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ALFRED WABER v. ZONING BOARD ADJUSTMENT. FRANCIS A. NORBECK (04/09/79)

decided: April 9, 1979.

ALFRED WABER, T/A WINMONT ASSOCIATES ET AL.
v.
ZONING BOARD OF ADJUSTMENT. FRANCIS A. NORBECK, APPELLANT. ALFRED WABER, T/A WINMONT ASSOCIATES ET AL. V. ZONING BOARD OF ADJUSTMENT. CITY OF PHILADELPHIA, APPELLANT. CITY OF PHILADELPHIA AND ALFRED WABER, T/A WINMONT ASSOCIATES ET AL. V. FRANCIS A. NORBECK AND LILLIAN M. NORBECK, H/W, APPELLANTS



Appeals from the Orders of the Court of Common Pleas of Philadelphia County in cases of Alfred Waber, t/a Winmont Associates; Albert Cohen and Celia Cohen, his wife; James Smith and Eleanor Smith, his wife, and Miriam Dubin v. Zoning Board of Adjustment, No. 3781 November Term, 1976; and City of Philadelphia and Alfred Waber, t/a Winmont Associates; Albert Cohen and Celia Cohen, h/w; Beatrice Lieberman; Benjamin Visnov and Ann Visnov, h/w; Herman Bobly and Evelyn Bobly, h/w; Irvin Brodsky and Betty Brodsky, h/w, Intervenors v. Francis A. Norbeck and Lillian M. Norbeck, h/w, No. 883 December Term, 1973.

COUNSEL

Stanley A. Uhr, with him Lenard L. Wolffe, and Pechner, Dorfman, Wolffe, Rounick & Cabot, for appellants.

Stanton Dubin, for appellees.

Judges Crumlish, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 41 Pa. Commw. Page 567]

We are here considering two appeals from separate but related actions of two separate Courts of Common Pleas of Philadelphia County. Francis and Lillian Norbeck (Applicants) and the City of Philadelphia appeal a decision which reversed the action of the Zoning Board of Adjustment (Board) granting a permit for the erection of a non-commercial horse stable accessory to Applicants' family dwelling. The Norbecks also appeal a related equitable action dismissing their exceptions to a decree nisi.

We will dispose of the matters seriatim.

Applicants received permission from the Department of Licenses and Inspections (Department) to erect a stable in August, 1972. After a substantial expenditure of money and effort, the stable was completed in September. The owner of an adjacent complex and various tenants (Protestants) filed an appeal with the Board in December, 1972. The Board revoked Applicants' permit on February 15, 1973, concluding that the use was not permitted under the provisions of the Philadelphia Zoning Code (Code). The Common Pleas Court affirmed Board's decision. An appeal which was filed nunc pro tunc in this Court was denied, as was a petition for leave to appeal in the Supreme Court.

[ 41 Pa. Commw. Page 568]

Applicants then petitioned Board for a new hearing on the stable permit alleging that a gross injustice had been committed in the initial proceeding. On November 17, 1976, Board granted the permit and a variance. Protestants appealed this action and, without taking additional evidence, the trial court reversed. This reversal is the primary matter before us on appeal.

Applicants steadfastly maintain that the original permit granted in 1972 giving them permission to build and use a stable in an R-12 residential district was correct in that the permit was a matter of right. This issue was fully explored and rejected by Board on February 15, 1973. The Court of Common Pleas affirmed Board's decision and, upon exhaustion of appellate remedies even though no decision was rendered on the merits by the appellate courts, the matter is clearly res judicata.*fn1

Applicants next contend that the court below exceeded its scope of review. We disagree. When that court does not take additional evidence, it is limited to a determination of whether Board committed a manifest abuse of discretion or error of law. Pyzdrowski v. Pittsburgh Board of Adjustment, 437 Pa. 481, 263 A.2d 426 (1970). The court below did not address any abuse of discretion and merely applied the facts of record to the legal issues involved.

Applicants' major contention related that a vested right to the use of the stable had been acquired and that a variance was properly granted by the Board. We do not ...


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