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SCHUBACH ET UX. v. ZONING BOARD ADJUSTMENT (10/09/70)

decided: October 9, 1970.

SCHUBACH ET UX., APPELLANTS,
v.
ZONING BOARD OF ADJUSTMENT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1968, No. 1400, in case of Fred Schubach et ux. v. Zoning Board of Adjustment et al.

COUNSEL

J. Leon Rabben, for appellants.

John B. Day, Assistant City Solicitor, with him Matthew W. Bullock, Jr., Second Deputy City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for Zoning Board of Adjustment, appellee.

Irvin Stander, for intervening appellee.

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

Author: Jones

[ 440 Pa. Page 251]

Pine Hill Home, Inc., owns a two-acre lot in northeast Philadelphia and would like to build thereon a nursing home for physically and mentally retarded persons. Until April of 1968, the lot was zoned R-4 Residential. All the land contiguous to the premises in question is classified R-4 under the Philadelphia Zoning Code, and the land across the street is rated R-3. A nursing home may be erected in an R-4 area, provided that the Zoning Board of Adjustment issues a special certificate therefor. The Philadelphia Code, Zoning and Planning ยงยง 14-203(2) (f) and (h).

In 1966, the two-acre lot then being zoned R-4, Pine Hill filed its application with the Zoning Board for a special certificate to permit the construction of the same nursing home which is presently in question. See generally, Lower Merion Twp. v. Enokay, Inc., 427 Pa. 128, 233 A.2d 883 (1967). The application was refused, and, on appeal to the Court of Common Pleas of Philadelphia, the Board's decision was affirmed.

In 1967, Pine Hill attempted to have the property rezoned by City Council from R-4 to C-2, which is a commercial classification under which the nursing home could be built without an application for a special certificate. However, City Council refused to pass the rezoning measure.

In early 1968, Pine Hill again attempted to have the property rezoned and succeeded in having its bill introduced into City Council. At a public hearing, held on February 20, 1968, the representatives of Pine Hill presented their testimony in support of the rezoning ordinance. At the outset of the hearing and at the insistence of Paul D'Ortona, President of City Council, Pine Hill's attorney stated that his client would agree to execute a covenant restricting the property to use as a nursing home for mentally or physically retarded

[ 440 Pa. Page 252]

    children, to the exclusion of all other possible C-2 commercial uses.

Twenty-two opponents of the proposed rezoning appeared before the Council, either individually or as representatives for other similarly concerned neighbors, and expressed their vigorous opposition to the rezoning measure. An affidavit was also presented to City Council which stated the opposition of one hundred and fifty-five families who live in private homes within a two-block radius of the lot in question. Some of the objections voiced at the meeting were as follows: traffic flow would be sharply increased; fire protection would be inadequate (at night, the 162 retarded children, most of them non-ambulatory, would be cared for by only ten nursing home personnel); the lot is too small to provide any play area for the children; the proposed home would physically detract from the neighborhood, thus lowering property values; rezoning this one lot would begin a course of action of downgrading the entire area; and the public transportation facilities are inadequate.*fn1 Testimony was also ...


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