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BRIGHTON ENTERPRISES v. CITY PHILADELPHIA AND ZONING BOARD ADJUSTMENT (03/05/86)

decided: March 5, 1986.

BRIGHTON ENTERPRISES, INC., APPELLANT
v.
CITY OF PHILADELPHIA AND ZONING BOARD OF ADJUSTMENT, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Brighton Enterprises, Inc v. City of Philadelphia and Zoning Board of Adjustment, No. 3620 June Term, 1984.

COUNSEL

Norman A. Oshtry, for appellant.

Joy J. Bernstein, Assistant City Solicitor, for appellees.

Judges Craig and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 95 Pa. Commw. Page 410]

Brighton Enterprises, Inc. appeals from an order of the Court of Common Pleas of Philadelphia County which affirmed the Zoning Board of Adjustment of the City of Philadelphia, denying Brighton's request for a variance. We reverse and remand.

On March 4, 1981, city council amended the Philadelphia Zoning Code to include amusement arcades as a regulated use.*fn1 On January 19, 1984, Brighton, a

[ 95 Pa. Commw. Page 411]

    lessee of a lot at 120 South 13th Street located in a C-5 Commercial Zone, applied to the Department of Licenses and Inspections for a permit to use its property for a "shoemaker-jewelry shop and repairs, sandwich shop, adult movie theatre, adult bookstore, adult peepshow, coin-operated vending (24), health spa and 21 pinball machines."*fn2 The department denied the use permit because the twenty-one pinball machines were a regulated use not permitted in a C-5 Commercial Zone.*fn3

Brighton appealed the department's denial to the board on the ground that between fifteen and twenty-one pinball machines had been used continuously on the property before the ordinance was enacted, and

[ 95 Pa. Commw. Page 412]

    therefore the use was a legal nonconforming use.*fn4 The board, after hearing, affirmed the decision of the department. The board decision contained no finding on the nonconforming use issue*fn5 After Brighton appealed to the court of common pleas, the court found that Brighton failed to prove the existence of a non-conforming use and affirmed the board. This appeal followed.

Brighton argues that the trial court exceeded its scope of review because without receiving additional evidence, it made a finding of ...


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