190 Pa. Super. 643 | Pa. Super. Ct. | 1959
Opinion by
John Rozycki and Josephine his wife, the parents of Roy A. Royal, the present appellant, bought four adjoining lots identified as lots 7, 8, 9 and 10 as numbered on a plan of Fair Oaks Subdivision in Horsham
Royal, to extend the scope of his business, and with the intention of opening a dining room on his premises at 160 Easton Road made an application for a restaurant liquor license. It is conceded that the building is suitable in every respect and there was no objection on that score. The Liquor Control Board however re
Before the lower court this appellant sought a reversal of the board on the question of administrative discretion under §464 of the Liquor Code of April 12, 1951, P. L. 90, 47 PS §4-464 on his contention that “by virtue of the change of conditions and character of the neighborhood and the enactment of the zoning ordinance above referred to the said conditions and restrictions have ceased to be of any substantial value to the property in question or to other property in said tract.” In support of that position the appellant, at the hearing before the lower court, presented evidence of what he contended were violations of the above restrictions in at least 10 instances. The testimony indicates that within the subdivision fronting on Easton Road and also on Hatboro Pike, in addition to a number of private homes, there were an Esso Service Station, a Texaco Gasoline Station, a pharmacy, a commercial ice machine, a barber shop, a nursery, a neon sign company, an ornamental iron works, a body shop and a plumbing and heating business. It is not necessary for us to decide which, if any, of the above businesses conflict Avith the restrictions as to use of the land. The important consideration is the fact that at no time has there been a violation of the restriction against a “tavern” or “drinking saloon” and a restaurant licensed to sell liquor would come within that prohibited class. The present case is before us on appeal and not on certiorari as under prior legislation; and in any vieAV of the evidence in this record violations of the restrictions were not countenanced to such
Although the land fronting on all of the three streets which bound the subdivision, were zoned “Commercial” in 1939, yet the character of the subdivision is still predominantly residential. There are at least 75 private dwellings on lots within the subdivision which were bought subject to the restriction with which we are concerned, and with knowledge that the same restriction applied to every other lot within the subdivision. The equity action in Benner v. Tacony, 328 Pa. 577, 196 A. 390 was brought to restrain a number of incorporated clubs from selling beer or liquor in violation of restrictions in title-deeds of the properties occupied by them. In that case it is said: “It requires no citation of authorities to support the proposition that the restriction in this case [i.e., “that no tavern or building for the sale of beer or liquor” shall at any time be erected ... on the land] runs with the land . . . Presumably those who established residences in this area did so in reliance upon the neighborhood remaining more orderly and desirable by reason of the restriction.” The holding of that case was that . . the fact that commercial establishments have crept in here and there does not impair the utility of the restriction . . .”; and violations of the restrictive covenant against the sale of beer or liquor may be enforced in squity.
In construing prior liquor control acts the Liquor Control Board uniformly applied the above principles to restrictions in deeds to property prohibiting its use for the sale of intoxicating liquors. And we have consistently supported the Board by holding that it can lawfully refuse to issue a restaurant liquor license where there is a restriction, in the deed to the property, which prohibits its use for that purpose. Cheris’s
Order affirmed.