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SUSAN HEILMAN ET AL. v. ZONING BOARD ADJUSTMENT PHILADELPHIA COUNTY AND NAZARETH BAPTIST CHURCH (09/23/82)

decided: September 23, 1982.

SUSAN HEILMAN ET AL., APPELLANTS
v.
ZONING BOARD OF ADJUSTMENT OF PHILADELPHIA COUNTY AND NAZARETH BAPTIST CHURCH, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Susan Heilman et al. v. Zoning Board of Adjustment, No. 5830 July Term, 1979.

COUNSEL

D. Bruce Hanes, Shein & Brookman, P.A., for appellants.

Richard J. Goldstein, Cohen, Shapiro, Polisher, Shiekman and Cohen, for intervening appellee, Nazareth Baptist Church.

Judges Craig, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Doyle. Judge Mencer did not participate in the decision in this case.

Author: Doyle

[ 69 Pa. Commw. Page 158]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County which affirmed, without the taking of additional evidence, the granting of certain variances by the Philadelphia Zoning Board of Adjustment (Board). For the reasons which follow, we will reverse.

In April of 1979, the Nazareth Baptist Church (Church) applied for, and was denied, a permit to erect a 614 seat church on a parcel of land located in an area of Philadelphia zoned as an R-10 Residential district. The basis for this denial was that the church,

[ 69 Pa. Commw. Page 159]

    as proposed, failed to comply with the applicable minimum side yard setback*fn1 and parking requirements*fn2 of the Philadelphia Code (Code). In response to this denial, the Church applied to the Board for variances from these requirements, and at a public hearing on these requests, conducted on June 27, 1979, witnesses for the Church testified (1) as to the Church's prior attempts to obtain similar variances, (2) as to the Church's need for a new church building, and (3) as to the nature of the proposed building. The Church also presented the testimony of its architect who testified as to the proposed building's need for a dimensional variance, and the president of the Queen Village Neighbors Association, two Philadelphia City councilmen, and a local resident who expressed their approval of the proposed church building. Three objectors, Steward Heilman, Michael Legacki, and Kenneth Legacki also testified at this hearing. In their testimony, they expressed their concerns as to possible noise, traffic congestion, and fire safety problems which the new church building might create. After reviewing this evidence, the Board issued a Notice of Determination on July 6, 1979, which simply stated that the Board had decided to "grant a variance." The objectors before the Board,*fn3 the appellants here, subsequently appealed this determination to the court of common pleas on August 3, 1979, and in response to this appeal, the Board filed an opinion in support of its decision on December 17, 1979. In this decision, the Board reviewed the history of the case and the

[ 69 Pa. Commw. Page 160]

    testimony presented, and then concluded that the Church had satisfied each of the required criteria for a variance specified in Section 14-1802 of the Code without further analysis. Before the court of common pleas, however, the objectors asserted (1) that the Board was collaterally estopped from reaching this conclusion since the court of common pleas had reversed the granting of similar variances to the Church on two prior occasions, or, alternatively, (2) that the board abused its discretion in granting the present variances to the Church. The court of common pleas subsequently rejected both of these arguments and affirmed the granting of the variances. The present appeal followed.

Initially we note that

[w]here, as here, the court below has taken no additional evidence, our scope of review is limited to determining whether or not the Board committed an abuse of discretion or an error of law. If the Board's fact findings are unsupported by substantial ...


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