5 Pa. Commw. 399 | Pa. Commw. Ct. | 1972
Opinion by
On March 20, 1970, a building permit was issued to appellee Dunkin’ Donuts Franchising Corporation (Dunkin’ Donuts) to permit the erection of a building on property zoned F-l Commercial District located on the northwest corner of Old York Road and Berrell Avenue, Abington Township, Montgomery County. The purpose of the building, as stated on the permit application, was to erect a “retail baked goods and restaurant.”
Walter J. Krantz, M.D., whose property is located immediately adjacent to the property in question, appealed on March 27, 1970, to the township Zoning Hear
Initially, as to a Motion To Quash filed by appellee, after considering the supplemental briefs filed by each party, we dismiss such motion as having no merit.
Since the court below took no additional testimony, our duty is to determine whether the Board clearly abused its discretion or committed an error of law. Lower Providence Township mid Wood v. Ford, 3 Pa. Commonwealth Ct. 380, 283 A. 2d 731 (1971), and cases cited therein.
The following Standard and Poor’s Corporation 1970 Annual Stock Report description of the Dunkin’ Donuts Corporation Franchise is a part of the record:
“The company is engaged primarily in developing, franchising, and operating shops that feature a wide variety of donuts and donut pasteries, as well as coffee and other beverages. It also franchises or operates drive-in restaurants that serve inexpensively priced hamburgers and other food and beverage items.
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“Dunkin’ Donuts shops feature more than 52 varieties of donuts, as well as donut pasteries, all freshly prepared at the shop, and also coffee and other beverages, both for take-out and on premises consumption.”
The record reveals that Dunkin’ Donuts sells coffee, hot chocolate, hot. tea, milk, iced coffee, iced tea, soft beverages, such as grape and orange drinks, and juices of many types. It operates 24 hours a day and 7 days a week.
Appellants of course argue that Dunkin’ Donuts deals in a specialty item, i.e., doughnuts, the majority of which it is alleged are taken out for consumption elsewhere, and therefore such store falls within the meaning of “restaurants specializing in take-out foods,” a use prohibited by Section 1101(4) of the ordinance in an F-l Commercial District.
Dunkin’ Donuts counters that, as stated on the original building permit application, its operation will be a “retail baked goods and restaurant” and. therefore allowable under subsections (4) and (7) of Section 1101.
Both parties to this appeal agree that the contemplated Dunkin’ Donuts operation is a “restaurant” although the township ordinance provides no definition of “restaurant”, “restaurants specializing in take-out foods”, or “bakery”. We turn to Webster’s Third New World Dictionary 164, 1910, 1936 (15th ed. 1966) which provides the following definitions:
“restaurant” — “an establishment where refreshments or meals may be procured by the public; a public eating house.”
“refreshment” — “something (as food, drink) that refreshes”; and in the plural means “a light meal; lunch.” '
“bakery” — “a place in which baked products (as bread, cakes; cookies) are 'made; an establishment (as a retail shop) that sells baked products chiefly or exclusively.”
In the absence of an ordinance definition, it would seem, at least by accepting Black’s more general definition, that Dunkin’ Donuts’ proposed use could be described (Section 1101(7)) as a “Personal service shop or custom shop . . . for making articles to be sold at retail on the premises, such as: ... bakery or confectionery; or similar establishment.” See Kane v. Livingston, 170 N.Y.S. 2d 98 (1957).
Again in the absence of an ordinance definition, in its attempt to determine whether the proposed Dunkin’ Donuts enterprise is encompassed by the phrase “restaurants specializing in take-out foods”, the lower court stated:
“Certain cases which have interpreted zoning regulations dealing with restaurants are of import. In Food Corporation v. Zoning Board of Adjustment, 384 Pa. 288 [121 A. 2d 94] (1956) the Pennsylvania Supreme Court included under the general term ‘restaurant’ a drive-in restaurant as a permitted use. Following this, zoning ordinances in Pennsylvania sought to avoid this result by expressly prohibiting drive-in restaurants in certain districts. Courts in other jurisdictions determined that operations such as ‘Burger King’, and ‘Grino’s’, where meals were prepared to take out, were to be classified as ‘restaurants’ rather than as the prohibited ‘drive-in restaurants’. In Burger King of St. Louis, Inc. v. Weisz, 444 S.W. 2d 517 (1959), the Supreme Court of Missouri described this distinction at page 520:
It might well be that the inclusion into the township ordinance of the phrase “drive-in restaurant” was meant to proscribe such establishments as Burger King, McDonalds, Carrolls, Red Barn, and Gino’s, and the phrase “restaurants specializing in take-out foods” to prohibit Dunkin’ Donuts-type restaurants or “snack shops”. But since appropriate definitions are lacking in the ordinance, we are left to speculate as to what such terms mean, and we “. . . will not attach a strained meaning to the words of the ordinance or find a prohibition by implication, however, since zoning regulations are in derogation of the common law and are strictly construed [in favor of the property owner].” Annot., 82 A.L.R. 2d 989, 992 (1962); Peterson v. Zoning Board of Adjustment, 412 Pa. 582, 195 A. 2d 523 (1963) ; Fidler v. Zoning Board of Adjustment, 408 Pa. 260, 182 A. 2d 692 (1962); Lord Appeal, 368 Pa. 121, 81 A. 2d 533 (1951).
As the court stated in Appeal of American Fast Foods, Inc., 18 Ches. Co. Rep. 311, 312, 50 D. & C. 2d 192, 194-5 (1970) : “The township argues that the provision in question is directed against the operation of a ‘Gino’ type of establishment, and that such an establishment creates undesirable side effects which should not be permitted within the township. We do not know whether a Gino establishment is good or bad from the township’s point of view. If it encourages activity which conflicts with the public interest, the prohibition of the undesirable activity would seem to be the appropriate method of overcoming its undesirable effect. That result cannot be obtained by attempting to read a meaning into the language of the zoning ordinance which that language does not justify.”
Order affirmed.
Section 1101 of Article XI (entitled “F-l Commercial Districts”) of the Zoning Ordinance of the Township of Abington provides in part:
“Section 1101. Use Regulations. A building or group of buildings may be erected or used, and a lot may be used or occupied, for any of the following purposes and no other:
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2. Retail store, not including a pet shop.
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4. Restaurant or similar establishment, not including drive-in restaurant, or restaurants specializing in takeout foods.
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7. Personal service shop or custom shop for the repair or servicing of clothing or household articles or for making articles to be sold at retail on the premises, such as: ... bakery or confectionery; or similar establishment.”
We specifically do not deal here with that type of Dunkin’ Donuts operation referred to as “. . . drive-in restaurants that serve inexpensively priced hamburgers and other. food and beverage items.”
“One need only add that there are no sure external standards for judging legislative motive: and that once such an inquiry is admitted, the Court is on the high seas of subjectivism with not a port in sight.” The Mind and Faith of Justice Holmes 146 (M. Lerner ed., Modern Library ed. 1943).