Posted by: Patricia Salkin | December 8, 2016

PA Appeals Court Finds Reasonable Grounds Existed to Uphold Preliminary Injunction to Allow Pop-Up Beer Garden and Found the Use Was Not a Nuisance Per Se

The City of Philadelphia appealed from an order of the Court of Common Pleas of Philadelphia County granting an emergency petition for preliminary injunction to allow the operation of a pop-up beer garden in a residential district in the City pending disposition of a use permit application.

On appeal, the City argued the trial court erred because the beer garden was a prohibited commercial use in a residential zone. Pursuant to Section 14–306 of the Philadelphia Code, in order for L & I to issue a cease operations order, it was required to show that either the missing permit was required “to protect public health or safety” or the continued use was creating a public nuisance. The trial court found that Appellees had the appropriate health inspection licenses and catering licenses for the sale of food and beverages on the Property. These permits protected the public by ensuring a safe and healthy food supply. Appellees also possessed licenses from the PLCB to sell alcohol off-premises, which the court determined protected the public by regulating the sale of alcohol. Additionally, the police were never called to the property in response to any complaints. Thus, the trial court found that the “continued” operation of the beer garden without the required zoning permit was not “creating a public nuisance.”

The City next contended the trial court erred in granting the preliminary injunction because the beer garden was a public nuisance per se. The court noted that although the beer garden was located in a residential community, its mere existence in the residential area did not automatically render it a nuisance per se. Instead, for the use of the Property as a beer garden to be considered a nuisance per se, it must have certain recognized, unavoidable, inherent characteristics that make it injurious to health and property. As any such evidence was absent from the record, the court affirmed, and concluded that the trial court did not abuse its discretion or misapply the law in finding “apparently reasonable grounds” existed to support Appellees’ preliminary injunction where L & I did not meet the prerequisites to issue a cease operations order under the Philadelphia Code.

SPTR, Inc. v. City of Philadelphia, 2016 WL 6833074 (PA Commwlth 11/21/2016)

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