
    Kahn v. Seeds et al.
    No. 2
    
      Robert T. McCracken, for plaintiff.
    
      G. Coe Farrier, assistant city solicitor, for defendants.
    April 3, 1934.
   Heiligman, J.,

This matter comes before the court on the petition of a property owner to review the decision of the Board of Adjustment administering the zoning ordinance of the City of Philadelphia enacted pursuant to the provisions of the Act of May 6, 1929, P. L. 1551.

The petitioner, Charles Kahn, is the owner of premises situate at the southwest corner of Seventy-fourth Street and Ogontz Avenue, in the City of Philadelphia, having purchased the same on June 5, 1933. On July 6, 1933, the petitioner leased the premises to Gulf Refining Company for a term of 10 years for the purpose of maintaining a gasoline service station on the property. The lease did permit cancellation in the event of inability to use the property for that purpose. On August 1, 1933, a building permit was duly issued to the petitioner for the erection of a one-story gasoline service station on the property. Upon receiving the building permit and prior to August 10, 1933, the petitioner contracted for all of the materials and equipment for the erection of the gasoline service station and the construction began.

Pursuant to the Act of May 6,1929, P. L. 1551, on August 10,1933, a zoning ordinance was enacted by the City of Philadelphia, under which ordinance the premises in question were classified as being included in a class “B” residential district. The use of any property in a class “B” residential district for a gasoline service station is prohibited by the zoning ordinance. The ordinance further provided that, with certain exemptions, use registration permits are required for every use of a property commenced after the passage of the ordinance and penalties and fines are imposed for failure to comply with the provisions of the ordinance. The petitioners, as provided by the ordinance, applied to the Bureau of Engineering, Surveys, and Zoning for a use registration permit for a gasoline service station on the premises above mentioned, which application was refused. The petitioner then appealed to the Board of Adjustment, also as provided in the ordinance and upon public hearing, the appeal was dismissed. Upon a certiorari, the matter was brought into this court for review.

The facts in this case are similar to those presented in the case of Kahn v. Seeds et al. (No. 1), 20 D. & C. 361, in which an opinion has been filed this day. For the reasons set forth in that case, we are of the opinion that the provisions of the zoning ordinance of August 10, 1933, are not applicable to the property in the instant case, and therefore no use registration permit would be required. We are also of the opinion that the petitioner has pursued his proper remedy. The appeal is sustained.

Decree

And now, April 3,1934, in accordance with the opinion heretofore filed, it is ordered and decreed that the decisions of the Bureau of Engineering, Surveys, and Zoning, and of the Board of Adjustment administering the zoning ordinance of the City of Philadelphia, which were brought before this court for review, are hereby reversed.  