Silverco, Inc. v. Zoning Bd. of Adjustment and Dept. of Licenses and Inspection, City of Philadelphia

• Decision Date: 15 November 1954
• Citation: Silverco, Inc. v. Zoning Bd. of Adjustment and Dept. of Licenses and Inspection, City of Philadelphia, 109 A.2d 147, 379 Pa. 497 (Pa. 1954)
• Parties: SILVERCO, Inc., Appellant, v. ZONING BOARD OF ADJUSTMENT AND DEPARTMENT OF LICENSES AND INSPECTION, CITY OF PHILADELPHIA, Defendants, and James Dougherty and Mary, his Wife, James F. Mackin and Margaret Louise, his Wife, Frank M. Smith and Anna E., his Wife, Jeremiah King Rutter and Elizabeth L., his Wife, Intervening Defendants.
• Court: Pennsylvania Supreme Court

Page 147

109 A.2d 147

379 Pa. 497

SILVERCO, Inc., Appellant, v. ZONING BOARD OF ADJUSTMENT AND DEPARTMENT OF LICENSES AND INSPECTION, CITY OF PHILADELPHIA, Defendants and James Dougherty and Mary, his Wife, James F. Mackin and Margaret Louise, his Wife, Frank M. Smith and Anna E., his Wife, Jeremiah King Rutter and Elizabeth L., his Wife Intervening Defendants.

Supreme Court of Pennsylvania.

Nov. 15, 1954.

C. Brewster Rhoads, Sidney L. Wickenhaver, Montgomery, McCracken, Walker & Rhoads, Mortin E. Rotman, Dennis, Rotman, Gorson & Cohen, Philadelphia, for appellant.

James L. Stern, Deputy City Sol., Matthew W. Bullock, Jr., Asst. City Sol., Jerome J. Shestack, First Deputy, Abraham L. Freedman, City Sol., Philadelphia, Pa., for appellees.

Morris B. Levitt, William Kendall, Philadelphia, Pa., for intervenors.

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

BELL, Justice.

On December 6, 1951, Silverco, Inc. applied to the Zoning Board of Adjustment for a variance and requested a use registration permit for the use of premises located at the Southeast corner of Swanson and Wolf Streets for cattle pens and a storage of hides. The premises are located in a district zoned 'Industrial', a classification which does not permit the establishment of the proposed use without the grant of a variance. The petitioner did not propose to use the premises as a slaughter house, but only for the storage of live cattle and hides. All slaughtering operations and subsequent tanning of hides were to be conducted elsewhere.

Although the area was zoned Industrial, many non-conforming uses and variances had in fact converted most of the area to the 'least restricted' uses. The nearest residences are 600 to 1,000 feet away, with intervening industrial buildings or plants, including the alcohol distilling plants of Continental Distilleries and Publicker Alcohol Co. and an oil plant of Wilson-Martin, and a glue and fertilizer factory. Petitioner proposed to store the live cattle in 8 separate pens located 100 to 200 feet from the perimeter of the area and surrounded by a cyclone fence of steel mesh. It likewise proposed to lock the cattle securely within pens and had elaborate detailed plans to safely, so far as humanly possible, load, unload and pen the cattle. Protestants feared that cattle would escape and endanger the neighborhood; also that offensive odors would permeate the air. Witnesses for petitioner testified that no offensive odor is given off by hides when they are treated, as petitioner planned, with salt and chlorinated lime; that they cannot be smelled beyond 50 feet, and that they are not palatable to roaches or vermin because of the salt. This is in contrast to other industrial activities conducted in the immediate neighborhood, some of which give off obnoxious odors.

Petitioner advised the Board of Adjustment that it had signed a contract to purchase the premises provided the requested variance was granted. Petitioner was consequently a conditional purchaser whose position and rights were equivalent to those of an owner who desired a variance for the same purposes. Elkins Park Improvement Ass'n Zoning Case, 361 Pa. 322 328, 64 A.2d 783, 785; 62 C.J.S., Municipal Corporations, § 227(12)b.

A proper notice of the proposed hearing was posted; the evidence was conflicting on the question of whether the notice remained posted for 10 days as required by § 31 of the Philadelphia Zoning Ordinance of August 10, 1933.

On January 23, 1952, the Zoning Board of Adjustment, after hearing petitioner's evidence at a public hearing at which no protestants appeared, and after a physical inspection of the premises by members of the Board, unanimously granted the variance 'on condition that all work is to be performed inside the building; that cattle will be housed at all times and never left to roam outside the building'. Unfortunately no record of the testimony nor any statement or findings of pertinent and material facts was made by the Board to show the grounds of its decision or to justify its action in granting a variance, as required by the Act of May 6, 1929, P.L. 1551, § 8. Valicenti's Appeal, 298 Pa. 276, 148 A. 308; In re Imperial Asphalt Corporation of Pennsylvania Zoning Case, 359 Pa. 402, 59 A.2d 121; Lindquist's Appeal, 364 Pa. 561, 73 A.2d 378.

On January 29, 1952, Silverco, in reliance upon the variance granted by the Board of Adjustment, made settlement, paid the purchase price of the property, namely $80,000, and took title thereto. It then commenced to alter and improve the premises for the use permitted by the variance.

A new Zoning Board of Adjustment was thereafter appointed by the new City Administration and on February 14, 1952, the Zoning Board of Adjustment, on protest from members of the community, ordered a further public hearing. Under the Act of May 6, 1929, Section 8, P.L. 1551, 53 P.S. § 3829, protestants have 30 days within which to appeal to the Court of Common Pleas from the action of a Zoning Board of Adjustment. On the 29th day, namely on February 21, 1952, certain protestants appealed to the Court of Common Pleas No. 1 of Philadelphia County from the order of the original Zoning Board of Adjustment. The Court of Common Pleas No. 1 retained jurisdiction but directed the Board to retain the record until a further hearing was held by the new Board and a final decision rendered.

Shortly after the grant of a variance, South Philadelphia awakened to the possible dire results of this new cattle-hides storage and over 1,000 persons signed a petition requesting the new Board of Adjustment to revoke the order of the original Board, being apprehensive, we repeat, that the proposed uses would create offensive odors and because they were fearful that cattle might break out and seriously injure persons or property in the heavily populated contiguous area.

The new Zoning Board of Adjustment held two public hearings and on May 13, 1952, revoked the permit issued to Silverco on January 23, 1952, by the original Board of Adjustment on the grounds: (1) that the proposed uses would be offensive to the community because of noxious odors; (2) that serious injury and bodily harm could result from escaping cattle; and (3) that the property had not been adequately posted (for a period of ten days) prior to the original hearing.

The evidence on behalf of the protestants showed merely apprehension of danger and of noxious odors, and conflicted with the sworn positive and convincing testimony to the contrary by witnesses for Silverco. Moreover, the fact that over 1,000 protestants signed a petition for revocation would not, of itself, be sufficient because, as this Court said in Lindquist's Appeal, 364 Pa. 561, 565, 73 A.2d 378, 381: 'It is clear that a board of adjustment does not properly exercise its discretion if it considers the number of protestants rather than the nature and quality of their objection.'

With respect to the third ground, the testimony of two witnesses that they did not see the posted notice was negative testimony which was not of sufficient character, quality and breadth to overcome the positive testimony of 'posting.'

We therefore hold that the evidence was not adequate to sustain the grounds or reasons given by the Second Board of Adjustment for revoking the variance.

However, that merely brings us to the most important issue in this case, namely, did Silverco prove facts which were sufficient under the decisions of this Court to justify the grant of a variance. On the record there is nothing to show that either the first or second Board of Adjustment or the Court below gave adequate, if any, consideration to this basic question. We deem it wise, therefore, to once again call attention to the pertinent principles which are here involved.

When Silverco, relying upon the variance granted January 23, 1952, by the (first) Board of Adjustment, purchased the premises for $80,000, it knew or should have known that any one aggrieved by the action or order of the Board of Adjustment could appeal therefrom in 30 days to the Court of Common Pleas. It therefore took whatever risks were involved if such an appeal were taken and were successful. ¹

Moreover, the new (or second) Board of Adjustment, within the 30 day period, to wit, on February 14, 1952, notified Silverco of its intention to hold further hearings, obviously with the intent to affirm, or alter, or revoke the action of the prior Board. We hold that the second Board of Adjustment had this power of review provided it exercised it within 30 days of the original order, since no indefeasible rights could vest in Silverco in the meantime.

In Ventresca v. Exley, 358 Pa. 98, 56 A. 2d 210, where a Board of Adjustment, without any showing of unnecessary hardship, granted a variance which had not yet been acted upon by the owner, this Court held that such variance was improperly and illegally granted and could be revoked by the Board. The Court, speaking through Mr. Justice, now Chief Justice STERN, said 358 Pa. at page 102, 56 A.2d at page 212: 'If, then, the certificates of variance were improperly and illegally granted, it would seem self-evident that the Board of Adjustment had not only the right but the duty to revoke them even if there were no express grant of the power of revocation given to the Board by statute or ordinance.' See also Wyszynski v. City of Philadelphia, 370 Pa. 632, 636, 89 A.2d 355, 357.

In order to obtain a variance the law is well settled that a petitioner must prove (1) the variance will not be contrary to the public interest; and (2) unnecessary hardship will result if it is not granted. Pincus v. Power, 376 Pa. 175, 179, 101 A.2d 914; Devereux Foundation, Inc., Zoning Case, 351 Pa. 478, 41 A.2d 744; Borden's Appeal, 369 Pa. 517, 521, 87 A.2d 465; Kerr's Appeal, 294 Pa. 246, 144 A. 81; Valicenti's Appeal, 298 Pa. 276, 148 A. 308; Philadelphia Home Rule Charter, §...