Appeal, No. 274, Jan. T., 1958, from order of Court of Common Pleas No. 3 of Philadelphia County, March T., 1957, No. 2222, in case of Fifty-fourth Street Center, Inc. v. Zoning Board of Adjustment. Order affirmed; reargument refused May 4, 1959.
Michael H. Egnal, for appellants.
Levy Anderson, First Deputy City Solicitor, with him Matthew W. Bullock, Jr., and David Berger, City Solicitor, for appellee.
Samuel Packman, with him Joseph Ominsky, for intervening protestants.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.
OPINION BY MR. JUSTICE COHEN
Appellant applied for and received a permit to erect retail stores, offices, and a bowling alley on land fronting on 54th Street south of City Line Avenue, Philadelphia. The 54th Street land is zoned "A" commercial. To its rear is a tract zoned "D" residential. After hearing, the board granted a variance from the setback provisions of the zoning ordinance permitting the building on 54th Street and also granted a zoning board of adjustment certificate permitting the use of the rear land as an open-air parking lot for automobiles. In granting the certificate, the board imposed conditions providing that the lot be hard surfaced; that lights be focused on the lot so as not to glare; that ingress and egress be from 54th Street only; that a picket fence be erected along the southern boundary lines of the parking lot; that Lombardy Poplars be planted along the inside of the picket fence; and that the area at the southeast corner of the lot, being 60 feet by 15 feet, be restricted as a "no-parking" area.
The lower court affirmed the action of the board but suggested, after testimony and a personal viewing, that the picket fence be erected on a diagonal line set back from two to thirty feet from appellant's boundary line. Whereupon, the board amended their conditions and granted the certificate without a further hearing. This appeal is from the court's affirmance of the amended certificate containing all the conditions.
The land here under consideration is zoned in part "A" commercial and in part "D" residential. Section 14-1402 of the Philadelphia Code of General Ordinances provides: "Open air parking of automobiles shall not be permitted in 'AA,' 'A' or 'B' residential districts, and in any other residential or commercial district shall require a Zoning Board of Adjustment Certificate as hereinafter provided." Because this application requested an open-air parking lot, the certificate provided for in the act was required. The criteria for the issuance of a certificate are set forth in Section 14-1802(3)(c)*fn1 of the Code.
Appellant, by this appeal, now questions the authority of the board to impose conditions on a zoning board of adjustment certificate. While we have never before been called upon to make such a determination, we have no difficulty in finding that the board does have the authority to condition the issuance of certificates, not only from the inherent power of the zoning authorities, but also from statutory and decisional authority as well.
In determining whether a certificate is to be issued it seems clear that the board, using the criteria set forth in Section 14-1802(3)(c)*fn2 of the Code can refuse a certificate entirely if the proposed use does not meet those criteria. It is also clear that the power to grant the total use includes a ...