Appeal from the Order of the Court of Common Pleas of Delaware County, in case of Michael Omiridis v. The Zoning Hearing Board of the City of Chester and Anthony and Marie Lucci and Widener College, Intervenor, No. 84-6840.
Thomas H. Broadt, Jones, Guthrie, Strohm & Broadt, P.C., for appellant.
Appellee precluded from filing a brief.
Judges MacPhail and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Barry.
[ 110 Pa. Commw. Page 248]
Anthony Lucci and Marie Lucci, intervenors, appeal an order of the Court of Common Pleas of Delaware County which sustained a zoning appeal of Michael Omiridis (appellee) from a decision of the Zoning Hearing Board of the City of Chester (Board) and granted him a special exception to operate a restaurant.
The appellee acquired a parcel of property in an area of the City zoned C-1. He wished to open a sit-down restaurant; to do so, he was required by the City's zoning ordinance to obtain a special exception. In this area, an acute parking problem existed. The ordinance required one space of off-street parking for each fifty square feet of floor space devoted to patron seating. Furthermore, Section 1321.16 of the ordinance defines "parking space" as an area "used for parking motor vehicles, the area of which is not less than 200 square feet and to which there is access from a street or alley." (Emphasis added.) As the area intended for patron use was
[ 110 Pa. Commw. Page 2491300]
square feet, twenty-six spaces for off street parking were required. At the initial hearing held on appellee's request for a special exception, appellee introduced evidence that it would be able to provide fifteen spaces for off-street parking. The Board denied the appellee's request.
The appellee then filed an appeal to the Court of Common Pleas of Delaware County, arguing, inter alia, that other restaurants in the City had not been required to comply with the off-street parking requirements. The trial court, by order dated February 5, 1985, remanded for evidence concerning the number of restaurants in the City which had off-street parking in compliance with the ordinance. The order further directed that after taking of such evidence, the Board was to "have the testimony from such hearing, and the findings of the Board lodged with this Court. . . ."
On remand, the Board found that after eliminating a number of restaurants for reasons not relevant here, only nine of eighty-eight restaurants were in strict compliance. The Board went on to find, however, that only five sit-down restaurants had opened in the last ten years and all had been required to comply strictly with the off-street parking requirements. Further, at the remand hearing, the appellee attempted to introduce evidence that he had obtained additional property for more off-street parking. The Board, however, refused to hear such evidence.
When the testimony and findings were lodged with the trial court, another remand was ordered on April 29, 1985, to consider the application in light of the additional parking spaces which appellee had allegedly obtained. Again the order required the Board to "have the testimony from ...