertising Company, Inc. v. Zoning Board of Adjustment, 408 Pa. 248, 251, 182 A.2d 521; Valley Forge Industries, Inc. Appeal, 406 Pa. 387, 177 A.2d 450; Spadaro v. Zoning Board of Adjustment, 394 Pa. 375, 147 A.2d 159; Freed v. Power, 392 Pa. 195, 139 A.2d 661; Moyerman v. Glanzberg, 391 Pa. 387, 138 A.2d 681."Error of law" is used in its broad sense and includes questions of "Constitutionality."

In order to determine these questions we shall summarize the evidence which in some important respects is not sufficiently clear or definite. The evidence indicates that if a variance with respect to front yard set-back and back yard open space requirements were granted, one or two single family dwellings could be built on this irregular parcel of ground. It is not absolutely clear whether a dwelling erected thereon could be sold for as high a price as the attractive homes in that neighborhood.*fn3

Fifty-two neighbors protested the grant of a variance to erect the proposed apartment house (1) because

[ 410 Pa. Page 82]

    a single-family dwelling could be built on the premises*fn4 and (2) because an apartment house (a) would greatly change the character of the neighborhood and (b) would greatly increase congestion, density of population and school taxes, and (c) would be contrary to the public safety and general welfare. The protestants likewise contended that if a large apartment house can be built on this lot, so ...


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