the size of the lot coupled with zoning restrictions concerning setbacks and off street parking requirements enough to constitute an unnecessary hardship
How later courts described this case
- the size of the lot coupled with zoning restrictions concerning setbacks and off street parking requirements enough to constitute an unnecessary hardship
Written by the judges who cited it.
The opinion
*217 Dissenting Opinion by
Judge Rogers:
The appellee, Durkin Contracting Company, conducts a conforming contracting business on a parcel of land located in an L-2 zoning district of Philadelphia. By drawing lines on a plot plan of its property, it has created a paper lot at a street intersection, which it desires to rent or sell to the Shell Oil Company for a gasoline service station. Service stations are not permitted in the L-2 district. These facts were established by photographs of record showing appellee’s office, contractor’s yard and the residence surrounding the proposed location of the gasoline station, and by statements of appellee’s counsel made to the Zoning Hearing Board, as follows: “Immediately east of the subject premises is the yard, garage and office of Durkin Contracting Company. . . . There is immediately south of the subject premises a residence. That residence is owned by Durkin Contracting, which is the owner of the subject . . . [premises].” The circumstances, therefore, are no different from those which would obtain were the owner of a house and lot in a residential district to claim by variance the right to use a portion of his front lawn for a commercial purpose because of that portion’s inadequacy to accommodate another residence. The appellee would not be entitled to a variance even if this “lot” were real and consisted of the remainder of its property after conveyance of the balance of its ground. Volpe Appeal, 384 Pa. 374 , 121 A. 2d 97 (1956). A fortiori, it is not entitled to a variance where, as here, the lot is a part only of its lands.
This issue was raised in the court below. The arguments of counsel were transcribed and the City Solicitor contended:
“The other requirement is, of course, hardship. It is not the kind of hardship which all of this testmony and all the oral judgment, which has been addressed, is not the kind of hardship which is necessary, and that is *218 not economic, but it has to be a serious, substantial compelling, almost confiscatory [hardship], which in fact means that the zoning regulations are so restrictive that they amount to take [sic] of the property and the property which the applicant owns, cannot be used for any other purpose than that which is now proposed. I don’t think that is the case here. The hardship is simply that the applicant has some vacant groimd next to his plant and he wants to reap the greatest amount of financial profit that is possible.
“There was no evidence or any attempt to use this vacant piece of ground within the uses permitted. There is no evidence presented that this piece of property was up for sale offering it for the proposed uses, which are within the L-2 designation.” (Emphasis supplied.)
The fact that appellee is presently devoting its land to a use permitted in the L-2 zoning district negates the assertion that these use restrictions impose a hardship. The law does not entitle an owner to put each and every part of his land to profitable use. Indeed one of the principal purposes of zoning is to regulate the intensity of land use.
I dissent.
Judge Blatt joins in this opinion.