Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Valley View Civic Association v. Zoning Board of Adjustment, No. 402 March Term, 1980.
Daniel Sherman, P.C., for appellant.
Laurence M. Levin, Assistant City Solicitor, with him Jill A. Douthett, Deputy City Solicitor, for appellee.
Franklin H. Spitzer, of counsel: Wolf, Block, Schorr and Solis-Cohen, for intervenor-appellee.
Judges Craig, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail. Judge Mencer did not participate in the decision in this case. Judge Doyle dissents.
[ 67 Pa. Commw. Page 234]
Valley View Civic Association (Appellant) appeals from an order of the Court of Common Pleas of Philadelphia County which affirmed the decision of the Zoning Board of Adjustment (Board) to grant a use variance to Alma Horen (Appellee). We reverse.
The subject property, owned by Appellee, is located in an R-5 residential district on Ridge Avenue in Philadelphia. The property is improved with a building in which Appellee proposes to operate a retail steak and hoagie shop limited to "take-out" service. The shop would occupy the first floor of the structure while the second and third floors would each contain an apartment. Apparently neither the commercial use nor the two-family dwelling use are permitted in the R-5 district.*fn1
[ 67 Pa. Commw. Page 235]
The record reflects that in 1978 the property was rezoned from a C-2 commercial district to an R-5 residential district and that prior to Appellee's purchase of the property a nursery business had occupied the first floor with two apartment units on the upper floors. The Board found, based on substantial evidence in the record, that Appellee's property is presently bounded on the north by a "Seven/Eleven" convenience store and on the south by a gasoline station. Additional commercial uses are located across the street including a bank and an auto tire center. Based on evidence of these and similar uses in the vicinity of Appellee's property, the Board concluded, following a hearing at which the president of Appellant and other protestants testified, that an unnecessary hardship had been established since "the subject property is virtually surrounded by dissimilar and disharmonious commercial and industrial uses which render it virtually impossible to use the site for residential development." The lower court, without taking additional evidence, affirmed and the instant appeal was taken.
The issue presented in this appeal is whether or not the Board erred in concluding that Appellee had met her burden of establishing an unecessary hardship which would justify the grant of a variance.
Where, as here, the court below has taken no additional evidence, our scope of review is to determine whether the Board, in granting the variance, abused its discretion or committed an error of law. Center City Residents Association v. Zoning Board of Adjustment, 48 Pa. Commonwealth Ct. 416, 410 A.2d 374 (1980).
Although the Philadelphia zoning ordinance lists twelve criteria for the Board to consider in granting variances, the factors, in general, relate to two essential ...