*1 P. L. Art. Undеr the Act August 10, 1951, codified Sec. 745 20 PS 2080.745 VII, (b), which (b), dis- it is “When substantial prior provided: law, title pute shall arise the decedent’s concerning of fact to real interest any party property, personal, fact aby jury.” shall be entitled to trial this (Italics supplied) record
The order is reversed and the remanded directed. Costs the court below as herein proceed to abide the event. Appellant, Inc.,
Silverco, v.
Adjustment. *2 April 1954. Before C. Argued J., Steen, Ar- Stearns, Jones, Musmanno Bell, Ciiidsey, JJ. nold, with,
G. Brewster iiim L. Rhoads, Sidney Wicken- Mortin haver, E. Raiman, Montgomery, McCracken, : Walker &: Rhoads' and Dennis, Rotman, Gorson & for
Cohen, appellant. plaintiff-, L. James "Stern, City' Deputy with him Solicitor,' W. Matthew Bullock, Jr,, Assistant City. Solicitor, Deputy City Jerome J. First Shestack, Solicitor and City City Abraham L. for Freedman, of Phil- Solicitor, adelphia, appellee. defendant, B. for
Morris him with William Levitt, Kendall, appellees. interyenors, 1954: November Opinion Mr. Justice Bell, applied
On December Inc. 6, 1951, Silverco, re- for a variance quested registration permit prem- a use the use ises located at the Southeast corner Swanson pens storage Wolf Streets for cattle and a of hides. are located a district “Indus- zoned *3 permit a trial”, classification which does not estab- proposed grant lishment of the use without the оf a petitioner propose variance. The did not use the premises slaughter only storage as a but for the house, slaughtering operations of live cattle and hides. All subsequent tanning and of hides conducted were to be elsewhera
Although
many
the area
zoned
was
non-
Industrial,
conforming uses and
had in fact
variances
converted
most of the area to the “least restricted” uses. The
nearest residences are
away,
600 to 1000
in-
feet
with
tervening
buildings
plants, including
industrial
or
distilling plants
alcohol
of Continental Distilleries
plant
and Publicker Alcohol Co. and an oil
of Wilson-
glue
factory.
and a
Martin,
fertilizer
Petitioner
proposed
separate pens
to store the live
cattle
8
perimeter
located 100 to 200 feet from the
of the area
cyclone
and surrounded
fence of steel mesh. It
proposed
securely
likewise
to lock the cattle
within
pens
plans
safely,
and had elaborate detailed
so far
humanly possible,
pen
as
unload and
load,
the cattle.
escape
Protestants feared that cattle would
and en-
danger
neighborhood;
odors
that
also
offensive
permeate
petitioner
for
would
the air. Witnesses
tes-
given
by hides when
tified that no
odor is
off
offensive
they
petitioner planned,
are
with salt
as
treated,
they
beyond
chlorinated
cannot be smelled
lime;
palatable
are
to roaches
feet,
other
vermin because
salt. This is
contrast to
neigh-
industrial
conducted in
activities
the immediate
give
some of which
off obnoxious odors.
borhood,
Petitioner
the Board
advised
signed
purchase
pro-
it had
a contract to
requested
granted.
vided
variance
Petitioner
was
consequently
posi-
purchaser
was
a conditional
whose
rights
equivalent
tion and
were
to those of an owner
purposes.
who desired a
for
variance
the same
Elkins
Impr.
Zoning
Park
Assoc.
361 Pa.
64 A.
Case,
322, 328,
(12)b.
§227
2d
62 C.J.S.
783, 785;
proper
proposed
posted;
hearing
A
notice of the
conflicting
question
the evidence was
on the
whether
posted
days
required by
the notice remained
as
Philadelphia Zoning
August
§31 of the
Ordinance of
1933.
January
Adjust-
On.
petitioner’s
hearing
public
after
evidence
ment,
at
protestants
appeared,
at which no
after a
physical inspection
premises by
of members of the
unanimously granted
*4
Board,
variance “on condi-
performed
all
tion that
work is to be
inside
build-
ing; that cattle will be housed at all times and never
building.” Unfortunately
left to roam outside the
no
findings
record of the
nor
statement or
pertinent
by
of
and material facts was made
the Board
grounds
justify
of
to show
its decision or to
its
granting
required by
action
as
variance,
the Act
May
§8:
P.L.
Appeal,
6,
Valicenti’s
1929,
1551,
298
Imperial Asphalt Corporation
501 121; 2dA. 59 359 Pa. 402, Zoning Case, Pennsylvania 2d 378. A. Pa. 73 Appeal, 561, Lindquist upon in reliance Silvereo, January 1952, 29, On made Adjustment, the Board granted by variance property, of the price the purchase paid settlement, com- It then title thereto. and took namely $80,000., for the use improve, menced to alter the variance. by permitted thereafter Adjustment Board Zoning
A new on the new Administration City by appointed on Adjustment, Zoning February 14,1952, ordered community, members from protest 1929, May 6, Act of Under the public hearing. further protestants P. L. 53 PS 3829, 1551, §8, of Common to the Court to appeal days within Adjust- Board of a Zoning the action of Pleas from 1952, on February namely, 21, ment. On the 29th day, of Common the Court to appealed protestants certain the order Philadelphia County 1 of Pleas No. Court The Adjustment. Board of Zoning the original di- but jurisdiction No. retained Pleas of Common until a further retain the record Board to rected the deci- Board and a final held new by hearing was sion rendered. Phila- of a South varianсe, after the
Shortly grant of this dire results possible awakened delphia persons signed and over 1000 storage cattle-hides new Adjustment the new Board of requesting a petition being appre- of the original Board, the order revoke that the uses would create proposed repeat, we hensive, fearful that cat- and because were odors offensive injure persons out and seriously break tle might contiguous area. heavily populated in the property held two new per- and on revoked the May 13, 1952, hearings public January issued Silvereo mit *5 original Adjustment grounds: (1) that on the community propоsed uses be offensive to would injury (2) because of that odors; noxious serious bodily escaping harm could result cattle; property (3) adequately posted that the had not been (for period days) prior original hearing. a of ten to the protestants on behalf of the evidence showed merely apprehension danger of and of noxious odors, positive convincing and conflicted with the sworn testimony contrary by for witnesses Silverco. protestants signed the fact that over 1000 Moreover, petition for revocation suffi- would not, itself, Lindquist Appeal, cient as this Court because, said Pa. 73 A. 2d 378: “It is clеar adjustment properly board of does not exercise its dis- protestants cretion if it considers number of rather quality objection.” than the nature and of their respect ground, testimony With to the third posted two witnesses that did not see the notice negative testimony which was not sufficient quality posi- and breadth character, to overcome the “posting.” tive We therefore hold that the evidence was ade- quate grounds given by to sustain the or reasons Adjustment revoking second Board of the variance. merely brings impor- However, us most namely, prove tant issue in case, this did Silverco facts were sufficiеnt under the decisions of this Court justify grant of a variance. On the there record nothing to show either the first or second Board gave or the adequate, Court below if any, question. consideration to this basic We deem it again to once wise, call therefore, attention to the pertinent principles which here are involved. relying upon
When granted Silverco, the variance January (first) Adjustment, *6 should it or purchased the knew $80,000., or that the action anyone by known aggrieved order Board of there Adjustment could appeal from in of It days 30 to the Court Common Pleas. therefore if such took whatever werе involved risks appeal were taken and successful.* were Adjust- the new of second) Board
Moreover, (or 30 to day February within the ment, period, wit, fur- notified Silverco of its intention hold 14, to 1952, ther or with intent obviously hearings, affirm, or the action We alter, prior revoke of Board. hold Board power second of had this Adjustment of it it of provided review exercised within days 30 the original since no indefeasible could order, rights vest Silverco meantime. v. Ventresca 358 Pa. 2d Exley, 56 A. 98, 210,
where a Adjustment, without any showing a variance unnecessary hardship, granted which yet been acted upon by owner, this held Court that such variance was improperly grant illegally ed and be could revoked by Board. The Court, Mr, speaking through Justice, now Chief Justice said : (page 102) “If, certificates then, Steen, variance were improperly illegally granted, would seem self-evident the Board had not but only right duty them revoke even if there no express were grant power of revocation given to Board by statute or ordinance.” See also v. Wyszynski Pa. 370 89 Philadelphia,, A. 2d 632, 636, 357. 355,
In order to obtain a variance the is law well settled petitioner must prove (1) variance will not peal. Court of Common Pleas No. 1 within the 30 variance was [*] We note that certain revokеd by protestants the new Board, did take an day period, abandoned their appeal but after to the ap-
504
unnecessary
(2)
contrary
public
interest;
granted:
hardship
Pincus v.
if it is not
will result
Devereux
A. 2d 914;
376 Pa.
101
179,
Power,
175,
41
2d
Pa.
A.
Inc.
351
Case,
478,
Foundation,
Appeal,
A. 2d 465;
Pa.
87
Borden
517, 521,
744;
Ap
Appeal,
Valicenti’s
Pa.
Although the record for herein- the reasons was, prove above barren of evidence to unnec- stated, essary hardship justify grant and to variance, of a appeal revoking Silvereo an from took the order permit variance and its use to the Court of Common Philadelphia County. No. 2 Pleas That with- Court, taking any testimony upon passing out and without merely the basic issue involved, found that there was no abuse of discretion and no error of af- law and firmed the order of revocation.
Although inadequate in view of the record it would have been wise the Court below to take upon necessary. the basic issue this was not involved, May supra, provides,
Section 8 of the Act of 6, 1929, upon inter alia: “If [before the Court of appear Common it Pleas] shall to the court that testi- mony necessary proper disposition is for the of the may may take evidence . . . The matter, court re-
505 may modify, or wholly partly, or Terse affirm, up for review.” brought decision (page supra, said we Pincus 376 Power, Pa., v. Zon 179) appealed refusal from the : “Plaintiffs grant ing to the variance, additional testi took Court of Common Pleas, power to mony. Common Pleas The Court of power appeal to hear and likewise had hear the under the evi decision and make such as, evidence just principles applicable law, and the dence Rolling Pa. proper: 374 Case, Green Golf Club Spring Windy Dooling’s Hill 97 A. 2d v. 523; Lindquist Township, 505; Pa. A. 2d field 89 Appeal, A. 2d 364 Pa. 378. . . .” appeal applicable principles on an recently Pleas have stated of Common been Court supra (page Rolling Pa., Green Club Case, Golf 458-9) appeal Com- : “On from a decision of a Court of zoning matter the case comes before Pleas mon appellate there is as on where certiorari, Court support findings adequate the Court evidence to proceeding free from error of law below manifest there has been no abuse of discretion, *8 Dooling’s Windy Hill will not be reversed. Cf. decision Springfield Township, supra; Lindquist 371 Pa., v. supra.” Appeal, 364 Pa.,
In the case the record barren instant is evi- adequate support consequently a to variance and dence petitioner proof failed to sustain its burden has a cannot sustained. and variance the Court The Ordеr of of Common Pleas is af- pay party Each shall its costs. firmed. own Opinion Dissenting Me. Justice Musmanno: long on As as man meat table wears serves his kingdom on his the animal continue leather will feet, pay preservation to tribute human race. to the largest to make the contribution Cattle, course, appetite propensity man’s to carnivorous his personal body, adorn his with home accouterments products belonging derived the hides beasts genus. every population In the bovine center United areas are marked out for the retention States, city cattle the convenience of dwеllers who thus may pelt transportation obtain food and minus the stockyards. City costs from distant of Philadel- phia approximate- 24 establishments receive and store one-quarter ly per year. of million cattle live appellant
On December here, Silverco, applied appropriate Zoning Inc., Board of Ad- justment registration permit for a use which would square the use allow of some feet at 75,000 Swanson Philadelphia yard and Wolf for a cattle Streets, hide house. The terrain involved was located in an in- dustrial zone because of which, nonconform- numerous ing had uses, declined to an area of “least restricted” uses. although
Silverco announced to the Board that agreement purchase property entered into acquisition indicated, would not be consummated granted per- unless the Board a variance which would storing mit the use of purposes. land for cattle After held December granted Registration variance and issued a Use Permit with the per- conditions that “all work to be building; formed inside the that cattle will be housed at all times and never left to roam outside the build- ing.” It was further understood that there would be slaughter premises. no of cattle on the Silverco ac- *9 cеpted paid property for the conditions, $80,000 proceeded and to enter into the business for which he acquired the land. than month later the Less a granted supplanted by Board which the variance was another Board on March held a new which, hearing May certifi- then, revoked the torpedoing cate of variance, thus invest- $80,000 by ment made Silverco on the assurances and official authorization of the old Board. by my
The action taken the second Board inwas, unjust prece- according view, unwarranted, and, to law justification. legal without dent, The second Board “safety surrounding stated that the and welfare of the community” presence operation forbade the yard place cattle at the described. protesting
It was testified on behalf of those yard give cattle that such an establishment off would might escape offensive odors and that cattle to the peril people adjacent in the area. In cases of this necessary it is of course kind, to ascertain the charac- neighborhood ter of the in which the establishment is operate. many years The area involved, which for yard was a coal and accommodated horse stables as well, bounded two railroad tracks with the near- away. est residences located some A 1,000 feet chemical plant lies across Wolf Street from Silverco. vicinity appellant’s,
In the prop- immediate erty, the Continental Publicker Alco- Distilleries and ..alcohol; Company distilling plants. hol maintain Ah though -liquor pleasant -of aroma can whiskey-drinker, nostrils of a be assumed that cannot anyone’s olfactory no sense, matter..ho.w trained experienced, so..delicately that, can be it can attuned pick whisky glue Outthe. flavor over odors of. .factory, neighborhood. fertilizer also in the.immediate One of the witnesses.-testified at. the that-.the *10 fertilizer factory the glue
smells from emanating the Dela- you pass were of such that “when potency It would in it down.” you ware knocks nearly boat, the an on formidable attack against seem as so that, yard of a live cattle simple the emanations senses, relief. might afford pleasant at Mr. declared of the board members, Cohen, One the area to investigate the that intended to he hearing the establishment was appellant’s determine whether in about That he earnest or not. was strong-scented “I am his that: this can be declaration gathered in Philadelphia, up some time South going spend I can smell.” everything down, smelling other It that three members of board appears They Mr. Cohen this tour. accompanied olfactory at of came and declared: “While time back the four members Board of the personal inspection by from the not process the odors were the Board objectionable, recog- seriously nevertheless, that with the advent of warm nizes the possibility this arise.” problem may also weather, thus that while the appel- The satisfied lant’s establishment did not offend against atmos- phere there was the months, possibility Spring in objectionable make itself Summer. could tеst out possibilities summertime, order to on another go Board Member Cohen decided to smelling in he his expedition. Accordingly, repeated July, n . record he The does show investigations. .what findings but’since supplemental smelt in July, Board’, October, in made down. no fact handed Summer., it can be assumed odors, reasonably mention of did July '-not add the essences the weather produced Had the cattle yard Silverco any of Spring. remotely pungent exhalations approaching odors would-undoubtedly factory, they of the fertilizer days crisp as vivid- of October been remembered days ly in the ardent been smelled аs would have July. storing there that the Nor is evidence appellant’s constituted establishment hides people in the area. attack on the nostrils of the hides demonstrated that the at the presence chemically could their were so treated *11 olfactorily not be 50 feet. detected even within objecting granting of the Those to the variance might escape argued, from the that cattle addition, that this ob- Silverco establishment. The record shows jection illusory imaginative, ex- was and to certain self-inspired. imprisoned tent A a thick- cow within building much walled behind steel meshed fences has as brеaking through chance of numerous as barriers processed products pork beef have of break- of ing out of been the tin cans into which hermetically Rosenberg, sealed. Nathan traffic man- ager experi- years that in 22 Silverco, testified of escape. ence he had not one instance of cattle It must be remembered at all times that the animals involved here are domitae not naturae. naturae, ferae
On June the second sec- 17, 1952, Board allowed a appellant ond to determine whether posted premises, required as it for 10 do, days prior hearing, namely, the first De- of date seeing cember 1951. witnesses testified Five seeing two witnesses testified to not the no- notices, believed, tices. The Board disbe- witnesses and two findings respect lieved the five. The' Board’s in this con- my opinion, egregious abuse of discretion. stitute, fallacy of Board’s' conclusions dérives. .the. accepting against from from two five but witnesses, as rejecting positive the reasons' it advances for tes- five, timony of the witnesses..... Sophie (1) testified
For instance. Mrs. Plunkett get of a that on December she men out saw put up questioned car and notices. was then as She you “Q. follows: did time after December at Now, 14 and then and occasion to between Christmas have premises? portion by I did. A. walk you by during period, Q. be And when walked day that snow tween the December, llfth of you signs did notice those still storm, Christmas, * I there? A. did” disposed important precise The Board of this extraordinary with the statement: “An ex- premises by amination of the one the members great im- discloses the probability posting having Notices been seen as testified her on December 14 inside her since the house is so constructed she could home, only by putting have made her observation her head stormy day.” admittedly outside of the on an window testify But Mrs. Plunkett out did not she loоked *12 reasoning the window. What kind of excluded from the possibility, prob- Board’s mind if not indeed the ability, by posting that Mrs. Plunkett saw the simple expedient looking out of door could which easily opened happening to note the unusual neighborhood? why ignore entirely
And the Board Mrs. then, did testimony signs Plunkett’s that she saw the between Day? December and Christmas (2) testi- John a United States carrier, mail Ott, fied that “about the middle of he saw December,” photo- sign hearing At and read it. identified a he graph sign of the read. had The Board discarded he. testimony obviously this vital wit- disinterested * mine, All italics unless otherwise indicated: not see did that the witness statеment ness with subsequent sign But the first observation. reading explained of the that after first his witness any further ob- him to make it didn’t concern notice, regard it. servations with hearing
(3) Sam- Board, At of the second the first daily signs Silverberg be- that he saw uel testified A member December 1951. December 25, tween testimony: Silverberg’s commented on of the Board the notice had to determine whether “We also have requirements posted in accordance with the was gentleman. statement of the and we now have the Act, question.” everything we need on the We have certainly indicate This comment would prop- been that the had Board was satisfied erly posted. findings, on October however, its away Silverberg’s the Board brushed Samuel by saying Silverberg testimony cavalierly hearing. to tes- second His failure not testified at the testimony hearing nullify tify not at the did second accepted fide was as bona at the first the Board itself said that it Board. Moreover, any repetitious testimony. It can also be did want could called Samuel that the Board itself noted Silverberg if it had entertained doubt as to his hearing. testimony given at the first way ig- (4) also to The Board found a convenient Silverberg positive of Nathan who nore the categorically that he on December dеclared signs. extraordinary up put personally In an dem- logic, the Board declared that fanciful onstration Silverberg not to be believed because when Nathan hearing he had not mentioned at the first he testified *13 disbelieving find the Board we the notices. Thus, testify Silverberg he did at the first because Samuel disbelieving hearing then not at the second, Silverberg testify Nathan he because did not about hearing testify notices at the first but at the did sec- repeated hearing ond ! It must here that at the first hearing Silverberg, after Samuel “We said: Board, notices). everything question” (of need on the we accept (5) testimony The Boаrd did Oscar Philadelphia S. member of the Bar. Bortner Bortner, personally testified that on December ob- he Adjust- tained the notices from the Silverberg, proceeded ment with Nathan and, posted them. that The Board conceded paid Bortner was a credible witness. fact it him compliment saying testimony accepted: that it “The of Oscar S. Bortner at full its value.” It then went on say, quite possible that “it is however, signs they initially were after removed were attached.” kaleidoscopic changes any- Of in this course, world thing possible, hoped legal but it is to be that in a presiding proceeding, change tribunal will not its proof standards of from witness to witness. The Board signs gone up would not believe at all be- cause Mrs. Plunkett who testified to this fact could reasoning, in the not, Board’s have thrust her head through although sug- a window into a no one storm, gested reputable she had. when a However, member of categorically up the Bar putting signs, testified immediately signs the Board then assumed that away. spite positive melted testimony And this, up were seen from December to Christmas plus Day, testimony photographer of a who took pictures of the notices on December 17th. Silverberg having criticized Nathan testified at mentioning the first without accepted protestants’ but notices, Dougherty witness who also did not no- mention the appeared tices hearing. when he at the first *14 study imperatively im- A record meticulous of the arbitrarily pels the Board me to the conclusion pre- ignore the chose the five witnesses to arbitrarily equally by appellant ac- sented and by cepted testimony of the advanced two witnessees protestants. in the Common Pleas The decision Court of of the Board should, court to affirm the decision below my imposed judgment, Restrictions in be reversed. derogation zoning law are in of common ordinances Apрeal, rights strictly (Lord must be construed. 121). opposite in this case. 368 Pa. exact done discussing zoning regulations, said this Court Appeal, matter one White’s Pa. 266: “There is power regulate quite does that is to thus certain, unnecessary arbitrary, not to or unreason- extend an private ownership prop- intermeddling able with the preserva- erty, though labeled such acts be for the even safety general welfare. The exercise tion of health, good public to must relation substantial spheres proper. an held It must not be within operation arbitrary desire to resist the natural purely aesthetic considerations.” economic laws for just any municipality proper It for to im- is pose in certain bet- restrictions areas certain improvement municipality as a terment and say population it is but absurd whole, prevent supplied with steak and then shall be beef society importation burlesque It of beef. would be properly proclaim that citizens shall be shod, opportunity deny to obtain then shoe manufacturers is course, leather made. Of the hides from shoe adaptable to industrialization are some areas appear any others It would are. character; appel- question pеculiarly fit for the zone here Although type the zone has been lant’s business. pre- years, as labeled has over “Industrial,” viously an area of “least been into converted stated, place for a If restricted there is suitable uses.” yard built-up especially locality, in a is it, cattle this con- that the Board laid down consider first when we surrounding completely protected the ditions which *15 any possible neighborhood from harm. only people
It natural that in this area should is protest against appellant’s Already the business. factory glue fertilizer and have to contend with a and plant. willing of a chemical the inhabitants However, testing ground explosives an area whiсh contains a logically object chugging cannot to the of railroad voluntarily through People living trains their town. factory limburger next to not a cheese should be heard complain against garlic the cultivation aof few neighbors. their It in this bushes is to be noted also protestations case that much of the on a are based misconception. Many protestants of the that believed slaughter intended to conduct Silverco the business of a house. of so. This, course, entirely
Given character of the district and the legitimate appellant’s and innocuous nature of the it would have been an if business, abuse of discretion Equally, the first Board had refused the variance. an was abuse discretion for the second Board to properly granted. legally the variance revoke so Exley, The case et al. v. Triolo, et 358 Pa. al., question covered a similar to the one at bar. here granted permit Board there a variance to applicant operate an abattoir at 838-840 Car- penter Philadelphia. appeal, Street, On this Court granting proper: held that the variance was “A slaughterhouse had been maintained on the question period years in approximately for a prior to 1915. Around a fire occurred and from then until time of the present application, property has been used as a stable and as a garage, both industrial uses. . .” intro- Maps photographs duced in evidence in the immediate neigh- reveal borhood there are three poultry slaughtering houses, a produce butcher two warehouse, garage, store, a fish and a stores, company. ... On store, bottling foregoing change evidence having regard classification from ‘A Commercial’ to ‘Industrial’ Board concluded that neighborhood predomi- nantly devoted to ‘Least Restricted’ and ‘Industrial Uses’; grаnting application would no way spirit violate Zoning Ordinance; that, under undue hardship circumstances, would result if the upon appellee permit were not granted. We are accord with the statement of the trial judge operate ‘Permission to a modernly equipped under the abattoir, cannot circumstances, *16 ” as an regarded abuse discretion the Board.’
The circumstances in the
at bar
no
im
case
are
less
than those
pelling
indicated
the Triolo case just
quoted from. To
deny
appellant here the variance
applied
is to deprive Silverco of property rights
without compensation. With the
of the vari
granting
аnce by the first
the appellant acquired a vested
Board,
right which neither the second Board nor the
Court
Common Pleas had the
to revoke or
authority
alter.
the absence of
or
inadvertence
mistake,
rev
fraud,
ocation of the Use
Permit
Registration
constituted
reversible error.
In Ventresca v. Exley,
There is nothing lawfully Permit was Registration suggests owner has the property and it is clear granted, issuance o£ because incurred grave obligations the decision justice require Law and permit. the lower Court be reversed. ap- Silverco cautiously and legally, Moving fairly, Permit. After a hearing for a Registration Use plied that permit. Zoning granted duly advertised, expended the basis of that Silverco Permit, $80,000. On the exorbitant cost prices and Despite high inflation, said is an in- it still cannot be that $80,000 of living, indifferently charged sum can significant Board. with a experience Catholic Cemeteries of the Diocese Association Pittsburgh Zoning Case.