decided: March 14, 1967.
ZONING BOARD OF ADJUSTMENT (ET AL., APPELLANT)
Appeals from order of Court of Common Pleas No. 2 of Philadelphia County, March T., 1965, No. 2916, in case of Jerome Gross v. Zoning Board of Adjustment.
Levy Anderson, First Deputy City Solicitor, with him Edgar R. Einhorn, Assistant City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for City of Philadelphia, defendant.
Reuben E. Cohen, with him Abraham L. Shapiro, Harold Greenberg, and Cohen, Shapiro, Berger & Cohen, for plaintiff.
Bell, C.j., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen.
[ 424 Pa. Page 604]
These are cross appeals in a zoning case.
In 1959, the Zoning Board of Adjustment of the City of Philadelphia (Board) granted to Jerome Gross two variances: one to use a property owned jointly with his wife, zoned "R-10" Residential,*fn1 as a bowling alley; and, the other to increase the size of the building so as to cover one hundred per cent of the lot.*fn2
In 1965, the Pennsylvania Liquor Control Board approved the transfer of a liquor license to the premises,
[ 424 Pa. Page 605]
subject to the construction of appropriate facilities. Gross then partitioned off a part of the building interior from the bowling alley area, and installed therein facilities necessary for the operation of a restaurant, snack bar and luncheonette. This restaurant area measures twelve feet by fifty-one feet.
Shortly thereafter, Gross applied to the Board for a permit to operate a restaurant, snack bar and luncheonette on the premises, including the sale of alcoholic beverages for the convenience of his bowling customers. The permit was denied. On appeal, the Court of Common Pleas of Philadelphia County concluded that the proposed restaurant facility constituted an "accessory use" to the bowling alley, as that term is defined in the Philadelphia Zoning Code,*fn3 and that the Board erred as a matter of law in denying the permit for this facility. However, the court further ruled that the sale of alcoholic beverages is not such an accessory use to a bowling alley and affirmed the Board's action in denying the permit to use the premises for this purpose. Upon petition of both Gross and the City, we granted certiorari under Rule 68 1/2 and both filed timely appeals. Since no additional testimony was taken in the court below, our review is limited to the determination of whether or not the Board committed an error of law or was guilty of a manifest abuse of discretion: Brennen v. Zoning Board of Adjustment, 409 Pa. 376, 187 A.2d 180 (1963).
Appeal of City (No. 365)
The Philadelphia Code defines an accessory use as one subordinate to the main use and customarily incidental
[ 424 Pa. Page 606]
thereto. See footnote 3, supra. The City contends that a restaurant facility is not "customarily incidental"*fn4 to the operation of a bowling alley. However, the uncontradicted testimony in the record is to the contrary. It establishes that a very substantial percentage of bowling alleys in the Philadelphia area have restaurant facilities of the nature and extent involved herein.
The record also discloses that the proposed restaurant facility will not be a new or independent enterprise, but merely ancillary to the main business; that it will entail no expansion of the present building; that it will occupy only 3.5% of the business premises; and, that the income will constitute only a small fraction of the gross business income. Under these facts, we agree with the lower court that the proposed restaurant facility is an accessory use under the particular code.
But says the City, even if the restaurant facility meets the requirements of an "accessory use" under the code, it still should not be permitted because the bowling alley itself exists only by way of variance, and an accessory use may not be tacked on to uses permitted by variances.
We have found no case directly in point and textbook authority offered no answer to the problem.*fn5
[ 424 Pa. Page 607]
so, then logic and fairness compel the conclusion that the granted use may be added to by a normal and reasonable use flowing therefrom. The contrary would be similar to giving one a cake but denying him reasonable frosting therefor.
Appeal of Gross (No. 387)
The main thrust of this appeal is, that the denial of the permit to sell alcoholic beverages on the premises is in effect an attempt by the municipality to invade the exclusive domain of the Pennsylvania Liquor Control Board, and control the dispensing of alcoholic beverages under the guise of zoning regulations, contrary to our ruling in Sawdey Liquor License Case, 369 Pa. 19, 85 A.2d 28 (1951). With this we do not agree.
Aside from the fact that Sawdey is factually dissimilar, we are not here confronted with an ordinance banning the dispensing of liquor generally, but merely the interpretation and enforcement of a pre-existing zoning code by the body invested with that responsibility. It is perfectly legitimate for a municipality to reasonably regulate the multiplication of nonaccessory uses arising out of an initial nonresidential use or business in a residential neighborhood. The fact that a liquor license is available for the premises does not relieve Gross of complying with existing zoning regulations. See Veltri Zoning Case, 355 Pa. 135, 49 A.2d 369 (1946).