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HENRY JACOBS v. PHILADELPHIA ZONING BOARD ADJUSTMENT (02/04/71)

decided: February 4, 1971.

HENRY JACOBS
v.
PHILADELPHIA ZONING BOARD OF ADJUSTMENT



Appeal from the order of the Court of Common Pleas of Philadelphia County, Trial Division -- Law -- No. 5223 December Term, 1965, in case of Henry Jacobs v. Philadelphia Zoning Board of Adjustment. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.

COUNSEL

Herbert H. Hadra, with him Robert H. Aaronson and Maurice Freedman, for appellant.

Carl K. Zucker, Deputy City Solicitor, with him Matthew W. Bullock, Jr., Second Deputy City Solicitor, and Levy Anderson, City Solicitor, for appellee.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Barbieri (who has since been appointed to the Supreme Court of Pennsylvania and did not participate in the decision). Opinion by Judge Manderino.

Author: Manderino

[ 1 Pa. Commw. Page 198]

In January, 1961, Henry Jacobs, appellant, purchased a two-story house with a basement, located in Philadelphia. The house had been used as a three-family unit dwelling and Jacobs continued such use, occupying the basement as his own living quarters. In November, 1963, the Philadelphia Department of Licenses and Inspections notified Jacobs that the zoning regulations in the area in which his house was located did not permit three-family dwellings. Jacobs, because of the Department's claim, requested from the Zoning Division of the City of Philadelphia permission to use the house as a three-family unit dwelling. His application was refused and he appealed to the Zoning Board of Adjustment, which also refused his request. On appeal to the Court of Common Pleas of Philadelphia County, the matter was remanded to the Zoning Board of Adjustment for reconsideration. On remand

[ 1 Pa. Commw. Page 199]

    the Board again refused Jacobs' request and this appeal followed.

This appeal was originally filed in the Supreme Court of Pennsylvania and under the Commonwealth Court Act (Act No. 185 of January 6, 1970); 17 P.S. 211.13 (1970), was transferred to the Commonwealth Court.

The Zoning Board of Adjustment treated appellant's request as one for a variance. Under the Philadelphia Zoning Ordinance an applicant may be granted a variance if certain criteria are met. These criteria are found in Section 14-1802 of the Philadelphia Zoning Ordinance. Under the ordinance, the applicant, in this case Jacobs, has the duty of presenting evidence relating to the criteria set forth in the ordinance. Although the Philadelphia ordinance lists twelve (12) criteria which must be met for the granting of a variance, essentially all of the criteria fall under the two key umbrellas ordinarily necessary under zoning ordinances in the Commonwealth of Pennsylvania for the granting of a variance. The two requirements are: (a) unnecessary hardship upon and which is unique or peculiar to the property involved, as distinguished from the hardship arising from the impact of the zoning ordinance on the entire district; (b) the proposed variance is not contrary to the public safety, health, moral or general welfare. DiSanto v. Zoning Board of Adjustment, 410 Pa. 331, 189 A.2d 135 (1963).

The main thrust of Jacobs' argument was that unless the variance were granted he would suffer an unnecessary hardship. He asserted that his sole reason for purchasing the house was his belief that he could live there and rent the other two (2) apartments. If this is not possible he alleges financial loss. These facts, according to Jacobs, would result in an unnecessary hardship. Accepting the truth of the assertions

[ 1 Pa. Commw. Page 200]

    does not help his case. The hardship alleged does not relate to anything special or unique about the property itself. The assertions justified only the inference that Jacobs would make less money from his use of ...


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