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SUHY v. ZONING BOARD ADJUSTMENT. (03/23/61)

March 23, 1961

SUHY, APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT.



Appeal, No. 135, Jan. T., 1961, from order of Court of Common Pleas No. 4 of Philadelphia County, March T., 1960, No. 3301, in case of Martin A. Suhy v. Zoning Board of Adjustment of City of Philadelphia. Order affirmed.

COUNSEL

Michael H. Egnal, for appellant.

James L. Stern, Deputy City Solicitor, with him Lenard L. Wolffe, Assistant City Solicitor, Levy Anderson, first Deputy City Solicitor, and David Berger, City Solicitor, for zoning board of adjustment, appellee.

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

Author: Musmanno

[ 402 Pa. Page 658]

OPINION BY MR. JUSTICE MUSMANNO.

Martin A. Suhy owns a lot in Philadelphia, part of which is occupied by a gasoline and oil station. He would like to use the remaining portion of his property for the sale, rental and storage of trailers, the sale and rental of passenger cars, and open air parking lot for pleasure and commercial vehicles. To this end he applied to the zoning board of adjustment for certificates which would permit the requested uses, all foreign to the present use of his land. The certificates were denied.*fn*

[ 402 Pa. Page 659]

An appeal to the court of common pleas brought an affirmance of the decision of the board, and an appeal to this Court followed. We adopt the lower Court's description of the land involved: "The land in question is zoned 'A' Commercial and is located at the Southwest corner of Ridge Avenue and Shurs Lane. It is an almost square lot; the frontage on Ridge Avenue is approximately two hundred and forty feet extending from the south side of Shurs Lane to the north side of Kingsley Street, with a depth of one hundred and seven feet six inches fronting on Shurs Lane, and a depth of one hundred and sixteen feet fronting on Kingsley Street. Appellant's gas and oil service station occupies the southwest corner of Shurs Lane and Ridge Avenue with a frontage of one hundred and seven feet six inches on Ridge Avenue. Immediately opposite appellant's land on Kingsley Street are the fronts of two story row residential dwellings; on the east side of Ridge Avenue opposite appellant's land are three story detached residential dwellings; west of appellant's land on both sides of Shurs Lane are two story row residential dwellings. Situated on the three remaining corners of Ridge Avenue and Shurs Lane are gas and oil service stations."

The certificate is an excellent instrument to permit within the center of a commercial area uses which generally harmonize with the business aspects of the area of the whole circle, but which would be wholly disharmonious to the pattern of urban development at the circumference of the circle. The appellant's property is not in the center of the commercial area. In fact, his land fronts residences on three sides. Despite his attempt to picture the district as one wholly committed to business and commercial enterprise, the geographical fact is that his property is but a projecting rock in an ocean of homes.

[ 402 Pa. Page 660]

What the appellant desires to do here is to increase his business. He entertains the natural desire to enlarge the periphery of his interests with a consequent augmentation in the flow of profits into his treasury. This is a laudable desire and entirely in keeping with the American spirit of individual enterprise. A man may start with a peanut stand and eventually acquire an empire of shelled and unshelled nuts, one may open up a bicycle shop and expand his business into a factory of meteoric racing cars. But where business is conducted within a built-up community the surging spread of activity may be such that government authority is called upon to arrest the industrial inundation in order to protect the welfare of the inhabitants in the affected area.

The appellant in his brief says: "It becomes increasingly difficult to comprehend how the Zoning Board of Adjustment, in considering a small city block in an 'A Commercial' district, could permit one portion to be used for a gasoline service station, permissive as a matter of right only in a General Industrial District (14-503(1)-(ee)), and deny the other portion for use for parking of automobiles and trailers for sale and rental and as a parking garage ...


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