Smolow v. Zoning Bd. of Adjustment

• Decision Date: 06 January 1958
• Docket Number: 2799
• Citation: 391 Pa. 71,137 A.2d 251
• Parties: Isadore SMOLOW, Appellant, v. CITY OF PHILADELPHIA ZONING BOARD OF ADJUSTMENT.
• Court: Pennsylvania Supreme Court

137 A.2d 251

391 Pa. 71

Isadore SMOLOW, Appellant, v. CITY OF PHILADELPHIA ZONING BOARD OF ADJUSTMENT.

No. 2799

Supreme Court of Pennsylvania

January 6, 1958

Argued November 13, 1957

Appeal, No. 302, Jan. T., 1957, from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1956, No. 7137 in case of Isador Smolow v. City of Philadelphia Zoning Board of Adjustment. Order affirmed.

Appeal by property owner from decision of zoning board of adjustment refusing to grant variance. Before WEINROTT, J.

Order entered dismissing appeal. Property owner appealed.

Order affirmed, parties to bear own respective costs.

Albert S. Fein, for appellant.

Leonard L. Ettinger, Deputy City Solicitor, with him Gordon Cavanaugh, Assistant City Solicitor, James L Stern, Deputy City Solicitor, and David Berger, City Solicitor, for appellee.

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

OPINION

MR. JUSTICE MUSMANNO

In September, 1952, Isador Smolow, a real estate broker, the plaintiff in this case, moved into a house at 6114 Castor Avenue, Philadelphia, located in a "D" residential zone which, under appropriate zoning regulation, was closed to commercial businesses. Smolow applied to the Zoning Board of Adjustment for permission to use his house as a real estate office and dwelling. The Board refused the requested variance and the Court of Common Pleas, on appeal thereto affirmed the refusal.

The plaintiff has now appealed to this Court complaining that the lower Court abused its discretion in upholding the zoning board, thereby subjecting him to an unnecessary hardship. This position is not sustainable in the law. A boat builder who erects his establishment in an inland town would universally be regarded as unreasonable if he demanded that the streets be flooded so that he could obtain the aqueous medium needed to float his product. He would have known before he moved into the town that it was without vessel-supporting waters. The plaintiff here was well aware prior to purchasing his home that the prevailing zoning regulations forbade his using it as an active real estate office. If he assumed that with the passage of time the zoning regulations might change so that he could carry on an enterprising business in his home, he would not be the first person who misgaged weather portents.

Judge WEINROTT of Court of Common Pleas No. 5 of Philadelphia County, in affirming the action of the zoning board, well said: "Petitioner here relied upon his own judgment that sometime in the future commercial use would be permitted on his premises. However, this was speculation and, as such, attended by risk. The very hazard about which petitioner now complains is precisely that for which he bargained. It may well be that sometime in the future the block on which this property is located will change in character either by reason of an act of council, or because of other factors. However, in the discretion of the Zoning Board of Adjustment that point has not yet been reached."

The plaintiff complains in effect that by being refused a variance he will be unable to harvest the financial gains which can be cultivated on Castor Street. This is not the kind of a hardship which will support a variance. On such a basis an ambitious go-getter could erect a carnival in the most exclusive residential community. The law as to the type of hardship required to support a variance was well enunciated by Chief Justice STERN in the case of Michener Appeal, 382 Pa. 401, 406: "The law is well established that a variance may be granted only where a property is subjected to a hardship unique or peculiar to itself as distinguished from one arising from the impact of the zoning regulations on the entire district."

Although the plaintiff disclaims in so many words that he is basing his undue hardship on possible financial loss, thus seeking to take himself out of the quelling effects of Michener Appeal, he nevertheless advances that very appeal. He disclaims the vehicle of the thesis but rides the very steed of the argument when he asserts that by being denied a variance he will lose the $500 he spent in making alterations in the basement of his home in...