Posted by: Patricia Salkin | November 3, 2016

PA Appeals Court Upholds ZHB’s Denial of Permits for Adult Live Entertainment Facility Use

The Applicant operated Club Good Times, a BYOB gentlemen’s club located in the Borough’s historic district and was zoned high density residential (HDR). Although adult uses were not permitted in HDR districts under Section 220-25.B of the Ordinance, they were allowed by special exception in GI districts pursuant to Section 220.20 of the Ordinance and were required to have a minimum lot area of one acre. The ZHB concluded that the club constituted a lawful nonconforming use as it presently operated, as a bar offering partially-clothed dancers as adult entertainment. In an effort to change that use to one with totally nude dancers, the Applicant submitted an application for zoning permit. In a subsequent letter submitted to the Borough’s zoning officer, the Applicant also asserted a substantive validity challenge to the Ordinance on the ground that it failed to provide sites for adult uses such as nude dancing. The Applicant maintained that granting its challenge would allow the restoration of an alleged lawful nonconforming use of live nude dancing, which it contended was never abandoned and was manifestly intended to be maintained. In the alternative, the Applicant sought a special exception and applied for use and distance variances. The ZHB denied all of the Applicant’s requested relief, and determined that the Applicant failed to establish a valid nonconforming use of totally nude dancing, failed to demonstrate that the Ordinance de facto excluded an ALEF use because there was property in the GI East District that would satisfy the requisite separation distances for that use, and failed to establish grounds for a special exception and variances. On appeal, common pleas reversed without taking any additional evidence.

The appeals court found that the court of Common Pleas erred in reversing the ZHB’s determination that Glatfelter Field was a public park, as it improperly reweighed the pertinent testimony, rendered its own construction of the Ordinance’s definition of school and substituted its determination. The court found that the ZHB took ample testimony on the issue and rendered numerous fact-findings in support of its determination. Additionally, the court determined that although the ultimate conclusion as to the classification of a use was a legal conclusion, it had long been established that factual questions relating to the nature and use of a premises are primarily within the province of a zoning hearing board. Having concluded that Glatfelter Field was a public park, and the mandated distance for an adult use therefrom was 500 lineal feet, the court found that the ZHB correctly determined that the Ordinance did not create an unconstitutional de facto exclusion for an ALEF use within the Borough.

Next, the record indicated that approximately eighteen-acre triangular area with road frontage was outside of the exclusion zone and, therefore, could be developed for an adult use. Accordingly, based on the ZHB’s findings and supporting evidence of record, the court agreed with the ZHB that the Applicant failed to establish that there was no suitable land in the Borough where an ALEF could legally operate after applying the 500-foot lineal separation distance.

The ZHB next determined that the only lawful nonconforming use of the property was a club with partially-clothed dancers, thereby rejecting the Applicant’s contention that it preserved a lawful nonconforming use of totally nude dancing which existed at the time the Borough enacted the Ordinance in 1999. While the Applicant’s predecessor club, Hartman’s Café, had offered totally nude dancing, that club operated in violation of the Liquor Code. Accordingly, the court reversed the common pleas’ determination that the Ordinance created an unconstitutional de facto exclusion for an ALEF use within the Borough, and affirmed its determination that the only lawful nonconforming use of the property was a club with partially-clothed dancers.

Fischer v Zoning Hearing Board of Borough of Columbia, 2016 WL 5944998 (PA Cmwlth 10/13/16)

 


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Categories

%d bloggers like this: