Orange Stones Co. v. City of Reading, Zoning Hearing Board
32 A.3d 287
Pa. Commw. Ct.2011Background
- Applicant Orange Stones Co. seeks a zoning permit to continue a preexisting, nonconforming personal care home in Reading's R-1 district.
- City zoning administrator and then the City rejected the permit applications for procedural reasons.
- Applicant appealed to the Zoning Hearing Board; after hearing, the Board denied the applications on procedural grounds.
- The trial court sustained Applicant's appeal, reversed the Board, and remanded for consideration of substantive issues.
- This Court affirmed the trial court’s remand to the Board on the substantive issues in a February 2011 memorandum opinion.
- Separately, Applicant filed a mandamus action in the trial court seeking to force issuance of the permit; Community Council intervened and the trial court granted some relief and denied mandamus as to others, which Applicant challenged on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus to compel a permit was proper | Applicant had a clear legal right to the permit and Board had a duty to issue it. | No clear entitlement; remand and ongoing Board proceedings precluded mandamus relief. | Mandamus relief not proper; no clear entitlement given remand and ongoing issues. |
| Whether granting intervenor status to Community Council was proper or waived | Intervenor status should be reviewed for propriety on appeal. | Intervenor status was properly granted and not properly challenged by Applicant. | Issue waived for appeal due to failure to raise at trial. |
| Whether remand to the Board for substantive issues was proper | Remand to the Board was improper because the Board refused to review substantive issues previously. | Remand consistent with prior orders to determine substantive issues on remand. | Remand to the Board affirmed; proper under prior orders. |
Key Cases Cited
- Bell Atlantic Mobile Systems, Inc. v. Borough of Clifton Heights, 661 A.2d 909 (Pa. Cmwlth. 1995) (mandamus requires clear legal right and lack of adequate remedies)
- M & W Corporation v. Upper Chichester Township, 651 A.2d 630 (Pa. Cmwlth. 1994) (mandamus available where zoning entitlement is clear; exhaustion of remedies advised)
- Copechal v. Township of Bristol, 668 A.2d 1222 (Pa. Cmwlth. 1995) (premises that mandamus is not proper where issues require zoning board expertise)
- Dale Manufacturing Co. v. Bressi, 491 Pa. 493, 421 A.2d 653 (1980) (judicial admissions do not estop and mandamus not appropriate for zoning disputes)
- Lapayowker v. Lincoln College Preparatory School, Inc., 386 Pa. 167, 125 A.2d 451 (1956) (judicial estoppel not applicable where earlier positions changed in later proceedings)
- Vargo v. Schwartz, 940 A.2d 459 (Pa. Super. 2007) (judicial estoppel considerations in successive proceedings)