Appeal from Common Pleas Court, Delaware County; Honorable Joseph T. Labrum, Jr., Judge.
Raymond J. Falzone, Jr., with him, Harry J. Bradley, Brooks, Bradley & Kenney, Media, for appellants.
Joseph A. Damico, Jr., with him, Denis M. Dunn, Petrikin, Wellman, Damico, Carney & Brown, Media, for appellee.
Barry and Smith, JJ., and Barbieri, Senior Judge. Smith, J., dissents.
[ 130 Pa. Commw. Page 366]
The Township of Springfield (Township), its Board of Commissioners and its Director of Code Enforcement, Richard Conneen appeal two orders of the Court of Common Pleas of Delaware County, which permitted Bloor Automotive, Inc. (Bloor), the successor in title to Speedy Muffler King, Inc., to use a structure as a non-conforming use.
In 1984, Speedy Muffler King, Inc. (Speedy) sought a dimensional variance from the Township's Zoning Hearing Board (Board) to construct a building to house its automobile related business. The Board granted the variance and various objectors appealed to the Court of Common Pleas of Delaware County; that court affirmed. The objectors took a timely appeal to this Court.
While the appeal was pending before us, two things occurred. First, Speedy obtained a building permit pursuant to the variance, erected the proposed structure and began using it in December of 1984. Second, the Township amended its zoning ordinance in June of 1985. Two sections are relevant to the present appeal. Section 143-9 of the amended ordinance defined a "nonconforming structure" as "[a] structure . . . manifestly not designed to
[ 130 Pa. Commw. Page 367]
comply with the applicable use provisions of this ordinance . . ., where such structure lawfully existed prior to the enactment of this ordinance . . . ." Furthermore, Section 143-11(B) of the new ordinance provided, "All structures, uses of structures and uses of land that do not conform to the regulations of the district in which they are located after the effective date of this ordinance, shall be regarded as nonconforming . . . ."
This Court, on August 30, 1985, reversed the common pleas court, holding that the court had erred in affirming the Board's grant of the variance. Roth v. Zoning Hearing Board of Springfield Township, 91 Pa. Commonwealth Ct. 445, 497 A.2d 295 (1985). The Supreme Court denied Speedy's petition for allowance of appeal.
In May of 1986, Speedy asked the Township's Code Enforcement Officer to register the structure as nonconforming. When that request was denied, Speedy filed a mandamus action to compel the enforcement officer to do so. Sometime thereafter, Bloor bought the building. In April of 1987, the Township filed a complaint in equity alleging that the building was illegal and requesting that it be ordered demolished. After Bloor filed its answer, the two matters were consolidated and the parties filed cross-motions for summary judgment. The trial court held that the building was a valid nonconforming use; the court granted the relief requested in the mandamus and dismissed the Township's complaint in equity. This appeal followed.
The Township argues, inter alia, that the trial court erred in granting the writ of mandamus and in dismissing its equity action. It argues that one who builds with a building permit issued pursuant to a variance before all timely appeals are exhausted on the underlying variance does so at his or her own risk. Bloor, on the other hand, argues that as of the effective date of the new zoning ordinance, June 25, 1985, its building was "lawful" and, accordingly, was a nonconforming use as defined in that ordinance. It also asserts that our reversal of the variance ...