Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Allright Auto Parks, Inc. v. Zoning Board of Adjustment of City of Philadelphia, No. 3818 August Term, 1985.
Donald W. Kramer, with him, Craig E. Ziegler and Frances A. McElhill, Montgomery, McCracken, Walker & Rhoads, for appellant.
Francine Thornton Boone, Assistant City Solicitor, for appellee.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.
[ 107 Pa. Commw. Page 449]
Allright Auto Parks, Inc., a zoning applicant, has appealed from an order of the Court of Common Pleas of Philadelphia County which affirmed a decision of the Philadelphia Zoning Board of Adjustment refusing permission to erect an eight-foot kiosk on the north side of Chestnut Street. The board and the court both concluded that a thirty-five-foot building minimum height requirement in the Philadelphia zoning ordinance applied to the north side of Chestnut Street so as to prohibit the proposed eight-foot structure.
On the basis of an undisputed set of facts, the only question presented is purely one of law -- whether, under the zoning ordinance terms, the minimum height requirement is applicable only to the south side of Chestnut Street and therefore does not regulate structures proposed for the north side of that artery where the kiosk site is proposed.
Facts and Ordinance Provisions
Subsection 14-1607(6) of the Philadelphia Code reads as follows:
§ 14-1607. Special Controls for the Center City Commercial Area
(6) Bulk and Height Controls. No building shall be erected which is within an area two hundred fifty (250) feet of the south side of Chestnut Street between Front Street and a point one hundred thirty (130) feet east of Broad Street . . . unless there is compliance with the following height and bulk controls:
(a) The main cornice line abutting the south side of Chestnut Street . . . shall not exceed
[ 107 Pa. Commw. Page 450]
fifty (50) feet in height above the sidewalk level; provided, that no portion of any building within two hundred fifty (250) feet south of the southerly properly [sic] line of Chestnut Street . . . shall exceed this fifty (50) feet height limitation unless the portion or portions above this fifty (50) feet height limitation recede from the plane of the cornice line a distance equal to or greater than the distance it extends above the fifty (50) feet height limit; provided further, that in no case shall any portion or portions of a building exceed three hundred (300) feet in height.
(b) The main cornice line on any building erected on land abutting Chestnut Street . . . shall not be less than thirty-five (35) feet above the sidewalk level.
The proposed Chestnut Street site of the kiosk is near the intersection of Eighth Street and unquestionably is therefore within the ordinance's named east-west (Front Street-Broad Street) limits. Nor is there any dispute that, for the purposes of the ordinance, a kiosk is a "building" and that the phrase "cornice line" in the ordinance refers to the high point of a building for height limit purposes.
Furthermore, although the passage referring to "an area two hundred fifty (250) feet south of the south side of Chestnut Street," if taken literally, describes only a one-dimensional line rather than a two-dimensional area, the parties do not disagree with reading that passage as if it described "an area extending two hundred fifty (250) feet south from the south side of Chestnut Street. . . ."
Literal Terms of the Ordinance
Of course, the difficulty arises from the point that the potentially determinative minimum height provision
[ 107 Pa. Commw. Page 451]
in paragraph (6)(b) consists of a single sentence stating that the high point of "any building erected on land abutting Chestnut Street" shall not be less ...