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.
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,
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).
The Philadelphia Code defines an accessory use as one subordinate to the main use and ...