Appeal from the Order of the Court of Common Pleas of Delaware County in the case of William J. Daley v. The Zoning Hearing Board of Haverford Township and The Township of Haverford as Intervenor, No. 81-20508.
Kenneth A. Clouse, Beatty, Young, Clouse & Lincke, for appellant and intervenor.
Robert B. Surrick, Surrick and Gollatz, for appellee.
Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
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William J. Daley (Applicant) applied for an amusement license under Ordinance 1788 of 1980 (Ordinance), Haverford Township (Township) Delaware County, Pennsylvania, to permit the installation of four or more electronic amusement devices at his movie theater located at 34 Brookline Boulevard in the Township.*fn1 The Code Enforcement Officer (CEO) of the Township denied the application for the amusement license and Applicant appealed to the Township Zoning Hearing Board (Board) which affirmed
[ 75 Pa. Commw. Page 103]
the CEO's determination. The Applicant then appealed the Board's order to the court of common pleas where the Township intervened.*fn2 No additional testimony was presented to the trial court; however, it reversed the Board's order and ordered that Applicant be granted the license. It is from the trial court's decision that the Township appeals.
The pertinent facts of the case are not in dispute. The subject premises is located in a C-2 Neighborhood Commercial District which does not permit a movie theater use; however, a movie theater has been operated on the Applicant's premises continuously from a point in time prior to the enactment of the Township's first zoning ordinance in 1925. Under that ordinance, the area in which the subject premises is located was zoned as H-Business which allowed "places of amusement, recreation or assembly" to be maintained. On October 15, 1974, that zoning ordinance was amended and the area in which the subject premises is located was rezoned to a C-2 designation. The movie theater remained in operation thereafter as a valid nonconforming use since the property was a conforming use under the 1925 ordinance.
While the application before the Board concerns the installation of four electronic amusement devices to be placed in the front of the theater where ice cream had formerly been served, the record discloses that if the application is granted, Applicant would be free to install as many such devices as he would desire in any part of his building upon payment of the requisite fees.
At present, the theater offers one show Monday through Thursday at about 8:00 P.M. and two shows
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Friday, Saturday and Sunday at approximately 7:00 P.M. and 9:00 P.M. The proposed hours of operation of the electronic amusement devices would be 3:00 P.M. to 10:00 P.M. Monday through Thursday ...