Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of Sameric Corporation of Valley Forge v. Valley Forge Center Associates and Upper Merion Township, No. 86-8442.
J. Shane Creamer, with him, Richard A. Sprague, Bruce L. Thall and Geoffrey R. Johnson, Sprague, Thall & Creamer, for appellant.
William J. Brennan, with him, James E. Meneses, Meneses & Dean, for appellee, Upper Merion Township.
Judges Craig, Doyle and Colins, sitting as a panel of three. Opinion by Judge Craig.
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In this equity case involving zoning enforcement, the question is whether a trial court may resolve factual
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disputes, concerning compliance with shopping center parking space requirements, by considering contradictory affidavits, in lieu of receiving testimony and exhibits at an evidentiary hearing.
Appellant Sameric Corporation, as a tenant of one of the 60 stores in the Valley Forge Shopping Center of Upper Merion Township, is a movie theater operator in a store-space formerly occupied by the bowling alley of another tenant.
The shopping center is one already in existence, having been constructed by its owner, Valley Forge Center Associates, pursuant to a development plan which Associates submitted and the township approved in 1980. Both the former bowling alley and the proposed theater are uses unconditionally permitted in this SC District pursuant to sections 1100A and 1000E of the Upper Merion Township Zoning Ordinance. Moreover, the replacement of a bowling alley by a theater results in no change in the off-street parking ratio, which, as noted below, does not vary as to type of use.
Nevertheless, when Sameric applied for its permits in late 1983, the township required Sameric, a tenant of one store out of 60, to submit a new development plan showing off-street parking for the entire shopping center, even though (1) sections 1800-1803 of the ordinance apply the development plan submission obligation only to the "owner or owners," and (2) Sameric made no building enlargement and thus did not come under section 1908, which requires a new development plan only when a building is enlarged by 25% or 5000 square feet.
Under section 1102A of the ordinance, the minimum number of parking spaces required in a shopping center of this size is
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.5 car spaces per 1000 square feet of gross leasable area in the shopping center. . . .
The same section defines "gross leasable area" as follows:
Gross leasable area is the total floor area designed for tenant occupancy including basements, mezzanines and upper floors, if any, expressed in square feet measured from the center lines of joint partitions and exteriors of outside walls. The gross leasable area shall not include the area of any common malls, walkways, public facilities, loading docks or mechanical and electrical equipment penthouses and rooms.
Sections 1102B and 1102C prescribe general non-quantitative standards for loading areas, entrances and accessways, in terms of adequacy, convenience, safety and avoidance of congestion.
According to the pleadings and briefs, there is no dispute concerning the factual history and ordinance provisions stated above.
The heart of the crucial factual dispute in this case is whether Sameric's development plan implementation has achieved compliance with the off-street parking requirements. The opposing affidavits of the parties differ widely. Sameric claims that the center's gross leasable area is 190,984 square feet, so that a parking ratio of 5.5 per 1000 would ...