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HEBEISEN v. PHILADELPHIA ZONING BOARD ADJUSTMENT (05/28/71)

decided: May 28, 1971.

HEBEISEN
v.
PHILADELPHIA ZONING BOARD OF ADJUSTMENT



Appeal from the Order of the Court of Common Pleas of Philadelphia County, 1969 Term, No. 3900, in case of Frederick Hebeisen and East Torresdale Civic Association v. Zoning Board of Adjustment of the City of Philadelphia. Appeal transferred September 14, 1970 to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.

COUNSEL

Louis F. Floge, with him Schnader, Harrison, Segal & Lewis, for appellant, James D. Morrissey, Inc.

Carl K. Zucker, Deputy City Solicitor, with him Matthew W. Bullock, Jr., First Deputy City Solicitor and Levy Anderson, City Solicitor, for intervening appellant, Zoning Board of Adjustment of the City of Philadelphia.

Arsen Kashkashian, Jr., with him Simons, Kashkashian, Nissenbaum & Kellis, for appellees, Frederick Hebeisen, et al.

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

Author: Manderino

[ 2 Pa. Commw. Page 333]

This is an appeal from an Order of the Court of Common Pleas of Philadelphia County declaring unconstitutional Ordinance No. 220 which amended the Zoning Ordinance for the City of Philadelphia. James D. Morrissey, Inc., is the owner of a rectangular tract of land of approximately twenty-two acres (the Morrissey tract) which, by the above ordinance was rezoned G-2 General Industrial from its former classification of partly R-5 Residential for the top five acres and C-2 Commercial for the bottom seventeen acres. This tract of land has always been owned by Morrissey, who used the seventeen acre portion as storage for vehicles used in his business as a road building and paving contractor. Although such use is not permitted under the C-2 classification, it was permitted as a nonconforming use. The five-acre portion of the tract has always been vacant.

The amendment to the zoning ordinance would, in effect, permit Morrissey to eliminate his nonconforming status on the seventeen-acre portion and allow him to expand his business into the vacant five-acre portion.

After Ordinance No. 220 was passed by City Council and signed by the Mayor, Frederick Hebeisen and the East Torresdale Civil Association appealed to the Philadelphia Zoning Board of Adjustment challenging the constitutionality of the ordinance on the grounds that it constituted invalid "spot-zoning". An extensive hearing was held before the Zoning Board of Adjustment which dismissed Hebeisen's appeal and upheld the validity of Ordinance No. 220. From this decision, Hebeisen appealed to the Court of Common Pleas of Philadelphia County on the basis that the Board's decision was "arbitrary, illegal and constitutes a manifest and gross abuse of discretion and a postive error of law." Although no evidence was taken by the Court of Common Pleas, that court reversed the Zoning Board

[ 2 Pa. Commw. Page 334]

    of Adjustment and held Ordinance No. 220 to be "spot-zoning" and, therefore, unconstitutional. James D. Morrissey, Inc., has appealed from this decision.

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.

In this appeal, James D. Morrissey, Inc., argues that the lower court, without finding an error of law or an abuse of discretion, had no right to substitute its own judgment, that the ordinance in question constituted illegal "spot-zoning", for the judgment ...


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