Opinion
Argued September 28, 1978
April 9, 1979.
Zoning — Res judicata — Scope of appellate review — Abuse of discretion — Error of law — Vested rights — Variance — Unnecessary hardship — Economic hardship — Recreational inconvenience.
1. Res judicata applies to bar further action between parties to a zoning case when a valid final judgment on the merits is rendered by a court of common pleas and appellate remedies are exhausted. [568]
2. In a zoning case where the lower court took no additional evidence, review by the Commonwealth Court of Pennsylvania is to determine whether the zoning board abused its discretion or committed an error of law. [568]
3. Vested rights in a building or use permit are not acquired by a property owner when protestants consistently and in timely fashion have pursued their legal remedies in challenging the issuance of the permit, nor do rights vest because zoning authorities erred as a matter of law in granting the permit initially. [568-9]
4. A variance will not be granted unless a unique, substantial and compelling hardship to the property exists, and mere economic hardship or recreational inconvenience cannot constitute the requisite unnecessary hardship justifying the issuance of a variance. [569]
Argued September 28, 1978, before Judges CRUMLISH, JR., DiSALLE and MacPHAIL, sitting as a panel of three.
Appeals, Nos. 937, 1074 and 1145 C.D. 1977, from the Orders of the Court of Common Pleas of Philadelphia County in cases of Alfred Waber, t/a Winmont Associates; Albert Cohen and Celia Cohen, his wife; James Smith and Eleanor Smith, his wife, and Miriam Dubin v. Zoning Board of Adjustment, No. 3781 November Term, 1976; and City of Philadelphia and Alfred Waber, t/a Winmont Associates; Albert Cohen and Celia Cohen, h/w; Beatrice Lieberman; Benjamin Visnov and Ann Visnov, h/w; Herman Bobly and Evelyn Bobly, h/w; Irvin Brodsky and Betty Brodsky, h/w, Intervenors v. Francis A. Norbeck and Lillian M. Norbeck, h/w, No. 883 December Term, 1973.
Building permit issued. Protestants appealed to the Zoning Board of Adjustment of the City of Philadelphia. Permit revoked. Owners appealed to the Court of Common Pleas of Philadelphia County. Revocation affirmed. Appeals to the Commonwealth Court of Pennsylvania and Supreme Court of Pennsylvania denied. Owners petitioned Board for new hearing. Permit and variance granted. Protestants appealed to the Court of Common Pleas of Philadelphia County. Decision reversed. GELFAND, J. Complaint in equity in the Court of Common Pleas of Philadelphia County to enforce court order and enjoin construction. Decree issued. Exceptions dismissed. Owners appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Stanley A. Uhr, with him Lenard L. Wolffe, and Pechner, Dorfman, Wolffe, Rounick Cabot, for appellants.
Stanton Dubin, for appellees.
We are here considering two appeals from separate but related actions of two separate Courts of Common Pleas of Philadelphia County. Francis and Lillian Norbeck (Applicants) and the City of Philadelphia appeal a decision which reversed the action of the Zoning Board of Adjustment (Board) granting a permit for the erection of a non-commercial horse stable accessory to Applicants' family dwelling. The Norbecks also appeal a related equitable action dismissing their exceptions to a decree nisi.
We will dispose of the matters seriatim.
Applicants received permission from the Department of Licenses and Inspections (Department) to erect a stable in August, 1972. After a substantial expenditure of money and effort, the stable was completed in September. The owner of an adjacent complex and various tenants (Protestants) filed an appeal with the Board in December, 1972. The Board revoked Applicants' permit on February 15, 1973, concluding that the use was not permitted under the provisions of the Philadelphia Zoning Code (Code). The Common Pleas Court affirmed Board's decision. An appeal which was filed nunc pro tunc in this Court was denied, as was a petition for leave to appeal in the Supreme Court.
Applicants then petitioned Board for a new hearing on the stable permit alleging that a gross injustice had been committed in the initial proceeding. On November 17, 1976, Board granted the permit and a variance. Protestants appealed this action and, without taking additional evidence, the trial court reversed. This reversal is the primary matter before us on appeal.
Applicants steadfastly maintain that the original permit granted in 1972 giving them permission to build and use a stable in an R-12 residential district was correct in that the permit was a matter of right. This issue was fully explored and rejected by Board on February 15, 1973. The Court of Common Pleas affirmed Board's decision and, upon exhaustion of appellate remedies even though no decision was rendered on the merits by the appellate courts, the matter is clearly res judicata.
A final valid judgment upon the merits by a court of competent jurisdiction bars any future suit between the parties on the same cause of action. Stevenson v. Silverman, 417 Pa. 187, 208 A.2d 786 (1965).
Applicants next contend that the court below exceeded its scope of review. We disagree. When that court does not take additional evidence, it is limited to a determination of whether Board committed a manifest abuse of discretion or error of law. Pyzdrowski v. Pittsburgh Board of Adjustment, 437 Pa. 481, 263 A.2d 426 (1970). The court below did not address any abuse of discretion and merely applied the facts of record to the legal issues involved.
Applicants' major contention related that a vested right to the use of the stable had been acquired and that a variance was properly granted by the Board. We do not agree that the record supports this contention.
The right to use the structure as a stable does not vest where, as here, Protestants have consistently and timely pursued their legal remedies. This fact alone distinguishes the case from the "doctrine of vested rights" enunciated in Commonwealth v. Flynn, 21 Pa. Commw. 264, 394 A.2d 720 (1975), and precludes its application. Nor, we might add, does a right vest because of an error of law by the Department in initially granting what is clearly a revocable permit.
There are no exceptional circumstances in the record to support the grant of a variance. Fretz, Inc. v. Hilltown Township Zoning Hearing Board, 22 Pa. Commw. 276, 348 A.2d 488 (1975). Nor does it establish a unique, substantial, serious and compelling hardship to the property. Magrann v. Zoning Board of Adjustment, 404 Pa. 198, 170 A.2d 553 (1961). Personal and economic hardship or, in this case, more clearly a recreational inconvenience, does not warrant the issuance of a variance. Rees v. Zoning Hearing Board of Indiana Township, 11 Pa. Commw. 461, 315 A.2d 317 (1974). Having disposed of these controlling issues, we need not address Applicants' remaining contentions.
Accordingly, we
ORDER
AND NOW, this 9th day of April, 1979, the appeals of Francis A. Norbeck and his wife, Lillian M., are dismissed and the order of the Court of Common Pleas of Philadelphia County, November Term 1976, No. 3781, sustaining the appeal of Alfred Waber, t/a Winmont Associates; Albert Cohen and Celia Cohen, his wife; James Smith and Eleanor Smith, his wife; and Miriam Dubin, and reversing the decision of the Zoning Board of Adjustment granting a variance to Francis A. Norbeck to maintain a stable on his premises, and the final decree of the Court of Common Pleas of Philadelphia County dated May 17, 1977, are hereby affirmed.