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VISUAL-EDUCATION DEVICES v. SPRINGETTSBURY TOWNSHIP (11/13/80)

decided: November 13, 1980.

VISUAL-EDUCATION DEVICES, INC., V.E.D., INC.; VISUAL-EDUCATIONAL DEVICES, INC., T/D/B/A V.E.D., INC., REBECCA BOLLERMAN, T/D/B/A V.E.D., INC.; BOBBY HOWELL, APPELLANTS
v.
SPRINGETTSBURY TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of York County in case of Springettsbury Township v. Visual-Education Devices, Inc., V.E.D., Inc.; Visual-Education Devices, Inc., t/d/b/a V.E.D., Inc.; Rebecca W. Bollerman, t/d/b/a V.E.D., Inc.; Bobby Howell, No. 77-S-2906.

COUNSEL

William G. Sherr, with him Howard N. Stark, for appellants.

Donald H. Yost, Wogan, Elsesser, Yost & Bupp, for appellee.

Judges Rogers, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 54 Pa. Commw. Page 530]

Visual-Educational Devices, Inc. (V.E.D.), has appealed from a final decree of the Court of Common Pleas of York County enjoining V.E.D. from using a store property in Springettsbury Township as an adult book store. We modify the decree of the court below, and affirm it as modified.

V.E.D. is the lessee of, and holds an option to purchase, the store premises in question. On April 21, 1977, V.E.D. filed an application with the township for a use and occupancy permit, such permit being required by a zoning regulation before any building or land might be used or occupied. The form for application for a permit requires the applicant to describe the intended use of the property; and V.E.D. recorded its intention to use its property for the "Sale of C.B.; All types of Educational Devices, also Safety Equipment & Devices & Security Devices." A permit was issued to V.E.D. the same day. When, shortly thereafter, V.E.D. began business, most of its stock in trade was found to consist of so-called adult books, adult films and sexual devices. There were also booths on the premises where filmed peep shows were exhibited. The sale of C.B. radios was a very small part of the total activity at V.E.D.'s store. The township zoning officer revoked V.E.D.'s use and occupancy permit on the ground that false statements and misrepresentations were made in the application, a cause for revocation provided for in the zoning ordinance.

[ 54 Pa. Commw. Page 531]

V.E.D. did not appeal the zoning officer's action. It continued, however, to use the property as an adult book and film and sexual devices emporium.

The township then instituted this litigation by complaint in equity in which it averred that the property was being used in violation of the zoning ordinance because V.E.D. had no use and occupancy license; it unnecessarily also averred that V.E.D.'s use of its property as an adult book store was violative of an amendment to the township zoning ordinance enacted some months after V.E.D.'s permit had been revoked and the time for appeal from that action had expired, regulating for the first time the location and other matters concerning adult book stores and adult theaters. After V.E.D. filed an answer and new matter contending that its permit had been improperly revoked and that the amendatory ordinance was unconstitutional, the court conducted extensive hearings, ruled in all matters in favor of the township and entered decrees nisi and final enjoining V.E.D. from using and occupying its premises as an "'Adult Book Store' or 'Adult Theater' as defined" in the amendatory ordinance hereinabove referred to.

With the exception of only two of the eight questions submitted by V.E.D. on the occasion of this appeal, the case is disposed of by our holding in Soltis v. Hanover Associates, 22 Pa. Commonwealth Ct. 637, 350 A.2d 217 (1976). There the owners of properties near a proposed apartment project sought an injunction restraining its construction on the ground that the permit obtained by the developer from the zoning hearing board had been improvidently granted. The objectors knew or should have known of the contested permit and had failed to file an appeal. We wrote:

The following provisions of the Pennsylvania Municipalities Planning ...


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