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REFORMED SEVENTH DAY ADVENTIST CHURCH v. PHILADELPHIA ZONING BOARD ADJUSTMENT (07/24/89)

decided: July 24, 1989.

THE REFORMED SEVENTH DAY ADVENTIST CHURCH, INC., APPELLANT,
v.
THE PHILADELPHIA ZONING BOARD OF ADJUSTMENT, APPELLEE



Appeal from Common Pleas Court, Honorable Nelson A. Diaz, County; Philadelphia County, Judge.

COUNSEL

Charles W. Bowser, Baskin, Flaherty, Elliott, Mannino, P.C., Philadelphia, for appellant.

Kathye B. Gray, Asst. City Solicitor, for appellee.

Daniel B. Michie, Jr., Fell & Spalding, Philadelphia, for intervenor, Duval Manor Associates.

Doyle and Palladino, JJ., and Barbieri, Senior Judge.

Author: Doyle

[ 127 Pa. Commw. Page 446]

Before us for our consideration is an appeal by the Reformed Seventh Day Adventist Church, Inc. (Church) from an order of the Court of Common Pleas of Philadelphia County affirming the decision of the Philadelphia Zoning Board of Adjustment (Board) which denied the Church a variance. We affirm.

The Church filed an application for a zoning permit and a use registration permit with the City of Philadelphia's Department

[ 127 Pa. Commw. Page 447]

    of Licenses and Inspections (Department) for a fifteen-unit, nonhousekeeping, rooming house for forty-eight persons. The Department issued a Notice of Refusal, from which the Church appealed to the Board. The Board treated the appeal as a request for a variance and denied the variance. The Church appealed that decision and the lower court affirmed. The Church now appeals to our Court, and Duval Manor Associates (Intervenor), adjacent property owner to the Church, has intervened in the appeal.

The Church argues on appeal that it applied for a "Zoning Board of Adjustment certificate," Philadelphia's equivalent to a special exception,*fn1 and that the lower court erred in treating the Church's application for a permitted use by certificate as a petition for a variance. The Board and Intervenor argue on the other hand that the Church applied for a variance.

The issues presented are whether the Church applied for a certificate, and if so, whether the Board may sua sponte convert an application for a certificate to one for a variance.*fn2

The Church argues that the Board may not convert an application for a Board certificate to an application for a variance and cites Penrose v. Philadelphia Zoning Board of Adjustment, 24 Pa. Commonwealth Ct. 525, 357 A.2d 713 (1976), for that principle. In Penrose, however, we held only that the Board may not sua sponte grant a variance

[ 127 Pa. Commw. Page 448]

    when it is clear from the applicant's application for a zoning permit, its presentation of evidence before the Board, and its memorandum of law submitted to the Board, that the ...


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