Appeal from the Order of the Court of Common Pleas of Philadelphia County, No. 5637 August Term, 1970, in case of St. Vladimir's Ukrainian Orthodox Church v. Fun Bun, Inc., and The Zoning Board of Adjustment of the City of Philadelphia.
John D. Egnal, with him Michael H. Egnal and Egnal & Egnal, for appellant.
Ronald H. Beifeld, Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Levy Anderson, City Solicitor, for City of Philadelphia.
Perrin C. Hamilton, with him C. George Milner and Hamilton, Darmopray, Malloy & Milner, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Kramer. Dissenting Opinion by Judge Crumlish, Jr.
This is an appeal from an Order and Opinion of the Court of Common Pleas of Philadelphia County, sustaining the appeal of St. Vladimir's Ukrainian Orthodox Church, appellee (Church), from an adjudication of the Zoning Board of Adjustment of the City of Philadelphia, intervenor (Board). The Board had dismissed the appeal of the Church arising out of the issuance of a zoning and use permit to Fun Bun, Inc., appellant (Fun Bun), for the demolition of an existing building and the erection of a quick-service restaurant. The dimensions of the subject property are one hundred feet by one hundred-fifty feet, and it is located on the northwest corner of North Fifth and Independence Streets in the City of Philadelphia. North Fifth Street is a wide (six lanes) thoroughfare, and Independence Street is a narrow, one-way street directing traffic onto North Fifth Street. Directly across Independence Street southwardly, on the opposite corner, is located the church building of the appellee, and directly behind the subject property of Fun Bun to the west is a parking lot owned and operated for church purposes by the appellee. To the north of the subject property, in the same block, are five lots. Moving northwardly, the adjoining lot contains a vacant residence building owned by Fun Bun, which lot is the subject of another zoning lawsuit pending before the Common Pleas Court of
Philadelphia concerning an application by Fun Bun for a variance, so that this adjoining lot could be used as a parking lot in conjunction with the operation of the quick-service restaurant on the subject property. The next two lots to the north are existing residential properties. The fourth lot is used for a veterinary hospital under a variance granted by the Board, and the last lot to the north is used as a funeral home, also existing under a variance granted by the Board. These last two lots are also used as residences by the operators of those two businesses. The five lots adjoining the subject property are all zoned R-4. The subject property is zoned C-2, under which a restaurant, of the type operated by Fun Bun, is a permitted use. To the east, directly across North Fifth Street from the subject property, is a triangular-shaped city block zoned C-2, which is used as a shopping center containing two super markets and a pizzaria. The entire block along North Fifth Street to the east of the subject property was rezoned from R-5 and R-9 Residential and partially C-2 Commercial to the neighborhood shopping center classification by a 1955 zoning ordinance.
The subject property was rezoned from R-4 Residential to C-2 Commercial by a zoning ordinance passed in December of 1959, before Fun Bun purchased it. One block to the south of the subject property is a gasoline station, existing under a variance granted by the Board in 1954. It is interesting to note that the church and parish house of the appellee exist under a variance granted by the Board in 1964, and the parking lot adjoining the subject premises to the west apparently exists without a city permit. It can be seen from the above description that the subject premises is surrounded on three sides by commercial or nonresidential type usages, and to the north by at least two usages which also would be considered commercial, although three lots removed.
Although the subject premises was rezoned from R-4 Residential to C-2 Commercial in 1959, a residence structure remained on the subject lot until January 23, 1970, when Fun Bun purchased the lot. On December 23, 1969, Fun Bun made application for a permit to demolish the then existing residential building, and the erection of the restaurant with accessory parking. The application was granted, and the permit was issued by the Department of Licenses and Inspections for the City of Philadelphia on December 24, 1969, and on May 8, 1970, the Church filed its appeal with the Zoning Board of Adjustment.
The record is clear that the 1959 ordinance, which rezoned the subject property to C-2 Commercial, was in accord with the then existing comprehensive plan of the City of Philadelphia, and met all of the statutory requirements. The Church, in its brief, attempted to raise in this case the issues concerning the pending variance matter before the Common Pleas Court of Philadelphia. Inasmuch as that matter is not before this Court, we are not passing upon the issues of that case in this opinion. The sole issue before this Court is whether ...