The opinion of the court was delivered by: Joyner, Judge:
Presently before the Court is the Motion for Summary Judgment of
Defendants Lower Merion Township (the "Township"), Robert E. Duncan
("Duncan"), Robert S. Ryan ("Defendant Ryan"), and Michael J.
("Morris")*fn1(collectively referred to as "Defendants").*fn2 This case
arises from a zoning dispute between Plaintiff Patrick Ryan ("Plaintiff"
or "Plaintiff Ryan") and the Defendants. For the reasons that follow, the
Motion for Summary Judgment will be granted in part and denied in part.
The dispute in this case centers on whether the Defendants properly
revoked, and properly affirmed the revocation of, a Use Permit issued to
Plaintiff. On February 9, 1999, Plaintiff entered into an Agreement of
Sale to purchase a property located at 14 North Merion Avenue, Lower
Merion Township, Pennsylvania (the "property").*fn3 This property was
owned by Paul Flanigan who operated a restaurant/tavern called the Prime
Minister on the premises. The mortgage holder had foreclosed on the
property and a sheriff's sale was scheduled for July 21, 1999. Plaintiff
determined that to make his business feasible at this location, he would
need to renovate the second floor mezzanine to convert it to a full
second floor. Thus, in the Agreement of Sale Plaintiff included a
contingency clause making the sale contingent on Plaintiff obtaining
approval to complete the second floor renovations.
Plaintiff hired an architect, James T. MacAllister, Jr. ("MacAllister")
to draw plans for the renovations. Plaintiff's renovations included
expanding the storage space in the basement, improving the restrooms,
repositioning and redesigning the bar on the first floor, expanding the
second floor to fill in the open area of the mezzanine, and moving the
kitchen from the first floor to the second floor. The renovated second
floor would be able to seat twelve people at the bar, twenty-four people
at tables, and eighteen people at a counter against the wall.
On March 4, 1999, Duncan issued a Use Permit and assigned use of
municipal parking spaces "to meet the parking requirements of the zoning
code." Upon receipt of the use permit, Plaintiff commissioned final
architectural plans and made applications to both the Pennsylvania
Department of Labor and Industry and the Pennsylvania Liquor Control
On March 23, 1999, notice of the pending liquor license transfer to the
Plaintiff's corporation, P.J. Ryan's, Inc. was posted at the property.
Plaintiff alleges that after this posting, several local newspapers wrote
articles reporting that "Smokey Joe's was moving to the Prime
Minister."*fn6 Plaintiff further alleges that after these articles were
published, public opposition groups began to state their disapproval with
Smokey Joe's moving to the property to Township officials. These groups
included the Bryn Mawr Civic Association and the Morton Road Residence
Association. Duncan became aware that the Plaintiff was one of the
previous owners of Smokey Joe's from Hank Wilson of the Bryn Mawr Civic
Association.*fn7 Hank Wilson also contacted Charles Bloom, a Ward
Commissioner, to tell him that Smokey Joe's was buying the Prime
Minister. Mr. Bloom testified that he spoke with someone from the
Township's Building and Codes Department who confirmed that this was
On April 7, 1999, Plaintiff and his architect met with the Township's
Fire Marshall and Duncan to discuss whether the building would need
sprinklers. Prior to Plaintiff's arrival at the meeting, Duncan or the
Fire Marshall asked the architect whether there would be any karaoke at
the facility. The architect responded that there could be karaoke on the
first floor in an area where the tables could be moved aside. Duncan or
the Fire Marshall then asked whether there would be dancing. The
architect told them there could be dancing one night a week in the same
area of the first floor. After Plaintiff arrived at the meeting, there
was no more discussion about karaoke or dancing. At the conclusion of the
meeting, Duncan and the Fire Marshall confirmed that no zoning or
building code issues remained unresolved.
However, by letter dated April 8, 1999 ("the Revocation Letter"),
Duncan notified Plaintiff that the approval of the Use Permit was
revoked. The Revocation Letter stated that during the April 7, 1999
it was discovered that the second floor area will
primarily be used as a taproom and the tables and
chairs that will exist on both floors will be moved
after dinner to create an open assembly area used as a
Based on your description of the proposed use, I have determined that
the primary use of this building is a Taproom and/or Night Club. This use
does not authorize you to utilize the public parking lots to comply with
Township's zoning code. This provision is limited to a Restaurant Use.
Also a portion of this space will be used for Public Assembly which
requires one parking space for every 50 square feet of floor are devoted
to Public Assembly.
Further, in a memorandum dated April 23, 1999, Duncan memorialized a
conversation he had with a Ward Commissioner, Jim Ettelson, concerning
the Plaintiff's purchase of the Property. The memorandum indicates that
"[Ettelson] was interested in helping them [Plaintiff] with the approval
process until [Duncan] informed him that there was significant opposition
from the residents in Bryn Mawr because of problems caused by Villanova
students attending the existing Smokey Joe's in Radnor Township." On May
7, 1999, Plaintiff filed a Notice of Appeal with the Township alleging
that Duncan's revocation of the Use Permit was arbitrary, capricious, and
contrary to the Township Ordinances, unsupported by competent evidence,
constituted an error of law and that it violated Plaintiff's vested
rights in the Use Permit. On July 1, 1999, Plaintiff's appeal was heard
before the Zoning Hearing Board ("ZHB") with Defendants Ryan and Morris
sitting.*fn8 Plaintiff presented evidence regarding his proposed use of
the Property and particularly his proposed use of the second floor
renovation. Plaintiff argued that the only relevant inquiry for Township
Ordinance purposes is the proposed use of the second floor renovation.
Various opponents presented evidence, most of it having to do with the
operation of Plaintiff's other establishment, Smokey Joe's in Wayne. By
Memorandum and Order dated August 9, 1999, Defendant Ryan and Morris as
members of the ZHB, denied Plaintiff's appeal finding that the use of the
entire facility was a taproom and, thus, Plaintiff did not qualify to use
municipal parking spaces. Plaintiff did not appeal the ZHB's decision to
the Court of Common Pleas.
On October 8, 1999, Duncan wrote a Memorandum to the Township Manager
in which he said the following:
Staff has been informed that the sale of the Prime Minister Building
has been completed. The property has been sold to an individual that
proposes to open a Japanese Restaurant. The property was the subject of a
zoning appeal by the same individuals that operated a bar & restaurant to
the college age crowd.
Since the 30 day appeal period for the zoning decision has expired and
the property has transferred, it appears that the threat of another
college bar in Bryn Mawr has been avoided.
After Plaintiff's Use Permit was denied, The Grog, which Plaintiff
alleges was similarly situated, was issued a use permit entitling it to
use municipal spaces to meet the parking requirements based a second
floor addition. In the Change of Use Certificate issued to The Grog, the
Zoning Officer stated "the parking spaces designated for this expanded
use of the 2nd floor can only be granted if the principal use of the
space is a restaurant. If the use
of the 2nd floor ...