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GAUDENZIA v. ZONING BOARD ADJUSTMENT AND LEFEVER (02/14/72)

decided: February 14, 1972.

GAUDENZIA, INC.
v.
ZONING BOARD OF ADJUSTMENT AND LEFEVER, ET AL., INTERVENORS



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Gaudenzia, Inc. v. Zoning Board of Adjustment of the City of Philadelphia and Mark E. Lefever, Sara N. Lefever, Donald C. Ross, Rhoda D. Ross, Lawrence R. Polillo and Evelyn M. Polillo, Intervening Appellees, October Term, 1970, No. 4036.

COUNSEL

Peter Hearn, with him A. Clifford Pearlman and Pepper, Hamilton & Scheetz, for appellant.

Howard D. Scher, Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Levy Anderson, City Solicitor, for appellee.

Irvin Stander for intervenors.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Judge Manderino did not participate in the decision. Opinion by Judge Kramer.

Author: Kramer

[ 4 Pa. Commw. Page 357]

This is an appeal from an Opinion and Order of the Common Pleas Court of Philadelphia County, dated April 21, 1971, affirming the adjudication of the Zoning Board of Adjustment of Philadelphia (Board), dismissing the appeal of Gaudenzia, Inc. (Gaudenzia). The effect of this adjudication was to affirm the refusal by the zoning administrative officer to issue a use certificate to Gaudenzia.

On August 3, 1970, Gaudenzia (appellant) made application for a use certificate to operate a mansion-type structure, with two outbuildings, as a charitable institution for the following purpose: "Community processing and orientation center for narcotic addicts being transferred to recovery center outside Philadelphia with a community kitchen and fourteen bedrooms to accommodate fifteen-twenty transients for periods of fifteen-thirty days and administrative offices." Gaudenzia is a non-profit Delaware corporation, qualified to do business in Pennsylvania. Gaudenzia operates a self-help rehabilitation program for drug addicts. Its main base of operation is located in Chester County. Its proposed use of the Philadelphia property is to establish an orientation program, prior to admission to the Chester County facility, for drug addicts who voluntarily desire to withdraw from the use of drugs. Gaudenzia presently operates another orientation center in the City of Philadelphia, but owing to its poor state of repair, Gaudenzia entered into a conditional agreement to purchase the premises here in question. The premises have been vacant since 1968, and had

[ 4 Pa. Commw. Page 358]

    previously been used as a nursing home facility for about twelve years.

The application for the use certificate was refused, and Gaudenzia appealed to the Zoning Board of Adjustment on August 10, 1970. Five members of the Philadelphia Zoning Board of Adjustment (there being one vacancy at the time of the hearing) heard considerable testimony for and against the issuance of the use certificate. On December 7, 1970, the Board handed down its adjudication by a vote of three to two,*fn1 dismissing the appeal based upon its findings of fact and conclusions of law. Appeal was then taken to the Court of Common Pleas of Philadelphia County and that Court, on April 21, 1971, issued its Opinion and Order affirming the Board. The Court did not hold additional hearings, nor did it receive additional testimony or evidence.

The premises in question are located in an "R-9" zoning district, in which charitable institutional use is permitted "only if a Board of Adjustment Certificate is obtained. . . ."

Under the Philadelphia Code (Section 14-1803) a use certificate (which is identical to a "special exception" under other zoning ordinances in this Commonwealth) may be issued to an applicant ...


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