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LAWRENCE A. WILLS v. MIDDLE SMITHFIELD TOWNSHIP (07/15/88)

decided: July 15, 1988.

LAWRENCE A. WILLS, APPELLANT
v.
MIDDLE SMITHFIELD TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Monroe County, in the case of Middle Smithfield Township v. Lawrence A. Wills, No. 1546 Civil 1984.

COUNSEL

Peter J. Quigley, for appellant.

Richard E. Deetz, for appellee.

Judges Colins and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 117 Pa. Commw. Page 621]

Lawrence A. Wills (Appellant) appeals an order of the Court of Common Pleas of Monroe County (trial court) denying his petition for consideration before a court en banc, denying his exceptions to a decree nisi, denying his petition to reinstate defenses, and directing that its decree nisi be entered as a final order. For the reasons set forth below, we affirm.

Appellant was the owner of a certain parcel of land in Middle Smithfield Township (Township). At the time he acquired the property, it was comprised of approximately eight and one-half (8 1/2) acres and was located in a district zoned retail and service commercial. On June 25, 1982, Appellant obtained a building permit from the Township zoning officer in order to construct an ice cream store. Appellant put up the building but never commenced business. On September 9, 1982, Appellant

[ 117 Pa. Commw. Page 622]

    conveyed approximately six and one-half (6 1/2) acres of the land to another individual.

On July 27, 1984, the Township filed an action in equity with the trial court seeking removal of the building on Appellant's property. The Township alleged that the building was in violation of a Township zoning ordinance requiring retail and commercial establishments to be located on a minimum tract of five (5) acres.*fn1

Appellant filed preliminary objections to the complaint and asserted that the building had never been used for commercial purposes and therefore was not in violation of the ordinance. Appellant also asserted that the ordinance was unconstitutionally exclusionary, that the Township's action was barred by the doctrine of laches, and that the Township had an adequate remedy at law. Finally, Appellant contended that the Township failed to state a cause of action because the building permit had not been revoked.

On August 17, 1984, the Township zoning officer revoked Appellant's building permit. Appellant did not appeal the revocation to the Township Zoning Hearing Board (ZHB). On September 21, 1984, the Township filed an amended complaint alleging that the building permit had been revoked. Appellant filed both preliminary objections and answer, raising the same defenses of lack of commercial use, exclusionary zoning, and laches. Appellant then filed a ...


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