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decided: July 28, 1986.


Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of West Torresdale Civic Association, Fairway Civic Association et al. v. Zoning Board of Adjustment and The City of Philadelphia, No. 2237 August Term, 1984.


James J. Martin, Martin and Martin, P.C., for appellants.

Joy J. Bernstein, Assistant City Solicitor, for appellee, Zoning Board of Adjustment and City of Philadelphia.

William K. Doak, with him, Sheldon L. Albert and Richard A. Sprague, Sprague, Thall & Albert, for appellee, Potamkin Chevrolet.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 99 Pa. Commw. Page 253]

The West Torresdale Civic Association and other neighborhood entities and individuals*fn1 (Neighbors) appeal a Philadelphia County Common Pleas Court order

[ 99 Pa. Commw. Page 254]

    affirming a Philadelphia Zoning Board of Adjustment (Board) decision which granted a variance to Potamkin Chevrolet, Inc. (Potamkin) allowing commercial use of two tracts of land. We reverse.

The subject tracts are contiguous, total 7.7 acres, and are located in the vicinity of the northeast corner of Grant Avenue and Academy Road. The tracts are splitzoned R-3 and R-4 residential.*fn2 However, because they lie within the flight path controls for the nearby Northeast Philadelphia Airport, residential development of the tracts is prohibited by local and federal aviation regulations. The tracts are wooded and completely unimproved.

The tracts are bordered to the south by Potamkin's car dealership along Grant Avenue. Potamkin leased the tracts from the City of Philadelphia (City), contingent upon zoning approval of commercial uses connected with its dealership.*fn3 It applied to the City's Department

[ 99 Pa. Commw. Page 255]

    of Licenses and Inspection for use and zoning permits allowing (1) erection of an eight-foot high chain link fence around the tracts' perimeter, and (2) use of the tracts "for outdoor parking, display, storage and sale of motor vehicles and accessories with accessory parking for customers and employees," with "parking on grade less than 10% with suitable barriers and lighting to be erected." This application was denied because the fence height and commercial uses requested are not authorized in R-3 and R-4 districts. Potamkin then appealed to the Board for a variance conforming to its use and zoning permit applications. Following a public hearing at which witnesses for Potamkin and the Neighbors testified, the Board granted the variance, subject to conditions, pursuant to Section 14-1801(1)(c) of the Philadelphia Code.*fn4

Because the common pleas court took no additional evidence, our scope of review is limited to determining whether the Board abused its discretion, erred as a matter of law, or made findings of fact unsupported by substantial evidence. Rushford v. Zoning Board of Adjustment of Pittsburgh, 81 Pa. Commonwealth Ct. 274, 473 A.2d 719 (1984).

[ 99 Pa. Commw. Page 256]

The Neighbors initially contend that Potamkin is not entitled to a variance because any hardship to it from the tracts' residential zoning was self-created. We disagree.

Traditionally, a variance was barred to one who acquired land with knowledge of the zoning restrictions from which he sought relief. See, e.g., Best v. Zoning Board of Adjustment, 393 Pa. 106, 141 A.2d 606 (1958). However, recent decisions have only applied this rule where the hardship results from an inflated purchase price calculated on the assumption of a variance being granted. See, e.g., Marlowe v. Zoning Hearing Board of Haverford Township, 52 Pa. Commonwealth Ct. 224, 415 A.2d 946 (1980). The hardship alleged by Potamkin is the impossibility of any development of the tracts due to the irreconcilability of residential zoning and the airport flight path restrictions. Potamkin's lease with the City did not create this predicament. Potamkin has merely stepped into the City's shoes.*fn5 Hence, the hardship is not self-created.

The Neighbors next contend that the variance sought by Potamkin would in fact amount to a rezoning, which is within the exclusive jurisdiction of City Council to grant.*fn6 We agree.

[ 99 Pa. Commw. Page 257]

The distinction between a variance and a rezoning depends upon the nature of the change requested, rather than merely the size of the land in question. Sposato v. Radnor Township Board of Adjustment, 440 Pa. 107, 270 A.2d 616 (1970). In Catholic Cemeteries Association Zoning Case, 379 Pa. 516, 109 A.2d 537 (1954), our Supreme Court held that rezoning was necessary for the establishment of a cemetery on a 185-acre tract of land zoned single-family residential. McClure Appeal, 415 Pa. 285, 203 A.2d 534 (1964), involved an application for a variance to construct a bank and accessory parking facilities on a residentially zoned tract of land exceeding one acre. In reversing the grant of the variance, our Supreme Court stated: "As a general rule, if the land, as a practical matter, cannot be utilized for residential purposes, then the land should be rezoned by an appeal to the legislative body." Id. at 291, 203 A.2d at 537.

Our review of Catholic Cemeteries and McClure leads us to conclude that the hardship asserted by Potamkin must be addressed to City Council in the context of request for rezoning. The commercial nature of the requested variance is in complete conflict with the permitted residential uses, as were the variance requests in Catholic Cemeteries and McClure.*fn7 It is undisputed that the tracts leased by Potamkin cannot be utilized for the residential purposes originally intended by City Council due to the airport flight path restrictions. However, any hardship created by this condition is an inappropriate subject for a variance request since

[ 99 Pa. Commw. Page 258]

    it is not caused by the physical characteristics of the subject land or the characteristics of the surrounding area, and there is nothing in the record indicating that this hardship is unique to Potamkin's land. See Eighteenth & Rittenhouse Associates v. Zoning Board of Adjustment, 26 Pa. Commonwealth Ct. 554, 364 A.2d 973 (1976); Pitale v. Philadelphia Zoning Board of Adjustment, 47 Pa. Commonwealth Ct. 36, 407 A.2d 1372 (1979).*fn8 Moreover, in these particular circumstances, the zoning regulations placed upon a substantial area of land have been rendered obsolete by superseding government regulations. Rezoning is therefore the appropriate administrative avenue for attempting to cure any substantive defect in the residential zoning of land affected by the airport restrictions.*fn9

We hold that the Board erred as a matter of law in exercising jurisdiction over Potamkin's variance request.*fn10 The common pleas court's order is reversed.


The Philadelphia County Common Pleas Court order, No. 2237 August Term 1984 dated January 2, 1985, is reversed.



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