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SOMERTON CIVIC ASSOCIATION AND BRIAN O'NEILL v. ZONING BOARD ADJUSTMENT (PHILA.) AND CARMEN J. CALVANESE (02/07/84)

decided: February 7, 1984.

SOMERTON CIVIC ASSOCIATION AND BRIAN O'NEILL, APPELLANTS
v.
ZONING BOARD OF ADJUSTMENT (PHILA.) AND CARMEN J. CALVANESE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Somerton Civic Association and Brian O'Neill v. Zoning Board of Adjustment, No. 645 January Term, 1983.

COUNSEL

Eugene E. Kellis, Kashkashian & Kellis, for appellants.

Peter F. Kelsen, Assistant City Solicitor, with him Marilyn Z. Kutler, Acting City Solicitor, for appellee, City of Philadelphia and Zoning Board of Adjustment of the City of Philadelphia.

Carl K. Zucker, for appellee, Carmen J. Calvanese.

Judges Craig, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 80 Pa. Commw. Page 174]

The Somerton Civic Association, Inc. appeals from an order of the Court of Common Pleas of Philadelphia County which affirmed the decision of the Philadelphia Zoning Board of Adjustment granting a variance to Carmen J. Calvanese. The general issue is whether there was a legal hardship basis for the variance grant.

The subject property, which Calvanese has an option to purchase, is in an R-4 residential zone; that classification permits only single-family detached and semi-detached dwellings. Under the variance, Calvanese could erect 54 semi-detached homes and 8 group structures, a total of 56 separate buildings containing 166 dwellings units. The approved development would produce a density of approximately 22 units per acre, a departure from the 14 units per acre permitted by the ordinance. Therefore, this case involves a variance granted with respect to both residential building type and density.

In support of its position, that the variance was improper, the association argues that Calvanese failed to produce sufficient evidence to meet his burden of proof. Adhering to our limited scope of review,*fn1 we agree with the association and reverse.

The variance standards of section 14-1802 of the Philadelphia Zoning Code include the fundamental prerequisite that the applicant prove that, because of

[ 80 Pa. Commw. Page 175]

    the property's particular physical or topographical conditions, full adherence to the code would result in unnecessary hardship and that the conditions are unique to the property involved.*fn2

On the issue of unnecessary hardship, Calvanese presented his own testimony and that of a planning expert.*fn3 Calvanese testified that building and selling homes in accordance with the R-4 requirements is "economically unfeasible" in the current economic climate "throughout the country." He also testified that in order to build homes in compliance with the R-4 zone, they would have to sell for "somewhere over $100,000 the way we build homes" and that, in his opinion, there would be no market for such homes. On cross-examination, Calvanese answered ...


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