Appeal from the Order of the Court of Common Pleas of Luzerne County in the case of Gary M. Evans and Greg D. Evans, Individually and t/a Evans Brothers Trucking Company, Inc. v. Lehman Township Zoning Hearing Board, No. 2358-C of 1984.
David R. Lipka, for appellants.
Joseph Van Jura, for appellee.
Judges Craig and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.
[ 91 Pa. Commw. Page 107]
The appellant landowners, trading as Evans Brothers Trucking Company, have appealed an order of the Court of Common Pleas of Luzerne County which refused to grant them mandamus relief against the Lehman Township Zoning Hearing Board's action revoking an approval previously granted by that same board for a truck garage use.
In October, 1979, the board, pursuant to a hearing upon appeal from the zoning officer, had concluded that the premises, which the landowners had then proposed to buy, possessed legal nonconforming use status allowing garage use, even though the zone was a residential one. The board's order made the approval subject to certain restrictions -- barring further expansion without board approval, prohibiting the emission of excessive noise, and limiting the storage of junked vehicles. After receiving the approval, the landowners purchased the property and proceeded to conduct the truck garage activity.
More than three years later, on January 10 of 1983 according to the parties and the pleadings, the zoning hearing board proceeded without an evidentiary hearing to pass a motion revoking its 1979 zoning approval, apparently on the basis that the landowners were not complying with some or all of the above restrictions.
Thereafter, in response to enforcement warnings from the board's solicitor, the landowners' attorney referred by letter to the possibility of the truck business being authorized as a "home occupation" and applied for a special exception under section 9.42 of the Lehman Township Zoning Ordinance, together with a request for a hearing on that application. In a later letter, dated February 22, 1984, the landowners' attorney did not pursue that request but instead referred
[ 91 Pa. Commw. Page 108]
to the "special exception" granted in 1979*fn1 and requested that the board review its revocation action and reinstate the 1979 approval. The board, through its solicitor, refused.
In June, 1984, the landowners instituted a mandamus action solely against the zoning hearing board, and sought a peremptory judgment to command the board to reinstate the approval.
The trial court, in denying relief, stated that the landowners' remedy is to file an appeal from the board's revocation ...