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SUNOCO OIL COMPANY v. ZONING BOARD ADJUSTMENT. CHARLES BLUMENTHAL ET AL. (08/03/79)

decided: August 3, 1979.

SUNOCO OIL COMPANY
v.
ZONING BOARD OF ADJUSTMENT. CHARLES BLUMENTHAL ET AL., APPELLANTS



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Sunoco Oil Company v. Zoning Board of Adjustment; Appeal of Charles Blumenthal et al., No. 3894 February Term, 1974.

COUNSEL

Jerry L. Cohen, with him Marvin I. Block, for appellants.

Sheldon L. Albert, City Solicitor, with him James M. Penny, Jr., Deputy City Solicitor, and Ralph J. Teti, Assistant City Solicitor, for appellees.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 44 Pa. Commw. Page 573]

Charles Blumenthal (appellant), on behalf of himself and approximately 250 residents, appeals an order of the Court of Common Pleas of Philadelphia County affirming the granting of a variance to Sunoco Oil Company (Sunoco) by the Philadelphia Zoning Board of Adjustment (Board).

On October 2, 1973, Sunoco submitted an application to the Philadelphia Department of Licenses and Inspections (Department) for a zoning and use permit to demolish an existing gas station located on the

[ 44 Pa. Commw. Page 574]

    west corner of Castor Avenue and Rhawn Street, Philadelphia. Sunoco sought to replace the station with a car wash and gas station with accessory off-street parking. The premises are located in a C-2 Commercial Zone. The Department refused to issue the permit, finding that the proposed use was not permitted under Section 14-303 of the Philadelphia Code (Code).*fn1 Sunoco appealed to the Board, contending that its application had met the requirements for a variance under Section 14-1802 of the Code and for a Zoning Board of Adjustment certificate under Section 14-1803 of the Code.

A public hearing was held on December 11, 1973, at which time Sunoco informed the Board it was seeking a Board certificate. The Board, however, stated that, since Sunoco was appealing the Department's

[ 44 Pa. Commw. Page 575]

    denial of a use permit, it understood Sunoco to be requesting a variance. After indicating its disagreement with the Board, Sunoco proceeded to present expert testimony on the physical and mechanical makeup of the car wash and the commercial nature of the surrounding community and on the fact that the car wash would not unduly add to the traffic on the Castor and Rhawn thoroughfares. In addition, testimony was presented that the car wash would pose little or no fire hazard and that a maximum of one gallon of fresh rinse water per car would reach the street. The protestants countered this evidence with testimony expressing their concern over increased traffic if the car wash were permitted and potential problems associated with water coming onto Rhawn Street.

After hearing this conflicting evidence, the Board granted Sunoco a variance. The Court of Common Pleas of Philadelphia County, without taking additional ...


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