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GARNER v. ZONING BOARD ADJUSTMENT (ET AL. (03/18/57)

March 18, 1957

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



Appeal, No. 257, Jan. T., 1956, from order of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1955, No. 2236, in case of Clifford E. Garner et al. trading as A. M. Ellis Theatres Co. et al. v. Zoning Board of Adjustment. Order affirmed.

COUNSEL

Joseph W. Henderson, with him Bayard M. Graf, and Rawle & Henderson, for intervenor, appellant.

James L. Stern, Deputy City Solicitor, with him Gordon Cavanaugh, Assistant City Solicitor, and David Berger, City Solicitor, for City of Philadelphia, intervening appellant.

Abraham L. Shapiro, for applicants, appellees.

Before Jones, Bell, Musmanno and Arnold, JJ.

Author: Arnold

[ 388 Pa. Page 99]

OPINION BY MR. JUSTICE ARNOLD

Intervenor, International Business Machines Corporation, appeals from the order of the court below reversing the order of the Board of Adjustment, which refused a certificate to appellees. The City of Philadelphia, by leave of this Court, intervened in this appeal.

[ 388 Pa. Page 100]

The case is here on certiorari (Veltri Zoning Case, 355 Pa. 135, 49 A.2d 369), and we therefore determine from the record only if the evidence sustains the findings of the court below, or if there is a manifest abuse of discretion or violation of law (Schmidt v. Philadelphia Zoning Board of Adjustment, 382 Pa. 521, 525, 526, 114 A.2d 902), opinion by Justice JONES, now Chief Justice. Having examined the record, we cannot but hold that the appellees are entitled to the certificate they seek.

Appellees are the owners of a lot on Ogontz Avenue, located in an "A-Commercial" zone. The lot is approximately a block away from the intersection of Ogontz and Cheltenham Avenues, at the county line between Montgomery and Philadelphia Counties. The land fronts on Ogontz Avenue for an entire block, although the proposed building will occupy only 16 per cent of the lot, the entrance and exit of which will be on Ogontz Avenue. Located in the area are, inter alia, two-story commercial buildings, occupied by such businesses as gas stations, beauty parlor, bakery and meat shops, appliance and drug stores, and the like. Appellant has an office building in the area, and the Philadelphia Saving Fund Society had a branch bank nearby.

Appellees applied for a certificate to erect a car wash building on their premises, which had formerly been occupied by a gas station, and the Board refused on the basis that the proposed use would be contrary to public interest. In so doing, it declared the use would be offensive because of "noise" and "traffic hazards," and did not fit into the general character of the neighborhood.

On appeal, the court took further testimony and made a personal inspection of the site. It thereupon determined that the ...


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