Appeal of Heman Johnson , 1928 Pa. Super. LEXIS 383 ( 1928 )

Argued April 20, 1928. In March, 1926, the Board of Appeals of the City of Pittsburgh (Zoning Ordinance, 1923, No. 372) approved the plans and issued a permit for the erection of a one-family dwelling by T.G. Santoro on an irregular shaped lot owned by him at No. 2318 Broadway, 19th Ward.

He proceeded to erect a building differing from the plans filed by him and approved by the board. Complaint was filed by the owner of an adjacent property, and after a hearing and examination of the premises the board permitted an open porch at the rear of the house to be enclosed for use as a garage.

On appeal to the Court of Common Pleas the appeal was sustained and the court ordered the permit issued by the board to be revoked in so far as it permitted the enclosing of the space under the porch.

We do not understand that the lower court decided that the Board of Appeals has no power to vary or modify the provisions of the zoning ordinance. The ordinance itself and the act of assembly authorizing its enactment expressly provide for such authority "where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance," provided "the spirit of the ordinance shall be observed; the public health, the public safety, and the general welfare secured; and substantial justice done." In Junge's App.,89 Pa. Super. 543, 546, we expressly recognized this power of the board to vary or modify the provisions of the zoning ordinance where the occasion for doing so, permitted by the act and ordinance, was present and the action was not arbitrary or the result of favoritism. We do not understand the order of the court to be in conflict with this ruling. We take the ruling of the court below to mean that in this particular case the board had not the power to vary or modify its original order and permit because it had not found that there were practical difficulties or unnecessary hardships in the way of building the house as the owner himself had first planned it. If such difficulties or hardships are present of such a character as to move the board to vary or modify the terms of the ordinance, the board should make a finding to that effect, and state just what they are and how they affect the property, so that the reviewing authority may consider them and pass upon them in the light of the further requirement that "the spirit of the ordinance shall be observed; the public health, the public safety, and the general welfare secured; and substantial justice done." As we said in Junge's App., supra, the authority placed in the board is not an arbitrary one. Sufficient reasons should always appear in the ruling of the board — in harmony with the object of the statute —, for a modification because of practical difficulties or unnecessary hardship in carrying out the ordinance. They are lacking in this case.

The order is affirmed.