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

COMMONWEALTH COURT OF PENNSYLVANIA


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 affirmatively when asked if he thought the hardship was unique to the property, and again was affirmative when asked if his hardship was economic.*fn4

[ 80 Pa. Commw. Page 176]

The planning expert testified that, because of present construction costs and interest rates, "that type of housing (i.e. R-4) is no longer feasible for developers to build."

Based on that evidence, the board found that "it is unfeasible to build and sell homes with the 'R-4' Residential zoning" and concluded that Calvanese had met his burden of showing unnecessary hardship which was unique to the subject property.

The evidence must show that the property cannot be used as presently zoned and that a variance is therefore necessary to permit reasonable use.*fn5 Furthermore, the applicant must show more than an economic hardship, i.e. that use under the variance would be more financially rewarding than use under the current zoning;*fn6 he must demonstrate that the property is subjected to a hardship that is unique to that property, "as distinguished from the hardship arising from the impact of the zoning act or regulations on the entire district, or even to hardship on the owner of the property. . . ."*fn7

[ 80 Pa. Commw. Page 177]

Applying those principles to the present case, we note initially that Calvanese failed to introduce any evidence regarding the physical characteristics of the property. An applicant cannot meet his burden of proof by simply offering his personal opinion that this development concept would not be marketable in accordance with the present zoning.*fn8 The record fails to establish that Calvanese could not use the property as zoned. At most, his case was that compliance was not possible "the way we build homes."

Moreover, a variance would be improper here because the described difficulty is one shared equally by all other property in the district. The planning expert made that point especially clear through his testimony that R-4 type housing is no longer profitable for developers to build in the area. The characteristics of the region and its economy, not those of the property, would be the basis for that situation.

The wisdom of amending the R-4 zoning classification in the area is a legislative question for the City Council; as we have consistently cautioned, we cannot permit rezoning under the guise of a variance.*fn9

Accordingly, we reverse.

Order

Now, February 7, 1984, the order of the Court of Common Pleas of Philadelphia County, No. 645, dated May 18, 1983, is reversed.

Disposition

Reversed.


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