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ZONING BOARD ADJUSTMENT CITY PHILADELPHIA v. HERMAN LIBROS (10/16/84)

decided: October 16, 1984.

ZONING BOARD OF ADJUSTMENT OF THE CITY OF PHILADELPHIA, APPELLANT
v.
HERMAN LIBROS, PEARL LIBROS AND WILLIAM W. LANE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Herman Libros and Pearl Libros and William W. Lane v. The Zoning Board of Adjustment of the City of Philadelphia, No. 3592 September Term, 1974.

COUNSEL

Barbara S. Gilbert, Chief Assistant City Solicitor, with her, Jill A. Douthett, Deputy City Solicitor, and Alan J. Davis, City Solicitor, for appellant.

John M. Burns, with him, Gilbert Newman, Shralow & Newman, P.C., of counsel: Arthur S. Karafin, for appellee.

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

Author: Doyle

[ 85 Pa. Commw. Page 487]

This matter is before us on reconsideration of our order quashing the appeal of the Zoning Board of Adjustment of the City of Philadelphia from an order of the Court of Common Pleas of Philadelphia County which reversed a decision of the Zoning Board of Adjustment (Zoning Board). The Zoning Board had denied a Use Registration Permit for a property located at 4817-19 Mulberry Street in Philadelphia.

The property in question is situated in an R-9 residential zoning district and consists of eighty-five garages constructed in 1925. Neither the physical structure of the garages nor their use is in conformity with the Philadelphia Zoning Code (Code). In 1974, the Philadelphia Department of Licenses and Inspections issued notice of violation for maintaining the garages without a Use Registration Permit as required by the Code. Appellees thereupon applied for a permit which was denied. Appeal was taken to the Zoning Board which treated the application as a request for a variance and denied the permit. Appeal was taken to the court of common pleas and prior to hearing, the parties stipulated to a remand for consideration of whether the permit should be granted as a pre-existing nonconforming use. Following a second hearing by the Zoning Board, the permit was again denied. Appeal to the court of common pleas followed and the Zoning Board was reversed. Appeal to this Court followed.

On initial consideration by this Court, we noted that the appeal from the court of common pleas decision was prosecuted by the Zoning Board, contrary to our decision in National Development Corporation v. Township of Harrison, 64 Pa. Commonwealth Ct. 54, 438 A.2d 1053 (1982), in which we held that a zoning board has no standing to appeal a reversal of its

[ 85 Pa. Commw. Page 488]

    decision by a court of common pleas. We consequently ordered the appeal quashed. That order was in error.

We announced the rule applied in National Development in our opinion in Gilbert v. Montgomery Township Zoning Hearing Board, 58 Pa. Commonwealth Ct. 296, 427 A.2d 776 (1981), but determined that it should only be applied prospectively, "applicable only to cases arising out of zoning hearing board decisions (or governing body decisions under the MPC) issued thirty or more days, after the filing date of this opinion . . ." Id. at 302, 427 A.2d at 780. Gilbert was filed on April 7, 1981; the Zoning Board decision in the case at bar was issued on July 2, 1980, although the order of the common pleas court was not filed until December 30, 1981.

Accordingly, we vacate our order quashing the appeal and reconsider the instant matter on its merits.

Our review in zoning cases where the court of common pleas takes no additional evidence is to determine whether the zoning board has abused its discretion or committed error of law, or whether the board's findings of fact are supported by substantial evidence. Butch v. East Lackawannock ...


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