Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Durkin Contracting Company v. Zoning Board of Adjustment, No. 4589, May Term, 1971.
James M. Penny, Jr., Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellant.
John E. Tuohy, with him Charles V. Stoelker, Jr., and Meehan & Stoelker, for appellee.
Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Rogers. Judge Blatt joins in this opinion. Dissenting Opinion by Judge Blatt.
This case is before us on appeal by the Zoning Board of Adjustment of Philadelphia (Board) from a decision of the Court of Common Pleas of Philadelphia County which directed the Board to grant a variance requested by appellee, Durkin Contracting Company.
On March 10, 1971, Durkin had applied for a zoning permit for a parcel of land approximately 175 by
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feet located on the southeast corner of Grant Avenue and Ashton Road. The application sought allowance for use as a one-story gasoline station, with parking, lights and signs in a district zoned L-2 Light Industrial. The Department of Licenses and Inspections refused to issue this permit because the proposed use was not permitted in an L-2 district.
An appeal was taken to the Board which, after a hearing,*fn1 refused to grant the variance. The Court of Common Pleas granted a writ of certiorari and held a new hearing at which additional testimony was taken. The court reversed the decision of the Board and ordered that a variance be granted. That decision has been appealed to this Court and we are of the opinion that the decision and order of the lower court must be affirmed.
The Board, in this appeal, proffers two contentions: (1) that it was an abuse of discretion for the Court of Common Pleas to take additional testimony because no compelling circumstances existed which would necessitate additional testimony; and (2) that there were not exceptional circumstances present in this case which would constitute the unnecessary hardship requisite to the issuance of a zoning ordinance.
With respect to the taking of additional testimony, appellant recognizes that in this instance by Act of May 6, 1929, P.L. 1551, § 8, 53 P.S. § 14759, the courts of common pleas have the power to take additional testimony. Appellant simply contends that there was no necessity to do so in the instant situation.
Examination of the record before the Board reveals that the City Planning Commission, in its recommendation to the Board, made after the Board's hearing, concluded that ...