MAJ Entertainment, Inc. v. Zoning Board of Adjustment

947 A.2d 841, 2008 Pa. Commw. LEXIS 187, 2008 WL 1913229

• Court: Commonwealth Court of Pennsylvania
• Decided: May 2, 2008
• Docket: 1949 C.D. 2006
• Status: Published

Opinions

OPINION BY

Judge COHN JUBELIRER.

MAJ Entertainment, Inc. (MAJ) appeals from an order of the Court of Common Pleas of the First Judicial District of Pennsylvania (trial court) affirming the decision of the Philadelphia Zoning Board of Adjustment (Board), which denied MAJ’s appeal from a Cease Operations Order (Order to Cease) issued by the Philadelphia Department of Licenses and Inspections (L & I) on MAJ’s property at 712-714 South Street in Philadelphia (Property). MAJ argues that the Board erred in finding that it did not have a vested right in a Permit for Use Registration issued to it by L & I on July 11, 2000 (2000 Permit) and that its operation of a club providing space for patrons to engage in sexual activity was not permitted by the 2000 Permit.

The Property is located in a C-2 commercial district. Prior to MAJ’s ownership, the Property had been occupied by a restaurant called Señor Rattler’s. Señor Rattler’s had operated under the provisos of a variance¹ issued in 1988 (1988 Provisos), which restricted the use of the Property. The 1988 Provisos stipulated, among other things: that Señor Rattler’s would not provide live entertainment; that there would not be a dance floor on the Property; and that Señor Rattler’s and its owner would not seek a license to operate as a club. In 2000, after MAJ had acquired the Property, MAJ sought and received a use permit to operate a restaurant with accessory “live entertainment and dancing by patrons.... ” . (2000 Permit.) MAJ opened an establishment called Club Kama Sutra on the Property. Club Kama Sutra offered buffet dining on the first floor, DJ music and dancing on the third floor, and open cubicles with futon mattresses where patrons could engage in sexual activity, as well as watch other patrons so engaged, on the second floor. In 2005, L & I issued an Order to Cease, effective November 18, 2005, directing MAJ to cease operating a restaurant not in accordance with its permit, to cease operating a sex club without a permit, and to cease operating a private club without a permit.

MAJ appealed the Order to Cease and received a hearing before the Board. The Board concluded that the 1988 Provisos ran with the land and, therefore, bound MAJ as well. The Board also concluded that permitting patrons to engage in sexual activity was not an accessory use to a restaurant. The Board, therefore, denied MAJ’s appeal. MAJ appealed the Board’s decision to the trial court. Without taking additional evidence, the trial court issued an order affirming the decision of the Board. In its opinion, issued pursuant to Pa. R.A.P.1925, the trial court held that the 1988 Provisos were in effect and, even if they were not, MAJ was not using the Property in compliance with the 2000 Permit. In response to arguments by MAJ, the trial court also held that simply because Philadelphia’s zoning ordinances² do not specifically prohibit sex clubs does not mean that they are permitted. Finally, the trial court agreed with the Board’s determination that the use of the Property for the sexual activity of patrons was not an accessory use to the Property’s use as a restaurant.

MAJ now appeals to this Court.³ MAJ presents three main arguments for our consideration: 1) the sexual activity-taking place on the Property was an accessory use to the Property’s use as a restaurant and Club Kama Sutra was, therefore, operating in compliance with the 2000 Permit; 2) because MAJ was using the Property in compliance with the 2000 Permit, and because MAJ relied on the 2000 Permit, it has a vested right in the 2000 Permit; and 3) MAJ should be allowed to continue using the Property as it has been because nothing in Philadelphia’s zoning ordinances explicitly prohibits the activity that has been taking place there. We will discuss each of these arguments in turn.

First, MAJ argues that its use of the Property as a venue where its patrons may engage in sexual activity with one another and view one another engaging in sexual activity is “live entertainment,” an accessory use, allowed by the 2000 Permit, to the Property’s use as a restaurant. Section 14-102(2) of the Philadelphia Code defines an accessory use as “[a] use, including all necessary public utility facilities, subordinate to and on the same lot as the main use on a lot and customarily incidental to the main use....” Philadelphia Code § 14-102(2). In Southco, Inc. v. Concord Township, 552 Pa. 66, 713 A.2d 607 (1998), the Supreme Court of Pennsylvania interpreted substantially similar language in the zoning ordinance of Concord Township and concluded that off-track betting was an accessory use to a restaurant. MAJ argues that patrons’ sexual activity is just as much an accessory use to a restaurant as is gambling, even though, like gambling, it may strike some as an unusual addition to the dining experience and may be found by some to be morally objectionable. This argument fails on several points.

Assuming Club Kama Sutra was a restaurant, MAJ’s claim that providing space for patrons to engage in sexual activity was an accessory use to the primary restaurant use would fail. MAJ relies heavily on the Supreme Court’s decision in South-co, which interpreted language similar to that in Section 14-102(2), defining “accessory use.” This reliance is misplaced. In Southco, applicants . Greenwood Racing, Inc. and Brandywine Turf Club, Inc. wished to open a “Turf Club” restaurant with appurtenant off-track betting. Southco, 552 Pa. at 69, 713 A.2d at 608. The Concord Township Zoning Ordinance did not explicitly allow gambling facilities, but did allow accessory uses, which it defined as “a use conducted on the same lot as, and subordinate to, a principal use to which it is related (which, use is clearly incidental to and customarily found) in connection with a particular principal use.” Southco, 552 Pa. at 74, 713 A.2d at 611 (quoting Section 104 of the Concord Township Zoning Ordinance.) The Supreme Court held that wagering fit into this definition of accessory use as it was both subordinate to and customary and incidental to the Turf Club’s primary use as a restaurant. The Court found the wagering was subordinate to the restaurant use for the following reasons: 75% of the building space was devoted to the restaurant use, while only 25% was devoted to the off-track betting; the majority of the employees were devoted to the restaurant use; and, most importantly, the Race Horse Industry Reform Act, 4 P.S. §§ 325.101-.402, provided that off-track wagering was only permitted at facilities incorporating high-end restaurants. With regard to this last point, the Court stated “the [Race Horse Industry Reform] Act itself demonstrates that the wagering aspect of the Turf Club is dependent on, and subordinate to, the restaurant, since the Act clearly does not envision or permit a facility allowing wagering to exist without a restaurant such as that proposed by the Applicants.” Id. at 75, 713 A.2d at 611. The Race Horse Industry Reform Act was also central to the Court’s determination that off-track wagering was a use “customarily incidental” to a restaurant: “state regulations envision the wagering component of a Turf Club like that proposed by Applicants as being customarily incidental to a restaurant since the regulations will not allow approval of such a facility without a restaurant.” Id. at 76, 713 A.2d at 612.

Here, the use of the Property as a club at which people may meet and engage in sexual activity does not appear to be subordinate to the facility’s use as a restaurant and is ’not customarily incidental to that use. Club Kama Sutra’s visitors seem to have paid primarily for access to the “party” rather than for the buffet.⁴ At the hearing before the Board, Alan Tizer, president of MAJ, when asked whether the club sold any sexual devices, replied, “No. The only thing we charge money for is the dinner and dessert buffet, which is included in the price of admission to attend the parties.” (Board Hr’g Tr. at 17 (emphasis added).) This statement begins with the assertion that the price charged is for the food, but ends with the concession that the price is for admission and that the food is included. This interpretation is further supported by the price structure of Kama Sutra’s admission charge, which seems wholly unrelated to the amount of food a patron might consume:

Mr. Auspitz [Board member]: How much do they charge for this?

Mr. Tizer: The charge for a couple to attend on a Saturday night is $100. A couple — a couple for a Friday night is $75 a couple. The cost for a single lady to attend is $25, and a single gentleman, and they can only attend on Friday night, is $100 charge.

(Board Hr’g Tr. at 17.) This pricing structure seems geared more toward maintaining a felicitous gender balance for the operation of a swingers’ club⁵ than to the operation of a restaurant. It is therefore highly questionable whether the Property’s use as a club was subordinate to its use as a restaurant.

However, the use of the Property as a venue for its patrons to engage in sexual activity is certainly not customary and incidental to its use as a restaurant. MAJ bore the burden of proving that the use of the Property for patrons’ sexual activity was an accessory use to the Property’s use as a restaurant. See Smith v. Zoning Hearing Board of Conewago Township, 713 A.2d 1210, 1213-14 (Pa.Cmwlth.1998) (holding that owners of an airport failed to meet their burden of showing that their skydiving business was an accessory use to the airport). In attempting to meet this burden, MAJ tries to analogize its situation to Southco. However, Southco and the current case are clearly distinguishable. MAJ attempts to rely on Southco for the principle that, even though a use is uncommon, or even objectionable to some, it may still be sufficiently customary to qualify as an accessory use. This is not the principle for which Southco stands. Central to Southco''s holding was the Race Horse Industry Reform Act, which provided that off-track wagering facilities would only be permitted when they included high-end restaurants. In effect, this legislation created a custom whereby off-track wagering was associated with fine dining. Currently, we are aware of no such legislation associating semi-public sexual activity with haute cuisine. Therefore, we must decline MAJ’s invitation to effectively read the word “customary” out of the definition of “accessory use” found at Section 14-102(2) of the Philadelphia Code. Aside from arguing that even very uncommon uses may be customary and incidental to a primary use, MAJ offered no evidence to establish that providing space for patrons’ sexual activity and observation of each other’s sexual activity is a use customarily incidental to a restaurant.

Moreover, the idea that sexual activity is the sort of live entertainment envisioned by the drafters of the Philadelphia Code as customarily incidental to the operation of a restaurant is belied by the definition in the Philadelphia Code of a separate use that encompasses a restaurant with live sex as entertainment: the cabaret. Philadelphia’s zoning ordinances define a “cabaret” as “[a]n adult club, restaurant, theater, hall or similar place which features topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators or similar entertainers exhibiting specified anatomical areas[⁶] or performing specified sexual activities.[⁷]” Philadelphia Code § 14-102(24) (footnotes and emphasis added).⁸ This definition of cabaret, which combines a restaurant with entertainment in the form of sexual activity, clearly indicates that sexual activity is considered to be qualitatively different than ordinary live entertainment such as karaoke or dinner theater. If the drafters of Title 14 of the Philadelphia Code had considered sexual activity to be merely another form of live entertainment which could be an accessory use to a restaurant, there would have been no need to either define cabarets as a separate use, or to provide that a restaurant could be a cabaret.

The Board found that Club Kama Su-tra’s patrons’ sexual activity was not an accessory use to the restaurant use and was not incidental to the restaurant use. We agree that MAJ did not meet its burden of proving that sexual activity is a use customarily associated with, or incidental to, the retail sale of food, and we cannot say that the Board capriciously disregarded competent evidence in reaching this conclusion. Additionally, we believe that the inclusion of the cabaret use in the Philadelphia Code indicates that the drafters of these zoning ordinances did not intend sexual activity to be an accessory use, as live entertainment, to a restaurant. Therefore, MAJ’s use of the Property to provide space for its patrons to engage in sexual activity was not an accessory use to the Property’s putative primary use as a restaurant.

MAJ also argues that it has a vested right in the 2000 Permit. The Board found that the 1988 Provisos ran with the land and were, therefore, effective against MAJ. MAJ has offered no argument against this holding other than to argue that it had a vested right in the 2000 Permit, which, contrary to the 1988 Provisos, permitted MAJ to provide live entertainment and a dance floor for its patrons. In support of this argument, MAJ relies on Petrosky v. Zoning Hearing Board of the Township of Upper Chichester, 485 Pa. 501, 402 A.2d 1385 (1979). In Petrosky, the -Supreme Court held that, in determining whether the holder of an erroneously-issued permit has a vested right in a permit, a court should consider:

1. [the permit holder’s] due diligence in attempting to comply with the law;

2. his good faith throughout the proceedings;

3. the expenditure of substantial unrecoverable funds;

4. the expiration without appeal of the period during which an appeal could have been taken from the issuance of the permit;

5. the insufficiency of the evidence to prove that individual property rights or the public health, safety or welfare would be adversely affected by the use of the permit.

Id. at 507, 402 A.2d at 1388.

This Court will not find that a permit holder has exercised due diligence and exhibited good faith where the holder has engaged in activities in excess of those permitted by, or contrary to, the permit granted. See Rudolph v. Zoning Hearing Board of Cambria Township, 839 A.2d 475, 478-80 (Pa.Cmwlth.2003); see also Randolph Vine Assocs. v. Zoning Board of Adjustment of Philadelphia, 132 Pa. Cmwlth. 452, 573 A.2d 255, 259 (1990) (stating that where an applicant deviates from the use approved in an erroneously granted permit, he cannot claim a vested right in that permit) (citing Petrosky). As discussed above, MAJ’s use of the Property was not in compliance with the 2000 Permit, in which it claims a vested right. Moreover, MAJ failed to display good faith or due diligence when it failed to disclose on its permit application the use to which it intended to put the Property. See Township of West Pikeland v. Thornton, 106 Pa.Cmwlth. 560, 527 A.2d 174, 176 (1987) (holding that landowner did not act in good faith when he sought a permit for a garage explicitly for the storage of personal property, but used it for the storage of commercial equipment, in violation of the relevant zoning ordinance). On its application for the 2000 Permit, MAJ listed the proposed uses for the Property as: utilities and cold storage in the basement; an eat-in restaurant on the first floor; a lounge restaurant on the second floor; and a lounge with dancing by patrons and DJ entertainment on the third floor. Nowhere on its application did MAJ mention that it would be providing open cubicles, furnished with futon mattresses, in which patrons would be allowed to engage in sexual activity. This is not good faith. A diligent attempt to comply with the law would have involved disclosing the intended use of the second floor on the application.⁹ Alternately, MAJ could have applied for a cabaret permit, which would have more closely approximated the use to which it put the Property. We therefore conclude that MAJ had no vested right in the 2000 Permit.

Finally, MAJ argues that because no provision of the Philadelphia’s zoning ordinances prohibits it from allowing its patrons to engage in sexual activity, this use should be permitted. Again, MAJ’s premise is faulty. Philadelphia’s zoning ordinances explicitly enumerate permitted uses. See, e.g., Philadelphia Code § 14-303(l)-(3) (explicitly enumerating the permitted uses in a C-2 commercial district). Therefore, properties may only be used in the manners explicitly permitted by Philadelphia’s zoning ordinances. See Philadelphia Code § 14-105(1) (“In each district only the uses specified in this Title and uses accessory and incidental thereto shall be permitted.”); see also South Whitford Assocs. v. Zoning Hearing Board of West Whiteland Township, 157 Pa.Cmwlth. 387, 630 A.2d 903, 907 (1993) (“[Because a zoning ordinance listing of permitted uses logically implies that the non-listed uses are not allowed, we hold that the list of permitted uses is deemed to be exhaustive — and therefore determinative — as to what is allowed_”); Ryan, Robert S., Pennsylvania Zoning Law and Practice § 4.2.1 (“[M]ost zoning ordinances contain a list of permitted uses that clearly is intended to be exclusive”). Therefore, merely because Philadelphia’s zoning ordinances do not explicitly forbid operation of a sex club does not mean that an individual or corporation may obtain a permit for a different use and operate a sex club.

For these reasons, we affirm the order of the trial court.

ORDER

NOW, May 2, 2008, the order of the Court of Common Pleas of the First Judicial District of Pennsylvania, affirming the decision of the Zoning Board of Adjustment of the City of Philadelphia, in the above-captioned matter is hereby AFFIRMED.

1 . This variance allowed for two one-story additions, a fire stairway to the third floor, and the installation of a dumbwaiter.

2 . Philadelphia Code §§ 14-101 to 14-2109.

3 . In a zoning matter in which the trial court has taken no additional evidence, "this Court’s review is limited to determining whether the zoning board abused its discretion or committed an error of law.” Arter v. Philadelphia Zoning Board of Adjustment, 916 A.2d 1222, 1226 n. 9 (Pa.Cmwlth.2007). However, whether a use falls within a category described in a zoning ordinance is a matter of law, which an appellate court may determine based on evidence in the record. Diversified Health Assocs. v. Zoning Hearing Board of the Borough of Norristown, 781 A.2d 244, 247 (Pa.Cmwlth.2001) (citing Merry v. Zoning Board of Adjustment, 406 Pa. 393, 395, 178 A.2d 595, 597 (1962)).

4 . As the Supreme Court noted in Southco, "the manner in which an establishment derives its income is not determinative of the establishment’s principal use.” Southco, 552 Pa. at 73, 713 A.2d at 610. The Court gave the example of a newspaper, which does not "lose its character as a newspaper” merely because it derives most of its revenue from the sale of advertising rather than sales of copies of the paper. Id. at 73 n. 6, 713 A.2d at 610 n. 6. We would note, however, that most people buy the newspaper for the news, not the ads.

5 . When questioned on the reasoning for the price differential, Mr. Tizer stated:

Mr. Tizer: The reason ladies have a less of a fee is we try to limit the — or equal the proportions of people that come to this club.

Mr. Auspitz: You want to encourage the women.

Mr. Staten [Board member]: That’s right. So you want to encourage the women to come so they meet the men.

Mr. Tizer: Yes sir.

(Board Hr’g Tr. at 27.)

6 . "Specified anatomical areas” are:

(i) Less than completely and opaquely covered;

(.a) Human genitals, pubic region;

(.b) Buttocks; and

(.c) Female breasts below a point immediately above the top of the areola; and (ii) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

Philadelphia Code § 14 — 1605(2)(e).

7 . “Specified sexual activities” are:

(i) Human genitals in a state of sexual stimulation or arousal;

(ii) Acts of human masturbation, sexual intercourse or sodomy;

(iii) Fondling or other erotic touching of human genitals, pubic region, buttocks or female breasts.

Philadelphia Code § 14 — 1605(2)(f).

8 . For a discussion of the applicability of the definition of "cabaret” found at Section 14-102(24), see Judge Pellegrini's learned concurrence in this case, MAJ Entertainment, Inc. v. Zoning Board of Adjustment of the City of Philadelphia, 947 A.2d 841, 844 n. 4 (2008) (Pellegrini, J., concurring).

9 . As part of its argument that it acted diligently and in good faith, MAJ asserts that L & I was aware of MAJ’s use of the property at least as early as 2001, but took no action until news stories about the activities on the Property appeared on television. We note that "mere delay in enforcement does not create a vested right to use property in violation of zoning regulations," even where the municipality has knowledge of the violation. Marzo v. Zoning Hearing Board of Abington Township, 30 Pa.Cmwlth. 225, 373 A.2d 463, 465 (1977) (quoting Lewis v. Zoning Hearing Board of Lower Gwynedd Township, 24 Pa.Cmwlth. 574, 357 A.2d 725, 726 (1976)).