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FREED v. POWER. (03/26/58)

March 26, 1958

FREED, APPELLANT,
v.
POWER.



Appeal, No. 153, Jan. T., 1958, from order of Court of Common Pleas No. 5 of Philadelphia County, March T., 1957, No. 6224, in case of M. Philip Freed v. John E. Power, Jr., et al. Order reversed.

COUNSEL

C. Laurence Cushmore, Jr., with him Leroy E. Perper, and White, Williams & Scott, for appellant.

Herbert L. Floum, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.

Author: Jones

[ 392 Pa. Page 196]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

This is an appeal from an order of the Court of Common Pleas No. 5 of Philadelphia County reversing the grant of a variance by the Philadelphia Zoning Board of Adjustment to Baldwin Overall Service, Inc.

Prior to the adoption of any zoning ordinance by the City of Philadelphia, Baldwin Overall Service, Inc., (herein called Baldwin) was the owner of premises 1724-34 North 8th Street whereon it conducted a laundry business. When the zoning ordinance was adopted the area was classified as D-1 Residential, a classification which prohibited the conduct of a laundry business. The laundry business continued as a nonconforming conforming use.

On July 22, 1954 - after passage of the zoning ordinance - Baldwin purchased premises 1736-42 North 8th Street upon which were located several one-story dwellings which Baldwin tore down and demolished.

[ 392 Pa. Page 197]

Baldwin then applied to the Zoning Board of Adjustment for permission to construct, partly on the same premises where the non-conforming use existed and partly on its lately acquired vacant land, two one-story buildings to be used as (a) a private state inspection station and repair shop for the laundry's own trucks, and (b) a loading and shipping room. After two duly advertised hearings at which no one appeared to protest, the Zoning Board of Adjustment granted Baldwin's application for a variance with an attached condition that all loading and unloading of the laundry trucks be done off the street.

M. Philip Freed, who lives in the general neighborhood but on a street one removed from the area in question, appealed from the decision of the zoning board to the court of common Pleas. The court below, although it took no testimony, reversed the grant of the variance by the zoning board. From that order this appeal was taken.

The original zoning ordinance was adopted pursuant to a legislative enactment authorizing zoning in cities of the first class.*fn1 The Home Rule Charter of Philadelphia*fn2 vested the legislative power of the city exclusively in its council.The City Council of Philadelphia on December 31, 1955 adopted its Code of General Ordinances of the City of Philadelphia, which included a complete system of zoning and planning.*fn3 The right of the City Council to adopt a ...


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