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FUN BUN v. ZONING BOARD ADJUSTMENT (05/26/72)

decided: May 26, 1972.

FUN BUN, INC.
v.
ZONING BOARD OF ADJUSTMENT



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Fun Bun, Inc. v. Zoning Board of Adjustment and St. Vladimir's Ukrainian Orthodox Church and Neighborhood Residents, Intervenors, No. 3732 June Term, 1970.

COUNSEL

Ronald H. Beifeld, Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Levy Anderson, City Solicitor, for appellant, City of Philadelphia.

John D. Egnal, with him Michael H. Egnal, Egnal and Egnal, P.A., and Fineman & Fineman, for appellee.

C. George Milner, with him Perrin C. Hamilton, and Hamilton, Darmopray, Malloy & Milner, for St. Vladimir's Ukrainian Orthodox Church.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.

Author: Mencer

[ 5 Pa. Commw. Page 440]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County reversing the decision of the Zoning Board of Adjustment of Philadelphia (appellant) which affirmed the refusal of the Department of Licenses and Inspection to issue a permit to appellee, Fun Bun, Inc. (Fun Bun), to use the premises 6744 North Fifth Street, Philadelphia, as a parking lot to serve as an adjunct to the contiguous property, 6742 North Fifth Street, upon which is located a Fun Bun restaurant. The court below having

[ 5 Pa. Commw. Page 441]

    taken no additional testimony, our duty is to determine whether the Board abused its discretion or committed an error of law.

The subject premises is located on the west side of Fifth Street, 100 feet north of its intersection with Independence Street. The property's frontage on Fifth Street is 76 feet and the lot's depth is 150 feet. The property is zoned R-4 Residential and presently is occupied by a large, abandoned house. The adjacent lot, 6742 North Fifth Street, which is zoned C-2 Commercial, is a corner lot with a 100-foot frontage on Fifth Street and 150-foot frontage on Independence Street.*fn*

Fun Bun argues that, under the Philadelphia Zoning Code, it has an absolute right to use the subject premises as an accessory parking lot to its restaurant and that there is no need for it to obtain a variance. Appellant and the intervenors contend that since Fun Bun's application was for the entire area of 6744 North Fifth Street to be used as a parking lot, this proposed use was a main or principal use and a variance was therefore necessary.

The subject property being zoned R-4 Residential, only specific main or principal uses are permitted under Code § 14-205(1), none of which is a parking lot. Also, under Code § 14-1402(8) no residential property may have a parking lot as its main or principal use.

Is, however, Fun Bun's proposed parking lot an "accessory use" to its restaurant on the adjoining lot? "Accessory Use" is defined by the Code, § 14-102(2), as follows: "A use, including all necessary public utility facilities, subordinate to the main use ...


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