East Torresdale Civic Ass'n v. Zoning Bd. of Adjustment of Philadelphia County

• Decision Date: 23 May 1994
• Citation: 639 A.2d 446,536 Pa. 322
• Parties: EAST TORRESDALE CIVIC ASSOCIATION, Appellee, v. ZONING BOARD OF ADJUSTMENT OF PHILADELPHIA COUNTY and City of Philadelphia, Appellees, v. Robert Bruce DRYSDALE, Appellant.
• Court: Pennsylvania Supreme Court

Page 446

639 A.2d 446

536 Pa. 322

EAST TORRESDALE CIVIC ASSOCIATION, Appellee, v. ZONING BOARD OF ADJUSTMENT OF PHILADELPHIA COUNTY and City

of Philadelphia, Appellees, v. Robert Bruce DRYSDALE, Appellant.

Supreme Court of Pennsylvania.

Argued Dec. 6, 1993.

Decided March 24, 1994.

Reargument Denied May 23, 1994.

[536 Pa. 323] Frederick S. Patti, Marjorie Stern Jacobs, Philadelphia, for R. Drysdale.

Richelle D. Hittinger, Philadelphia, for East Torresdale Civic Ass'n.

Cheryl L. Gaston, Philadelphia, for Zoning Bd.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

PAPADAKOS, Justice.

This is a zoning case. The underlying facts are as follows. On August 28, 1989, the Philadelphia Zoning Board of Adjustment ("ZBA") granted Appellant, Dr. Robert Bruce Drysdale, a dentist, a zoning variance with a "proviso." The variance concerned the use of property located at 9521-23 Frankford Avenue in Philadelphia owned by Dr. Drysdale. It is a two-story detached Cape Cod style structure originally built as a single family residence. The property is located in an R-5 Residential District which, pursuant to § 14-206 of the Philadelphia Zoning Code, permits only single-family occupancy in detached or semi-detached structures. The practice of dentistry is permitted in the district pursuant to § 14-203(1)(c) of the Zoning Code, provided that the office is situated in the dwelling of the practitioner, is incidental to the main purpose of the residence, has no more than one assistant regularly employed, and is not used by any colleague or associate.

Dr. Drysdale had to seek a variance from the ZBA after the City Department of Licensing and Inspections cited his property as being in non-compliance with the R-5 zoning designation for the subject premises. The Department's citation was prompted by a request for a separate variance by the owner of adjacent property, one Dr. Checchio--also a dentist with a practice. Dr. Drysdale's dental practice at the subject property dates back to 1970, when he leased a portion of the building from the then owner. In 1980, Dr. Drysdale purchased the building, and since that time the building has not been used as a single family residence, although Dr. Drysdale has maintained his dental practice there--clearly in violation of the zoning code.

Dr. Drysdale's property has a frontage of approximately 54 feet on Frankford Avenue, a heavily travelled four-lane thoroughfare and commercial artery connecting Philadelphia with Bucks County. The block on Frankford Avenue on which the property is located is completely residential. However, within a mile of the subject property along Frankford Avenue are located various commercial and non-residential land uses. The properties on the streets east of Frankford Avenue and to the rear of the subject property are residential, and a playground is located across the street.

The cost of converting the subject property in order to make it conform to the present zoning regulations of the neighborhood would be minimal as compared to the cost of Dr. Drysdale losing the property and his practice. The conversion involved would entail alterations to the house for the addition of a kitchen and living space, but the expenses would be minimal only if enough additional space was created for one person (not for Dr. Drysdale and his family of seven). The expert testimony at the ZBA hearing indicated that in order to make conversions to enable Dr. Drysdale and his entire family to live on the premises, the cost would be prohibitive. In light of this evidence, the ZBA granted a variance for use of the subject property as a...