Philm Corp. v. Washington Township

638 A.2d 388, 162 Pa. Commw. 126, 1994 Pa. Commw. LEXIS 74
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 16, 1994
Docket976 C.D. 1993
StatusPublished
Cited by12 cases

This text of 638 A.2d 388 (Philm Corp. v. Washington Township) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Philm Corp. v. Washington Township, 638 A.2d 388, 162 Pa. Commw. 126, 1994 Pa. Commw. LEXIS 74 (Pa. Ct. App. 1994).

Opinions

NARICK, Senior Judge.

Before us is an appeal by Philm Corporation (Philm) from a judgment entered in favor of Washington Township, Stanley J. Margie, III, and Stanley M. Lysek (Appellees) and Jill C. Corley and Charles R. Rissmiller (Intervenors). In this- declaratory judgment action, The Court of Common Pleas of Northampton County ruled that Philm must make application for a variance to the Washington Township Zoning Hearing Board in order to continue operating its establishment known as The Fox in its present location in Washington Township.

It is undisputed that prior to Philm opening The Fox on October 1, 1992, the premises in question was used over the years as a restaurant/tavern by several different owners using [129]*129a variety of names. The area is zoned as a medium density residential (R-2) district, but the use of the premises as a restaurant/tavern predates the enactment of the Township zoning ordinance, making such use an established non-conforming use. The premises have always been licensed by the Pennsylvania Liquor Control Board with an amusement permit.

The trial court found that prior to opening The Fox, Philm made a variety of changes in the interior design of the building. It enlarged the bar area, increasing the number of seats at the bar, threefold, and constructed a dance floor on top of the bar within a short distance from the bar patrons. Philm also removed a wall which was previously used to enclose an area for more private dining but which obstructed the view of the dance floor.

From the date of opening, The Fox presented live go-go dancers who entertain continuously in two hour sets every day except Sunday from 12:00 noon to 12:00 midnight. It employs thirty (30) to thirty-five (35) such dancers, but it employs no waitresses, and offers a limited menu. The newspaper advertisement announcing The Fox’s “Grand Opening” on October 1, 1992 pictured a man with a shotgun saying, “Are you a fox?”, and a woman saying, “If you are the hunter.” The advertisement also stated that there would be twenty girl dancers. It made no reference whatsoever to a restaurant or to the provision of food on the premises of The Fox. A second advertisement also featured the fox-hunter routine and prominently displayed the hours the dancers would perform, while noting secondarily that there would be daily luncheon specials and rooms for rent.

At least one of the establishment’s predecessors in title, Mr. Marino Saveri, employed a band and/or a guitarist for approximately twelve (12) engagements in 1982. Other previous owners have had non-live entertainment such as arcade games, jukeboxes and television sets, but the trial court found that no live entertainment had been presented on the premises for more than five years prior to the opening of The Fox.

[130]*130On the first day of operation, a Washington Township zoning officer, Stan Lysek, visited The Fox because of complaints received concerning the plans for the new establishment. He then issued a cease and desist order on the basis that Philm had violated sections of the zoning ordinance regarding construction alterations and changes in the use of non-conforming premises. On October 13,1992, the Township then sought a preliminary injunction permanently enjoining the operation of The Fox. Upon agreement of the parties and approval by the court, this application was abandoned and Philm filed a declaratory judgment action on the issue of whether its use of the premises required it to apply to the Zoning Board for a variance pursuant to Section 4.6(G)(2)a of the Washington County Zoning Ordinance. Section 4.6(G)(2) provides in pertinent part that, “[a] nonconforming use may be changed to another non-conforming use only if permitted as a Variance by the Zoning Hearing Board ...” (emphasis added).

Philm claims that the principal use of the subject premises as a restaurant/bar has not changed and that the dancing is only an incidental or accessory use, similar to the entertainment provided by earlier owners. A principal use is defined in the Washington Township Zoning Ordinance at section 2.1(B)(114) as “[t]he single dominant use or single main use on a lot,” while an accessory use is defined at Section 2.1(B)(6) as “[a] use subordinate to the principal use on the same lot and customarily incidental thereto.”

In determining whether a use has changed it must be kept in mind that a property owner’s right to expand a lawful non-conforming use to meet natural business expansion is protected by the law and the Constitution. Township of Kelly v. Zoning Hearing Board of Kelly Township, 36 Pa.Commonwealth Ct. 509, 388 A.2d 347 (1978). However, it is also the policy of the law to closely restrict such non-conforming uses and to strictly construe provisions in zoning ordinances which provide for non-conforming uses in order to discourage the indefinite continuation of structures on the land which are in complete variance with the zoning plan. Hanna v. Board of [131]*131Adjustment of Forest Hills, 408 Pa. 306, 183 A.2d 539 (1962). Therefore, there is no constitutionally protected right to change from one non-conforming use to another, Hammond v. Zoning Hearing Board of the Borough of Stroudsburg, 129 Pa.Commonwealth Ct. 144, 564 A.2d 1324 (1989).

“To qualify as a continuation of an existing nonconforming use, a proposed use must be sufficiently similar to the nonconforming use as not to constitute a new or different use.” Limley v. Zoning Hearing Board of Port Vue Borough, 533 Pa. 340, 625 A.2d 54, 55 (1993). The proposed use need not be identical to the existing use, and an overly technical assessment of that use cannot be utilized to stunt its natural development and growth. Chartiers Township v. W.H. Martin Inc., 518 Pa. 181, 542 A.2d 985 (1988).

In our Supreme Court’s most recent pronouncement concerning the question of whether a proposed use was sufficiently similar to an existing use so as to constitute a continuation or expansion of an existing non-conforming use, it cited several factors which were valuable for assessing whether the “actual” use of the premises had changed. Limley. In determining if a proposed public restaurant and bar were sufficiently similar to the private club previously operating on the premises, the Court considered whether the chief activity would change, whether the hours of operation would change, whether the menu changed, whether the number of people using the establishment changed, whether it would still function as a social gathering place for weddings and graduations, and whether the majority of the patrons would continue to arrive at the establishment by car. Id.

Applying these criteria to the situation here we find that the principal use of the subject premises since The Fox commenced business on October 1, 1992, is not sufficiently similar to the use of the premises by previous owners.

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Philm Corp. v. Washington Township
638 A.2d 388 (Commonwealth Court of Pennsylvania, 1994)

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Bluebook (online)
638 A.2d 388, 162 Pa. Commw. 126, 1994 Pa. Commw. LEXIS 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/philm-corp-v-washington-township-pacommwct-1994.