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ZONING BOARD ADJUSTMENT AND CITY PHILADELPHIA v. CECILIA T. PASHA (07/27/88)

decided: July 27, 1988.

ZONING BOARD OF ADJUSTMENT AND CITY OF PHILADELPHIA, APPELLANTS
v.
CECILIA T. PASHA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Cecilia T. Pasha v. Zoning Board of Adjustment, No. 3928, February Term, 1987.

COUNSEL

Thomas J. Wamser, with him, Rosalie M. Leonard, Chief Assistant City Solicitor, for appellants.

Stephen H. Skale, Cavaliere and Skale, P.C., for appellee.

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

Author: Craig

[ 118 Pa. Commw. Page 191]

The City of Philadelphia appeals an order of the Court of Common Pleas of Philadelphia County which reversed the city's Zoning Board of Adjustment's denial of a variance application filed by Cecilia T. Pasha. Pasha had applied for a variance so that she could erect a

[ 118 Pa. Commw. Page 192]

    second-floor deck and carport in the backyard of her property. We now reverse the trial court's decision.

On October 14, 1986, Pasha filed an application with the Department of Licenses and Inspections (department) for a zoning or use registration permit to build a second-floor fenced deck with a carport underneath to provide off-street parking for her single-family home. In addition to the deck and carport, Pasha sought to enclose her yard with a six-foot high fence. The proposed design included an opening on the north side of the property to serve as an entrance to the parking area under the deck, and a three-foot high cinderblock fence surrounding the second-floor deck. The department denied Pasha's application, finding that the proposed use did not comply with rearyard, open area and setback requirements of section 14-206 of the Philadelphia Zoning Code (code), and that the proposed fence height exceeded the maximum allowed under code section 14-231(4)(b)(.1).

Pasha appealed the department's decision to the board. At a hearing on December 16, 1986, Pasha introduced photographs of the property showing the deck and carport, and a petition in favor of the variance signed by twenty-one of her neighbors. Apparently Pasha built the deck and carport under the mistaken belief that the builder and architect had obtained the necessary permits. At some point, a stop-work order was issued and the construction site was secured to make it safe.

Vincent Termini, the president of the Girard Estate Area Residential Civic Association, objected to the variance request. Termini testified that, despite a stop-work order, neighbors had called the police several times to report continuing work on the project. Termini stated that the deck and carport restricted the view from Porter Street, as well as airflow and light, and that the

[ 118 Pa. Commw. Page 193]

    height of the fence created a safety hazard to pedestrians who would not be able to see a car ...


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