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DIBELLO v. ZONING BOARD ADJUSTMENT (03/06/72)

decided: March 6, 1972.

DIBELLO
v.
ZONING BOARD OF ADJUSTMENT



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Gerald DiBello v. Zoning Board of Adjustment of the City of Philadelphia, No. 412, January Term, 1970.

COUNSEL

William G. Schwartz, with him Blank, Rome, Klaus & Comisky, for appellant.

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

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 4 Pa. Commw. Page 547]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County affirming the decision of the Zoning Board of Adjustment which refused a variance to permit appellant to erect a garage for the storage of three trucks, two cars, and landscaping equipment. The court below did not take any additional testimony but found on the record made before the Board that the Board had not committed an error of law nor had it abused its discretion. We must reverse the lower court.

The land in question is in an "R-10" Residential Zone. The appellant purchased the property in 1967 when erected thereon was a stable which housed horses and other animals as a nonconforming use. He demolished the stable and applied for a variance which was refused because the lot was too small as well as on what was determined by the Board to be an insufficient showing for a variance. Either ground would have been sufficient to support the refusal at that time.

Since 1967 appellant has acquired additional land and the tract is now of sufficient size to support the

[ 4 Pa. Commw. Page 548]

    request. We are not unmindful of the heavy burden that is placed upon the appellant by DiSanto v. Zoning Board of Adjustment, 410 Pa. 331, 189 A.2d 135 (1963), as recognized by this Court in Henry Jacobs v. Philadelphia Zoning Board of Adjustment, 1 Pa. Commonwealth Ct. 197, 273 A.2d 746 (1971). We are also cognizant that the Board may be reversed only if we find that it has committed an error of law or a manifest abuse of discretion. David Rubin v. Zoning Board of Adjustment (Philadelphia), 1 Pa. Commonwealth Ct. 406, 274 A.2d 208 (1971). A review of this record convinces us that the appellant has met the heavy burden placed upon him before the Zoning Hearing Board and, in our opinion, for the Board to have found otherwise on the testimony before it was a manifest abuse of discretion for which its decision must be reversed.

It is significant to note that not only was not a single protest filed nor any evidence offered before the Board by either the Board or any witness to oppose the grant of the variance, but one of appellant's witnesses in support of the grant was the President of the Forty-Ninth Street Civic Association. We quote from his testimony:

"Q. Was a meeting held by the Forty-ninth Street Civic Association to ...


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