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EDWARD E. KELLY AND HELEN E. KELLY v. ZONING BOARD ADJUSTMENT (02/08/71)

decided: February 8, 1971.

EDWARD E. KELLY AND HELEN E. KELLY
v.
ZONING BOARD OF ADJUSTMENT



Appeal from the order of the Court of Common Pleas of Philadelphia County, Trial Division, No. 6139 June Term, 1969, in case of Edward E. Kelly and Helen E. Kelly v. Zoning Board of Adjustment. Appeal transferred September 14, 1970 to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.

COUNSEL

Michael H. Egnal, with him John David Egnal, and Egnal, Simmons & Egnal, for appellants.

Carl K. Zucker, Deputy City Solicitor, with him Edward G. Bauer, Jr., and Levy Anderson, City Solicitors for appellee.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino and Mencer. Memorandum-Opinion by Judge Sloane.

Author: Wilkinson

[ 2 Pa. Commw. Page 138]

This is an appeal from the decision of the Zoning Board approving a City Council Ordinance upgrading land from "C-2" Commercial to "R-9A" Residential. The subject tract is within Philadelphia and is bounded by Greenwood Street, Fayette Street, Vernon Road and Michener Street. Despite its trapezoidal shape, the tract is commonly known as the "Vernon Road Triangle".

Appellants are owners of commercial stores located within the Vernon Road triangle. They contend that the reclassification (1) violates zoning policy and property rights by creating nonconforming uses; (2) constitutes invalid spot zoning (3) bears no relation to the public health, safety or welfare.

The inquiry is whether City Council had authority to make this comprehensive reclassification. The scope of judicial review is limited -- the court acts neither as

[ 2 Pa. Commw. Page 139]

    a super-zoning board or master planner of last resort. Village 2 at New Hope, Inc. Appeals, 429 Pa. 626. A strong presumption of constitutional validity attends the amendatory zoning ordinance, Jacobi v. Zoning Board of Adjustment, 413 Pa. 286, and a heavy burden of proof rests upon parties asserting invalidity or unconstitutionality. Cleaver v. Board of Adjustment, 414 Pa. 367.

Appellants make several points in their argument that the reclassification results in an invalid and unconstitutional nonconforming use. They claim the restrictions inherent in the upgraded R-9A zone will cause them undue expense and hardship. For example, the commercial property owners may not convert their premises to other commercial uses. The R-9A classification requires return to residential use once the present commercial use is terminated. Also, a three-year vacancy in the present commercial properties would result in mandatory conversion to residences. Appellants claim these restrictions decrease the value of their properties and deprive them of constitutionally protected "property rights".

This argument misconceives the foundation of zoning law. Appellants have no vested rights in the continuation of a certain zoning classification. Key Realty Co. Zoning Case, 408 Pa. 98; Schmidt v. Philadelphia Zoning Board of Adjustment, 382 Pa. 521. In Peterson v. Zoning Board of Adjustment, 412 Pa. 582, our Supreme Court recognized that a property owner who acquired a tract in reliance upon advice from a municipality that a use was permitted in the zone could not preclude reclassification by the municipality. The zoning designation does not constitute an agreement with the property owners not to upgrade the ...


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