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ALFRED F. OTTAVIANO v. ZONING BOARD ADJUSTMENT PHILADELPHIA. ALFRED F. OTTAVIANO (08/04/77)

decided: August 4, 1977.

ALFRED F. OTTAVIANO, JR. AND SOCIETY HILL CIVIC ASSOCIATION
v.
ZONING BOARD OF ADJUSTMENT OF PHILADELPHIA. ALFRED F. OTTAVIANO, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Alfred F. Ottaviano, Jr. and Society Hill Civic Association v. Zoning Board of Adjustment of Philadelphia, No. 1068 December Term, 1975.

COUNSEL

Steven P. Burkett, with him Simons, Kashkashian, Kellis & Groen, for appellant.

Ronald H. Beifeld, Assistant City Solicitor, with him Barbara S. Gilbert, Deputy City Solicitor, and Sheldon L. Albert, City Solicitor, for appellee.

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

Author: Kramer

[ 31 Pa. Commw. Page 367]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County which affirmed the decision of the Zoning Board of Adjustment (Board) granting a variance to Robert and Catherine Cohen for the addition of a greenhouse to their single-family

[ 31 Pa. Commw. Page 368]

    dwelling. The appellant is Alfred F. Ottaviano,*fn1 the Cohens' next-door neighbor.

The subject property is located in a district zoned "R-10" Residential. Under Section 14-211(2) of the Philadelphia Code, property in the "R-10" district must contain rear yards of a minimum depth of nine feet and must also have a total open area of 195 square feet, or 30 percent of the lot. The proposed addition would completely eliminate the Cohens' back yard and, in so doing, also reduce the lot's open area to zero. After a hearing, the Board granted the Cohens' application for a variance. The court below affirmed without the taking of additional evidence.

Where, as here, the lower court took no additional evidence, our scope of review in a zoning case is limited to a determination of whether the Zoning Board of Adjustment committed an abuse of discretion or an error of law. Filanowski v. Zoning Board of Adjustment, 439 Pa. 360, 266 A.2d 670 (1970).

The law governing the granting of a variance was aptly summarized by this Court in Levin v. Zoning Hearing Board, 11 Pa. Commonwealth Ct. 452, 457-58, 314 A.2d 579, 582 (1974):

The guidelines under which we consider the merits of a case involving the request for a variance are many. Variances should be granted sparingly and only under exceptional circumstances. See McClure Appeal, 415 Pa. 285, 287, 203 A.2d 534, 535 (1964); Marple Gardens, Inc. v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 436, 303 A.2d 239 (1973). In order to establish a right to a ...


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