Appeal from the Order of the Court of Common Pleas of Lehigh County in case of In Re: Appeal of Ralph Girolamo, No. 609 September Term, 1976.
William F. Fox, Jr., of Fox, Differ, Callahan, Ulrich & O'Hara, for appellant.
Michael P. McIntyre, of Majczan, Heidecker & McIntyre, with him Daniel McCarthy, Assistant City Solicitor, for appellee.
Judges Crumlish, Jr., Wilkinson, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge DiSalle did not participate in the decision in this case.
[ 49 Pa. Commw. Page 161]
In 1971, Ralph Girolamo (Appellant) and his wife purchased a three story building at 502 North Ninth Street, Allentown, Pennsylvania from Mr. Girolamo's parents. In the building was a grocery store on the ground floor operated by Mr. Girolamo's parents and four apartment units, one of which was on the ground floor in the rear of the store. Since the building was located in a Medium High Residential District, the grocery store operation was a non-conforming use under the provisions of the Zoning Code of the City of Allentown.
On September 1, 1975, Appellant and his wife purchased the store business from Appellant's parents. At that time the store was operated basically as a grocery store, specializing in Italian imported foods. Occasionally, customers would ask Appellant to make sandwiches for them. These were usually, but not always, eaten off the premises. In addition, customers purchased soft drinks in containers to consume with their sandwiches.
In April of 1976, Appellant applied to the zoning officer for a permit to "convert First Floor rear apartment into additional STORE (sic) area." The application was refused by the zoning officer. Appellant appealed to the Zoning Hearing Board (Board). No one testified at the hearing before the Board except Appellant who was not represented by counsel.*fn1 At the hearing, Appellant told the Board that he intended to use the first floor apartment area to make and serve hot and cold sandwiches, beverages and pizza to customers who could sit at tables or on benches. The Board found that Appellant's proposed use was to provide additional store area for the preparation and consumption of food on the premises and for takeout service and that such use would not be detrimental
[ 49 Pa. Commw. Page 162]
to nor tend to alter the character of the neighborhood. Accordingly, on June 10, 1976, the Board granted the permit as an expansion of a non-conforming use.
Appellant proceeded immediately to make renovations costing in excess of $7,000.00 and on August 12, 1976 opened the "Little Italy Pizzeria Restaurant."
On September 2, 1976, one Michael Fekety, owner of the "M & M Bar," located on the same side of Ninth Street as Appellant's premises but on the opposite side of Liberty Street which runs between the two establishments, filed a zoning appeal notice with the Court of Common Pleas of Lehigh County. Appellant moved to quash the appeal because it was not filed within thirty days of the Board's action as required by the Zoning Code of the City of Allentown. After hearing argument, the trial court denied the motion to quash and allowed the appeal.
Without taking additional testimony, the trial court on April 27, 1977 reversed the Board and revoked Appellant's zoning permit holding that the Appellant's use of the former apartment area was an additional and new non-conforming use, not an ...