Appeal, No. 269, March T., 1954, from order of Court of Common Pleas of Butler County, Dec. T., 1953, No. 58, in re petition of Steve Hilovsky et ux. Order reversed. Appeal by applicants from decision of Zoning Board of Adjustment refusing permit for restaurant with a liquor license. Before SHUMAKER, P.J. Order entered dismissing appeal. Applicants appealed.
David R. Levin, for appellants.
Carmen V Marinaro and John Murrin, for appellees.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
The question here presented concerns the validity of a township zoning ordinance and its application by the Board of Adjustment to the request for a transfer of a restaurant business with a liquor license from one location in the township to another.
An ordinance of Butler Township in Butler County provides that in a certain district or zone of the township classified as "commercial" the land and buildings may be used for any purpose with certain exceptions therein enumerated. Restaurants are not excluded but among the prohibited uses is "Liquor or spirits; brewing or distillation." A further provision is that "The Board of Adjustment may, by special allowance, permit the establishment, operation and relocation of taverns, hotels or restaurants, licensed to sell intoxicating liquor in addition to those in operation on the passage of this Ordinance."
Steve and Stella Hilovsky, operating a restaurant with liquor license in an industrial district of the township, desired to transfer their business to the district classified as "commercial." The Board of Adjustment rejected their application, and, on appeal to the Court of Common Pleas of Butler County, its action
was sustained, resulting in the present appeal to this court.
Admittedly, any restaurant which had never obtained a liquor license, or any restaurant which, having obtained one, was willing to surrender it, was automatically entitled under the ordinance to locate in the district in question. What the ordinance provided, however, was that, if an applicant wished to bring his restaurant business into the district while retaining his liquor license, the Board of Adjustment could, in the exercise of a discretion as to which the ordinance prescribed no governing rules or standards, permit or refuse the application as it saw fit. The question therefore arises: Can an ordinance properly provide, or a Board of Adjustment acting under it order, that a hotel or a restaurant which otherwise would be a permissible use within the zone should be allowed to enter only on condition that it would not exercise the privilege of selling liquor which had been granted to it by the State?
A clear answer to this question was given in Sawdey Liquor License Case, 369 Pa. 19, 85 A.2d 28, and we cannot do better than quote the language of Mr. Justice LADNER who wrote the opinion in that case. After stating the question as being, in effect, whether a municipality may, in the guise of a zoning ordinance, restrict in an area where business is permitted a part of that business, he said (pp. 25, 26, A. pp. 31, 32): "Conceding that a zoning ordinance may properly exclude hotels and taverns, like any other business, entirely from a residential area, ... an entirely different question is presented when it is attempted to regulate the details of a hotel business which it permits ...