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decided: February 22, 1971.


Appeal from the order of the Court of Common Pleas of Philadelphia County, Trial Division, No. 2058 October Term, 1968, in case of John L. Esterhai, William Snyder, Clinton S. Seltzer and Clarence Maiden v. The Zoning Board of Adjustment of Philadelphia. Appeal transferred September 14, 1970 to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.


Austin M. Lee, for appellants.

Carl K. Zucker, Deputy City Solicitor, with him Thomas A. Matthews, Assistant City Solicitor, Matthew W. Bullock, Jr., First Deputy City Solicitor, Levy Anderson, City Solicitor, for appellee, the City of Philadelphia.

Daniel Sherman, for appellee, Joseph A. Charles.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Barbieri. Opinion by Judge Barbieri. Dissenting Opinion by Judge Manderino.

Author: Barbieri

[ 1 Pa. Commw. Page 362]

This zoning case is before us by transfer order of the Supreme Court entered on September 14, 1970 pursuant to the authorization in Section 507 of the Appellate Court Jurisdiction Act of 1970. Act of July 31, 1970, P.L. (Act No. 223 -- 1970), effective September 11, 1970.

The appeal is from an order by the Philadelphia Common Pleas Court which purports to affirm the grant of a variance by the Zoning Board of Adjustment

[ 1 Pa. Commw. Page 363]

    of Philadelphia, but also remands the matter with instructions to "take testimony in accordance with the tenor of this opinion so that the quiet enjoyment of the citizens living in the residential properties . . . [in the neighborhood] . . . will not be adversely affected." This order was entered on November 12, 1969 after argument before the lower court without the taking of testimony.

After this appeal was taken, an additional "Opinion" was filed by the lower court judge on January 7, 1970, wherein he asserts ". . . that in my judgment the Zoning Board of Adjustment did not act capriciously and did not commit an error of law. However, I thought it inherent in the power of this Court to afford better protection to the residents and property owners adjacent to the proposed car lot . . . and for that reason added the protective features as set forth in my order of remand to the Zoning Board of Adjustment."

The "features" referred to will be dealt with later in this opinion.

The variance granted was to use the premises in question as a used car lot. The specific area which would be freed from the zoning restriction by the variance is part of a larger property owned for many years by the applicant, Joseph A. Charles, and referred to in the proceedings as "Premises 8300 Ridge Avenue". This property has been "split-zoned" throughout the period of Charles' ownership, one part C-2 Commercial and the other part, involved here, R-5 Residential. The R-5 Residential District in Philadelphia limits the land use to single family dwellings, subject to certain qualifications imposed in the Code. The Philadelphia Code, Zoning and Planning, ยง 14-206. The entire land area is more than two acres, approximating 100,000 square feet, with three street frontages: 360 feet along Ridge Avenue, 248 feet on Port Royal, and 344 feet on Harner

[ 1 Pa. Commw. Page 364]

Street. The fourth side runs 341 feet along the rear lots of residential properties which front on Ivin's Road.

In 1947, Charles built on the C-2 Commercial area of his property a one-story cinder block structure, 60' x 100', in which he originally conducted a rug cleaning business. In 1952, he added a second similar type building, 50' x 145', used for the retail sale of clothing. Approximately one-half of the latter structure is in the R-5 Residential area of the applicant's property. The zoning history reveals that in 1961 the Board authorized use for rug cleaning, retail clothing store and private parking lot. In 1965, when the 1961 uses had been discontinued, the Board granted use for retail sales of automobiles in an enclosed building and accessory parking. This grant of variance was appealed and an order by Judge Reimel for the Philadelphia Common Pleas Court was entered on June 1, 1966, affirming the grant of the variance, but with the proviso ". . . that accessory parking does not include outdoor display nor the storage or the sale of vehicles to the public. . . ." In 1967, the Board refused an application for use of the premises as a used car lot and the washing of cars indoors and outdoors by hand.

In 1968, the application which initiated the present proceedings was filed and brought before the Board to permit use "for retail sale of autos in an enclosed building, accessory parking and retail sales of autos on an open lot. . . ." (Emphasis added) After a hearing on September 17, 1968, the Board made a determination that the applicant had ". . . presented full and complete testimony to meet the criteria for the grant of a variance . . . subject to the following proviso: . . . Provide evergreen screen planting along entire north property line." This action by the Zoning Board, before the court below, is now before us.

[ 1 Pa. Commw. Page 365]

Appellants contend here, as they did before the lower court, that the proviso of Judge Reimel in affirming the 1965 variance imposed a res judicata restriction on the power of the Board when acting on the new application in 1968. Appellants also argue that the Board's action was an abuse of its discretion, an issue which our disposition of this case makes it unnecessary to reach. We think another question exists, the interlocutory nature of the lower court's decision, which we will consider first.

I. The Interlocutory Nature of the Lower Court's Order.

Not raised as an issue in briefs or argument is the fact that we are dealing here with an appeal from a remand order by the lower court, the ...

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