October 28, 2011
ORANGE STONES CO., APPELLANT
CITY OF READING, ZONING HEARING BOARD AND JENNIFER GUCKIN, ZONING ADMINISTRATOR ORANGE STONES CO.
CITY OF READING, ZONING HEARING BOARD AND JENNIFER GUCKIN, ZONING ADMINISTRATOR
COLLEGE HEIGHTS COMMUNITY COUNCIL, APPELLANT
The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge
Submitted: September 13, 2011
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION BY JUDGE McCULLOUGH
Orange Stones Co. (Applicant) and College Heights Community Council (Community Council) appeal the November 8, 2010, order of the Court of Common Pleas of Berks County (trial court) granting in part and denying in part Applicant's complaint in mandamus and request for peremptory judgment. The trial court's order remanded the matter to the City of Reading's (City) Zoning Hearing Board (Board) to conduct a hearing within 90 days on Applicant's application for a zoning permit to continue a pre-existing, nonconforming use. We now affirm.
Applicant is a nonprofit organization that owns property in the City's R-1 zoning district. Community Council is a community organization comprised of individuals who all own property and live near Applicant's property. On September 5, 2008, Applicant, through its attorney, filed an application with the City for a zoning permit to continue to use its property as a pre-existing, nonconforming personal care home. The City's zoning administrator rejected the application because it purportedly did not meet the procedural requirements of the City's zoning ordinance.
On September 28, 2008, Applicant submitted a second application for a permit through its attorney which was also rejected as procedurally insufficient. On November 12, 2008, Applicant appealed the denial of the application to the Board. Community Council and the City filed petitions to intervene, which were granted. Following a hearing, on March 8, 2009, the Board denied both of Applicant's petitions for a zoning permit on procedural grounds. Applicant appealed the Board's decision to the trial court.
On July 28, 2010, the trial court issued an order sustaining Applicant's appeal, reversing the Board's decision, and remanding the case to the Board for consideration of the substantive issues of the application. The City and Community Council appealed the trial court's order in this Court.*fn1 By memorandum opinion and order dated February 17, 2011, this Court affirmed the trial court's order, again remanding the matter to the Board to determine the substantive issues regarding Applicant's application for a zoning permit.
On September 13, 2010, while the foregoing appeal was pending in this Court, Applicant filed the instant complaint in mandamus and request for peremptory judgment in the trial court seeking to compel the Board to issue the zoning permit. On November 3, 2010, Community Council filed a petition for leave to intervene in the matter. On November 8, 2010, Community Council was granted intervenor status by the trial court, and the trial court issued the order appealed herein granting in part and denying in part Applicant's complaint in mandamus.*fn2 On November 30, 2010, Applicant appealed the trial court's order to this Court and, on December 6, 2010, Community Council filed its cross-appeal.*fn3
In its appeal, Applicant asserts that the trial court erred in a number of respects in denying the requested mandamus relief to compel the Board to issue a zoning permit*fn4 and erred in granting intervenor status to Community Council. In response, Community Council contends that the trial court correctly denied the requested mandamus relief and properly granted intervenor status.
We initially note that this Court's scope of review in a mandamus action is limited to determining whether the trial court abused its discretion or committed an error of law and whether sufficient evidence exists to support the trial court's findings. Bell Atlantic Mobile Systems, Inc. v. Borough of Clifton Heights, 661 A.2d 909 (Pa. Cmwlth. 1995), appeal denied, 544 Pa. 652, 676 A.2d 1194 (1996). Mandamus is an extraordinary remedy designed to compel the performance of a ministerial act or a mandatory duty. Evans v. Pennsylvania Board of Probation and Parole, 820 A.2d 904 (Pa. Cmwlth. 2003), appeal quashed, 580 Pa. 550, 862 A.2d 583 (2004); Bell Atlantic Mobile Systems, Inc. Mandamus may only be granted where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a lack of any other appropriate and adequate remedy. Bell Atlantic Mobile Systems, Inc.; M & W Corporation v. Upper Chichester Township, 651 A.2d 630 (Pa. Cmwlth. 1994). The purpose of mandamus is not to establish legal rights but only to enforce those legal rights that have already been established. Evans. In zoning cases, mandamus relief is available where the entitlement to a zoning permit approval is clear. M & W Corporation.
As noted above, Applicant first claims that the trial court erred in failing to grant the requested mandamus relief in a number of respects. However, Applicant's arguments in this regard ignore this Court's disposition of the appeal of the trial court's July 28, 2010 order, docketed at No. 1777 C.D. 2010, which remanded this matter to the Board to determine the substantive issues of this case. Both the trial court's order remanding the matter to the Board and this Court's order on appeal affirming and remanding this matter to the Board, preclude the grant of the further mandamus relief requested by Applicant. See, e.g., M & W Corporation, 651 A.2d at 632 ("[M] & W still has avenues of redress before the Township zoning board that it should have exhausted prior to commencing this action in the common pleas court..").
Moreover, there has never been either a showing or a determination that Applicant is clearly entitled to a zoning permit in this case. This is particularly true where Applicant "[r]evealed in open court that it was going to convert the use of the property from a nursing home for the elderly to a rehabilitation facility for drug and alcohol abuse. This was the first time that this fact was disclosed. Clearly, this is not the same use as the prior nonconforming use as [Applicant] had stated in earlier pleadings." Trial Court Opinion at 4.
Thus, mandamus is not appropriate here because it is not clear that Applicant would be entitled to the grant of the zoning permit based upon this new nonconforming use. See Bell Atlantic Mobile Systems, Inc., 661 A.2d at 911-912 (holding that the trial court did not err in denying mandamus relief to cellular telephone company seeking reinstatement of building permit for transmission tower because it was not clear that the carrier had complied with the zoning ordinance so as to have a clear right to legal right to relief, or that the borough had a clear legal duty to issue the permit).*fn5 *fn6 Because this adequate legal remedy is available, and because there is no clear right to relief, the trial court did not err in refusing to grant the requested mandamus relief in this case.
Finally, Applicant claims that the trial court erred in granting intervenor status to Community Council. However, as the trial court noted:
[Applicant]'s ninth contention is that this court impermissibly granted intervenor status to [Community Council]. This is the first time that [Applicant] raises this issue. [Applicant] never objected to the intervention of [Community Council] in the case sub judice. Even now [Applicant] does not state why the intervenor status was impermissibly granted. Thus, [Applicant] has waived this issue.
Trial Court Opinion at 5-6.
It is well settled that issues not raised before the trial court cannot be raised for the first time on appeal or in a Rule 1925(b) Concise Statement of Claims Raised on Appeal. Irwin National Bank and Trust Co. v. Famous, 4 A.3d 1099 (Pa. Super. 2010), appeal denied, ___ Pa. ___, 20 A.3d 1212 (2011). As a result, this claim has been waived for purposes of appeal. Id.
Accordingly, the trial court's order is affirmed.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Orange Stones Co., : Appellant : v. City of Reading, Zoning Hearing Board : and Jennifer Guckin, Zoning : Administrator : Orange Stones Co. : v. City of Reading, Zoning Hearing Board : and Jennifer Guckin, Zoning : Administrator : v. College Heights Community Council, : Appellant :
No. 2561 C.D. 2010 No. 2634 C.D. 2010
AND NOW, this 28th day of October, 2011, the November 8, 2010, order of the Court of Common Pleas of Berks County is affirmed.
PATRICIA A. McCULLOUGH, Judge