Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

VALLEY VIEW CIVIC ASSOCIATION v. ZONING BOARD ADJUSTMENT AND ALMA HOREN (07/01/83)

decided: July 1, 1983.

VALLEY VIEW CIVIC ASSOCIATION
v.
ZONING BOARD OF ADJUSTMENT AND ALMA HOREN, APPELLANTS



No. 90 E.D. Appeal Dkt. 1982, Appeal from the Order of the Commonwealth Court dated June 22, 1982, entered at No. 710 C.D. 1981, reversing the Order of the Court of Common Pleas of Philadelphia, Trial Division, Civil Section, dated February 25, 1981, entered at No. 402 March Term, 1980, Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Hutchinson, J., files a dissenting opinion. McDermott, J., did not participate in the decision of this case.

Author: Nix

[ 501 Pa. Page 553]

OPINION

In this appeal we have agreed to review the Commonwealth Court's reversal of an order of the Philadelphia Court of Common Pleas upholding the decision of appellant Zoning Board of Adjustment (Board) to grant variances to appellant Alma Horen. At issue is whether the evidence was sufficient to permit the Board to conclude (1) that denial of the variances would result in unnecessary hardship to Ms. Horen and (2) that Ms. Horen's proposed commercial use of her property would not be contrary to the public interest. Having reviewed the record in accordance with the well-established principles of judicial review governing variances, we conclude that the Board's findings were supported by substantial evidence and should not have been disturbed. Accordingly, we reverse the order of the Commonwealth Court and reinstate the order of the Court of Common Pleas affirming the Board's action.

I.

The real property involved in this matter, a lot improved with a three-story detached house at 7571 Ridge Avenue in Philadelphia, was purchased by Ms. Horen in the fall of

[ 501 Pa. Page 5541979]

. On January 3, 1980, Richard J. Sheward, an architect retained by Ms. Horen, sought permission from the Philadelphia Department of Licenses and Inspections to convert the Ridge Avenue property into a take-out steak and sandwich shop and a two-family dwelling. Since the property was situated in a district rezoned single family residential in August 1978, both uses were summarily refused. Ms. Horen then sought variances from the Board to permit such uses. Mr. Sheward and representatives of appellee Valley View Civic Association (Valley View) and three other civic groups opposing the grant of variances testified before the Board on January 24, 1980. By a unanimous vote, the Board granted the requested variances on February 14, 1980. Valley View obtained review in the Philadelphia Court of Common Pleas by way of a writ of certiorari, and Ms. Horen was permitted to intervene in the proceedings before that court. No additional evidence was taken. After oral argument, the Court of Common Pleas affirmed the Board's action. Valley View subsequently appealed to the Commonwealth Court, and on June 22, 1982, a three-judge panel of that court, one judge dissenting, reversed. Following denial of reargument, this Court granted Ms. Horen's petition for allowance of appeal.*fn1

II.

[ 501 Pa. Page 555]

We are guided in our review of this matter by a number of firmly established legal principles. Since no additional evidence was presented subsequent to the Board's determination, the scope of our review is limited to determining whether the Board committed a manifest abuse of discretion or an error of law in granting the instant variances. E.g., Filanowski v. Zoning Board of Adjustment, 439 Pa. 360, 266 A.2d 670 (1970); Pyzdrowski v. Pittsburgh Board of Adjustment, 437 Pa. 481, 263 A.2d 426 (1970); DeCristoforo Page 555} v. Philadelphia Zoning Board of Adjustment, 427 Pa. 150, 233 A.2d 561 (1967); McClure Appeal, 415 Pa. 285, 203 A.2d 534 (1964); Peirce v. Zoning Board of Adjustment, 410 Pa. 262, 189 A.2d 138 (1963); Brennen v. Zoning Board of Adjustment, 409 Pa. 376, 187 A.2d 180 (1963); Crafton Borough Appeal, 409 Pa. 82, 185 A.2d 533 (1962); Poster Advertising Co., Inc. v. Zoning Board of Adjustment, 408 Pa. 248, 182 A.2d 521 (1962); Upper Providence Township Appeal, 407 Pa. 20, 179 A.2d 194 (1962); Haas v. Zoning Board of Adjustment, 403 Pa. 155, 169 A.2d 287 (1961). We may conclude that the Board abused its discretion only if its findings are not supported by substantial evidence. 53 P.S. § 11010 (1972); 2 Pa.C.S. § 754(b); Bilotta v. Haverford Township Zoning Board of Adjustment, 440 Pa. 105, 270 A.2d 619 (1970); Ferry v. Kownacki, 396 Pa. 283, 152 A.2d 456 (1959); Tidewater Oil Co. v. Poore, 395 Pa. 89, 149 A.2d 636 (1959); Edwards Zoning Case, 392 Pa. 188, 140 A.2d 110 (1958); Lindquist Appeal, 364 Pa. 561, 73 A.2d 378 (1950). By "substantial evidence" we mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938); Republic Steel Corp. v. Workmen's Compensation Appeal Board, 492 Pa. 1, 421 A.2d 1060 (1980); Norfolk and Western Railway Co. v. Pennsylvania Public Utility Commission, 489 Pa. 109, 413 A.2d 1037 (1980); Pennsylvania State Board of Medical Education and Licensure v. Schireson, 360 Pa. 129, 61 A.2d 343 (1948); Pennsylvania Labor Relations Board v. Kaufmann Department Stores, Inc., 345 Pa. 398, 29 A.2d 90 (1942).

The standards governing the grant of a variance are equally well settled. The reasons for granting a variance must be substantial, serious and compelling. Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970); Crafton Borough Appeal, supra; Poster Advertising Co., Inc. v. Zoning Board of Adjustment, supra; Magrann v. Zoning Board of Adjustment, 404 Pa. 198, 170 A.2d 553 (1961). Ventresca v. Exley, 358 Pa. 98, 56 A.2d 210 (1948). The party seeking the variance bears the burden of proving that (1) unnecessary

[ 501 Pa. Page 556]

    hardship will result if the variance is denied, and (2) the proposed use will not be contrary to the public interest. Pyzdrowski v. Pittsburgh Board of Adjustment, supra; Filanowski v. Zoning Board of Adjustment, supra; O'Neill v. Zoning Board of Adjustment, 434 Pa. 331, 254 A.2d 12 (1969); Jasy Corp. v. Board of Adjustment, 413 Pa. 563, 198 A.2d 854 (1964); Peirce v. Zoning Board of Adjustment, supra; Andress v. Zoning Board of Adjustment, 410 Pa. 77, 188 A.2d 709 (1963); Crafton Borough Appeal, supra; Magrann v. Zoning Board of Adjustment, supra; Upper St. Clair Township Grange Zoning Case, 397 Pa. 67, 152 A.2d 768 (1959); see Act of July 31, 1968, P.L. 805, art. IX, § 912, 53 P.S. § 10912 (1972). The hardship must be shown to be unique or peculiar to the property as distinguished from a hardship arising from the impact of zoning regulations on an entire district. McClure Appeal, supra; Hasage v. Philadelphia Zoning Board of Adjustment, 415 Pa. 31, 202 A.2d 61 (1964); Jasy Corp. v. Board of Adjustment, supra; Peirce v. Zoning Board of Adjustment, supra; Brennen v. Zoning Board of Adjustment, supra; Crafton Borough Appeal, supra; Enokay, Inc. Appeal, 407 Pa. 593, 181 A.2d 842 (1962); Magrann v. Zoning Board of Adjustment, supra; Upper St. Clair Township Grange Zoning Case, supra. Moreover, mere evidence that the zoned use is less financially rewarding than the proposed use is insufficient to justify a variance. Pyzdrowski v. Pittsburgh Board of Adjustment, supra; O'Neill v. Zoning Board of Adjustment, supra; Hasage v. Philadelphia Zoning Board of Adjustment, supra; Dishler v. Zoning Board of Adjustment, 414 Pa. 244, 199 A.2d 418 (1964); Jasy Corp. v. Board of Adjustment, supra; Crafton Borough Appeal, supra; Poster Advertising Co., Inc. v. Zoning Board of Adjustment, supra; Enokay, Inc. Appeal, supra; Magrann v. Zoning Board of Adjustment, supra. In evaluating hardship the use of adjacent and surrounding land is unquestionably relevant. Filanowski v. Zoning Board of Adjustment, supra; see Peirce v. Zoning Board of Adjustment, supra; Nicholson v. Zoning Board of Adjustment, 392 Pa. 278, 140 A.2d 604 (1958); Avanzato Appeal, 44 Pa. Commw. 77, 403 A.2d 198 (1979); Board of Commissioners Page 557} of Upper Moreland Township v. Zoning Board, 25 Pa. Commw. 626, 361 A.2d 455 (1976); Haverford Township v. Zoning Hearing Board of Haverford, 21 Pa. Commw. 207, 344 A.2d 758 (1975); DiBello v. Zoning Board of Adjustment, 4 Pa. Commw. 546, 287 A.2d 856 (1972).

III.

With the above principles in mind we turn to an examination of the evidence upon which the Board based its decision. Mr. Sheward, Ms. Horen's architect, testified at the Board hearing that the property at 7571 Ridge Avenue was situated between a convenience store, open twenty-four hours a day, and a gas station, and that a bank and a retail tire store were across the street. In addition, he stated that a nursery business had been conducted from the premises prior to Ms. Horen's purchase. The ground floor had been used as an office and there were two apartments on the upper floors. Following the hearing, Mr. Sheward supplemented the record with photographs and a drawing of the site and its surroundings.*fn2 The report of the Board's inspector revealed the presence of a dentist's office and a beer distributor, in addition to the convenience store, to the north of Ms. Horen's property. That report also indicated that there were four garages, an office and a cocktail bar opposite the property as well as the bank and the tire store. The Board also learned from a visual inspection*fn3 the existence of the following uses on the east side of Ridge Avenue, the side on which the property was situated, from Shawmont Avenue south to Wigard Street:

[F]illing station, beauty shop, barber shop, farm and golf supply, dwelling, haberdashery, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.