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FOOD CORPORATION v. ZONING BOARD ADJUSTMENT (ET AL. (03/13/56)

March 13, 1956

FOOD CORPORATION
v.
ZONING BOARD OF ADJUSTMENT (ET AL., APPELLANT).



Appeal, No. 98, Jan. T., 1956, from decree of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1954, No. 6436, in case of Food Corporation v. Zoning Board of Adjustment of the City of Philadelphia. Decree affirmed.

COUNSEL

Paul Yermish, for appellant.

Edmund B. Spaeth, Jr., with him William R. Reynolds, and MacCoy, Evans & Lewis, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Stern

[ 384 Pa. Page 289]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

This is an appeal from a decree of the court below reversing an order of the Zoning Board of Adjustment; the appeal is not by the Board itself but by an intervenor in the proceedings.

Food Corporation, which owns a tract of vacant ground, 166 by 119 feet, on the south side of Cottman

[ 384 Pa. Page 290]

Street between Algon Avenue and Somerdale Street in Philadelphia, applied for a use registration permit to build and operate thereon a drive-in, self-service restaurant, and, as accessory thereto, to maintain on the lot an off-street parking area. The tract in question is zoned "A Commercial." After a public hearing at which a number of neighboring residents protested against the proposed use, the Zoning Board of Adjustment refused the issuance of a certificate permitting the off-street parking. The Court of Common Pleas, on appeal, ordered the Board to issue an appropriate certificate granting such permission.

What the applicant proposed was to erect a one-story building, approximately 50 by 67 feet, at which it would serve light refreshments, soft drinks, and food that had been cooked in advance and kept on warm tables. Patrons were to park their automobiles on the premises, alight, enter the building, buy what they wanted, return to their cars, and there consume the purchased food. Section 16 of the Philadelphia Zoning Ordinance of August 10, 1933, provides for 26 specific uses permitted in districts zoned "A Commercial," among which, number 21, is "restaurants, cafes or catering." Both the Board of Adjustment and the Court of Common Pleas held that the applicant's project contemplated a restaurant within the meaning of the Ordinance, and apparently this conclusion was not questioned by either the intervenor-appellant or anyone else until the present appeal. Be that as it may, there is no merit in the contention now urged in that regard. A restaurant is defined in Webster's International Dictionary as "An establishment where refreshments or meals may be procured by the public; a public eating house," and while this no doubt assumes that the refreshments are to be eaten on the premises, that qualification is here complied with since the food will be

[ 384 Pa. Page 291]

    consumed there even though it be in automobiles stationed thereon. The applicant was clearly entitled to a permit for the erection and the use of a ...


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