Philadelphia v. Angelone

Opinion by

Judge Rogers,

This appeal is from an order of the court below reversing the action of the Zoning Board of Adjustment of the City of Philadelphia in refusing a variance. The city brought this appeal.

In 1965 the appellees acquired a dwelling house at 1538 Yernon Road in the West Oak Lane section of *122 Philadelphia and applied for and received a permit to use the house as a funeral parlor. The house is at the end of a row of single family houses constituting the 1500 block of Vernon Hoad. The appellees’ lot, as do those of their neighbors on Vernon Road, extends to Greenwood Street. Abutting the open side of appellees’ lot is a public driveway from Vernon Road to Greenwood Street which provides access for the rear of another block of single family houses constituting the 7900 block of Pickering Street. Vernon Road, Greenwood Street, Pickering Street and other streets of the vicinage are lined with modern, single-family row homes typical of newer sections of the city developed since World War II. They form a residential enclave in an area of expanding commercial activity particularly along Cheltenham Avenue, a principal thoroughfare of the city. Across Vernon Road from appellees’ funeral parlor and the other homes on Vernon Road is the stadium of Temple University, a substantial and not unattractive brick structure and an appurtenant large field, kept in grass. When the appellees purchased 1538 Vernon Road the area of this development of homes was within a district zoned for commercial purposes. As a result of the permit granted appellees and their conversion of the house to funeral parlor use, other residents memoralized City Council which in November 1965 placed the neighborhood within a residential zoning district designated R-9.1 Thus, when this case commenced the appellees’ undertaking business was a nonconforming use of their row house on Vernon Road.

Appellees’ lot, 19 feet wide and about 120 feet in depth, contains about 2,200 square feet. Their building measures 19 feet in width and 36 feet in depth and is *123 two stories in the front and, because the grade declines, consists of a basement and two stories at the rear. The open rear yard, 19 feet wide, extends from the rear of the building a distance of about sixty feet to Greenwood Street. The appellees propose to construct within the rear yard a two story addition to the house2 measuring 19 feet by 35 feet, the lower floor of which would be used as a garage and the upper story, at a level with the first floor of the house, as an enlargement of the room used in their undertaking business as a viewing room. Obviously if this project is to be accomplished, the area of appellees’ lot covered by building would be doubled. The addition would protrude into the rear yard about 33 feet beyond the rear building line of the other houses on Yernon Road.3

More than sixteen percent of the people of Pennsylvania, containing 45,330 square miles and the third most populous state in the country, reside within the 129 square miles comprising the City of Philadelphia. In addition to providing living space for its two million people, Philadelphia finds accommodation for the largest fresh water port in the world, the largest petroleum refining center on the east coast and numerous and extensive industrial, commercial, cultural, educational and recreational4 enterprises. The peculiar tensions attendant upon living and working among throngs of people, apparent to those who must experience them, are receiving increasing attention of scientists of many disciplines. Events in our great cities are daily proving that pessimistic forecasts for their future, late *124 ly considered jeremiads, were in fact sober prophecies. At an earlier time, with prescience not usually associated with government, urban planning and its executive arm, zoning, were developed and have become “accredited adjunct[s] of municipal government.” Bilbar Construction Company v. Easttown Township Board of Adjustment, 393 Pa. 62, 73, 141 A. 2d 851 (1958). Without regulations adequate to provide and maintain reasonable separation of the disparate activities carried on at close quarters in a great city, the discomfitures of urban living would in time outweigh its attractions, as happened in ancient Rome.5

The Zoning Code of Philadelphia, consistent with the problems with which it deals, is formidable. It divides the city into seven use districts and further subdivides the residential district into no less than 24 subclassifications. Bespeaking the intensity of land use, a minimum lot area of as much as 15,000 square feet is required in only four of these districts, which other regulations show to be designed for so-called high rise apartment use. In the three most restricted residential districts in which uses are essentially confined to single-family dwellings, one requires a 10,000 square foot lot and the other two 5,000 square feet. In 11 of such districts the lot area requirements range from 3,150 to 1,440 square feet and in two there are no area requirements whatsoever. In the R-9 district only single-family houses, detached or semi-detached, duplex dwellings and multiple dwellings6 are permitted uses, and the minimum lot area requirement is only 1,440 square feet.

*125 As stated, appellees desire to construct in the rear yard of this lot a 19 foot by 35 foot addition to their 19 foot by 36 foot house cum funeral parlor. Section 14-104(7) of the Zoning Code provides that no additions to a structure containing a nonconforming use shall be made which, when added to all structural additions made since the use first became nonconforming, would cause the aggregate gross floor area of all such additions to exceed ten percent of the gross floor area of the structure when the use first became nonconforming. Accepting appellees’ statement in their brief that the existing building has a gross floor area of 2,052 square feet, the Code would permit construction of single floor addition measuring the 19 feet width of the lot to a depth ten and one-half feet. The appellees seek to add and devote to this nonconforming use 1,830 square feet of floor area.

Refused a permit by the Department of Licenses and Inspections, the appellees appealed to the Zoning Board of Adjustment, requesting a variance to exceed the ten percent limitation of Section 14-104(7). The only evidence adduced by the appellees at the hearing before the Board was their counsel’s recital of the zoning history of 1538 Vernon Road, general statements of support by two persons from the neighborhood, a letter of similar import from a local clergyman, and a scant two pages of testimony of the appellee Mr. Angelone. On direct examination Mr. Angelone testified that his funerals would not be larger as a result of the proposed addition to their facility but that more people could sit during viewings. On cross-examination, he testified that he and his customers suffer inconvenience because he is required to conduct large funerals in more commodious facilities elsewhere. On direct examination Mr. Angelone stated that there is ample parking on the streets; on cross-examination he agreed that at least in the immediate vicinity of his *126 establishment street parking was limited by neighbors’ use of available spaces, intersecting streets and parking restrictions. Two protestants testified, one the owner of the house adjoining the funeral parlor and the other a resident of Pickering Street, both of whom protested the proposed obstruction of their view, light and air by the 35 foot, two story building sought to be erected in this rear yard. Other residents of the neighborhood appeared and entered their names and addresses on the record as evidence of their opposition.

The Board found that there was no reason why a ten percent addition as permitted by the Code might not practically be constructed, that there were no other commercial uses on the block, that there were no off street parking facilities available,7 and that the addition would adversely affect the light and air of neighbors on Pickering Street and Vernon Road. It concluded that appellees had shown no hardship peculiar to their property, that the only actual hardship shown was of an economic nature not justifying the relief sought, that the variance would adversely affect the public health, safety and general welfare and the particular interests of neighbors on Vernon Road and Pickering Street. It refused the variance.

No testimony was taken in the court below. It reversed on the ground that the Board had abused its discretion in not granting the variance. The court’s opinion is brief and unclear as to what principles of law were conceived to be applicable.

*127 The principles which are applicable, together with the facts as hereinbefore set forth, fully support the Board, whose decision, not the court’s, we must review. Village 2 at New Hope, Inc. Appeals, 429 Pa. 626, 241 A. 2d 81 (1968).

Constitutional limitations require that nonconforming uses be permitted to continue. They are not, however, favorites of the law. As stated by Mr. Justice Benjamin R. Jones: “A basic purpose of zoning is to ensure an orderly physical development of the city . . . by confining particular uses of property to certain defined areas. With such a purpose nonconforming uses are inconsistent. Molnar v. George B. Henne & Company, Inc., 377 Pa. 571, 581, 105 A. 2d 325. The continuance of nonconforming uses under zoning ordinance is countenanced because it avoids the imposition of a hardship upon the property owner and because the refusal of the continuance of a nonconforming use would be of doubtful constitutionality. Even though zoning ordinances permit the continuance of nonconforming uses, it is the policy of the law to closely restrict such nonconforming uses and to strictly construe provisions in zoning ordinances which provide■ for the continuance of nonconforming uses. Nonconforming uses, inconsistent with a basic purpose of zoning, represent conditions which should be reduced to conformity as speedily as is compatible with the law and the Constitution.” Hanna v. Board of Adjustment, 408 Pa. 306, 312-313, 183 A. 2d 539, 543 (1962). (Emphasis supplied.) Not only is the continuance of a nonconforming use protected, but it may be enlarged to provide for natural expansion and the accommodation of increased trade. Gilfillan’s Permit, 291 Pa. 358, 140 A. 136 (1927). The right of expansion is, however, subject to limitations either of the law itself or of the applicable zoning regulations. “This right [of expansion] is not unlimited, however. The contemplated expansion must *128 not be detrimental to tbe public health, welfare and safety. We have never questioned the right of a municipality to impose reasonable restrictions on the expansion of a nonconforming use.” Silver v. Zoning Board of Adjustment, 435 Pa. 99, 102, 255 A. 2d 506, 507 (1969).

With respect to the question before us in this matter, certain principles have been developed which are clear, reasonable and consistent with constitutional principles. Structures may be erected on open land previously devoted to a nonconforming use, as of right. However, the erection of structures upon land not previously so used, may only be accomplished by way of variance, the requisites of which are hardship to the owner and absence of detriment to the public interest. Peirce Appeal, 384 Pa. 100, 119 A. 2d 506 (1956); Mack Appeal, 384 Pa. 586, 122 A. 2d 48 (1956). The fact that an expansion of a nonconforming use is proposed is itself an important factor in the consideration of whether a variance should be granted for that purpose. Mack Appeal, supra.

There is no evidence whatsoever in this record of any use by the appellees of their rear yard. An examination of photographs in the record show it to be identical to those of neighboring properties, a grass plot with cement strips upon which a vehicle may be stationed. The two doors at the rear of the building are for persons, not vehicles, so that we are unable to infer that vehicles useful in appellees’ business might be kept there. The appellees were, therefore, required to establish their entitlement to a variance. In O’Neill et al. v. Zoning Board of Adjustment, 434 Pa. 331, 254 A. 2d 12 (1969), the property owner sought a variance to build an apartment building larger than that permitted by the Philadelphia Code. Mr. Justice Benjamin E. Jones said: “In considering the merits of this appeal, we bear in mind the following principles which *129 govern the disposition of variance cases . . . variances should he granted only sparingly and only under exceptional circumstances . . . [and] in order to obtain a variance, the petitioners must prove (1) that the variance will not be contrary to the public interest and (2) that unnecessary hardship will result if the variance is not granted . . . [and] ... a variance will not be granted solely because the petitioner will suffer an economic hardship if he does not receive one.” 434 Pa. 331, 254 A. 2d 14. These principles apply with respect to variances sought for the expansion of nonconforming residential structures. Walter v. Philadelphia Zoning Board of Adjustment, 437 Pa. 277, 263 A. 2d 123 (1970); Clifton Heights Appeal, 440 Pa. 101, 270 A. 2d 400 (1970).

According the fullest possible weight to the fact that the appellees established their business prior to the change of use district, we believe that the Board’s decision is fully supported on this record. It was generous to appellees in suggesting that economic hardship had been proved. Neither loss of business opportunity nor increase of costs was shown. The scant and casual record here made does not support the finding of a condition more onerous than that aptly described by Mr. Angelone as an inconvenience. Furthermore, the Board’s finding that a grant of the application would adversely affect the public interest is demonstrated on the record. The protrusion of this addition, diminishing the light, obstructing the circulation of air and destroying the prospect at the rear of these row houses would be highly injurious to persons living in this modest but pleasant community, and the Board correctly so held.

The appellees attack the constitutionality of the ten percent limitation on expansion, permitted by the Code. But it is not this limitation which obstructs appellees’ way to relief, but their inability to carry the *130 burden of proving tbe requisites of a variance. Indeed, tbe effect of the provision is to broaden appellees’ rights, not to narrow them. By it they may add to this nonconforming use to the extent it permits without proof of hardship or absence of injury to the public interest. Rather than diminishing rights, it confers them; for its effect is to require that only the excess of its allowance must be supported upon variance principles. In any event, such limitations have been upheld. Humphreys et al v. Stuart Realty Corporation, 364 Pa. 616, 73 A. 2d 407 (1950); Philadelphia Art Alliance v. Philadelphia Zoning Board of Adjustment, 377 Pa. 144, 104 A. 2d 492 (1954) ; Schiller-Pfeiffer, Inc. v. The Upper Southampton Township Board of Adjustment, 1 Pa. Commonwealth Ct. 588, 276 A. 2d 334 (1971). Their effect is precisely that decided upon in Peirce Appeal and Mack Appeal, supra, with respect to ground devoted to business use and that not so used. The owner may as of right enlarge his building to the extent permitted by the zoning regulation; if he is to do more he must show entitlement to a variance.

Even were a substantial constitutional issue involved with regard to the ten percent allowance of expansion as of right, we could not in these circumstances find this limitation lacking in reasonableness. The Philadelphia Code in its attempt to meet the need for homes in a great city has provided for intensive residential development on extremely small lots. Boctrinaire considerations of vested rights, burden of proof and personal equities pale before the facts of life in the metropolis, rich in public advantage but often poor indeed in private amenities. We should not, therefore, be astute to strike down a provision restrictive of the intrusion of commercial uses into the limited open area available in this residential district; rather we should “exercise self-restraint as to substituting our opinions far removed from the particular zoning hear *131 ing for the well considered decision of the local officials.” Cohen v. Zoning Board of Adjustment of Philadelphia, 3 Pa. Commonwealth Ct. 50, 276 A. 2d 352, 355 (1971).

Order reversed.

The lands owned by Temple University are within an R-5 district, more restrictive than R-9.

At tbe hearing before the Board, appeUees withdrew an application for a variance to construct an addition to the front of their building.

Appellees’ house, at the end of the row, is shorter than its neighbors by about two feet.

Including the eight square miles of Fairmount Park, the largest municipal landscaped park in the United States.

Jerome Oarcopino, Daily Life in Ancient Rome, Yale University Press, 1940, Chapter III.

Multiple dwellings are defined as dwellings occupied by three or more families, including rooming and boarding houses, and similar dwellings, except hotels, apartment hotels and motels. Code, Section 14-102(e).

Appellees have printed in their brief a copy of a letter from Temple University, Office of Urban Affairs, approving appellees’ request for use of a parking facility owned by it, subject to unspecified conditions. This was not before the Board. Its only interest is as contrast to Mr. Angelone’s testimony that he did not need Temple’s facilities because there is “plenty of parking” on the street.