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BENNETT v. ZONING BOARD ADJUSTMENT. (05/28/59)

May 28, 1959

BENNETT, APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT.



Appeal, No. 165, Jan. T., 1959, from order of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1957, No. 670, in case of Robert J. Bennett v. Zoning Board of Adjustment et al. Order affirmed. Proceedings on appeal from decision of zoning board of adjustment refusing to extend a nonconforming gasoline service station use to include the sale and rental of passenger automobile trailers. Order entered dismissing appeal, and petition to reconsider order dismissed, order by OLIVER, P.J. Plaintiff appealed.

COUNSEL

Michael H. Egnal, for appellant.

Levy Anderson, First Deputy City Solicitor, with him Gordon Cavanaugh, Assistant City Solicitor, James L. Stern, Deputy City Solicitor, and David Berger, City Solicitor, for Zoning Board of Adjustment, appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Musmanno

[ 396 Pa. Page 58]

OPINION BY MR. JUSTICE MUSMANNO

One passing by plane over the area along the Roosevelt Boulevard in North Philadelphia, where it intersects with Hartel Street, might gain the impression he was looking upon a reproduction of the historical scene of Conestoga Wagons poised for their dash into the newly-opened Oklahoma Territory. A closer inspection would reveal, however, that the assumed pioneer wagons are in fact auto-trailers with protruding tongues ready to lick up the highway behind automobiles, to which they are babblingly attached for transportation of household goods, furniture and other rattling cargo.

[ 396 Pa. Page 59]

These trailers are rented and sold by Roger J. Bennett who operates a gasoline service station at this point (7800 Roosevelt Boulevard). The trailers differ in size, weight and construction, ranging in weight from 500 to over 1,000 pounds, varying in length from 5 feet to 14 feet, and differing in type - being two and four-wheeled vehicles, open and roofed. The people living in the area, which is zoned partly "B" and "C" Residential, object to the presence of the serried ranks of trailers with their accompanying dollys. They complain that the traffic turmoil caused by the attachment of these vehicles to their mother cars, their maneuvering into position and taking to the highways, all create noises, smells, and a general hubbub which are inimical to the health, welfare, and safety of the community.

In an appropriate proceeding, following a duly constituted hearing, the Zoning Board of Adjustment of Philadelphia agreed with the protestants and ruled that Bennett's use of his land (a three-quarter acre plot) in the clamorous manner indicated constituted a violation of the Philadelphia Zoning Ordinance. Bennett appealed from this decision to the Court of Common Pleas No. 7 of Philadelphia County which affirmed the action of the zoning board, and he then appealed to this Court.

Mr. Bennett contends here, as he maintained before the zoning board and the court of common pleas, that the trailer business which he conducts is an activity inextricably part of his gasoline service business. But even his operation of a gasoline service station in the tranquil and attractive residential district on Roosevelt Boulevard is already a departure from what is ordinarily allowed in that area. It was only because the Court of Common Pleas No. 2 of Philadelphia County, (March Term, 1956), specially allowed him to

[ 396 Pa. Page 60]

    use his property for a gasoline service station that he can be in business there at all. Being, then, already in enjoyment of one exception to the zoning regulations he seeks a full accordion expansion of that exception to the point where he may engage in a ...


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