May 9, 1980.
Zoning — Expansion of non-conforming use — Extension of use within a structure — Public welfare.
1. A finding by a zoning board that a property use was a valid non-conforming use will not be disturbed on appeal when supported by the evidence and not resulting from the commission of an error of law. 
2. Under a zoning ordinance which permits an expansion of the overall structure of non-conforming uses of up to ten percent without proof of the absence of injury to the public welfare, the extension of a non-conforming use wholly within a single structure is also permitted. 
Submitted on briefs, April 11, 1980, to Judges WILKINSON, JR., ROGERS and MacPHAIL, sitting as a panel of three.
Appeal, No. 1583 C.D. 1978, from the Order of the Court of Common Pleas of Philadelphia County in case of Zoning Board of Adjustment and Darlene Bar, Inc. v. Ogontz Area Neighbors Association and St. Mark's Church, No. 5405 May Term, 1976.
Issuance of building permit appealed by protestants to the Zoning Board of Adjustment of the City of Philadelphia. Appeal dismissed. Protestants appealed to the Court of Common Pleas of Philadelphia County. Decision affirmed. GELFAND, J. Protestants appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
David Cohen, for appellants.
Ronald H. Beifeld, Assistant City Solicitor, for appellee.
Donald M. Moser, for intervenor.
In November of 1975 Darlene Bar, Inc. (applicant), the owner of a parcel of land and building, applied for and was granted a building permit for interior alterations to a bar-restaurant and apartment. On December 19, 1975 the Ogontz Area Neighbors Association and St. Mark's Church (jointly referred to as protestants) appealed the issuance of the permit to the Zoning Board of Adjustment (Board). Public Hearings were held on the appeal April 1, 1976 and April 8, 1976, and on January 9, 1978 the Board dismissed the appeal. In its opinion the Board found that the permit was issued on the basis that use being expanded existed in that building prior to enactment of the zoning ordinance on August 10, 1933.
It appears that the appeal was untimely filed under the Zoning Code of Philadelphia County and the rules adopted thereunder, Herdelin v. Greenberg, 16 Pa. Commw. 405, 328 A.2d 552 (1974); however this issue was not properly raised for our consideration.
Protestants appealed the Board's decision to the Philadelphia Court of Common Pleas. That Court affirmed the Board's decision by order of June 12, 1978, which order is now on appeal before us.
While protestants indicate that they disagree with the determination that the use now being expanded was a valid non-conforming use, we must accept this finding of the Board which is supported by its record and is not an error of law. Southland Corporation v. East Caln Township Zoning Hearing Board, 45 Pa. Commw. 591, 405 A.2d 1078 (1979).
Protestants further argue that, even if the bar-restaurant of applicant does constitute a preexisting non-conforming use, an extension of this use into the portion of the same structure which has been used for dwelling purposes should not be permitted because the dwelling use is a conforming one. Protestants assert that enlarging the use could change its character and be detrimental to the public health, morals, safety and general welfare.
Section 14-104(7) of the Zoning Code of Philadelphia allows an expansion of the overall structure of non-conforming uses of up to ten percent as a matter of right, with no necessity of proving the absence of injury to the public interest. Philadelphia v. Angelone, 3 Pa. Commw. 119, 280 A.2d 672 (1971). Similarly the extension of a use within a single structure must also be permitted.
Accordingly, we will enter the following
AND NOW, May 9, 1980, the order of the Court of Common Pleas of Philadelphia County, docketed at No. 5405 May Term, 1976, denying the appeal of Ogontz Area Neighbors Association and St. Mark's Church and affirming the decision of the Zoning Board of Adjustment, is affirmed.