5 Pa. Commw. 78 | Pa. Commw. Ct. | 1972
Lead Opinion
Opinion by
This is an appeal from an Order of the Court of Common Pleas of Chester County, affirming the grant
We must reverse on the basis that the applicant has not met the requirements to be eligible for the Special Exception. The testimony of applicant’s President and only witness makes it quite clear that the applicant intends to secure a liquor license and carry on a principal activity that is customarily carried on as a business. In many places in the record, the President of applicant equivocated as to whether the club would secure a liquor license. For example:
“Q. You are familiar with the American Legion in West Chester here or the YFW in Paoli, or places of that type, where you can go, you know, any time during the afternoon or in the evening, seven days a week, and get a drink if you are a member?
“A. If you are a member.
“Q. Do you contemplate that type of a facility either now or sometime in the future?
“A. In all probability maybe sometime in the future.” However, when the question was put directly, it was given a direct answer:
“Q. Question was asked previously about the serving of alcoholic beverages in your present location. I
“A. Yes, we do.”
In our opinion, it would be difficult to think of a more appropriate example of what the Zoning Ordinance was aiming to exclude from the Special Exception provision than a club with a liquor license. The law is quite clear that the burden is on the protestants or Board to show the proposed Special Exception would be detrimental to the health, safety, welfare, and morals of the community. See Delaware County Community College Appeal, 435 Pa. 264, 254 A. 2d 641 (1969); Appeal of Stefonich, 1 Pa. Commonwealth Ct. 13, 271 A. 2d 707 (1970). However, before this burden must be assumed by the protestants or the Board, the applicant must bring itself within the class eligible for the Special Exception. The most recent case pointing out the distinction between the applicant’s burden to bring himself within the class eligible for the Special Exception and the burden of the protestants to show it would be contrary to the public welfare is Berlant, et al. v. Lower Merion Toionship Zoning Hearing Board, 2 Pa. Commonwealth Ct. 583, 279 A. 2d 400 (1971), wherein it is stated: “In this case, the Synagogue met its requirements by showing that its application fell within the provision of the ordinance permitting a religious use by special exception and by putting forth a plan showing the proposed use of its land.”
The order of the lower court is reversed.
Dissenting Opinion
Dissenting Opinion ry
I dissent. Pursuant to the admonition of the Supreme Court we have repeatedly said that it is not the
Section 203.1(4) (e) of the West Goshen Township Zoning Ordinance permits special exceptions in this zoning district for fraternal institutions “. . . provided that a principal activity shall not be one which is customarily carried on as a business, and provided that all services shall be for members and their guests.” The majority relies on the testimony of the president of the American Legion Post, the applicant, that it intends at some yet undetermined point in time to apply for a liquor license. Prom this assertion, it concludes that the sale of alcoholic beverages will be “a principal activity” of the fraternal institution. On this basis alone, today the court holds that by application of law the ordinance bars this use. No additional testimony was heard by the court below. It is for us at this juncture to review the findings of the Board. Village 2 at New Hope, Inc. Appeals, 429 Pa. 626, 241 A. 2d 81 (1968).
The Board met the legal issue presented by appellant who charged that a proposed activity of another nature would be an unlawful use. In considering the testi
The application herein reviewed does not represent that “a principal activity” is the sale of alcoholic beverages, much less a profit-making enterprise for the economic benefit of an individual, partnership or corporation, customarily considered to be the purpose of the liquor and beer dispensing business. Bather, the Board found as fact that “[p]ersons desiring to drink on the premises presently, would be required to furnish their own liquor, but that liquor was generally furnished though not sold for post parties.” If, in the future, the Post’s principal activity as a business is the sale of alcoholic beverages,
Cohen v. Zoning Board of Adjustment of Philadelphia, 3 Pa. Commonwealth Ct. 50, 276 A. 2d 352 (1971), said: “. . . this Court must exercise self-restraint as to substituting our opinions far removed from tbe particular zoning bearing for the well considered decision of local officials.” See also, Philadelphia v. Angelone, 3 Pa. Commonwealth Ct. 119, A. 2d (1971).
This is not to suggest that the courts may not consider factual changes in the status of ordinances, See Linda Development Corp. v. Muir, et al., 3 Pa. Commonwealth Ct. 334, A. 2d (1971) ; nor that applications are not subject to amendment by testimony heard by the Zoning Hearing Board. I would, however, hold that amendatory testimony must relate a present not a speculative intent to use the property. See, infra.
As I view it, the majority fails to consider the realistic interpretation available when it concludes that the applicant violates the first proviso of Section, 203.1(4) (e) which reads: “. . . provided that a principal activity shall not be one which is customarily carried on as a business. . . .” While this language clearly lends itself to the majority’s theoretical interpretation that the term “customary use” refers to an activity which is customarily carried on as a business generally throughout the community or in the Commonwealth, this interpretation, in my judgment leads to absurd results when we apply it to the subsections as a whole. For example, “nonprofit swimming pools” are permitted, subject to the limitation of the proviso. However, since the activity which pro
The majority has apparently reached its conclusion without considering whether the dispensing of alcoholic beverages is a principal activity of this fraternal organization or whether that activity is secondary to other services and activities performed by that organization, e.g., an inducement to participate in the functions of the Post. To hold that applicant violates Section 203.1(4) (e) without considering this question after taking proper testimony, is clearly erroneous.