67 Pa. Commw. 233 | Pa. Commw. Ct. | 1982
Opinion by
Valley View Civic Association (Appellant) appeals from an order of the Court of Common Pleas of Philadelphia County which affirmed the decision of the Zoning Board of Adjustment (Board) to grant a use variance to Alma Horen (Appellee). We reverse.
The subject property, owned by Appellee, is located in an B-5 residential district on Bidge Avenue in Philadelphia. The property is improved with a building in which Appellee proposes to operate a retail steak and hoagie shop limited to “take-out” service. The shop would occupy the first floor of the structure while the second and third floors would each contain an apartment. Apparently neither the commercial use nor the two-family dwelling use are permitted in the B-5 district.
The issue presented in this appeal is whether or not the Board erred in concluding that Appellee had met her burden of establishing an uneeessary hardship which would justify the grant of a variance.
Where, as here, the court below has taken no additional evidence, our scope of review is to determine whether the Board, in granting the variance, abused its discretion or committed an error of law. Center City Residents Association v. Zoning Board of Adjustment, 48 Pa. Commonwealth Ct. 416, 410 A.2d 374 (1980).
Although the Philadelphia zoning ordinance lists twelve criteria for the Board to consider in granting variances, the factors, in general, relate to two essential requirements which must be established by the ap
In the instant case, Appellee presented evidence
While the use of adjacent and surrounding land may be relevant in determining unnecessary hardship exists, we have noted in the past that it is not conclusive, absent a showing that the property is rendered practically valueless as zoned. Avanzato Appeal; Upper Moreland Township Board of Commissioners v. Zoning Board, 25 Pa. Commonwealth Ct. 626, 361 A.2d 455 (1976). We have carefully reviewed the record in this case and have found no evidence that the property cannot physically be used for residential purposes or that it has no value or only a distress value for residential use. The fact that Appellee proposes to continue to use the upper floors for residential purposes in itself strongly indicates to us that a use in conformity with the zoning ordinance may be possible here.
The instant case is clearly distinguishable from those cited by the Board to support its finding of unnecessary hardship. In each of those cases there was a showing not only that the property was surrounded by dissimilar uses, but that as a result of those circumstances the property was rendered practically valueless or that the property also possessed physical characteristics which prevented its use in accordance with the zoning ordinance. See Filanowski v. Zoning Board of Adjustment, 439 Pa. 360, 266 A.2d 670 (1970) (property was completely landlocked); Peirce v. Zoning Board of Adjustment, 410 Pa. 262, 189 A.2d 138 (1963) (property was surrounded by industrial and commercial uses, was subject to annoying chemical odors and there was uncontradicted testimony by two realtors
We conclude, as a matter of law, that Appellee has failed to sustain her burden of establishing unnecessary hardship unique to her property.
We, accordingly, will reverse the order of the lower court.
Order
It is ordered that the order of the Court of Common Pleas of Philadelphia County, dated February 25, 1981, March Term, 1980, No. 402, is hereby reversed.
The record does not contain a copy of the pertinent ordinance provisions which would enable us to examine the use restrictions. The parties agree, however, that the proposed uses are not permitted as of right in the R-5 district.
Appellee did not appear at the hearing before the Board. The sole witness on her behalf was her architect who testified very briefly.
We make no ruling on the possibility that the two existing apartment units might constitute nonconforming uses.
In view of our conclusion that Appellee has failed .to establish unnecessary hardship, we need not address the second element of her burden, to wit, the impact of her proposal on health, safety and welfare.
We note that the Board’s finding that the protestants in this case were only opposed to the particular commercial use proposed by Appellee, implying that another commercial use might be satisfactory to the protestants, is irrelevant to Appellee’s request for a variance. Lack of objection may not he the basis for the allowance of a variance. Christner v. Zoning Hearing Board, Mt. Pleasant Borough, 40 Pa. Commonwealth Ct. 87, 397 A.2d 30 (1979).