Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Inn Management Services, Inc., d/b/a Family Fun Restaurant, a corporation, and Dominic Palombo v. Township of Upper St. Clair, a municipality, and Roberta J. Sarraf, Zoning Administrator of the Township of Upper St. Clair, No. GD 77-05477.
Robert N. Hackett, with him Joan P. Feldman, Baskin & Sears, for appellants.
John P. Papuga, with him William J. Staley, Tucker, Arensberg, Very & Ferguson, for appellee.
Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Rogers.
The Township of Upper St. Clair and its zoning administrator have appealed from an order of the Court of Common Pleas of Allegheny County directing them to issue a zoning certificate to Inn Management Services, Inc. and Dominic Palombo.
Palombo is the owner of a parcel of land located in Upper St. Clair Township. In May 1976, he entered into an agreement to lease his land to Inn Management Services which wanted to construct and operate a restaurant. Inn Management Services obtained an option to purchase a liquor license, which it believed was necessary for a successful operation and, with Palombo, applied to the township for zoning approval of the proposed restaurant. The township authorities refused to approve the application and the Zoning Hearing Board of the Township affirmed their action. The appellees appealed the Zoning Hearing Board's action to the Court of Common Pleas but did not pursue that matter further. Instead, in March 1977 they filed a complaint in mandamus in the Court of Common Pleas seeking an order requiring the township to grant zoning approval of the restaurant. On June 27, 1977, on the plaintiffs' motion for judgment on the pleadings the court entered judgment for the
plaintiffs and directed the township and its zoning administrator to give zoning approval. The township granted zoning approval on October 7, 1977 and asked the appellees to submit the site and construction plans necessary for the issuance of a building permit. Inn Management Services, however, abandoned the project in the fall of 1977 because its option to purchase a liquor license had expired on May 31, 1977 and it was unable to obtain a license elsewhere. No site or construction plans were ever submitted.
Subsection 130-36-G of the township zoning ordinance provides that if work described in an application for zoning approval has not begun within six months from the date of issuance, the approval shall expire and it shall be cancelled by the zoning administrator with written notice to persons affected. The zoning approval in this case granted on October 7, 1977 was therefore subject to cancellation after April 7, 1978.
On May 5, 1978, Palombo entered into a lease with R&K Properties, for the latter to build and operate a fast food restaurant on his land. The record contains no communication or evidence of one from Palombo to the township concerning his new lessee until August 17, 1978. On August 29, 1978, the zoning administrator wrote to Inn Management Services and Palombo, notifying them that their zoning approval for the proposed restaurant had expired and was cancelled because work had not begun within six months after October 7, 1977 as required by Subsection 130-36-G of the Township Code. On or about October 30, 1978 Palombo alone filed a petition in the Court of Common Pleas to the docket number of the mandamus suit, for a rule on the township to show cause why that court's order of June 27, 1977 should not be enforced in favor of R&K Properties and Palombo without further application to the township for zoning approval.
Palombo proceeded in this fashion because the township zoning ordinance had been amended in November 1976, a date, it is noted, long before the mandamus action was instituted, to provide that no new restaurant should be established at a distance closer than 400 feet from an existing restaurant, a condition which disqualified Palombo's land because of the presence of a restaurant about 300 feet away. This provision was not pressed by the township as a bar to Inn Management Services' and ...