Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Leidy Scholl v. Sydney C. Britten, Township Manager, Ronald O. Fluck, Zoning Officer and Steven Bennett, Assistant Manager, No. 82-16552.
George Ditter, with him, S. Gerald Corso, Jenkins, Tarquini & Jenkins, for appellant.
Jeffrey T. Sultanik, Pearlstine, Salkin, Hardiman and Robinson, for appellees.
Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Craig.
[ 87 Pa. Commw. Page 241]
Leidy Scholl appeals an order of the Court of Common Pleas of Montgomery County sustaining the preliminary objections of Hatfield Township Officers Sydney Britten, Ronald Fluck and Steven Bennett, to Scholl's complaint in mandamus which sought to compel those officers to issue a building permit.
On three occasions, Scholl applied for a building permit to alter a garage door to a forty-inch door on his commercial property used as a car wash and laundromat. On all three occasions, the township denied Scholl's application for failure to comply with various building, zoning and land development ordinances, and in each case provided Scholl with timely and adequate notice specifying the steps necessary to
[ 87 Pa. Commw. Page 242]
bring his application into compliance. Scholl did not appeal any of the permit denials to the zoning hearing board, but instead filed his complaint in mandamus claiming that the township officers' repeated denial of his application was harassment.
We must determine whether the common pleas court properly dismissed Scholl's complaint, holding that mandamus did not lie because he had an adequate remedy at law in an appeal of the permit denials to the township zoning hearing board under section 909 of the Pennsylvania Municipalities Planning Code (MPC),*fn1 53 P.S. § 10909, which provides:
The board shall hear and decide appeals where it is alleged by the appellant that the zoning officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of the action of the zoning officer. Nothing contained herein shall be construed to deny to the appellant the right to proceed directly in court, where appropriate, pursuant to Pa. R.C.P., sections 1091 to 1098 relating to mandamus.
In Lindy Homes, Inc. v. Sabatini, 499 Pa. 478, 453 A.2d 972 (1982), the Supreme Court reiterated that a landowner may seek a building or zoning permit by a mandamus action if the landowner's right to the permit is clear and unconditional. Lindy Homes limited Unger v. Township of Hampton, 437 Pa. 399, 263 A.2d 385 (1970), which restricted the availability of mandamus, to cases where "a proposed land use does not comply with an existing ...