Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Children's Aid Society v. Zoning Board of Adjustment, No. 3254 December Term, 1976.
Barbara R. Axelrod, Assistant City Solicitor, with her Sheldon L. Albert, City Solicitor, and James M. Penny, Jr., Deputy City Solicitor, for appellant.
Peter M. Mattoon, with him Linda S. Martin, and, of counsel, Ballard, Spahr, Andrews & Ingersoll, for appellee.
Judges Blatt, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.
[ 44 Pa. Commw. Page 124]
The City of Philadelphia (city) appeals here from an order of the Court of Common Pleas of Philadelphia County which reversed a decision of the Zoning Board of Adjustment (Board). The Board had denied a use certificate to the appellees, the Children's Aid Society of Pennsylvania (Society).
The Society seeks to use a detached dwelling at 543 East Durham Street, Philadelphia as a residence for a family with six foster children. The property is located in an R-4 residential district where a single-family dwelling is a permitted use, but, because the individuals who will reside in the house do not constitute a family as that term is defined by applicable zoning ordinance,*fn1 the Society has asked for a use certificate as for a charitable institution. It applied for the certificate to the Philadelphia Department of Licenses and Inspections, where the matter was referred to the Zoning Board of Adjustment. A public hearing was held, and testimony was received from the Society and from several neighbors. The Board denied the application, finding that the Society had not
[ 44 Pa. Commw. Page 125]
met its burden of proof under Section 14-1803(1)(d) of the Philadelphia Zoning Ordinance.*fn2 The Board held that the grant of the certificate requested would overcrowd the land or create an undue concentration of population, would increase the danger of fire or otherwise endanger the public safety, would adversely affect or unduly burden public services and would adversely affect the public health, safety or general welfare and would not be in harmony with the spirit and purpose of the ordinance. The Society appealed this
[ 44 Pa. Commw. Page 126]
determination to the Court of Common Pleas, which without taking additional evidence, sustained the appeal. The Court held that the Board had erred as a matter of law in concluding that the Society had failed to meet its burden of proof under the zoning ordinance. This appeal followed.
Our scope of review in a zoning case where the lower court takes no additional evidence is limited to a determination as to whether or not the zoning board abused its discretion or committed an error of law. Meyers v. Board of Supervisors, 38 Pa. Commonwealth Ct. 578, 394 A.2d 669 (1978).
The certificate which the Society seeks here is in the nature of a special exception providing for a use permitted by the zoning ordinance. It is generally granted unless, under the facts of the specific application, such use would prove injurious to the public interest as set forth in the ordinance. Conversely, the reason for refusal to permit a proposed use must bear a substantial relationship to ...