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RUPERT J. BAMASH AND MILDRED BAMASH v. ZONING BOARD ADJUSTMENT (01/10/74)

decided: January 10, 1974.

RUPERT J. BAMASH AND MILDRED BAMASH, HIS WIFE, APPELLANTS,
v.
ZONING BOARD OF ADJUSTMENT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Rupert J. Bamash and Mildred Bamash, h/w, v. Zoning Board of Adjustment, No. 2833 May Term, 1970.

COUNSEL

Carl K. Zucker, with him Reuben E. Cohen and Cohen, Shapiro, Polisher, Shiekman & Cohen, for appellants.

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

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

Author: Mencer

[ 11 Pa. Commw. Page 421]

This is an appeal from the order of the Court of Common Pleas of Philadelphia which affirmed the Zoning Board of Adjustment (Board) in its decision refusing the application of Rupert J. and Mildred Bamash (hereinafter referred to as Bamash) for a variance.

Bamash had proposed to convert the garage on his property at 1843 North 72nd Street in Philadelphia to a dentist's office. The property, with a garage and a one-story, one-bedroom residence thereon, is zoned "R-1" Residential. Section 14-202 of the Philadelphia Zoning Code (Code) does not permit a dentist's office in an "R-1" Residential Zone.

The Board, after a hearing, refused to grant the application for a variance. It found that Bamash had

[ 11 Pa. Commw. Page 422]

    failed to present evidence to meet the criteria for the grant of a variance as provided under Section 14-1802 of the Zoning Code. On appeal, the Court of Common Pleas, without taking additional evidence, affirmed the decision of the Board. This appeal followed.

In a zoning case in which the court below heard no additional testimony, our review is limited to a determination of whether the Board abused its discretion or committed an error of law. The Boulevard Land Corporation v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 584, 303 A.2d 234 (1973).

Bamash's appeal consists of two arguments. He first argues that all the criteria for a variance under the Code were satisfied and, therefore, the Board erred as a matter of law in refusing to grant a variance. We do not agree.

Section 14-1802 of the Code has adopted as its criteria for the granting of a variance the criteria mandated by Pennsylvania case law. Myriad are the cases which hold that an applicant for a variance must prove that there exists unnecessary hardship unique or peculiar to his property and that the variance is not contrary to the public health, safety or general welfare. In addition, the courts have held that a variance should only be granted in exceptional circumstances ...


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