Appeal from the Order of the Court of Common Pleas of Chester County in case of In Re: Appeal of Edward J. Sites and Other Resident Property Owners and Certain Abutting Property Owners From the Decision of the Zoning Hearing Board of West Goshen Township Granting a Special Exception to the Nathan Holmes Post No. 362 Home Association, Franklin and Miner Streets, West Chester, Pennsylvania, to use Property Located North of Westtown Road, Between Concord Road and Five Points Road, as an American Legion Post Club, No. 165, March Term, 1971.
Joseph A. Damico, Jr., with him Fronefield, DeFuria and Petrikin, Joseph F. Harvey, and MacElree, Platt and Harvey, for appellants.
Thomas M. Twardowski, with him Robert W. Lentz and Lentz, Riley, Cantor, Kilgore & Massey, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Blatt. Judge Rogers disqualified himself and did not participate. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Crumlish, Jr. Judge Kramer joins in this Dissent.
This is an appeal from an Order of the Court of Common Pleas of Chester County, affirming the granting
of a Special Exception by the Zoning Hearing Board of West Goshen Township to the applicant to operate a club, i.e., an American Legion Post, in an R-3 Residential District. The Zoning Ordinance provides for a Special Exception in an R-3 District: "Club, fraternal institution, nonprofit swimming pool, provided that a principal activity shall not be one which is customarily carried on as a business, and provided that all services shall be for members and their guests." The Board, affirmed by the court below, found that the applicant met the requirements for a Special Exception as provided in the Zoning Ordinance, and that the protestants had not met their burden of showing that granting the Special Exception would be detrimental to the health, safety, welfare, and morals of the community.
We must reverse on the basis that the applicant has not met the requirements to be eligible for the Special Exception. The testimony of applicant's President and only witness makes it quite clear that the applicant intends to secure a liquor license and carry on a principal activity that is customarily carried on as a business. In many places in the record, the President of applicant equivocated as to whether the club would secure a liquor license. For example:
"Q. You are familiar with the American Legion in West Chester here or the VFW in Paoli, or places of that type, where you can go, you know, any time during the afternoon or in the evening, seven days a week, and get a drink if you are a member?
"Q. Do you contemplate that type of a facility either now or sometime in the future?
"A. In all probability maybe sometime in the future." However, when the question was put directly, it ...