O'Neill v. Philadelphia Zoning Board of Adjustment

Concurring Opinion by

Mr. Justice Bell:

I concur in the result reached by the majority of the Court but for an entirely different reason. I would hold that a property owner who has a nonconforming use may change such use into a more desirable or less objectionable nonconforming use. Such a principle protects owners of land in their centuries old property rights, establishes a clear guide post for Courts and Zoning Boards, and does not restrict the power of Zoning Commissions to establish, for the health, safety or morals of the people, reasonable zoning laws or regulations. ■ • - -

If, however, the aforesaid principle is not adopted; I disagree with the opinion and the conclusion's'reached *388by the majority and would affirm the Court below on the authority of Pincus v. Power, 376 Pa. 175, 101 A. 2d 914.

For eight years prior to the Zoning Ordinance which zoned the district Residential “F”, the property in question had been used as a one family apartment on the second floor and a commercial garage for executives’ cars on the first floor. The only hardship proved was that appellant could not occupy the entire premises as a residence without expending money to effectuate a change. This certainly did not constitute unnecessary hardship under any prior definition or decision of this Court.

In Pincus v. Power, 376 Pa., supra, plaintiff, whose property was zoned “C” Residential, sought a variance to erect six two-story structures on his large vacant land, the ground floor of each to be used for commercial retail stores, while the second floor was to be used as an apartment for a single family dwelling. Under “C” Residential zoning, the land could be used for detached or semi-detached dwellings or multiple dwellings. The side of Stenton Avenue opposite plaintiff’s property was completely occupied by stores. If the variance were granted, plaintiff’s property would be 400% more valuable; and if it was not granted it would be unprofitable to erect dwelling houses on lots having a depth of only 86 feet.* This Court held (1) “Mere hardship is not sufficient; there must be unnecessary hardship”, and (2). a large increase in the value of property is not sufficient to Constitute unnecessary hardship or justify a variance. There is no material difference and certainly no legal difference between Pincus v. Power and the instant case, in each case the *389property owner desired a change of use or variance in order to make more money.

The majority point out that it would cost plaintiff a substantial amount of money to convert part of her nonconforming use property to a conforming use property. That is not special to this case; it is always true where a change or variance is sought from zoning ordinances and proves exactly nothing. Property rights are always impaired, restricted and substantially reduced by zoning ordinances — for the (alleged) benefit of the health, safety or morals of the public — and residential zoning ordinances almost always cost the property owner money in one way or another. Plaintiff in this case could legally and readily convert her home and property into a single dwelling or into a detached or semi-detached or multiple dwelling, or erect one of these dwellings on her vacant ground. Of course, this would cose her money, just as a conversion to a nonconforming use would cost her money, but, we repeat, this has never heretofore been considered “unnecessary hardship”. Furthermore, if the City is an aggrieved party with a right to appeal, it can achieve the result it desires, easily and simply, by amending the ordinance to specifically allow (a) exceptions, including ballet schools, or (b) changes from a nonconforming use to a more desirable or less objectionable nonconforming use.

The present, majority opinion implies, without deciding, that there is one test of unnecessary hardship for a zoned property and another test of unnecessary hardship for a nonconforming use property. Zoning problems and property rights and limitations thereunder have for years been floating about in a sea of uncertainty. We have attempted to erect beacons, channel buoys and boundaries to enable commissions and property owners to safely chart their course; and *390we have given Boards of Adjustment and Courts standards to guide them in the difficult task of reconciling the often conflicting interests of property owners who desire no change, with the interests of an expanding population who demand a commercial or different kind of community than the neighbors desire. The majority opinion, in my judgment, unfortunately befogs the channel buoys recently erected and covers the navigator with confusion; today no one can tell what constitutes unnecessary hardship and what does not.

When Stenton Avenue became a state road.