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EIGHTEENTH & RITTENHOUSE ASSOCIATES v. ZONING BOARD ADJUSTMENT AND CENTER CITY RESIDENTS' ASSOCIATION (10/14/76)

decided: October 14, 1976.

EIGHTEENTH & RITTENHOUSE ASSOCIATES, APPELLANT
v.
ZONING BOARD OF ADJUSTMENT AND CENTER CITY RESIDENTS' ASSOCIATION, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Eighteenth & Rittenhouse Associates v. Zoning Board of Adjustment, No. 4826 November Term, 1974.

COUNSEL

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

Ronald H. Beifeld, 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.

Peter L. Shaw, with him Saul, Ewing, Remick & Saul, for intervening appellee.

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

Author: Crumlish

[ 26 Pa. Commw. Page 555]

This is a zoning appeal by Eighteenth & Rittenhouse Associates (Appellant) from an order of the court of common pleas affirming the Zoning Board of Adjustment's (ZBA) refusal to grant a variance for the use*fn1 of the premises, 250 South 18th Street ("250"). "250" is located in an area zoned "R-16" Residential where the proposed offices and savings and loan uses are not permitted.

[ 26 Pa. Commw. Page 556]

In 1970, Appellant's predecessor in interest received a variance from the court of common pleas for a twenty-seven unit apartment house with four non-conforming doctors' offices and a real estate office.*fn2 Appellant, relying on Grace Building Co. v. Hatfield Township, 16 Pa. Commonwealth Ct. 530, 329 A.2d 925 (1974), contends that the existing variance for a real estate office entitles it to a variance for another commercial use so long as there is no change in circumstances, intensification of usage, or greater impairment of public interest. We must disagree.

In Grace, supra, we held that after a zoning board properly granted a variance from a zoning ordinance as a result of a finding of unnecessary hardship, the board abuses its discretion in refusing a subsequent variance request for the same property in the absence of relevant new evidence that a variance was no longer justified.

Appellant, here, is not claiming a new variance for the same real estate office use, but is asking that an adjudication of unnecessary hardship for a real estate office commercial use is res judicata with respect to the application for a savings and loan commercial use. In Heller v. Zoning Board of Adjustment, 404 Pa. 8, 171 A.2d 44 (1961), our Supreme Court, in holding that an adjudication which found unnecessary hardship for a nine-family dwelling was not res judicata for an application for a ten-family dwelling for the same property, wrote:

"The appellants now take the position that they have a continuing right, as if by res judicata, to this variance so long as ...


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