Rubin v. Zoning Board of Adjustment (Philadelphia) , 1 Pa. Commw. 406 ( 1971 )

Opinion by

Judge Kramer,

This is an appeal from an order of the Court of Common Pleas of Philadelphia County dated June 3, 1969, which affirmed the adjudication of the Zoning Board of Adjustment of Philadelphia dated June 24, 1968, in which the Board “refused” the appellant’s application for a use certificate for an open air private parking lot under the provisions of Section 14-303(3) (f) (.4) of the Philadelphia Code.

The case was transferred to the Commonwealth Court from the Supreme Court of Pennsylvania, Eastern District, at No. 504, January Term, 1969, under the provisions of the Appellate Court Jurisdiction Act (Act of July 31,1970, No. 223), and was transferred to this Court on September 14, 1970.

Appellant, David Rubin, the applicant below, is the owner of a certain piece of realty commonly known as 3410 Collins Street, in the city of Philadelphia. Said realty is fifty-one feet (51') wide and runs westwardly a distance of one hundred forty feet (140') to Amber Street and is split-zoned. The Amber Street portion of this realty is zoned R-10 residential, and runs a depth of fifty-four feet (54'), or 20 feet beyond an existing house which fronts on Amber Street. The remainder of said realty fronting on Collins Street is a vacant lot zoned C-2 commercial, extends to a depth of seventy-six feet (76'), and is the subject matter in this case.

The appellant has an interest in National Steel Drum Company, Inc. (hereinafter referred to as National), which operates a business across Collins Street from the lot in question. National intends to lease the proposed parking lot from appellant for the parking of trailer trucks.

The provisions of the Philadelphia Code at Section 14-303(3) (f) (.4) require the property owner to obtain a use certificate for such a private parking lot based upon enumerated criteria at Section 14-1803(1). The burden of presenting evidence satisfying the criteria is placed upon the applicant at Section 14-1803(2).

The appellant filed with the Permit Issuance Section of the Department of Licenses and Inspection an application for a certificate to construct a private parking lot, which was apparently refused and referred to the Zoning Board of Adjustment. The required prior approvals of the City Traffic Engineer and the Pennsylvania Department of Highways were submitted with said application.

A plot plan was also submitted with the application which shows a drawing of the proposed parking lot with a fence between the Amber Street portion of said property and the parking lot, the construction of concrete curbing on three sides of said parking lot, and the construction of a driveway on the fourth side, together with the paving of the entire parking lot;

After referral to the Philadelphia Zoning Board of Adjustment, a public hearing was held September 14, 1967. This was the only hearing held in this matter. A transcript of the proceedings at this public hearing shows that the applicant (Rubin) presented statements by his attorney, Mr. Gould, and the protestants presented statements by two attorneys representing two different citizens organizations, and the testimony of one citizen, a Mr. Gindelli.

The record before us indicates that no additional testimony was taken in the Court of Common Pleas. Consequently this Court’s task on certiorari is to look to the proceedings before the Zoning Board of Adjustment to determine whether or not there has been a manifest abuse of discretion or an error of law. Appeal of Facciolo, 440 Pa. 508, 269 A. 2d 699 (1970).

One’s initial reaction to a reading of the briefs presented by parties in this matter and listening to arguments of counsel would be that the requested use certificate would be of benefit to the neighborhood in which this parking lot was proposed. It seems obvious to us that this proposed parking lot would reduce traffic congestion and rehabilitate a vacant lot which has become an eye-sore in its run-down and junk-littered condition. Although it appears that the appellant could have supported all of the criteria set forth in Section 14-1803 of the Philadelphia Code, this Court cannot base its decision upon conjecture.

As already stated, we must look to tbe proceedings before tbe Board of Adjustment to determine whether or not there has been a manifest abuse of discretion or an error of law by the Board.

Even if we accept the appellant’s contention that some of the findings of fact were not supported anywhere in the record,^* and assume that the charges of the protestants that National was a poor housekeeper in the neighborhood are entirely irrelevant, we must recognize that the main thrust of the Board’s adjudication is that the appellant failed to present evidence to meet the criteria set forth in Section 14-1803 of the Code.

A review of the transcript indicates that Mr. Rubin was not even called to testify; and although the Code at Section 14-1804(8) permits an attorney’s statements to be considered as testimony, a review of the few statements of his attorney (Gould) hardly can be considered a meeting of the burden placed upon the appellant.

Even if we assume that this sparse record supports the allegation that the granting of the certificate will not substantially increase congestion in the public streets as provided in Section 14-1803(1) (a), nowhere in the transcript is there any mention of what substance or material will be contained in the barrels which may be stored in the parked trailers on the proposed lot. Neither the Board nor this Court can guess that the substance will not be combustible, and therefore the appellant did not meet the burden set forth in Section 14-1803(1) (b) of the Code, which states that the appellant had the burden of proving that the granting of the certificate would not “increase the danger of fire or otherwise endanger the public safety”. With the exception of subsection (a) none of the other criteria is adequately covered or supported by the appellant in the record.

The Zoning Board of Adjustment is not an advocate in these matters and therefore had no duty to present evidence on the criteria ■which the appellant had the duty to support. This Court must affirm the order of the court below.

* For example, Finding of Fact No. 6 says that National is the applicant whereas the record indicates two other possibilities due to errors in the forms of the Board.