Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Appeal of Fotomat Corporation from the Decision of the Zoning Hearing Board of Upper Dublin Township, No. 78-15517.
Mabel Ditter Sellers, with her Raymond Jenkins, Jenkins, Tarquini & Jenkins, for appellant.
Marc D. Jonas, Hamburg, Rubin, Mullin & Maxwell, for appellee.
Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.
[ 51 Pa. Commw. Page 268]
Upper Dublin Township has appealed from an order of the Court of Common Pleas of Montgomery County reversing a decision of the Zoning Hearing Board of Upper Dublin Township denying the application of Fotomat Corporation for approval to construct a Fotomat kiosk in the Dreshertown Plaza Shopping Center.
Fotomat filed an application with Upper Dublin's zoning officer to construct its kiosk, a building approximately four feet wide, nine feet long and twelve
[ 51 Pa. Commw. Page 269]
feet high, on a concrete island about seven feet wide and seventeen feet long in Dreshertown Plaza. Although the kiosk would have no water or sewage disposal facilities, the occupants of another store in the Shopping Center agreed that Fotomat's employees might use its restroom. The zoning officer denied Fotomat's request. Fotomat appealed to the Zoning Hearing Board, alleging that it could construct the kiosk as a matter of right under the provisions of Upper Dublin's zoning ordinance relating to shopping centers, or that it was entitled to a variance to construct the kiosk, or that Upper Dublin's zoning ordinance unconstitutionally excludes kiosks from the township. The Board rejected all of these claims. It held that Fotomat could not construct its kiosk as a matter of right because Section 11.02D of the zoning provisions applicable to shopping centers requires that "[a]ll buildings within the center shall be served by a central sanitary sewage disposal system and public water supply and available public utilities" and Fotomat's arrangement with another tenant for the use of its restroom did not meet this requirement. The Board next determined that Fotomat was not entitled to a variance because it had not proven unique hardship to the property, its proof rising no higher than that of a showing of the economic hardship of having to equip its kiosk with a restroom. Finally, the Board concluded that the Upper Dublin zoning ordinance did not exclude kiosks; that it only required that kiosks in shopping centers have restrooms.
Fotomat appealed the Board's determination to the court below, which reversed the Board, finding that the agreement between Fotomat and the other tenant for use of the latter's facilities by Fotomat's employee satisfied the requirements of the zoning ordinance. Having found that Fotomat therefore could have its kiosk as a matter of right, the court did not
[ 51 Pa. Commw. Page 270]
reach the question of the propriety of the Board's denial of the variance or the challenge to the constitutionality of the ordinance.
Where, as here, the lower court took no additional evidence, our review is limited to a determination of whether the Board abused its discretion or committed an error of law. Appeal of Green & White Copter, Inc., 25 Pa. Commonwealth Ct. 445, 448 n.1, 360 A.2d 283, 284 n.1. We believe that the Board's ...