Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Overbrook Farms Club, John T. Curtin, Augustus Sigismondi and Denis V. Brenan v. Zoning Board of Adjustment of Philadelphia v. Alan Feingold and Drexel Overbrook Associations, Intervenors, No. 916 December Term, 1976.
Henry B. Fitzpatrick, Jr., with him Liebert, Short, Fitzpatrick & Lavin, for appellants.
Milton S. Lazaroff, with him Techner, Rubin, Shapiro, Slass & Lazaroff, for appellees.
Judges Mencer, Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig.
This zoning appeal turns on one narrow question: When, under the Philadelphia Zoning Ordinance, an application for a zoning board of adjustment certificate comes to the Philadelphia Board of Adjustment by referral, not appeal, from the zoning administrator, is the board confined to deciding whether the proposal complies with the general criteria for granting all kinds of zoning board of adjustment certificates, or may the board also consider (1) whether the proposal actually comes within the type of use named in the specific certificate provision, and (2) whether the proposal complies with other provisions of the ordinance, such as yard and offstreet parking requirements?
Our conclusion is that no action of the zoning administrator can usurp any part of the board's plenary responsibility to decide whether or not an application for a zoning board of adjustment certificate complies with the ordinance in every respect. We will therefore reverse the decision below and remand it for further consideration.
Initially, we note that a zoning board of adjustment certificate under the Philadelphia Zoning Ordinance is "identical to a special exception as such is provided for in many other zoning ordinances." Zoning Board of Adjustment of Philadelphia v. Liberty Bell Medical Center, 17 Pa. Commonwealth Ct. 213, 331 A.2d 242 (1975).
The factual background of this case arises from the application of appellee Drexel Overbrook Associates (applicant) for permits to erect an "old age home" on land in Philadelphia districts zoned R-2 Residential and R-16 Residential, in both of which an "old age home" may be erected if a "zoning board of adjustment certificate" is obtained. Philadelphia Zoning Ordinance Section 14-203(2)(h), Section 14-217(1)(a).*fn1
Also pertinent is Philadelphia Zoning Ordinance Section 14-1803 which sets forth the "Criteria for Granting a Zoning Board of Adjustment Certificate" applicable to all certificate uses generally, listing criteria concerning congestion, fire danger, land overcrowding, concentration of population and other general matters, as quoted in full in Liberty Bell Medical Center, supra, including the requirement that "the grant of the Certificate will be in harmony with the spirit and purpose" of the ordinance.
The application included plans for a building to contain 261 apartment units and ...