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

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, ...


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