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SEBASTIAN BRACCIA AND BERTINA BRACCIA v. TOWNSHIP UPPER MORELAND ZONING HEARING BOARD (11/18/74)

decided: November 18, 1974.

SEBASTIAN BRACCIA AND BERTINA BRACCIA, HIS WIFE, APPELLANTS,
v.
TOWNSHIP OF UPPER MORELAND ZONING HEARING BOARD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of In Re: Appeal of Sebastian Braccia and Bertina Braccia, his wife, from Decision of Township of Upper Moreland Zoning Hearing Board, No. 71-13550.

COUNSEL

Randolph A. Warden, for appellants.

Philip R. Detwiler, with him Butera and Detwiler, for appellee.

Judges Crumlish, Jr., Kramer and Wilkinson, Jr., sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 16 Pa. Commw. Page 215]

Appellants are the owners of a small shopping center which contains a restaurant with 48 seats and a "Sarita" dry cleaning pick-up establishment having a floor area of slightly over 800 square feet. Both businesses began operating in December, 1970. At that time there were 32 parking spaces for the shopping center. In March, 1971, appellants requested a variance to add a 400 square foot store to the shopping center to be operated as a barber shop by appellant Sebastian Braccia. On April 22, 1971, this variance was granted by appellees. However, when appellants applied for a building permit on June 8, 1971, the permit was denied due to an insufficient number of parking spaces and because sufficient parking spaces (which the Township Commissioners determined to be 33) of the required 10 x 20 foot size could not be placed in the existing lot. Appellants then instituted an action in mandamus against the building inspector asking summary judgment for the grant of the building permit. This action, however, was voluntarily discontinued and appellants filed

[ 16 Pa. Commw. Page 216]

    another application for a variance for the barber shop.*fn1 In this application, appellants requested in the alternative: (1) an interpretation that the number of parking spaces required by the zoning ordinance be 29, all of which would be the required 10-foot width; (2) an interpretation to permit 30 spaces and a variance to allow some spaces to be 9 feet, 10 inches wide; (3) a variance to permit the 33 spaces demanded by the Township Commissioners to range from 8 feet, 6 inches to 9 feet, 8 inches in width. After a public hearing, appellee rejected appellants' interpretations of the ordinance and refused to grant any variance. The Court of Common Pleas of Montgomery County affirmed on the opinion of the Zoning Hearing Board. This appeal followed.

When the Zoning Hearing Board originally approved the plans for this shopping center, it was not known exactly how many seats would be in the restaurant or what use would be made of the remaining 800 plus square feet. In fact, the original plan showed two stores of approximately 400 square feet each in the area that is now occupied by Sarita. Although the record is not clear on how the required number of parking spaces was determined at that time, it seems that square footage was used, requiring 23 spaces for the restaurant and 9 spaces for the remaining area. Section 1511 of the Township of Upper Moreland Zoning Ordinance No. 423, provides in pertinent part:

"Section 1511: Off-Street Parking.

"(a) A motor vehicle garage space or an outdoor parking space shall consist of not less than two hundred (200) square feet of usable area (10' x 20' in size) for

[ 16 Pa. Commw. Page 217]

    each motor vehicle exclusive of maneuvering areas, or interior driveways or access roads connecting the parking space with ...


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