R. Fisher and AEE Encounters, Inc. v. ZHB of The Borough of Columbia, Lancaster County and Borough of Columbia
1080 C.D. 2015
| Pa. Commw. Ct. | Oct 13, 2016Background
- Applicant (Fisher/AEE) operates Club Good Times in a HDR zone as a gentlemen’s club offering partially-clothed dancers; sought permit to convert to totally nude dancing (an Adult Live Entertainment Facility, ALEF).
- Borough Ordinance allows ALEF by special exception only in General Industrial (GI) districts, with separation buffers (500 ft from parks/dwellings, 1,000 ft from schools/places of worship/day-care) and a one-acre minimum lot size.
- Zoning Hearing Board (ZHB) found: Club’s existing partially-clothed performances are a lawful nonconforming use, but totally nude dancing was not lawfully preserved; applicant had not appealed prior enforcement/denial and lacked required permits/special exception.
- ZHB further found the Ordinance was not de facto exclusionary because an ~18-acre triangular parcel in the GI East district with road frontage could be subdivided to meet ALEF dimensional and separation requirements; and it classified Glatfelter Field as a public park (500 ft buffer) rather than a school (1,000 ft buffer).
- Common Pleas reversed the ZHB, concluding Glatfelter Field was a school and that the Ordinance de facto excluded ALEF uses; the Borough appealed to this Court.
Issues
| Issue | Plaintiff's Argument (Fisher) | Defendant's Argument (Borough) | Held |
|---|---|---|---|
| Whether Glatfelter Field is a “school” (1,000 ft) or a public park (500 ft) for separation distances | Field was owned/used by school district for sanctioned school events → qualifies as a school | Classification depends on actual use; record shows public use and administration by Glatfelter Foundation → park | ZHB classification as public park affirmed; Common Pleas erred by reweighing evidence |
| Whether Ordinance creates a de facto exclusion of ALEF uses | Ordinance effectively prohibits ALEF throughout borough given buffers and lack of available sites | GI East contains ~18-acre tract with frontage outside exclusion zones; ordinance permits ALEF by special exception → not exclusionary | ZHB correctly found no de facto exclusion; Ordinance constitutional on its face and as applied |
| Whether totally nude dancing is a preserved lawful nonconforming use | Predecessor club offered nude dancing; use was continuous/manifestly intended to be maintained | Nude dancing occurred in violation of Liquor Code and without required zoning approvals; prior enforcement/denials were not appealed → use not preserved | ZHB and Common Pleas correctly held no lawful nonconforming use for totally nude dancing |
| Whether applicant qualified for special exception/variances to permit ALEF | If Ordinance invalid or nonconforming use preserved, permit/special exception should issue | Applicant failed to satisfy standards and did not obtain required approvals; no basis for variances | ZHB denial of special exception/variances upheld |
Key Cases Cited
- In re Bartkowski Inv. Group, Inc., 106 A.3d 230 (Pa. Cmwlth. 2014) (challenge to zoning ordinance must show total or effective exclusion to overcome presumption of constitutionality)
- Adams Outdoor Adver., L.P. v. Zoning Hearing Bd. of Smithfield Twp., 909 A.2d 469 (Pa. Cmwlth. 2006) (undefined terms in ordinances receive plain and ordinary meaning)
- Tri-County Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488 (Pa. Cmwlth. 2013) (zoning board’s construction of its ordinance entitled to deference)
- Hertzberg v. Zoning Bd. of Adjustment of the City of Pittsburgh, 721 A.2d 43 (Pa. 1998) (standard of review when common pleas takes no additional evidence)
- Gish v. Exley, 34 A.2d 925 (Pa. Super. 1943) (factual questions about nature/use of premises are for zoning boards)
- A & L Invs. v. Zoning Hearing Bd. of the City of McKeesport, 829 A.2d 775 (Pa. Cmwlth. 2003) (ultimate classification of use may present legal question)
- Appeal of Groff, 274 A.2d 574 (Pa. Cmwlth. 1971) (saturation of available land in appropriate district does not alone prove ordinance exclusionary)
- Sullivan v. Bd. of Supervisors of Lower Makefield Twp., 348 A.2d 464 (Pa. Cmwlth. 1975) (municipality not required to ensure land in district is readily for sale)
- Twp. of Penn v. Seymour, 708 A.2d 861 (Pa. Cmwlth. 1998) (failure to appeal zoning enforcement notice precludes relitigation of cited conduct)