Kollock v. Zoning Board of Adjustment

Dissenting Opinion by

Judge Rogers:

I respectfully dissent.

The Zoning Board of Adjustment of Philadelphia granted the appellee a variance to use a residentially zoned remainder of the curtilage of its automobile sales establishment for parking, subject to the appellee’s providing adequate horticultural screening. In addition, in order to overcome objections of the Chestnut Hill Community Association, the applicant revised its plans prior to the Zoning Board of Adjustment’s hearing so as to overcome all of that Association’s objections. Moreover, the Philadelphia City Planning Commission recommended that the variance be granted subject to the screening which the Zoning Board of Adjustment made a condition of its approval. The court below, without taking evidence, affirmed the Board’s decision. The present appellants are individuals, apparently acting apart from the Chestnut Hill Community Association.

While the law imposes on the applicant for a variance a heavy burden of proving that his property is subjected to unnecessary hardship and that the variance will not be harmful to the public interest, it also provides that where a Board of Adjustment has granted a variance and its action has been affirmed by a lower court, we may not reverse the Board unless we find an error of law or a manifest abuse of discretion. *630DiBello v. Zoning Board of Adjustment, 4 Pa. Commonwealth Ct. 546, 287 A.2d 856 (1972).

A review of the present record convinces this writer that it contains sufficient evidence of unnecessary-hardship uniquely imposed on the appellee’s property by the Philadelphia zoning regulation to support the Board’s action; and further, that the facts are sufficiently similar to those of other cases where we have upheld grants of variances, that we should do so here. See Pfile v. Borough of Speers, 7 Pa. Commonwealth Ct. 226, 298 A.2d 598 (1972); DiBello v. Zoning Board of Adjustment, supra; Zoning Board of Adjustment v. Koehler, 2 Pa. Commonwealth Ct. 260, 278 A.2d 375 (1971).