Pincus v. Power

• Decision Date: 04 January 1954
• Citation: 376 Pa. 175,101 A.2d 914
• Parties: PINCUS et al. v. POWER et al.
• Court: Pennsylvania Supreme Court

Page 914

101 A.2d 914

376 Pa. 175

PINCUS et al. v. POWER et al.

Supreme Court of Pennsylvania.

Jan. 4, 1954.

Rehearing Denied Jan. 27, 1954.

Michael H. Egnal, Philadelphia, for appellants.

James L. Stern, Matthew W. Bullock, Jr., Asst. City Sol., Abraham L. Freedman, City Sol., Philadelphia, for appellees.

John C. Noonan, Philadelphia, for Chelten Hills Civic League, intervening appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

BELL, Justice.

Appellant-plaintiffs are the owners of six parcels of ground situate on the east side of Stenton Avenue at its intersection with the north side of Johnson Street in the City of Philadelphia. The lots have a total frontage of 135 feet and a depth of 100 feet. Plaintiffs sought and were refused a variance--hence this appeal.

Plaintiffs purchased this property on March 30, 1935, at which time it was and still is zoned 'C' Residential. Under 'C' Residential Zoning, the land can be used for detached or semi-detached dwellings or multiple dwellings. Plaintiffs sought a variance in order to erect six 2-story structures on this property, the ground floor of each to be used for (a variety of) commericial retail stores, with a second floor to be used as an apartment for a single family dwelling.

The east side of Stenton Avenue between Johnson Street and Barringer Street, (the southern half of which is owned by plaintiffs), is a big vacant lot overgrown with weeds. On the rear of plaintiffs' peoperty is a driveway about 10 feet wide, and beyond the driveway new attractive houses have been built on the remaining portion of this large block. All of this entire city block is zoned 'C' Residential.

The west side of Stenton Avenue between Johnston Street and Barringer Street, was rezoned Commercial 'A' on December 1, 1944, and a number of commercial stores have been erected in this block. To the north, on the east side of Stenton Avenue, across Barringer Street are residences and the zoning is 'C' Residential.

According to plaintiffs, the hardships claimed are two-fold: (a) the failure to grant a variance results in great hardship to them because their property is now worth about $9000 and if the variance were granted, would be worth approximately $40,000; and (b) if and when Stenton Avenue, which is on the City plan, is widened to become a State highway, 14 additional feet will be taken from the east side of Stenton Avenue at Johnson Street which, in practical effect, will make unprofitable the erection of dwelling houses on lots having a depth of only 86 feet. This contention overlooks the fact that plaintiffs will be compensated for the value of their property if and when taken.

Two years ago City Council either refused or failed, after request, to change the zoning of the square or block in which is located plaintiffs' property, from Residential to Commercial.

Because of the confusion which permeated this case on the subject of rezoning it may be wise to point out that this is not an attempt to or petition or proceeding to 'rezone' the property, but merely to obtain 'a variance' which the Board of Adjustment and in turn the Court of Common Pleas have power to grant where unnecessary hardship is proved or in cases of practical necessity where the reasons are substantial, serious and compelling.

The Board of Adjustment refused of grant a variance and found that the safety, health and general welfare of the immediate neighborhood would be affected to its detriment if the variance were granted and the applicants be permitted to erect the proposed six 2-story structures upon their property. The Board of Adjustment refused to grant a variance among other reasons (1) because of the proximity of new dwellings to the rear of plaintiffs' property, believing that the commercial activities would be noisy, dirty and possibly odorous; (2) because plaintiffs' proposed plan would violate the set-back requirements from Johnson Street and the open-air requirements on another street, and thus cut off light and air from the dwellings surrounding appellants' property; (3) because the erection of additional stores with insufficient parking space on already heavily trafficked Stenton Avenue, would greatly increase the already hazardous traffic situation; (4) because the variance would be unfair to surrounding property owners who had built their residences and developed their property as residential in accordance with the zoning requirements; and (5) because plaintiffs proved nothing but a large financial hardship.

Plaintiffs appealed from the refusal of the Zoning Board of Adjustment to grant...