Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of The Southland Corporation v. Zoning Board of Adjustment of the City of Philadelphia, No. 5214 October Term, 1983.
John J. Musewicz, for appellant.
Joy J. Bernstein, Assistant City Solicitor, with her, Barbara W. Mather, City Solicitor, for appellees.
Judges Rogers, Barry and Palladino, sitting as a panel of three. Opinion by Judge Palladino.
[ 91 Pa. Commw. Page 434]
This is an appeal by The Southland Corporation (Appellant) from an order of the Court of Common Pleas of Philadelphia (trial court) which affirmed a decision of the Zoning Board of Adjustment of the City of Philadelphia (Board) denying Appellant a variance.
Appellant is the owner of a parcel of real estate, located at the corner of Cottman and Whitaker Avenues in the City of Philadelphia, which is zoned R-5.
[ 91 Pa. Commw. Page 435]
The parcel is a corner lot bordered by two four-lane streets, a convenience store and a residence. The lot was previously the site of an abandoned and dilapidated house which has been demolished by Appellant. Appellant requested a variance from the use and setback restrictions of the R-5 district to enable it to build a 7-Eleven convenience store with gasoline service and accessory signs and parking.
The Board held a hearing on September 13, 1983 at which Appellant presented evidence to establish that the property is uniquely burdened by the zoning ordinance and that the proposed use would not be detrimental to the public health, safety and general welfare. Evidence was also presented by neighborhood residents who protested the variance. The Board concluded that Appellant failed to sustain its burden of proving that the property was uniquely burdened. The Board also concluded that the proposed use would be detrimental to the public health, safety and welfare because: 1) it would increase congestion in the public streets; 2) would increase the danger of fire; and 3) would be adverse to the public's general welfare contrary to the spirit and purpose of the zoning ordinance. The Board, therefore, denied the variance.
Appellant appealed to the trial court, asserting that the Board's conclusions were not supported by substantial evidence and, therefore, the Board had abused its discretion. The trial court found that substantial evidence existed in the record to support the Board's conclusions and dismissed the appeal.
On appeal to this Court, Appellant again argues that the Board abused its discretion because its findings that the property was not uniquely burdened and that the proposed use would be detrimental to the public health, ...