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FILANOWSKI ET AL. v. ZONING BOARD ADJUSTMENT (07/02/70)

decided: July 2, 1970.

FILANOWSKI ET AL., APPELLANTS,
v.
ZONING BOARD OF ADJUSTMENT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1968, No. 2312, in case of Anthony Filanowski et ux., et al. v. Zoning Board of Adjustment.

COUNSEL

Maurice Stern, with him Louis E. Levy, for appellants.

Matthew W. Bullock, Jr., Second Deputy City Solicitor, with him Levy Anderson, City Solicitor, for City of Philadelphia, appellee.

Irvin Stander, for intervening appellee.

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

Author: Eagen

[ 439 Pa. Page 361]

This appeal challenges the correctness of an order entered in the court below affirming the grant of a variance by the Zoning Board of Adjustment of the City of Philadelphia. The land involved is located in a district, zoned R-2 Residential, wherein only one-family dwellings are permitted. The variance allows the construction of a thirty-seven family apartment complex with accessory off-street parking. The appellants, a husband and wife who own neighboring land, protested the grant of the variance before this Board and the court below.

Since the court below relied entirely on the record compiled before the Board and received no additional evidence, our scope of review is limited to a determination

[ 439 Pa. Page 362]

    of whether or not the Board committed a manifest abuse of discretion or an error of law. Pyzdrowski v. Pittsburgh Board of Adjustment, 437 Pa. 481, 263 A.2d 426 (1970). After studying the record, we are not persuaded that the Board erred in either respect. We will therefore affirm.

It is true that a variance should be granted only under exceptional circumstances, and only in those instances where the applicant establishes: (1) that the grant thereof will not be against the public interest; and (2) that if the variance is not granted an "unusual hardship" in the use of land will result: O'Neill v. Zoning Board of Adjustment, 434 Pa. 331, 254 A.2d 12 (1969). The Board concluded that these requirements were satisfied in the instant case and we agree.

For the purpose of this opinion we deem it unnecessary to detail all of the unusual conditions presently existing incident to the land involved. We merely note that it is completely landlocked, without any public street frontage and surrounded almost in its entirety by land upon which apartment complexes are constructed. Further, the only possible access thereto is over another tract of land owned by the applicant.

But, it is argued that the applicant purchased the land involved with its eyes open, i.e., with knowledge of the restrictive zoning regulations, and created the existing unusual hardship by assembling as a unit three contiguous parcels of land which it owns ...


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