Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Nicholas Urbano v. Upper Merion Township and Upper Merion Township Hearing Board, No. 70-12147.
James E. Meneses, for appellants.
Joseph L. Torak, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Mencer.
This appeal presents for consideration issues arising from the following incredible events:
1. A decision by the court below based upon no testimonial record at any stage of the proceedings.
2. The reopening of a zoning decision upon motion of the beneficiary of its decade long dormancy.
3. Injection into the confusion an obsolete pleading known as a Bill of Review in Equity.
As never before we find it imperative to trace the extraordinary history of this litigation before we attempt to apply the appropriate principles of law.
In April 1961, Roland Urbano, brother of and predecessor in title to appellee Nicholas Urbano, operated a restaurant in a residentially zoned tract in Upper Merion Township, Montgomery County. He applied for a permit to enlarge the building and after a hearing during which testimony was taken and scribed by a sound machine the Township Zoning Board refused to issue the permit.
The Board found the restaurant operation itself was illegal in that:
1. The original grocery business which was the basis for the nonconforming use was conducted in a
different building and a valid transfer of the use had never been accomplished.
2. Only one change of nonconforming use was permitted under the Ordinance and it was expended when the original use (huckstering) was converted into the grocery use.
3. Abandonment of the use for a period in excess of one year during the decade 1950-1960 extinguished it.
The Urbanos then appealed the Zoning Board decision to the Common Pleas Court of Montgomery County. Notwithstanding the garbled unintelligible machine made record, the court without additional or repetitive testimony affirmed the Board.
Exceptions were filed but never prosecuted by the Urbanos. Instead they continued their efforts to commercialize the property by collateral approaches. The Township authorities likewise ignored the finding of the court below and simply sought to contain the illegal use in its 1960-61 posture. For example, in 1966 it permitted the construction of a porch to the rear of the restaurant but later by additional proceedings sought to enjoin the conversion of the porch into a kitchen and the demolition of the building to make room for larger restaurant facilities.
In 1970, Nicholas Urbano took a new tack. He argued to the Township fathers that newly found information in the Township records would justify a reversal of the 1961 ruling of the Board and court below. The Township agreed to set a hearing date to take the additional evidence and reconsider the prior decision. In the meantime Urbano filed a Bill of Review in Equity with the Court of Common Pleas of Montgomery County.*fn1