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ACTIVE AMUSEMENT COMPANY v. ZONING BOARD ADJUSTMENT ET AL. (08/16/84)

decided: August 16, 1984.

ACTIVE AMUSEMENT COMPANY, APPELLANT
v.
ZONING BOARD OF ADJUSTMENT ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Active Amusement Company v. Zoning Board of Adjustment, No. 4793 October Term, 1982.

COUNSEL

Lenard L. Wolffe, Pechner, Dorfman, Wolffe, Rounick & Cabot, for appellant.

Barbara W. Mather, City Solicitor, with her, Mary Rose Cunningham, Chief Assistant City Solicitor, for appellee, Zoning Board of Adjustment of Philadelphia.

Horace D. Nalle, Jr., with him, Kathleen M. Lynch, Drinker, Biddle & Reath, for appellees, University City Associates, Inc.

Judges Craig, Doyle and Blatt, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 84 Pa. Commw. Page 539]

Active Amusement Company (Active) appeals an order of the Philadelphia County Court of Common Pleas which affirmed the Philadelphia Zoning Board of Adjustment's grant of a proximity variance and certificate of use to Bally's Aladdin's Castle, Inc. for operation of an amusement arcade in a shopping plaza owned by University City Associates, Inc.

We must determine*fn1 whether the common pleas court correctly dismissed the appeal on the basis of a conclusion that Active, a business competitor, did not have standing to appeal the zoning board action.

[ 84 Pa. Commw. Page 540]

The property here involved is a store located at 3921 Walnut Street, Philadelphia, in a small shopping center near the University of Pennsylvania in an area zoned C-4 Commercial. The proposed amusement arcade is a "regulated use" under section 14-1605(3)(g) of the Philadelphia Code, and therefore Bally's and University City Associates were required to apply to the Department of Licenses and Inspections for a use certificate.*fn2 Code § 14-1605(4)(d). The department refused the application because the arcade would have been located within 1000 feet of another regulated use and within 500 feet of residentially zoned property, churches and a library, in violation of Philadelphia Code §§ 14-1605(4)(a) and (b). The appellant, Active Amusement Company, owns and operates the other regulated use, the Galaxy Amusement Arcade, which is located at 3929 Walnut Street, four doors west of the proposed arcade.

Bally's appealed to the Philadelphia Zoning Board of Adjustment which held an evidentiary hearing at which Active entered an appearance through its counsel. The board permitted Active to place on the record its opposition to the grant of the certificate and to argue that the applicants had presented no evidence of unnecessary hardship to warrant the grant of a variance. The applicants voiced no objection to Active's appearance before the board. The board reversed the department's refusal and ordered the issuance of the use certificate and the variance.

Upon appeal, the common pleas court agreed with the contention which Bally's then raised, that Active did not have standing as an aggrieved party because its interest ...


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