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ETHEL POLLOCK v. ZONING BOARD ADJUSTMENT (08/05/75)

decided: August 5, 1975.

ETHEL POLLOCK, APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT, APPELLEE, AND FRANKFORD TRUST COMPANY AND GEMMI, INC., INTERVENING APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Clement Marmar and Elisabeth Marmar; Ethel Pollock; Paul Gotas and Dolores Gotas; Domenic Gentile and Meta Gentile; George V. Arnoux and Virginia Arnoux v. Zoning Board of Adjustment, No. 3260 July Term, 1973.

COUNSEL

J. Leon Rabben, for appellant.

Louis F. Hinman, III, Assistant City Solicitor, with him James M. Penny, Jr., Assistant City Solicitor, Raymond Kitty, Deputy City Solicitor, and Sheldon L. Albert, City Solicitor, for appellee.

Carl K. Zucker, with him Vito F. Canuso, Jr., and Cohen, Shapiro, Polisher, Shiekman & Cohen, for intervening appellee, Gemini, Inc.

Irvin Stander, for intervening appellee, Frankford Trust Co.

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

Author: Blatt

[ 20 Pa. Commw. Page 643]

Gemini, Inc., (Gemini) owns a small tract of land in northeast Philadelphia for which it has received building and use permits for the construction of a commercial office building. Until September 1965, the tract was zoned R-4 and R-5 Residential under the Philadelphia Zoning Code. All the land contiguous to the tract to the north, south and west in the same block is zoned either R-4 or R-5 Residential as is each of the contiguous blocks to the north, south and west. On the east, the tract fronts on Roosevelt Boulevard (Boulevard), a twelve-lane highway, the other side of which at this point is zoned for industrial and commercial usage.

In September 1965, apparently at the request of Gemini, the developer, the Philadelphia City Council passed Ordinance 1016 which rezoned the tract to O.C. Office Commercial. When, in 1972, the Department of Licenses and Inspection (L&I) amended its zoning maps accordingly and issued building and use permits to Gemini to construct an office building, the appellant, one of the plaintiffs below who own and reside in residences either adjacent to or in the immediate vicinity of the tract in question, filed an appeal from the L&I actions to the Zoning Board of Adjustment (Board). In her appeal, she attacked Ordinance 1016 on statutory and constitutional grounds alleging that it was not enacted in conformance with the Comprehensive Plan for Philadelphia and that it was illegal "spot zoning." After hearings, the Board upheld the validity of the ordinance, dismissed the appellant's appeal, and sustained the action of L&I. The Court of Common Pleas of Philadelphia County, on appeal, refused to restrain construction of the office building, and dismissed the appeal.*fn1 This appeal followed. The

[ 20 Pa. Commw. Page 644]

    construction of the office building has since been completed.

Under the Philadelphia Home Rule Charter*fn2 and the Zoning Enabling Act,*fn3 all zoning legislation must be enacted in accordance with a comprehensive plan and only upon the recommendation of the City Planning Commission. "Generally speaking, spot zoning is the arbitrary and unreasonable classification and zoning of a small parcel of land. This small parcel of land is usually set apart or carved out of a surrounding or a large neighboring tract, with no reasonable justification for the differential zoning." Cleaver v. Board of Adjustment, 414 Pa. 367, 379, 200 A.2d 408, 415 (1964). A municipality, however, may rezone a small piece of property for a use different from that of surrounding uses if such use in is accord with the comprehensive plan and reasonable use in the area. Trinity Evangelical Lutheran Church v. City Council of Harrisburg, 2 Pa. Commonwealth Ct. 222, 278 A.2d 372 (1971). It must first be determined, therefore, whether or not the rezoned tract is being treated differently from similar surrounding land then whether or not such differential treatment, if found, is justifiable. Schubach v. Silver, Pa. , 336 A.2d 328 (1975).

The court below affirmed the Board without taking additional evidence. We must, therefore, review the findings of fact and ...


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