
    Mentha Corporation v. Zoning Board of Adjustment of the City of Philadelphia and Captree Associates, Intervening Appellee.
    Argued February 10, 1971,
    before President Judge Bowman and Judges Crttmlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers.
    
      
      Judah L. Labovits, for appellant.
    
      Garl K. ZucJcer, Deputy City Solicitor, with him Matthew W. Bullock, Jr., First Deputy City Solicitor, Edward G. Bauer, Jr., and Levy Anderson, City Solicitor, for appellee city.
    
      Edward F. Beatty, Jr., with him Norman B. Bradley, for intervening appellee.
    March 24, 1971:
   Opinion by

Judge Wilkinson,

This case involves the very narrow point of the dimensions of a “lot” within the meaning of section 14-306(4) of the Philadelphia Zoning Code. Put another way, the question to be resolved is whether the area of the lot defined in section 14-306 (4) includes the area of an easement which, at ground level, the owner or developer cannot use, develop or build upon. This question has been passed upon in this case by many levels and departments of the city government. Initially, it was passed upon by the Department of Streets on December 31, 1968. Next there was an opinion of the Philadelphia Solicitor’s Office on March 18, 1969. This was followed by the Planning Commission making its computation of the size of the lot. Then the Zoning Board of Adjustment held a public hearing and made findings of fact and conclusions of law. An appeal followed to the Court of Common Pleas of Philadelphia. At all of these levels of decision, including a unanimous vote of the Zoning Board of Adjustment, the question has been decided in favor of appellee. This Court must affirm this decision.

The Philadelphia Code provides:

Ordinance Provisions

“(4) Floor Area. No building in this district shall have a gross floor area (as defined in §14-102(25)) greater than that permitted under the provisions herein set forth:

(a) Basic Floor Area. Every building in this district shall be permitted a gross floor area equal to 1200% of the area of the lot. . . .” (Philadelphia Planning Code, §14-306(4), February 29, 1956.)

It also provides the following definition:

“(32) Lot. A parcel of land designated by its owner or developer to be used, developed, or built upon as a unit[.]” (Philadelphia Planning Code, §14-102(32), February 29, 1956.)

Captree Associates, intervening appellee, is the owner of the Philadelphia lot in question. It is bounded by 18th Street on the east, 19th Street on the west, Kennedy Boulevard on the north, and Commerce Street on the south. In 1955, all agree the lot was 72 feet by 396 feet. At that time, Commerce Street was an ordinary surface street of 20 feet. By proper ordinance, the city “widened” Commerce Street by acquiring from the owners of the lot in question a 12-foot easement for a ramp to an underground bus terminal. The easement, in addition to being 12 feet wide, has an upper and lower limit plane. The maximum height of the easement from the lower level plane is 46 feet, and the above ground portion, due to the slope, varies from 17 feet to 14 feet above the normal surface. It is appellant’s position that when the 12-foot easement was granted, it reduced the lot size, under section 14-306 (4), from 72 feet by 396 feet to 60 feet by 396 feet. If appellant’s position were correct, the lot size would not support the floor space approved.

The ordinance defines “lot” as “a parcel of land designated by its owner or developer to be used, developed or built upon as a unit”. Under tbe easement restriction, tbe owner of tbe fee, intervening appellee, clearly bas tbe right to develop and use tbe full 72 feet by 396 feet above tbe 17-14 foot slope. Tbis, in itself, should conclude tbe matter. Appellant presses that ap-pellee cannot be considered to be building upon any part of tbe lot over which be does not have tbe right to obstruct all of the surface. Neither tbe city, tbe court below, nor tbis Court takes such a narrow view. Appellant contends that if appellee prevails, many owners of land in Philadelphia could compute tbe size of their lots for tbe purpose of section 14-306(4) to tbe center line of tbe street. We do not agree. In tbe ordinary street, including tbe original 20 feet of Commerce Street, tbe abutting owners do not control tbe air space as is tbe instance above tbis 12-foot section which lies higher than 17-14 feet.

It* is not surprising that counsel have been unable to find cases squarely in point and our research bas not uncovered any. Appellant relies on only one case as persuasive. Tbis is Matter of Brause, New York Law Journal 13 (December 5, 1968). In our view, that case is quite different from tbe case at bar. Indeed, in one sense, tbe facts are just opposite and, therefore, require an opposite result. There the owner of tbe “lot” acquired easements of light and air over tbe property of adjoining owners. He attempted to use tbe expanded area, over which be bad easements of light and air, in computing tbe size of Ms lot. He bad no ownership of tbe land below. Here, appellee owns tbe land below and it was be who granted an easement. Surely, the New York court in tbe Brause case would not have held that tbe owners of tbe land beneath tbe easements of light and air could not have used that land area in computing tbe size of their lots.

Accordingly, we affirm tbe judgment of tbe court below.  