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BOULEVARD LAND CORPORATION v. ZONING BOARD ADJUSTMENT (04/13/73)

decided: April 13, 1973.

THE BOULEVARD LAND CORPORATION
v.
ZONING BOARD OF ADJUSTMENT



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of The Boulevard Land Corporation v. Zoning Board of Adjustment of the City of Philadelphia, No. 538, January Term, 1972.

COUNSEL

John David Egnal, with him Michael Egnal, and Egnal and Egnal, P.A., for appellant.

Steven B. Berger, Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 8 Pa. Commw. Page 585]

The Court of Common Pleas of Philadelphia County affirmed the Zoning Board of Adjustment which had

[ 8 Pa. Commw. Page 586]

    refused Boulevard Land Corporation's (Boulevard) application for a variance.

Boulevard had proposed to construct a one-story retail grocery store-delicatessen, with accessory sign and accessory parking on the premises located at 2910-2914 Cottman Avenue, Philadelphia. The property is zoned "R-5" Residential where such a use is prohibited. It abuts a corner lot zoned "C-2" commercial to the west and a six- unit apartment house to the east. At present, the premises in dispute houses a three-story detached dwelling and a one-story detached garage which is used for tenant occupancy.

The Board, after one hearing and a re-hearing, refused to grant the application for variance. If found that the applicant had not established legal hardship and that the use sanctioned by a variance would be contrary to the health, safety and welfare of the community. No additional evidence was presented to the Court of Common Pleas.

[ 8 Pa. Commw. Page 587]

Review by this Court is limited to a determination of whether the zoning board clearly abused its discretion or committed an error of law, the court below having heard no additional testimony. Zoning Hearing Board, et al. v. Urbano, 6 Pa. Commonwealth Ct. 297, 294 A.2d 403 (1972). Myriad are the cases which hold that a variance may obtain only when an applicant proves that in the present zoning posture there exists unnecessary hardship unique or peculiar to the property and that the proposed variance is not contrary to the public health, safety or general welfare. Jackson v. York City Zoning Board, 5 Pa. Commonwealth Ct. 271, 290 A.2d 438 (1972); Altemose Construction Co. v. Zoning Hearing Board, 3 Pa. Commonwealth Ct. 328, 281 A.2d 781 (1971). A variance should be granted only in exceptional circumstances and the burden of proving its need is a heavy one. Board of Adjustment Page 587} v. Drop, 6 Pa. Commonwealth Ct. 64, 293 A.2d 144 (1972).

Testimony by Boulevard's real estate expert before the Board revealed that the value of the property for use as semi-detached houses (permitted uses in "R-5") was $10,000 and that the cost of erecting them would total $29,000 (including the value of the land). He testified further that this cost would not compare favorably with the value of other residences in the immediate area by estimating values of $19,000 to $22,000 on one nearby ...


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