Appeal from the Order of the Court of Common Pleas of Montgomery County in case of McDonald's Corporation v. Board of Supervisors of Upper Merion Township, No. 83-7552.
Gregory J. Dean, Meneses & Dean, P.C., for appellant.
J. Peirce Anderson, with him, David W. Money-maker, Anderson, Narducci & Sullivan, for appellee.
President Judge Crumlish, Jr., and Judges Rogers, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Rogers. Judge Palladino dissents.
[ 91 Pa. Commw. Page 301]
This is the appeal of the Board of Supervisors of Upper Merion Township from an order of the Court of Common Pleas of Montgomery County reversing the supervisors' refusal of a zoning curative amendment application presented by McDonald's Corporation pursuant to Section 609.1 of the Pennsylvania Municipalities Planning Code,*fn1 53 P.S. § 10609.1. The thesis of McDonald's Corporation, presented in its curative amendment application and in testimonial and documentary evidence adduced during the course of hearings conducted by the supervisors in March and April, 1983, is that the township's zoning regulations effect a total prohibition of an accessory use increasingly familiar to patrons of fast food restaurants, which use McDonald's denominates a "drive-thru" service.
As we will shortly explore, the name given to this use is pivotal to the legal analysis of this appeal. Setting aside the matter of names for the moment, the accessory use is a means by which patrons can purchase take-out food without leaving their automobiles and consists physically of a serving counter constructed in an exterior wall of the restaurant; a "menu board" including speakers and microphones for the placement and communication of food orders; and traffic lanes, markings, and signs directing patrons to the menu board and, thence, to the serving window.
[ 91 Pa. Commw. Page 302]
McDonald's finds an express prohibition of this accessory use in the following definition contained in the township's zoning ordinance:
Restaurant -- A place where refreshments or meals are provided to order primarily to be eaten inside a building and secondarily or incidentally eaten on a patio connected thereto or carried away by the buyer. Not a 'drive-in' restaurant for the purpose of this ordinance.
The supervisors rejected McDonald's interpretation on the ground that the "drive-in" restaurant use excluded by the definition is different from the "drive-thru" accessory use proposed by McDonald's. This conclusion is supported by the distinction in language and by the legislative history which indicates that the exclusion of "drive-in" restaurants was enacted in the late 1960's at a time when "drive-in" restaurants were a familiar commercial enterprise involving service of food to patrons in their parked automobiles where the food was then consumed. This use is described by the Pennsylvania Supreme Court in Food Corp. v. Zoning Board of Adjustment, 384 Pa. 288, 121 A.2d 94 (1956).
As further support for their rejection of McDonald's exclusionary interpretation, the supervisors concluded that they were bound by a then recent decision of the township's zoning hearing board, affirmed by the Court of Common Pleas of Montgomery County, in the matter of an application by Gino's Corporation for permission to construct an accessory "drive-thru" facility in another of the township's zoning districts. On the question of whether the definitional exclusion set forth above prohibited an accessory drive-thru, the zoning hearing board had written:
The present application was to permit the construction of a convenience window on the property. The ...