5 Pa. Commw. 439 | Pa. Commw. Ct. | 1972
Opinion by
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
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 Besidential 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.
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 B-4 Besidential, 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 on the lot and customarily incidental to the main use, excluding
We note also that a consolidation of the two properties would result in a split-zoned lot, partially commercial and partially residential. Where two adjacent lots are split-zoned commercial and residential, and the owner proposes a single commercial use, the appropriate procedure is to request a variance to use the residential parcel for commercial purposes. “Where ... a variance to permit property in a residence district to be used for parldng as an adjunct to business use in the adjacent business district [is at issue] . . . [t]he extent of inconvenience or hardship enuring to the commercially zoned property through lack of a parking lot is irrelevant; the variance is improperly granted if the residentially zoned property can reasonably be used for the purposes to which the ordinance restricts it. ...” 3 A. Bathkopf, The Law of Zoning and Planning §75-9 (1960). The Board thus refused a variance because at no time did Fun Bun present the requisite evidence which both the Code (§14-1802) and the case law require in order to secure a variance. See Henry Jacobs v. Philadelphia Zoning Board of Adjustment, 1 Pa. Commonwealth Ct. 197, 273 A. 2d 746 (1971).
Finally, since Code. §14-205(1) does not permit a restaurant as a principal use in a R-4 Residential district, it also prohibits any use accessorial to a restaurant. Therefore, Fun Bun, under the single-lot theory
Order reversed..
In recently deciding that the rezoning of 6742 North Fifth Street from R-4 Residential to C-2 Commercial was not illegal “spot zoning”, we described in detail the general area of the subject premises. St. Vladimir’s Ukrainian Orthodox Church v. Fun Bun, Inc., 3 Pa. Commonwealth Ct. 394, 283 A. 2d 308 (1971).