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CATHERINE MARTIRE v. ZONING BOARD ADJUSTMENT CITY PITTSBURGH ET AL. (05/11/83)

decided: May 11, 1983.

CATHERINE MARTIRE, IRENE KELLER AND NANCY SCHNUPP, APPELLANTS
v.
THE ZONING BOARD OF ADJUSTMENT OF THE CITY OF PITTSBURGH ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Catherine Martire, Irene Keller and Nancy Schnupp, No. SA 624 of 1979.

COUNSEL

J. Kerrington Lewis, for appellants.

Kathryn E. Hanna Katsafanas, Assistant City Solicitor, with her D. R. Pellegrini, City Solicitor, for appellee.

Judges Blatt, Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 74 Pa. Commw. Page 256]

Catherine Martire, Irene Keller and Nancy Schnupp (Appellants), the owners of a restaurant located in the City of Pittsburgh (City), appeal here from an order of the Court of Common Pleas of Allegheny

[ 74 Pa. Commw. Page 257]

County affirming a decision of the Zoning Board of Adjustment of the City of Pittsburgh (Board) which denied their application to allow dancing on their premises. We affirm.

The property which is the subject of this appeal is located in an area of the City zoned as a M1 Limited Industrial District. In 1968, a prior owner of this property obtained a special exception permitting a change in its status from its then nonconforming use as a residence to its current nonconforming use*fn1 as a restaurant. In 1979 Appellants purchased the property, and shortly thereafter were cited for permitting dancing on their premises, a use specifically prohibited in M1 Limited Industrial Districts. Appellants then applied for, and were denied, an occupancy permit to permit "dancing and disco" on their premises. In response to this denial, Appellants appealed to the Board alleging, inter alia, that dancing was a permitted use under the applicable provisions of the Pittsburgh Code. Following a hearing, however, the Board concluded (1) that dancing was a prohibited use in the district in question and (2) "that the appellant failed to submit sufficient evidence or testimony to substantiate the granting of this appeal for approval of a use not permitted under the Zoning Ordinance in the subject district." Appellants then appealed to the court of common pleas alleging in essence, that they were entitled to either a special exception or a variance permitting dancing on their premises. Following a de novo hearing, before

[ 74 Pa. Commw. Page 258]

    a referee appointed by the court, the referee issued a preliminary decision "denying appellants' request." In this decision, the referee reviewed the testimony of several neighbors who had voiced objections to the dancing being conducted on Appellants' premises, and concluded that

[t]he health and welfare of the neighbors and the neighborhood in general seems to be adversely affected by the entertainment which was taking place in the restaurant, especially in regard to the possibility of inaccessibility by the City of Pittsburgh Fire Department, emergency medical vehicles and police cars.

No testimony was presented which would demonstrate the usefulness of such a "night club" in an area which is essentially a residential district. The health and welfare of the residence [sic] is not in any way, shape ...


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