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BOARD ADJUSTMENT v. BOMGARDNER (11/27/63)

November 27, 1963

BOARD OF ADJUSTMENT
v.
BOMGARDNER, APPELLANT.



Appeal, No. 28, May T., 1963, from order of Court of Common Pleas of Dauphin County, March T., 1962, No. 48, in case of Board of Adjustment v. Albert C. Bomgardner, Kathryn E. Bomgardner, Kathryn Christiansen et al. Order affirmed.

COUNSEL

Robert H Maurer, for appellants.

Spencer G. Hall, City Solicitor, with him James S. Bowman, Assistant City Solicitor, for appellee.

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

Author: Roberts

[ 412 Pa. Page 602]

OPINION BY MR. JUSTICE ROBERTS

Appellants seek a zoning variance for a parcel of land at the northwest corner of 17th and Berryhill Streets in Harrisburg. This parcel consists of a large dwelling facing 17th Street, five contiguous vacant lots, each sixteen feet wide, and another residence fronting on Berryhill Street. The property is situated in an area designated in the zoning ordinance (approved October 3, 1950) as R-5, the least restrictive residential classification. Permission was sought to use the real estate for the erection and operation of a gasoline service station, a purpose not authorized by the ordinance classification for this zone.*fn1

The board of adjustment refused to grant the variance.*fn2 On appeal to the Court of Common Pleas of

[ 412 Pa. Page 603]

Dauphin County, the decision of the board was affirmed without taking additional testimony.

The following circumstances detailed in the opinion of the court below are fully supported by the evidence and are pertinent to this determination: "There have been no changes of the type and character of the zoned area in which the premises in question are located since the enactment of the zoning ordinance referred to above. Diagonally across the intersection of 17th Street and Berryhill Street, in an area zoned for heavy industry, there was erected, since the enactment of the ordinance, a large brick building used by the Megs Corporation for the manufacturing of macaroni products. The building was erected on land upon which there was formerly a lumber yard, surrounded by a high board fence.

"There is presently erected on the premises, for which the variance is sought, a large three story brick dwelling house. Several undeveloped lots adjoin the building. The building is in a very poor state of repairs. The premises were a part of an estate of a decedent who died February 10, 1957 and have not been occupied since that date. Continual and concerted efforts have been made by the heirs of the decedent to dispose of the property. Their efforts in this respect, however, have been in vain until on or about March 8, 1961, when an agreement of sale was entered into with the California Oil Company for a total sum of $35,000. The agreement was contingent upon the procurement of a variance."

Appellants vigorously urge that the board's action in refusing the variance was arbitrary and capricious and an abuse of its discretion and that it erred in concluding that the hardship presented was merely an economic one. It is contended also that the board failed to give proper consideration ...


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