Appeal, No. 185, Jan. T., 1958, from order of Court of Common Pleas of Lackawanna County, Sept. T., 1957, No. 822, in case of Board of Zoning appeals of the City of Scranton et al. v. Alex Silas et al. Order affirmed.
James K. Peck, with him David J. Reedy, Jr., and Emanuel Laster, for appellants.
William Zacharellis, for appellees.
Before Jones, C.j., Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Stanley A. Stonier and Florence E. Stonier, his wife, as owners of a certain building in Scranton, and Textiles, Inc., as tenants of the building, applied to the Superintendent of Building Inspection for a certificate of use which would permit the tenant to use the property in accordance with the terms of its lease, namely, a "store for the sale of, and dealing in wearing apparel, and materials for wearing apparel, dry goods, textile products, and general merchandise."
The premises in question, 1327-29 Wyoming Avenue, Scranton, are located within "B" Zone, so designated
by a Scranton city ordinance of 1924, section 3 of which provides: "In the 'B' Zones no building, structure or premises shall be used ... except for the following purposes or uses: ... (b) Retail stores for the sale of food products, wearing apparel, drugs, confectionery, tobacco and general merchandise for local neighborhood use."
The Superintendent of Building Inspection refused the requested certificate, and the owners, with Textiles, Inc., appealed to the board of zoning appeals which, after a full hearing, reversed the superintendent and directed him to issue the use permit. Two property owners in the neighborhood, Alex Silas and Nicholas R. Fellis, appealed the board's decision to the court of common pleas which decided that the applicants were not entitled to a certificate of use because the business in which they were engaged violated the zoning ordinance. The applicants and the board then appealed to this Court.
The record clearly demonstrates that the board abused its discretion in awarding the certificate of use. The commercial enterprise operated by Textiles, Inc. does not remotely qualify under the provisions of the zoning ordinance as quoted. The ordinance permits retail stores in Zone B, but Textiles, Inc. is, by admission of its president, Edward Gordon, a wholesale and retail store. One witness testified that Gordon said that 90% of his business is wholesale. Another witness testified that Gordon said that "the place is going to be a wholesale, and a small part of it would be retail remnants place."
The wording of subsection (b), section 3 of the ordinance precisely describes the nature of the business places to be permitted in the restricted B zone, namely, "Retail stores for the sale of food products, wearing ...