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RYAN v. LOWER MERION TOWNSHIP

June 12, 2002

PATRICK J. RYAN, PLAINTIFF,
V.
LOWER MERION TOWNSHIP, ET. AL.,DEFENDANTS.



The opinion of the court was delivered by: Joyner, Judge:

MEMORANDUM AND ORDER

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 ("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.

BACKGROUND

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.

Plaintiff then met with Duncan, who is the Director of Building Regulations and Zoning Officer for Lower Merion Township, to review the architectural plan, including the expansion of the second floor. Duncan told Plaintiff that the contemplated addition may raise an issue with a Township ordinance requiring a certain number of parking spaces.*fn4 However, Duncan further informed Plaintiff that because the proposed use of the space was a restaurant, Plaintiff would qualify to use off-street public parking spaces pursuant to Township Ordinance.*fn5 Plaintiff completed a "Change of Use or Occupancy Application" on which he indicated that the proposed use of the building was a restaurant.

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 Board.

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 true.

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 meeting:

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 dance floor.

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 ...


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