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STOKES v. ZONING BOARD ADJUSTMENT. (01/16/61)

January 16, 1961

STOKES, APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT.



Appeal, No. 313, Jan. T., 1960, from order of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1957, No. 525, in case of Samuel Stokes, Jr. v. Zoning Board of Adjustment. Order affirmed.

COUNSEL

Alexander E. Bragdon, for appellant.

Levy Anderson, First Deputy City Solicitor, with him Matthew W. Bullock, Jr., Assistant City Solicitor, James L. Stern, Deputy City Solicitor, and David Berger, City Solicitor, for zoning board of adjustment, appellee.

Before Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Cohen

[ 402 Pa. Page 509]

OPINION BY MR. JUSTICE COHEN.

This is an appeal from the order of the Court of Common Pleas No. 2 of Philadelphia County affirming the Zoning Board of Adjustment's refusal to grant a permit for an alleged nonconforming use.

After being served with a notice of violation by the zoning administrator, the appellant, Samuel Stokes, Jr., filed an application with the appellee Zoning Board of Adjustment (Board) in which he sought permits for (1) the storage of contractors' equipment and materials and (2) a repair shop for contractors' equipment. Both uses were sought as nonconforming uses, rather than as variances, in a "C" residential district. The Board granted a permit for the storage of contractors' equipment but refused a permit for the repair shop. Appellant appealed from this refusal and contestants appealed from the permit granted. Both appeals were consolidated in the court of common pleas which remanded the case to the Board for additional testimony on the nature and type of uses of the property in question in the year the Philadelphia Zoning Ordinance was enacted (1933). The Board heard additional testimony from both sides and subsequently published supplemental findings reaffirming its original decision.

The testimony before the Board can be summarized as follows. The present owner, appellant, purchased the grounds in 1923. At that time he had about thirty-two horses and twenty assorted wagons and other pieces of contractors' equipment which he stored on the premises. He rented this equipment to others for hauling and excavation work. Subsequently a frame hut to house a blacksmith shop was built and rented to another party. The testimony conflicted as to whether it was built in 1925 or after 1933. It was used to shoe

[ 402 Pa. Page 510]

    horses and to repair the vehicles on the premises, but there was conflicting testimony as to whether the blacksmith, in addition, did work for the public generally. The blacksmith shop continued operations until 1951 when the building burned.

About 1925, appellant built a frame building on the premises with stalls for fifteen to twenty horses. He rented these horses with his wagons and occasionally stored horses of others. Sometime after 1933, the building ceased to be used as a stable and was used to house automotive vehicles until it too burned in 1951. It was then rebuilt and leased to a trucking company. After the trucking company failed, appellant took over the property, moved in the present machinery and began to operate a business of repairing broken tractor treads and heavy earth-moving equipment, as well as contractors' equipment.

The blacksmith shop had the usual modest blacksmith's equipment - anvil, common forge and various hand tools. The present operation includes two electric welders, one portable welder, a verticle press, crane and a ...


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