Polizzi v. ZONING BOARD OF ADJ.

420 Pa. 405 (1966)

Polizzi, Appellant, v. Zoning Board of Adjustment.

Supreme Court of Pennsylvania.

Argued January 14, 1966.

March 22, 1966.

*406 Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

Charles L. Guerin, Jr., for appellant.

Matthew W. Bullock, Jr., Second Deputy City Solicitor, with him Gerald Gornish, Assistant City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for zoning board, appellee.

Samuel Diamond, with him Stanley W. Bluestine, Irving Koffler, and Bluestine, Diamond, Polsky & Bauer, for intervenors.

OPINION PER CURIAM, March 22, 1966:

The owners of real estate at 4231 Walnut Street, Philadelphia, extending back to Sansom Street, applied to the Philadelphia board of adjustment for a variance to permit the use of the property as a six-family dwelling, all the units to be apartments with separate baths and kitchen facilities. The property was then being used legally under a variance allowed in 1940 for nine units (two housekeeping units and seven rooming units).

The portion of the property fronting on Walnut Street is zoned R5, and multiple family occupancy is not permitted in such a zone. The rear 94 feet of the *407 over-all 194 feet of the property, going back to Sansom Street, is zoned R9, and multiple family occupancy is permitted in such a zone.

The board of adjustment allowed the variance requested, and appellant, the next door neighbor, whose property contains six apartments, appealed to the court below which, without taking testimony, affirmed the action of the board of adjustment. We allowed an appeal under Rule 68 1/2.

Since the court below took no additional testimony, our function is to determine whether the board of adjustment clearly abused its discretion or committed an error of law. Mulac Appeal, 418 Pa. 207, 210 A.2d 275 (1965); Cleaver v. Bd. of Adjustment, 414 Pa. 367, 200 A.2d 408 (1964); Jasy Corp. v. Board of Adjustment, 413 Pa. 563, 198 A.2d 854 (1964). Finding neither a clear abuse of discretion nor an error of law in the determination of the board of adjustment, its conclusion will be affirmed.

Order affirmed.

Mr. Justice MUSMANNO dissents.