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DAVID RUBIN v. ZONING BOARD ADJUSTMENT (PHILADELPHIA) (03/02/71)

decided: March 2, 1971.

DAVID RUBIN
v.
ZONING BOARD OF ADJUSTMENT (PHILADELPHIA)



Appeal from the decision of the Court of Common Pleas of Philadelphia County, No. 753, October Term, 1967, in case of David Rubin v. Zoning Board of Adjustment. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.

COUNSEL

Marvyn Gould, with him Yaffe & Gould, for appellant.

Matthew W. Bullock, Jr., 2nd Deputy City Solicitor, with him Edward G. Bauer, Jr., 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 Kramer. Dissenting Opinion by Judge Manderino.

Author: Kramer

[ 1 Pa. Commw. Page 407]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County dated June 3, 1969, which affirmed the adjudication of the Zoning Board of Adjustment of Philadelphia dated June 24, 1968, in which the Board "refused" the appellant's application for a use certificate for an open air private parking lot under the provisions of Section 14-303(3)(f)(.4) of the Philadelphia Code.

The case was transferred to the Commonwealth Court from the Supreme Court of Pennsylvania, Eastern

[ 1 Pa. Commw. Page 408]

District, at No. 504, January Term, 1969, under the provisions of the Appellate Court Jurisdiction Act (Act of July 31, 1970, No. 223), and was transferred to this Court on September 14, 1970.

Appellant, David Rubin, the applicant below, is the owner of a certain piece of realty commonly known as 3410 Collins Street, in the city of Philadelphia. Said realty is fifty-one feet (51') wide and runs westwardly a distance of one hundred forty feet (140') to Amber Street and is split-zoned. The Amber Street portion of this realty is zoned R-10 residential, and runs a depth of fifty-four feet (54'), or 20 feet beyond an existing house which fronts on Amber Street. The remainder of said realty fronting on Collins Street is a vacant lot zoned C-2 commercial, extends to a depth of seventy-six feet (76'), and is the subject matter in this case.

The appellant has an interest in National Steel Drum Company, Inc. (hereinafter referred to as National), which operates a business across Collins Street from the lot in question. National intends to lease the proposed parking lot from appellant for the parking of trailer trucks.

The provisions of the Philadelphia Code at Section 14-303(3)(f)(.4) require the property owner to obtain a use certificate for such a private parking lot based upon enumerated criteria at Section 14-1803(1). The burden of presenting evidence satisfying the criteria is placed upon the applicant at Section 14-1803(2).

The appellant filed with the Permit Issuance Section of the Department of Licenses and Inspection an application for a certificate to construct a private parking lot, which was apparently refused and referred to the Zoning Board of Adjustment. The required prior approvals of the City Traffic Engineer and ...


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