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PARISI v. PHILADELPHIA ZONING BOARD ADJUSTMENT. (06/30/58)

June 30, 1958

PARISI, APPELLANT,
v.
PHILADELPHIA ZONING BOARD OF ADJUSTMENT.



Appeal, No. 239, Jan. T., 1958, from order of Court of Common Pleas No. 7 of Philadelphia County, June T., 1957, No. 6514, in case of A. parisi v. Philadelphia Zoning Board of Adjustment. Order reversed.

COUNSEL

Irving Stander, for appellant.

James L. Stern, Deputy City Solicitor, with him Matthew W. Bullock, Jr., Assistant City Solicitor, and David Berger, City Solicitor, for appellee.

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

Author: Jones

[ 393 Pa. Page 459]

OPINION BY MR. CHIEF JUSTICE JONES

The plaintiff is the owner of a lot in Philadelphia located in a district zoned "A" Commercial. He applied to the zoning administrator under the provisions of Chapter 14-303, Section (2), of the Philadelphia Zoning Code for a use permit which would allow him to construct a car washing establishment on his property. The administrator refused the application. The plaintiff thereupon appealed the matter to the Board of Adjustment. The Board denied the application assigning as the reason that the Zoning Code does not permit the use of a proposed structure in an "A" Commercial

[ 393 Pa. Page 460]

    district for a car washing business. On the owner's appeal from the Board's action, the court below dismissed the appeal without prejudice to an application by the appellant to the Zoning Board for a variance. This appeal then followed, it being the plaintiff's position that the proposed use of his lot did not present a case for a variance with which we agree.

In Novello v. Zoning Board of Adjustment, 384 Pa. 294, 297, 121 A.2d 91, we held that a car wash was a permitted use under Section 16 of the Philadelphia Zoning Ordinance of August 10, 1933, in an area zoned "A" Commercial. This conclusion was based upon our interpretation of the language of subdivisions 32, 36 and 37 of Section 16 of the 1933 Ordinance. "The sole question" in the Novello case, as we there stated it, "... was whether a car wash fell within the purview of numbers 32, 36 and 37 of section 16 of the Ordinance, and whether the grant of a certificate for such use would be in general harmony with the standards set forth in section 3 of the enabling Act of May 6, 1929, P.L. 1551." We specifically answered both aspects of the question in the affirmative. Mr. Chief Justice STERN, who spoke for the court, said in respect of quoted language of provisions 32, 36 and 37, that, "... the washing of cars is a use 'customarily accessory and incidental to' the operation of 'a public or commercial garage or repair shop, gas and oil service stations,' - indeed a normal, routine feature of such operation - and therefore that such a use is 'of the same general character' as that ordinarily conducted in those establishments."

By Ordinance of October 11, 1956, which was six months after the decision in the Novello case, supra, the City Council of Philadelphia adopted a Zoning Code which, in part, effected some changes in existing law. However, Chapter 14-303 of the Zoning Code carried forward, without change whatsoever, what had been

[ 393 Pa. Page 461]

Section 16 of the Zoning Ordinance of 1933 which, as already stated, we had construed in the Novello case, supra; and the criteria for a certification of a permitted use, as prescribed by the enabling Act of May 6, 1929, P.L. 1551 (53 PS ยง 14754), by which the application in the Novello case was tested, are identical ...


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