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O'NEILL ET AL. v. ZONING BOARD ADJUSTMENT (05/28/69)

decided: May 28, 1969.

O'NEILL ET AL., APPELLANTS,
v.
ZONING BOARD OF ADJUSTMENT



Appeal from order of Court of Common Pleas of Philadelphia County, June T., 1968, No. 1963, in case of Daniel R. O'Neill et al. v. Zoning Board of Adjustment.

COUNSEL

Edward L. Snitzer, with him Mesirov, Gelman, Jaffe & Levin, for appellants.

Matthew W. Bullock, Jr., Second Deputy City Solicitor, with him Frank J. Pfizenmayer, Assistant City Solicitor, Carl K. Zucker, Deputy City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for zoning board, appellee.

Reuben E. Cohen, with him Harold Greenberg, and Cohen, Shapiro, Berger, Polisher and Cohen, for intervenor, appellee.

Bell, C.j., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen dissents.

Author: Jones

[ 434 Pa. Page 333]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County dismissing appellants' appeal from an order of the Philadelphia Zoning Board of Adjustment granting a variance to appellee Norman Wolgin for the construction of a high-rise apartment in center city Philadelphia.

Wolgin entered into an agreement of sale for the premises located on the northeast corner of 17th and Pine Streets upon the condition that he secure the necessary zoning approval for the erection of a twenty-six story apartment on the site. The property is located in a "C-3" commercial district which permits the construction of apartment buildings but limits the allowable floor space to 84,646 square feet and requires an open area of 20%. Wolgin's apartment building calls for 225,809 square feet of floor space and an open area of only 5%. The site is presently being used as a public parking lot.

The area was originally zoned "C-3" in 1933 and was occupied by a school until its demolition in 1953. In 1958 permission was granted for the construction of the parking lot. Wolgin's principal argument for a variance is that if his apartment building is limited to 84,646 square feet (ten to twelve floors), the costs of acquisition and construction will require him to charge a monthly rent of $320 per unit, whereas he would only have to charge $220 per unit if he were permitted to construct a twenty-six floor apartment.

[ 434 Pa. Page 334]

Wolgin appealed to the Zoning Board of Adjustment after the Department of Licenses and Inspections refused to grant a building permit. Although the Philadelphia Planning Commission opposed the granting of a variance, the Zoning Board unanimously granted the variance. The Court of Common Pleas (per Alexander, J.) dismissed, without an opinion, the appeal of appellants, who are neighboring homeowners.

In considering the merits of this appeal, we bear in mind the following principles which govern the disposition of variance cases: first, since the court below took no additional testimony, our scope of review is limited to determining whether the Zoning Board of Adjustment clearly abused its discretion in granting the variance or committed an error of law;*fn1 second, variances should be granted only sparingly and only under exceptional circumstances;*fn2 third, in order to obtain a variance, the petitioner must prove (1) that the variance will not be contrary to the public interest and (2) that unnecessary hardship will result if the variance is not granted;*fn3 fourth, a ...


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