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SZMIGIEL v. ZONING BOARD ADJUSTMENT (12/08/72)

decided: December 8, 1972.

SZMIGIEL
v.
ZONING BOARD OF ADJUSTMENT



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Alfred Szmigiel v. Zoning Board of Adjustment, No. 1495 December Term, 1970.

COUNSEL

Leonard Sarner, with him Sarner, Cooper & Stein, for appellant.

James M. Penny, Jr., Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.

Author: Mencer

[ 6 Pa. Commw. Page 633]

Alfred Szmigiel (Szmigiel) appeals from the order of the Court of Common Pleas of Philadelphia County which affirmed the Zoning Board of Adjustment

[ 6 Pa. Commw. Page 634]

(Board) in its decision refusing Szmigiel either a variance permit or a certificate for a home occupation to conduct a printing business in the basement of his home at 4716 Marple Street, Philadelphia.

Szmigiel's home is in a district classified R-9 Residential where, under the Philadelphia Code of General Ordinances § 14-210(1), a printing business use is not permitted. The subject premises is located on a block of row houses, none of which is commercial in any aspect. However, Code § 14-203(2)(e) does permit "Home occupations, customarily and traditionally conducted in a dwelling as an incidental use" subject to certain limitations and restrictions.

It is contended that Szmigiel's use of a portion of his home as a small print shop meets the qualification that it is customarily and traditionally conducted in a dwelling, especially because Szmigiel is physically handicapped and prevented from conducting the shop in a commercial establishment, and because Szmigiel and his wife have conducted a part-time printing business at this location for the past 31 years.*fn* It is further contended that:

"Plaintiff uses two multilith machines which are driven by one-third horse power motors, similar to the motors which operate a home washer or dryer. The only other equipment used are a hand operated paper cutter and a small box used for etching multilith plates similar to a photograph developer with non-noxious and non-odorous chemicals.

"The multilith machines are both mounted on sound absorbing bases and the size of ...


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