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CARMEN J. CALVANESE ET AL. v. ZONING BOARD ADJUSTMENT ET AL. CASTOR AVENUE CIVIC ASSOCIATION (05/06/80)

decided: May 6, 1980.

CARMEN J. CALVANESE ET AL.
v.
ZONING BOARD OF ADJUSTMENT ET AL. CASTOR AVENUE CIVIC ASSOCIATION, APPELLANT. CARMEN J. CALVANESE ET AL. V. ZONING BOARD OF ADJUSTMENT ET AL. CITY OF PHILADELPHIA, APPELLANT



Appeals from the Order of the Court of Common Pleas of Philadelphia County in case of Carmen J. Calvanese and Joseph Reifen and 8300 Bustleton Avenue, Partnership v. Zoning Board of Adjustment, No. 1423, May Term 1978.

COUNSEL

Irvin Stander, with him Henry J. Lotto, for appellant.

Joseph C. Vignola, with him Ronald H. Beifeld, Assistant City Solicitor, for appellee.

President Judge Crumlish and Judges Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 51 Pa. Commw. Page 153]

The Zoning Board of Adjustment of Philadelphia (board) and the Castor Avenue Civic Association (intervenor) seek relief from an order of the Court of Common Pleas of Philadelphia County which sustained the appeal of Carmen J. Calvanese (developer) from a decision of the board which had revoked developer's building permits.

Developer, in February, 1978, had bought a vacant piece of property in Philadelphia from Bell Telephone Company (Bell). The property is zoned C-2 Commercial, but surrounded by property zoned R-5 Residential. Before 1957, developer's property also had been zoned residential. Bell, in 1957, by allegedly making an oral promise to Rhawnhurst Community Council (Bell's residential neighbors and intervenor's predecessor) to build only a two-story office building to house Bell's accounting department on the property, succeeded in obtaining enactment of an ordinance which rezoned the property to its present C-2 Commercial status. However, the ordinance itself did not contain any limitation of Bell's use of the property, other than that provided by the C-2 Commercial District provisions, which allow retail stores as well as offices.

[ 51 Pa. Commw. Page 154]

Bell never constructed a building on the property. However, after buying the property from Bell, developer secured from the City of Philadelphia's Department of Licenses and Inspections (city department) building permits to construct a complex of twenty-four retail stores and also twenty-four one-family dwellings on the property. Construction activity did not commence until shortly after February 15, 1978.

Intervenor appealed developer's permits to the board. After hearing testimony on the matter, the board sustained intervenor's appeal and revoked developer's building permits. The board reasoned that revocation of the permits was appropriate because city, when it issued the permits, was unaware of Bell's 1957 representations as to limitation of development.

Developer appealed the board's decision to the Common Pleas Court of Philadelphia County. That court held that the board had abused its discretion by revoking developer's permits because developer's proposed uses are permitted in a C-2 Commercial district.

Intervenor now contends that the 1957 ordinance, which rezoned the property from residential to commercial, was spot zoning and is therefore invalid; intervenor did not raise that issue below. We have held that matters not raised in the tribunal below cannot be considered upon appeal, even though a constitutional question might be involved. Richland Township v. Hellerman, 30 Pa. Commonwealth Ct. 438, 373 A.2d 1367 (1977). In a zoning case in which the court below heard no additional testimony, as in the present case, our review is limited to a determination of whether the board abused its discretion or committed an error of law, which we cannot do with ...


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