Philadelphia Art Alliance v. Zoning Bd. of Adjustment of City of Philadelphia

• Decision Date: 01 April 1954
• Parties: PHILADELPHIA ART ALLIANCE v. ZONING BOARD OF ADJUSTMENT OF CITY OF PHILADELPHIA. Appeal of ROSSMAN et al. Appeal of CENTER CITY RESIDENTS' ASS'N, Inc.
• Court: Pennsylvania Supreme Court

Page 492

104 A.2d 492

377 Pa. 144

PHILADELPHIA ART ALLIANCE v. ZONING BOARD OF ADJUSTMENT OF CITY OF PHILADELPHIA.

Appeal of ROSSMAN et al.

Appeal of CENTER CITY RESIDENTS' ASS'N, Inc.

Supreme Court of Pennsylvania.

April 1, 1954.

Rehearing Denied May 10, 1954.

W. Clark Hanna, Joseph Rossman, Philadelphia, for appellant.

Laurence H. Eldredge, Norris, Lex, Hart & Eldredge, Philadelphia, for appellee.

Before HORACE STERN, C. J., and ALLEN M. STEARNE, JONES, CHIDSEY, MUSMANNO and ARNOLD, JJ.

MUSMANNO, Justice.

The petitioner, Philadelphia Art Alliance, had applied for a use registration permit to extend an existing parking lot. The Zoning Board of Adjustment refused the application, but the lower Court, upon certiorari, and after hearing, reversed the Board's action and ordered the issuance of the requested permit. The Center City Residents' Association, Inc. and a group of twelve individual property owners, who had intervened in the action, filed exceptions which were stricken off by the Court. Whereupon, said intervenors took these appeals from (a) the court's order reversing the Board's action; and (b) the order striking off the exceptions.

The facts are as follows: On July 1, 1926, the Philadelphia Art Alliance, a nonprofit corporation, purchased by a single deed the site of its main building 251 South 18th Street (at the southeast corner of Rittenhouse Street--now Rittenhouse Square) and two adjoining lots, 1726 and 1728 Rittenhouse Street (now Rittenhouse Square).

Several months later, on September 18, 1926, the Art Alliance purchased by a single deed premises 1716, 1718, 1720, 1722 and 1724 Rittenhouse Square. Shortly thereafter (and before the adoption of the Philadelphia Zoning Ordinance here in question) the buildings then standing on the six lots 1718 to 1728 inclusive were demolished and the area of those six buildings was converted into a single public parking lot. This parking lot was leased to two successive outside operators for commercial public use, which use has continued uninterruptedly down to the present time. The building at 1716 Rittenhouse Square, however, was allowed to remain, and was used at various times as a residence, dance studio, art gallery and experimental theater both before and after the inception of the Zoning Ordinance.

On August 10, 1933, the Philadelphia Zoning Ordinance and accompanying zoning maps were adopted. By their provisions all the lots in the 1700 block of Rittenhouse Square on both sides of the street were classified as 'D-1' Residential, and a public parking lot was not and is not included as a permitted use in said area. Thus, the parking lot then in existence became a 'non-conforming use', permitted under Paragraph (1) of Section 4 of the Philadelphia Zoning Ordinance, which provided: 'Any land, the existing use of which at the time of passage of this ordinance does not conform with the regulations of the district in which it is located, shall have such use considered a non-conforming use, which may continue on such land but shall be subject to the regulations covering non-conforming uses.'

On July 7, 1952, however, the Art Alliance applied for a use registration permit to extend the parking lot (existing as a non-conforming use on lots 1718 through 1728 Rittenhouse Square) to include lot 1716.

In presenting its application to the Zoning Board, the Art Alliance urged that it was entitled to a permit for public parking on premises 1716 Rittenhouse Square because (1) The Act of 1929, P.L. 1551, sec. 8, 53 P.S. § 3829, empowered the Zoning Board, inter alia,

'To authorize, upon appeal, in specific cases, such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.'

(2) It was entitled to the permit as a matter of constitutional right by reason of the non-conforming use already existing on the adjoining lots which had been acquired by the same deed.

The Board found against the application on both grounds, but on certiorari, the court below reversed the Board's holding on the second ground, and held that the permit should have been granted as a proper extension of a non-conforming use in existence at the time of the enactment of the Zoning Ordinance. We affirm this action.

Paragraphs (6) and (7) of Section 4 of the Philadelphia Zoning Ordinance of 1933, as amended, specify the permissible extensions of non-conforming buildings and uses therein, and provide that 'no addition or structural alteration for such non-conforming use shall...