PA Appeals Court Agrees that City Must Issue Condition Use Permit for Strip Club Where City Failed to Meet Burden of Proof

The Pittsburgh zoning code was updated in 2009 and permitted adult entertainment as a conditional use in the Urban Industrial zoning district.  Marquise wanted to operate a strip club on land in the urban industrial zone, but the City Council failed to hold a hearing as was required by the Pittsburgh Code and Marquise’s application was subsequently denied.  The trial court granted the application and the City appealed.

The City argued on appeal that it had presented substantial evidence that the proposed strip club would cause harm to the health, safety and welfare of the community. The Court noted that the burden of persuasion as to health, safety and welfare concerns falls on the objector, in this case the City.  The Court looked to the language in the ordinance and determined that the burden of persuasion had not expressly shifted to the applicant.  Instead, the Court noted that the applicant only had to show specific requirements while the City had the burden to show all general policy concerns and negative effects.  Marquise satisfied all of the required specific conditions set out in the Pittsburgh Code.  The Court further noted that the City only presented speculative evidence of the possible harm that would be caused by granting the conditional use permit.  Additionally, the City failed to present any evidence of potential health and safety impacts as well as evidence that the proposed strip club would cause a detrimental effect on traffic.  The Court held that there was sufficient evidence to support the trial court’s decision.

Marquise Inv., Inc. v. City of Pittsburgh, 11 A.3d 607 (Pa.Cmwlth. 2010)                    

The opinion can be accessed at: http://www.aopc.org/OpPosting/Cwealth/out/2507CD09_12-30-10.pdf