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WALTER v. PHILADELPHIA ZONING BOARD ADJUSTMENT (03/20/70)

decided: March 20, 1970.

WALTER
v.
PHILADELPHIA ZONING BOARD OF ADJUSTMENT, APPELLANT



Appeal from order of Court of Common Pleas No. 3, Trial Division, of Philadelphia, June T., 1965, No. 5141, in case of Karl Walter et ux. v. Zoning Board of Adjustment.

COUNSEL

Matthew W. Bullock, Jr., Second Deputy City Solicitor, with him Edward G. Bauer, Jr., City Solicitor, for City of Philadelphia, appellant.

Robert G. Hess, with him Howland and Hess, for appellees.

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

Author: Pomeroy

[ 437 Pa. Page 278]

By this appeal, the Zoning Board of Adjustment of the City of Philadelphia (the Board) seeks our review of an order of the Court of Common Pleas which directed the Board to grant Karl and Rosa Walter (appellees herein) a use variance permitting them to operate an apartment building as an eight family residence. At issue is the effect to be given to an amendment to the applicable zoning ordinance, the amendment having taken effect after the construction of the apartment but before the purchase of the building by the appellees.

Prior to October 1, 1962, the area in which the appellees' building was located was zoned "C" residential. That classification allowed multiple family use as a matter of right, the permissible number of residences per building being determined in each case by certain

[ 437 Pa. Page 279]

    open area requirements. Effective October 1, 1962, the area in question was rezoned "R-5" residential, a classification which makes no provision for multiple family dwellings. As constructed, the apartment building in question contained seven apartments and a basement area, with bath, which was set aside for the recreational use of the tenants. Under the "C" classification and the applicable open yard requirements, no more than seven units would have been permitted unless more land were acquired. Under the "R-5" classification, the building was a nonconforming use.

The Walters acquired the apartment building and lot on July 31, 1963, and at settlement they received a zoning certificate indicating that the legal use of the property was as a seven-family dwelling. In 1965, the appellees decided to attempt to convert the basement recreational area into an eighth apartment. The Zoning Division of the Philadelphia Department of Licenses and Inspections, upon application, refused to permit such a conversion, and thereafter the appellees petitioned the Zoning Board of Adjustment for a variance permitting their use of the property as an eight-family residence. At the hearing before the Board, the appellees testified that, after their purchase of the subject property, they had acquired an easement to an adjoining strip of land which, when combined with the lot already owned, would have permitted use of the apartment by eight families had the "C" Classification still been in effect. The Board unanimously refused to grant a variance, finding that the Walters had failed to demonstrate that enforcement of the residential classification would result in unnecessary hardship or that grant of the variance would not be contrary to the public interest. Appellees appealed the Board's refusal to the Court of Common Pleas, which took no additional testimony. Accordingly, the scope of its review was limited to a determination of whether the Board

[ 437 Pa. Page 280]

    clearly abused its discretion or committed an error of law. Upper Providence Township Appeal, 414 Pa. 46, 198 A.2d 522 (1964).

The court found that the Board had abused its discretion in refusing the variance. The basis of that determination was the court's conclusion that appellees' easement in the adjacent property, had it been acquired prior to October 1, 1962, would have entitled appellees to maintain eight apartments in the building as of right. On the basis of that conclusion and the appellees' statement that the basement area was unused by the tenants of the building, the court determined that a hardship adequate to justify a variance had been demonstrated and that the Board had abused its discretion in finding to the contrary. The court did not specifically treat the Board's finding that a ...


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