Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Emil Milewski v. City of Philadelphia, No. 4499 March Term, 1975.
Ronald H. Beifeld, Assistant City Solicitor, with him James M. Penny, Jr., Assistant City Solicitor, Raymond Kitty, Deputy City Solicitor, and Sheldon L. Albert, City Solicitor, for appellants.
Irvin Stander, for appellee.
Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.
Franco Datillo, who is not a party to this appeal, purchased a property at the corner of Rhawn and Horrocks Streets in the City of Philadelphia in or about the year 1973. As is customary in Philadelphia, the realtor who negotiated the sale ordered a so-called Certification Statement from the Department of Licenses and Inspections, the purpose of which is to reveal any zoning violations concerning the property appearing in the City's records. The Certification Statement received stated that the present use of the property was legal. The description of the use appearing on the Certificate was, however, "Grocery & Meat Market."
Datillo's property is located in a C-Commercial zoning district but adjoins an R-5 Residential district. The building located on the property was and has been used as a grocery and meat market for many years. The subject of this lawsuit, however, is the legality of the continued existence of a fruit and vegetable
stand -- a structure consisting of boxes and crates, a canvas awning and wire mesh sides -- which is now and has been for about 18 years, located on the sidewalk of Rhawn Street adjacent to the building. The fruit and vegetable stand may have been conducted by a former owner of the property but Datillo has rented it to another for an undisclosed sum of money.
It is conceded that the fruit and vegetable stand is an illegal nonconforming use of Datillo's property. It violates two provisions of the City's zoning ordinance, the first one providing that every structure be set back at least eight feet from the building line,*fn1 and the second a requirement that every use in the district be conducted within a completely enclosed building.
The appellee in this appeal, Emil Milewski, complained to City authorities of the existence of the fruit and vegetable stand. Datillo applied for a zoning permit which was refused by the Department of Licenses and Inspections. Datillo appealed from the action of the Department of Licenses and Inspections to the Board of Adjustment, pleading unnecessary hardship, which we interpret as a request for a variance. In any event, the Board of Adjustment, after hearing, granted a variance. Mr. Milewski appealed the Board's action to the Court of Common Pleas which, without taking additional evidence, reversed the Board. Datillo has not appealed the lower court's decision but, curiously, the City of Philadelphia has. It has printed the substantial record and an assistant city solicitor has vigorously briefed and argued that this unlawful, nonconforming, and we might add, based on photographs appearing in the record, inappropriate activity should be allowed as a variance to the requirements of the City's ordinance applicable
to every other property in the C-5 ...