Appeal, No. 323, Jan. T., 1962, from order of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1960, No. 446, in case of C. Walter Sheedy, Gertrude Marie Sheedy, his wife, Theodore J. Podson et al. v. Zoning Board of Adjustment of City of Philadelphia. Order reversed; reargument refused February 21, 1963.
Charles Basch, with him Irving L. Hoffman, and Charles R. Weiner, for applicants, appellants.
Carl K. Zucker, Assistant City Solicitor, with him Matthew W. Bullock, Jr., Assistant City Solicitor, James L. Stern, Deputy City Solicitor, and David Berger, City Solicitor, for Zoning Board of Adjustment, appellee.
Raymond J. Broderick, with him Broderick, Schubert & FitzPatrick, for protestants, intervenors.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
This is an appeal from the order of the Court of Common Pleas No. 5 of Philadelphia County which
affirmed the decision of the Zoning Board of Adjustment.
This case involves a 17-room (with five baths), three-story house at 6012 Drexel Road, Philadelphia, Pennsylvania. This property is situate in a district classified as "A" Residential. The applicable zoning ordinance of 1933*fn1 permits detached single-family dwellings in a district zoned "A" Residential. This house is and since at least 1935 has been occupied and used as a five unit multi-family dwelling.
C. Walter Sheedy and Gertrude Marie Sheedy, his wife, purchased this property in 1952, at which time they believed in good faith and were justified in believing that its then existing and prior long continued use was a lawful use.*fn2 This belief was based upon and supported by the following facts:
The Sheedys were apprised of the fact that the Zoning Board of Adjustment had refused in 1945 to grant the previous owner a variance for a seven unit dwelling. At that time, the Board made no order and gave no warning that it considered the five unit dwelling was a violation of the 1933 ordinance. Subsequent to the Board's refusal to grant a seven unit variance, the house continued to be used and occupied as a five unit multi-family dwelling. When the Sheedys purchased this property in 1952, no action had been taken against its former owners to challenge or stop its alleged illegal use. ...