The opinion of the court was delivered by: Judge Pellegrini
Submitted: September 14, 2010
BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Maple Street A.M.E. Zion Church (Church) and the City of Williamsport and City Council of the City of Williamsport (collectively, City) file cross-appeals from the order of the Court of Common Pleas of Lycoming County (trial court) striking a condition requiring the Church to obtain a written license for eight off-street parking spaces and otherwise affirming the City Council of the City of Williamsport's (Council) conditional approval for the Church to use the subject property for a church use.
On June 27, 2007, the Church entered into a sales agreement for the purchase of real estate at 962 Memorial Avenue a/k/a 600 Fifth Avenue (Property) in Williamsport. A building covers almost all of the Property with no room left for parking spaces. Prior to the sale, the Property had been used as a laundromat for decades. In 1971, the City enacted a zoning ordinance. The Property is located in an area zoned R-2, in which a laundromat is not a permitted use. Because it predated the zoning ordinance, the laundromat was a legal non-conforming use, making it exempt from the otherwise required 15 off-street parking spaces.
A church is permitted by conditional use in an R-2 district, and it is required to have at least one off-street parking space for every 10 members, calculated by the number of persons permitted in the church by the Building Code. The Building Code limits occupancy of the building to not more than 75 people, which would require eight off-street parking spaces under the zoning ordinance. The Church is a small one with a current membership of approximately 25 people. The Church hopes to recruit new parishioners from the surrounding area to bring its membership to a total of 50 people. Church members feel that it is unlikely that the Church would grow to more than 75 people, but in the event that it did, the Church would find a new location, as the Property is unsuitable to hold that many people.
The Church submitted a request for a variance and zoning interpretation regarding the off-street parking requirement to the Zoning Hearing Board (Board). At a February 21, 2008 hearing before the Board, it concluded that no variance was required because the Church required less parking than the laundromat and the Church should go to Council to have its parking issues considered. The Board never issued a written decision. On December 9 and December 16, 2008, the Church published a public notice of a deemed approval in the Williamsport Sun-Gazette due to the Board's failure to issue a written decision.*fn1 No one appealed the deemed approval.
Prior to the hearing before the Board, the Church had also submitted a request to Council for a conditional use approval regarding the Property. Following a hearing, on April 3, 2008, Council granted the conditional use subject to three conditions, only the first of which is relevant to this appeal. That condition required the Church to obtain a written license for eight off-street parking spaces. During the hearing before Council, the Church's attorney had represented that Jeff and Jessica Wheeland (Neighbors), nearby property owners with a parking lot large enough to hold approximately 30 vehicles, were willing to provide such a license to the Church. The Church and the Neighbors did indeed enter into the license agreement about two months after Council's ruling. The license did not specify how many parking spaces were available in the Neighbors' lot and provided that it could be terminated with 30 days written notice.
Before the Church and the Neighbors entered into the license agreement, the Church appealed Council's determination to the trial court, arguing that it should not be subject to the condition that it obtain the eight off-street parking spaces because the parking portion of the legal non-conforming use enjoyed by the laundromat continued and because a deemed approval had occurred. The trial court remanded the matter to Council to determine whether the parking requirement imposed on the Church was subject to the law of non-conforming use and, if so, whether Council had the authority to place conditions on parking under its conditional use power that could override or nullify any pre-existing non-conforming use. Council held a hearing and entered a resolution on April 2, 2009, stating that because the prior non-conforming use had ended when the Property was sold to the Church, any accessory non-conforming use with respect to parking also ended.
The Church appealed again to the trial court, raising the same two issues: first, that the laundromat's non-conforming use with respect to parking continued after the sale of the Property and, alternatively, that the Church had acquired a variance from the parking requirement via deemed approval. The trial court held that Council did not abuse its discretion in determining that the Church did not have a right to non-conforming parking. However, even though only Council's decision was before it on appeal, the trial court also held that the Church had obtained a deemed approval of a variance from the parking requirements through the Board's failure to issue a written determination followed by the Church's publication of the deemed approval in the local newspaper. Both sides appealed to this Court.*fn2
In its appeal, the Church contends that even though the trial court agreed with it that it had obtained a deemed approval of its request for a parking variance due to the Board's failure to file a written determination and its subsequent publication of the deemed approval, the trial court should also have reversed Council's determination that the parking non-conformity associated with the laundromat's non-conforming use ended when the Property was sold to the Church, a permitted conditional use. The Church argued that its appeal was necessary to preserve this issue on appeal in case this Court finds that it does not have a deemed approval.
Only an aggrieved party can appeal from an order entered by a lower court. A prevailing party that disagrees with the legal reasoning of an order or a court or agency or may have had a particular issue decided against it lacks standing to appeal because it is not adversely affected by the order. United Parcel Service, Inc. v. Pennsylvania Public Utility Commission, 574 Pa. 304, 830 A.2d 941 (2003); Commonwealth v. Polo, 563 Pa. 218, 759 A.2d 372 (2000); Pennsylvania Rule of ...