Cresko, In re

• Decision Date: 29 June 1960
• Citation: 162 A.2d 219,400 Pa. 467
• Parties: In re John S. CRESKO and Nancy Cresko, his wife (Appeal from Decisions of Board of Adjustment of the Borough of Kingston). Appeal of Arnold H. & Dorothy NACHLIS. Appeal of Edward J. & Marion J. BURKE. Appeal of Bernard L. & Beverly F. GROSSMAN. Appeal of Sara & Theodore LEVINSON. Appeal of Herbert S. & Evelyn S. GURBST. Appeal of Theodore H. & Dorothy YUDKOVITZ. Appeal of Emanuel & Dorothe SMULOWITZ. Appeal of Ruth & Sheldon B. MORRIS. Appeal of Sidney & Esther ROBZEN. Appeal of Robert C. & Dorothy H. KINTZER. Appeal of Leonard & Florence ROBZEN. Appeal of Janet & Morris FEIT. Appeal of Saul & Eunice RUBEL. Appeal of John J. DRUTCHAL. Appeal of Anne F. SYKES
• Court: Pennsylvania Supreme Court

Page 219

162 A.2d 219

400 Pa. 467

In re John S. CRESKO and Nancy Cresko, his wife (Appeal from Decisions of Board of Adjustment of the Borough of Kingston) Appeal of Arnold H. & Dorothy NACHLIS Appeal of Edward J. & Marion J. BURKE Appeal of Bernard L. & Beverly F. GROSSMAN Appeal of Sara & Theodore LEVINSON. Appeal of Herbert S. & Evelyn S. GURBST. Appeal of Theodore H. & Dorothy YUDKOVITZ. Appeal of Emanuel & Dorothe SMULOWITZ. Appeal of Ruth & Sheldon B. MORRIS. Appeal of Sidney & Esther ROBZEN. Appeal of Robert C. & Dorothy H. KINTZER. Appeal of Leonard & Florence ROBZEN. Appeal of Janet & Morris FEIT. Appeal of Saul & Eunice RUBEL. Appeal of John J. DRUTCHAL. Appeal of Anne F. SYKES.

Supreme Court of Pennsylvania

June 29, 1960.

Rehearing Denied July 15, 1960.

Sol Lubin, Wilkes-Barre, for appellant.

John H. Hibbard, Wilkes-Barre, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, BENJAMIN R. JONES, COHEN, BOK and EAGEN, JJ.

BOK, Justice.

This is a zoning case concerning property in Kingston Borough, Luzerne County. Mr. and Mrs. Cresko, as owner-applicants, asked for a variance in order to use their land as a parking lot. After taking testimony at three hearings the Board of Adjustment denied the application and the Creskos appealed to the Court of Common Pleas, which received further evidence by stipulation, reversed the Board, and ordered the variance. Fifteen protesting neighbors have appealed.

The property, which contains about two acres, is bounded on the south by Crane Street, on the north by Davis Street, on the west by the rear line of a string of residences whose fronts face South Dawes Avenue, and on the east by a dike owned by the Commonwealth and designed to keep out the Susquehanna River. East of the dike work is being done on a proposed parkway; east of that is an apron of land marked Nesbitt Park on the plans; and east of this park is the river.

The Creskos became the equitable owners of the property in 1953, and at that time it was zoned 'General Residence', although it had been zoned 'Light Industry' for two years between 1947 and 1949. Cresko knew this when he bought it and has tried unsuccessfully to have it changed again to industrial. He owns other property south of Crane Street which is zoned 'Light Industry', and still other property north of Davis Street, which is zoned partly residential and partly commercial. Apparently feeling sure of his position and before the court below granted the variance, he erected a discount house on his land south of Crane Street and leveled and graded the instant property for use as a parking lot by the clients of the discount house. During the course of his testimony he said that since the land had once been zoned commercial he had been 'almost positive' that it could be again: he admitted having taken a chance on it. The following question and answer also appear, revealingly, in the record: 'By Mr. Lubin. Now you want this Board to help you recoup your losses, is that right? By Mr. Cresko. I guess.'

The Board found that the property can be used to build homes on. The court below made no finding beyond saying that to do so 'would result in economic loss to the appellants' and listing the factors that made it think so. Cresko admitted that it could be used for 'very, very inexpensive' low-grade housing.

We agree with the court below that it should, as it did, consider the case on the merits and not on the issue of whether the Board committed a manifest abuse of discretion. The court took evidence, in the form of thirteen exhibits for the protestants and sixteen for the petitioners. These consist of photographs, plans, and letters. That this material entered the record by stipulation rather than over objection obviously does not alter its character as evidence, since the shape of the case with the new exhibits is not the same as without it. See Richman v. Zoning Board of Adjustment, 1958, 391 Pa. 254, 137 A.2d 280, 283. Hence we will see whether the court, rather than the Board, abused its discretion.

The familiar requirements for a variance are set forth thus in the Richman case by Mr. Justice Benjamin R. Jones:

'The sole justification for the grant of a variance is that a strict application of the terms of the zoning statute will result in an 'unnecessary hardship', and even then, the variance can be granted only if 'the spirit of the ordinance may be observed, the public health, the public safety and the general welfare secured and substantial...