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DAVID J. KOLLOCK AND MARJORIE A. KOLLOCK v. ZONING BOARD ADJUSTMENT PHILADELPHIA (12/21/76)

decided: December 21, 1976.

DAVID J. KOLLOCK AND MARJORIE A. KOLLOCK, HUSBAND AND WIFE, AND JOHN F. LEDWITH AND MARY J. LEDWITH, HUSBAND AND WIFE, APPELLANTS
v.
ZONING BOARD OF ADJUSTMENT OF PHILADELPHIA, APPELLEE, AND FORD LEASING DEVELOPMENT CO. AND THE CHESTNUT HILL COMMUNITY ASSOCIATION, INTERVENING APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of David J. Kollock and Marjorie A. Kollock, husband and wife, and John F. Ledwith and Mary J. Ledwith, husband and wife v. Zoning Board of Adjustment of Philadelphia, No. 3566 July Term, 1974.

COUNSEL

John F. Ledwith, with him Schubert, Mallon, Walheim & DeCindis, for appellants.

Ronald H. Beifeld, Assistant City Solicitor, with him James M. Penny, Jr., Assistant City Solicitor, and Sheldon L. Albert, City Solicitor, for appellee.

Carl K. Zucker, with him Cohen, Shapiro, Polisher, Shiekman and Cohen, for intervening appellee.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Mencer. Dissenting Opinion by Judge Rogers.

Author: Mencer

[ 27 Pa. Commw. Page 626]

Appellants, who are residents of the Chestnut Hill section of Philadelphia, ask us to reverse a decision of the Court of Common Pleas of Philadelphia County which upheld the grant of a variance by the Zoning Board of Adjustment of Philadelphia (Board) to the Ford Leasing Development Co. (Ford). The land in question, measuring approximately 200 feet by 150 feet, is currently zoned R-5 residential and comprises a portion of a property owned by Ford and occupied by its lessee, Carr Ford (Carr). Another portion of the property is zoned C-2 commercial and, as currently used by Carr, contains a new car showroom, parking and storage facilities, and a body shop. Ford requested a variance in order to allow Carr to expand by providing customer parking on the R-5 land, by paving that parking lot with gravel rather than macadam, by relocating the body shop, and by erecting a 6-foot-high stockade fence on the northwestern side of the property to act as a screen or buffer. The variance was granted by the Board, subject to certain conditions involving plantings to beautify the area. The lower court affirmed, relying on the record before the Board.

Where, as here, the court below has taken no additional evidence, our scope of review is to determine whether the Board has abused its discretion or committed an error of law. Harper v. Zoning Hearing Board of Ridley Township, 21 Pa. Commonwealth Ct. 93, 343 A.2d 381 (1975). In exercising our review,

[ 27 Pa. Commw. Page 627]

    we must bear in mind the following legal principles summarized in O'Neill v. Zoning Board of Adjustment, 434 Pa. 331, 334, 254 A.2d 12, 14 (1969):

[V]ariances should be granted only sparingly and only under exceptional circumstances; . . . in order to obtain a variance, the petitioner must prove (1) that the variance will not be contrary to the public interest and (2) that unnecessary hardship will result if the variance is not granted; . . . a variance will not be granted solely because the petitioner will suffer an economic hardship if he does not receive one. (Footnotes omitted.)

The unnecessary hardship, in addition, must be unique or peculiar to the individual property involved. Sposato v. Radnor Township Board of Adjustment, 440 Pa. 107, 270 A.2d 616 (1970). As a general rule, unnecessary hardship has been established by a showing that the physical characteristics of the property were such that it could not in any case be used for the permitted purpose or that the physical characteristics were such that it could only be arranged for such purpose at prohibitive expense or by proving that the characteristics of the area were such that the lot had either no value or only a distress ...


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