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BOROUGH EDGEWOOD v. LAMANTI'S PIZZERIA (03/21/89)

decided: March 21, 1989.

BOROUGH OF EDGEWOOD, APPELLANT
v.
LAMANTI'S PIZZERIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Lamanti's Pizzeria v. Borough of Edgewood, No. SA 2646 of 1987.

COUNSEL

Frederick A. Boehm, with him, Patrick J. Clair, Goehring, Rutter & Boehm, and James M. McElfish, for appellant.

Joseph Sabino Mistick, Mistick & Sittig, for appellee.

Judges Barry and Smith, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Smith.

Author: Smith

[ 124 Pa. Commw. Page 326]

Appellant Borough of Edgewood (Edgewood) appeals from the order of the Allegheny County Court of Common

[ 124 Pa. Commw. Page 327]

Pleas directing Edgewood to issue a building permit to Appellee Lamanti's Pizzeria (Lamanti). Questions presented for review*fn1 are whether the Board erred in affirming the revocation of Lamanti's building permit and whether Edgewood's Zoning Ordinance (Ordinance) is de facto exclusionary as to restaurants. The trial court's decision is affirmed.

Lamanti executed a lease, effective April 1, 1987, with the intention of relocating its restaurant 150 feet from its present site in Edgewood. Both the present and proposed sites fall within one of Edgewood's D-6 Commercial Zoning Districts (D-6 Zone).

Edgewood's borough council thereafter adopted Ordinance No. 862 on April 20, 1987 which amended the existing Ordinance No. 848 and created a single Planned Commercial Development District D-7 (D-7 Zone) allowing restaurants as one of the permitted uses. The new D-7 Zone requires a thirty-acre minimum lot size; unified development, i.e., development of the entire site; and compliance with numerous other conditions. On May 27, 1987, and again on June 3, 1987, the borough council also advertised notice of a forthcoming public hearing on, and public inspection of, Ordinance No. 863, another proposed amendment to the existing Ordinance No. 848, prohibiting restaurants in D-6 Zones. This amendment was subsequently adopted on June 15, 1987.

On June 12, 1987, Lamanti applied for and was issued a building permit by Edgewood's zoning officer to repair and remodel the proposed relocation site for its restaurant. Lamanti's building permit, however, was suspended

[ 124 Pa. Commw. Page 328]

    on June 16, 1987 and revoked on June 22, 1987 by the zoning officer on the grounds that Lamanti's proposed use and site failed to comply with the Ordinance's off-street parking provisions and that restaurants were ...


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