Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Abe Greenberg v. Zoning Board of Adjustment, No. 3249 April Term, 1973.
Donald M. Moser, for appellants.
Walter W. Rabin, with him, of counsel, Meltzer & Schiffrin, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Rogers.
[ 16 Pa. Commw. Page 405]
In November 1971, Abe Greenberg, the appellee, applied to the Zoning Board of Adjustment of the City
[ 16 Pa. Commw. Page 406]
of Philadelphia for a variance from the use regulations of the city's zoning ordinance so that he might construct seven contiguous retail stores in districts zoned for residential uses. In the course of the Board hearing, he agreed that he would not establish on his premises any place for the service of food or drink if the Board should so restrict its grant of a variance. Some persons from the neighborhood were present at the hearing, with counsel, opposing the introduction of new eating or drinking establishments. The principal opponent seems to have been the appellant, Robert Herdelin, the owner of a nearby taproom. The Board granted the variance without restriction*fn1 on January 18, 1972. The protestants, who are the appellants here, apparently relying on Greenberg's professed willingness to abide a restricted variance, did not file a timely appeal from the grant of variance.
On August 14, 1972, the city's Department of Licenses and Inspections issued to Abe Greenberg zoning and building permits for the seven retail stores. On November 21, 1972, one Joseph DiLeo obtained a use permit from the Department for the operation at one of the stores of a restaurant-pizzeria, and on November 22, 1972, one Philip Ruggerio obtained a use permit for a cocktail lounge and restaurant in another of the stores.*fn2 Both DiLeo and Ruggerio entered into leases with Abe Greenberg, the former on December 1, 1972 and the latter on November 27, 1972, and both thereafter
[ 16 Pa. Commw. Page 407]
spent, or entered into contracts to spend, considerable sums of money for improvements and equipment.
Robert Herdelin learned of the proposed drinking establishment in November, 1972 and talked with Abe Greenberg on the subject. On December 1, 1972, the appellants' present counsel, the attorney who represented them at the variance hearing having since become a judge, wrote to Mr. Greenberg in behalf of the applicants protesting the use of any of the stores in violation of the variance, requesting Greenberg to negotiate peaceably and threatened "to seek a preliminary injunction and . . . [to] . . . file a complaint with the Zoning Board and the Department of Licenses and Inspections". On December 5, 1972, a notice required to be posted by the Liquor Control Board appeared on the store proposed as a licensed drinking establishment. Not until January 10, 1973, 49 days after the grant of the first use permit and 40 days after the appellants' counsel wrote Mr. Greenberg protesting the allegedly unlawful proposed uses, did the appellants file their appeal to the Zoning Board of Adjustment seeking revocation of the use permits.
The appellee asserted the untimeliness of the appeal to the Board before the Board and the court below. The Board concluded that it had the power to waive the limitation of time for appeal and revoked the use permits on the ground that the restaurants and cocktail lounge were not retail stores within the meaning of the variance. The court below, although mentioning the appellee's contention that the appeal to the Board was untimely, decided the case on its merits, noting that the variance was unconditional and holding, contrary to the Board, that the phrase "retail stores" encompassed ...