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NAMCORP v. ZONING HEARING BOARD HORSHAM TOWNSHIP (05/01/89)

decided: May 1, 1989.

NAMCORP, INC. AND PATCH-UP, INC., APPELLANTS
v.
ZONING HEARING BOARD OF HORSHAM TOWNSHIP, APPELLEE. NAMCORP, INC., AND PATCH-UP, INC., APPELLANTS V. HORSHAM TOWNSHIP, APPELLEE



Appeals from the order of the Court of Common Pleas of Montgomery County, in the case of Horsham Township v. Namcorp, Inc. and Patch-Up, Inc., No. 87-16397 and Patch-Up, Inc. and Namcorp, Inc. v. Zoning Hearing Board of Horsham Township, No. 88-04161.

COUNSEL

Donald A. Semisch, Semisch and Semisch, for appellants.

Thomas M. Del Ricci, Hamburg, Rubin, Mullin & Maxwell, and Paul D. North, for appellee.

Judges Craig, Barry and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 125 Pa. Commw. Page 498]

Patch-Up, Inc. and its tenant, Namcorp, Inc. (appellants), appeal an order of Judge Ott of the Court of Common Pleas of Montgomery County that affirmed an order of the the Zoning Hearing Board of Horsham Township which denied the appellants' request for a variance, and granted the township's petition to compel the removal of an addition the appellants had placed on Patch-Up's property.

Patch-Up initially requested a variance in 1985 to build an addition to a building Namcorp rents from Patch-Up, and which Namcorp operates as a tavern. The building predates the township zoning ordinance and has never conformed to the ordinance's use or dimensional requirements. The board granted Patch-Up's application. Horsham appealed that decision to the Court of Common Pleas. Namcorp intervened in that appeal. While the appeal was pending, the court of common pleas gave Patch-Up permission to construct the addition, at Patch-Up's own risk, pending the trial court's decision, the outcome of which Patch-Up knew might require the removal of the addition.

The common pleas court affirmed the board's decision. However, on appeal to this court, we reversed the trial court and denied Patch-Up's request for a variance. Horsham Township Appeal, 103 Pa. Commonwealth Ct. 508, 520 A.2d 1226 (1987).

Patch-Up built the addition before we handed down our decision. In June 1987, Patch-Up sought another variance in order to prevent the removal of the addition. The township filed a Petition to Compel Removal of Addition on July 7, 1987, which the common pleas court

[ 125 Pa. Commw. Page 499]

    denied, without prejudice, pending the outcome of Patch-Up's second request for a variance.

On November 9, 1987 Patch-Up withdrew its application for a variance, but on the next day filed a new application, this time with Namcorp as a co-party, seeking a variance and also claiming that the ordinance was unconstitutional as applied to Patch-Up's property. The board denied the appellants' variance request on March 14, 1988, finding that the outcome in the earlier variance request was res judicata, and that the ordinance was constitutional as applied to Patch-Up's property. The court of common pleas affirmed the board's decision and concluded that, even if res judicata did not bar the second request for a variance, the court would have reached the same result. This appeal followed.

We must consider whether res judicata precludes reconsideration of Patch-Up's request for a variance. If res judicata does not apply in this case we must address the merits of the appellants' arguments: (1) whether Patch-Up satisfied the criteria for a variance for the expansion of the nonconforming use; and (2) whether the ordinance is unconstitutional as applied to Patch-Up's property.

We note that our scope of review in a zoning case in which the common pleas court does not take additional evidence is limited to a determination of whether or not the board committed an error of law or an abuse of discretion. Jenkintown Towing Service v. Zoning Hearing Board of Upper Moreland Township, 67 Pa. Commonwealth Ct. 183, 446 A.2d 716 (1982).

In order for res judicata to apply there must be a concurrence of four elements: (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; (4) identity of the quality in the persons for or against ...


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