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PHILADELPHIA v. EARL SCHEIB REALTY CORP. (03/15/73)

decided: March 15, 1973.

PHILADELPHIA
v.
EARL SCHEIB REALTY CORP.



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Earl Scheib Realty Corp. v. Zoning Board of Adjustment, No. 2725 January Term, 1972.

COUNSEL

Ronald H. Beifeld, Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellant.

Carl K. Zucker, with him Reuben E. Cohen and Cohen, Shapiro, Polisher, Sheikman and Cohen, for appellee.

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

Author: Mencer

[ 8 Pa. Commw. Page 13]

Earl Scheib Realty Corporation (applicant/appellee) sought to construct a one-story building with accessory off-street parking upon a vacant lot on the northeast corner of Cottman and Rockwell Avenues in the City of Philadelphia for automobile painting and body repair. The premises is situate in a district classified "C-2" Commercial, and, as such, the proposed use is not permitted in the district (but is permitted in various industrial districts).

A public hearing before the Zoning Board of Adjustment of Philadelphia (Board) was held on November 30, 1971, wherein the applicant appeared through counsel and offered argument, inter alia, that the general area of the subject premises included numerous commercial and industrial uses, that the proposed use would not be offensive since it would be in an enclosed building, and that painting would be the principal operation with body and fender repairs as an incidental adjunct to the primary use.

On December 21, 1971, the Board refused to grant the requested variance finding that the applicant did not establish unnecessary hardship and that the requested variance would not be in the public interest. On appeal, the Court of Common Pleas of Philadelphia County, having taken no additional testimony, reversed the Board on March 24, 1972, and, in an opinion filed August 3, 1972, concluded that the Board had abused its discretion in its decision based upon the record and testimony applicant had presented below.

On March 30, 1972, an appeal was taken to this Court by either the Board itself or the City of Philadelphia (the appeal was signed by John Mattioni, Esquire,

[ 8 Pa. Commw. Page 14]

Deputy City Solicitor). Appellee moved to quash the appeal alleging that the City of Philadelphia could not appeal the decision on behalf of the Board which, not being a party aggrieved, could not appeal by itself. We are convinced, as was the Supreme Court in Edwards Zoning Case, 392 Pa. 188, 140 A.2d 110 (1958), and in Landau Advertising Co. v. Zoning Board, 387 Pa. 552, 128 A.2d 559 (1957), that as a matter of substance the real party herein is the City of Philadelphia.*fn1 Appellee's Motion To Quash is therefore denied.

The scope of our review, where no additional evidence was taken by the court below, is limited to a determination whether the Board abused its discretion or committed an error of law. Cohen v. Philadelphia Zoning Board of Adjustment, 3 Pa. Commonwealth Ct. 50, 276 A.2d 352 (1971).

It is well established that an applicant is entitled to a variance upon proof of unnecessary hardship and lack of adversity to the public interest. Philadelphia v. Angelone, 3 Pa. Commonwealth Ct. 119, 280 A.2d 672 (1971). "The applicant shall have the duty of presenting evidence relating to the ...


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