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KENSINGTON SOUTH NEIGHBORHOOD ADVISORY COUNCIL v. ZONING BOARD ADJUSTMENT PHILADELPHIA ET AL. DEFELICE TROPICAL FOODS (03/01/84)

decided: March 1, 1984.

KENSINGTON SOUTH NEIGHBORHOOD ADVISORY COUNCIL
v.
ZONING BOARD OF ADJUSTMENT OF PHILADELPHIA ET AL. DEFELICE TROPICAL FOODS, INC., APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Kensington South Neighborhood Advisory Council v. Zoning Board of Adjustment of Philadelphia and DeFelice Tropical Foods, Inc., No. 470 August Term, 1980.

COUNSEL

Donald M. Moser, Peruto, Ryan & Vitullo, for appellant.

Richelle D. Hittinger, Adelman, Lavine, Krasny, Gold & Levin, for appellee.

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

Author: Macphail

[ 80 Pa. Commw. Page 548]

DeFelice Tropical Foods, Inc. (Appellant) has appealed from an order of the Court of Common Pleas of Philadelphia County which reversed a decision of the Zoning Board of Adjustment of Philadelphia (Board) and denied Appellant's application for a variance. We affirm.

Appellant is the equitable owner of a property located at 1301-11 North Second Street in Philadelphia. Appellant proposes to use the property, on which a vacant building is located, for the wholesale distribution of fresh produce. The property is located in a "C-2" commercial zoning district which permits the sale of fruits and vegetables at retail, but not at wholesale. Based on the fact that the Philadelphia Zoning Code (Code) does not permit Appellant's proposed use as of right in the "C-2" district, the Department of Licenses and Inspections denied Appellant's request for a use permit. Appellant, accordingly, applied for a variance with the Board which, after a hearing, granted the request. The Board concluded, inter alia, that the difference between the retail and wholesale dispensing of goods or merchandise is de minimis and that the proposed use would not adversely affect the public health, safety or welfare. On appeal,*fn1 the court of common pleas reversed, without taking additional evidence, based on its conclusion that Appellant had failed to show unnecessary hardship in support of its variance application.

Appellant argues before this Court that: 1) the Board was correct in granting the variance based on its conclusion that the distinction between retail and wholesale operations are de minimis or 2) that Appellant

[ 80 Pa. Commw. Page 549]

    is entitled to the variance as a matter of right since the proposed use is the same or similar to a prior use allowed on the property by variance.

Our scope of review where, as here, the common pleas court has not taken additional evidence, is to review the Board's decision for abuse of discretion or legal error. Heilman v. Zoning Board of Adjustment, Philadelphia County, 69 Pa. Commonwealth Ct. 157, 450 A.2d 318 (1982).

Section 14-1802 of the Code provides twelve criteria for the Board to consider when ruling on a variance application. Of primary importance to the instant case is the requirement that the applicant demonstrate that "because of the particular physical surroundings, shape, or topographical conditions of the specific structure or land involved, a literal enforcement of the provisions of [the Code] would result in unnecessary hardship." Section 14-1802(1)(a) of the Code. The burden of proving unnecessary hardship can be met by a showing that (1) the property's physical characteristics are such that it cannot be used for any permitted purpose or can be so used only at prohibitive expense or (2) that the characteristics of the area around the property are such that the property has either no value or only a distress value for uses permitted by the Code. Eighteenth & Rittenhouse Associates v. Zoning Board of Adjustment, 26 Pa. Commonwealth Ct. ...


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