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JERRY KUTNER v. ZONING BOARD ADJUSTMENT AND GILDA SCARCIA (09/08/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 8, 1983.

JERRY KUTNER, APPELLANT
v.
ZONING BOARD OF ADJUSTMENT AND GILDA SCARCIA, APPELLEES

Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Jerry Kutner v. Zoning Board of Adjustment and Gilda Scarcia, No. 2413 July Term, 1980.

COUNSEL

David B. Comroe, Robinson, Greenberg and Lipman, for appellant.

Kenneth L. Fox, Assistant City Solicitor, with him Jill A. Douthett, Deputy City Solicitor, and Alan J. Davis, City Solicitor, for appellee, Zoning Board of Adjustment of Philadelphia.

Carl K. Zucker, for appellee, Gilda Scarcia.

Judges Blatt, Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 77 Pa. Commw. Page 82]

Appellant, Jerry Kutner, appeals from the order of the Court of Common Pleas of Philadelphia County

[ 77 Pa. Commw. Page 83]

    which affirmed a Zoning Board of Adjustment decision refusing Appellant's variance application for permission to erect a one story permanent enclosure of a swimming pool.

The subject property is situate in a district zoned "R-5" Residential. Under Section 14-206(2) of the Philadelphia Code (Code), property in the "R-5" Residential District must contain a minimum rear yard depth requirement of fifteen feet and a minimum side yard width requirement of eight feet.*fn1 Appellant, without first obtaining a zoning or use registration permit as required by the Code, constructed a one story, permanent enclosure of his existing swimming pool. The erected covering structure*fn2 allowed a rear yard depth and side yard width of approximately four feet. Upon twice being denied a permit by the Department of Licenses and Inspections, on April 30 and May 1, 1980, respectively, because the constructed enclosure violated the Code's minimum set-back requirements for property zoned "R-5" Residential, Kutner appealed to the Zoning Board of Adjustment (Board) for a grant of a variance.

Concluding, inter alia, that Kutner failed to present evidence necessary to satisfy the criteria for the

[ 77 Pa. Commw. Page 84]

    granting of a variance as denominated under Section 14-1802(1)(a)-(1) of the Code, the Board, after a hearing, refused to grant Appellant's variance application. On appeal, the Court of Common Pleas of Philadelphia County, without taking additional evidence, affirmed the Board's decision.

This Court's scope of review in zoning appeals arising from variance application denials, where the lower court took no additional evidence, is to determine whether the Board abused its discretion, committed error of law or made findings which were not supported by substantial evidence. Township of Haverford v. Zoning Hearing Board of Haverford Township, 55 Pa. Commonwealth Ct. 209, 423 A.2d 757 (1980).

Appellant's sole contention is that the Board abused its discretion in refusing to grant a variance from Code provisions which establish minimum distance requirements for side yard width and rear yard depth. Appellant, however, has utterly failed to adduce any evidence before the Board sufficient to satisfy his burden of proving need for a variance.

Section 14-1802(1)(a)-(1) of the Code denominates twelve criteria which the Board shall consider in deciding whether to grant variance applications.*fn3 Subsection (3) of Section 14-1802 imposes upon the variance applicant "the duty of presenting evidence

[ 77 Pa. Commw. Page 85]

    relating to the criteria set forth herein." (Footnote omitted.) A review of the record reveals that Appellant failed to present evidence sufficient to sustain his burden of proof under Section 14-1802.*fn4

Finding no abuse of discretion by the Board in denying Appellant's application for a variance, we affirm the order of the Court of Common Pleas of Philadelphia County.

Order

And Now, this 8th day of September, 1983, the order of the Court of Common Pleas of Philadelphia County, dated November 12, 1981, is hereby affirmed.

Disposition

Affirmed.


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