Appeal, No. 57, Jan. T., 1950, from decree of Court of Common Pleas No. 6 of Philadelphia County, June T., 1948, No. 1276, in case of John M. Humphreys et al. v. Stuart Realty Corporation et al. Decree, as modified, affirmed; reargument refused June 15, 1950.
Peter P. Zion, with him Leonard Green, for appellants.
George T. Steeley, for appellees.
G. Coe Farrier, Senior Assistant City Solicitor, with him Frank F. Truscott, City Solicitor, for City of Philadelphia, intervening appellee.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE HORACE STERN
The question here is in regard to the extent of the permissible enlargement of a non-conforming use under a zoning ordinance.
Under authority of the Act of May 6, 1929, P.L. 1551, the City of Philadelphia enacted an ordinance of August 10, 1933 which provided that no building should be erected or altered with respect to height and area for any use in any district unless and until a zoning permit had been obtained from the Bureau of Engineering, Surveys and Zoning; the word "building" was defined as including "structure". There was a provision for the continuance of non-conforming uses, and if a building containing a non-conforming use was destroyed by fire it could be reconstructed and used for the same non-conforming use provided the building when rebuilt did not exceed in height and area the building so destroyed. It was also provided that a non-conforming use in a building might be extended provided that no addition or structural alteration for such non-conforming use should exceed 25% of the area of the building at the time of the enactment of the ordinance.
Defendant, Globe Solvents Co., Inc.,*fn* is in the business of buying and selling various petroleum products, chiefly cleaning fluids or solvents and lubricating oil, and in the course thereof stores the material in tanks of varying sizes; when sold in bulk deliveries are made by tank trucks; when sold in smaller quantities the materials are distributed in drums and cans. The business predecessor of this company was National Speedway Refining Co., Inc., which conducted its operations on an irregularly bounded tract of land that may roughly be described as extending approximately 150 feet on the northerly side of Fishers Avenue beginning 30 feet east of the northbound track of the North Pennsylvania Railroad and extending of a depth of approximately 280 feet. National Speedway Refining Co., Inc. had installed on these premises two metal tanks of a capacity of 20,000 gallons each, 4 of a capacity of 10,000 gallons each, 4 of a capacity of 5,000 gallons each, and a service tank for gasoline of a capacity of 1080 gallons. It had also erected three or four buildings. In 1932 it went into bankruptcy and its assets were purchased at public sale by persons who then organized the defendant company. The latter began operation in 1933 of the same kind of business as that to which the plant had previously been devoted, and it continued such operation until February 6, 1948 when a fire occurred on the premises. Meanwhile, between 1933 and 1948, it had made extensions to the buildings upon the premises and had erected two new buildings without obtaining either zoning or building permits therefor; it had also installed on the premises 23 additional tanks, 19 ranging in capacity from 500 to 5,000
gallons each, 1 of a capacity of 10,000 gallons, 1 of 12,000 gallons, and 2 of 14,600 gallons each, thereby increasing the total storage capacity from 100,000 gallons to approximately 224,000 gallons; of the entire 33 tanks 8 were above ground and the remaining ones were either wholly or partially buried. The fire destroyed ...