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THREE RIVERS ALUMINUM COMPANY v. GEORGE BRODMERKLE ET AL. CATHERINE ROBINSON (09/14/88)

decided: September 14, 1988.

THREE RIVERS ALUMINUM COMPANY
v.
GEORGE BRODMERKLE ET AL. CATHERINE ROBINSON, LESLIE TARQUINIO, ET VIR ET AL., APPELLANTS



Appeal from the Order of the Court of Common Pleas of Allegheny County, in the case of George Brodmerkle and Lela Brodmerkle, his wife, George Stametz and Mavis Stametz, his wife, Paul Douthett and Maxine Douthett, his wife, Ralph Houlker and Jessie Houlker, his wife, Catherine Robinson, Robert Huch and Aileen Huch, his wife, Al Keeler and Helen Keeler, his wife, Thomas Thomas and Wanita Thomas, his wife, Elizabeth Kiser, Ernest Haekbarth and Eleanor Haekbarth, his wife, and Roy Nist and Margaret Nist, his wife v. Nordev, Inc., a Pennsylvania corporation, and Marcella Cleary, an individual, No. 355 April Term, 1957, dated December 30, 1987.

COUNSEL

Burton C. Duerring, for appellants.

John J. Zagari, Zagari and Scalise, P.C., for appellee.

Arthur J. Leonard, with him, Thomas V. Gebler, Jr., Robb, Leonard & Mulvihill, for amicus curiae, The Marshall Township Board of Supervisors.

Judges Doyle, Palladino and McGinley, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 119 Pa. Commw. Page 411]

This appeal stems from Three Rivers Aluminum's (Appellee) successful attempt to vacate an injunction which prohibited it from serving food and alcohol to the general public in the clubhouse of its eighteen-hole golf course. For the following reasons, we reverse.

In 1945, Marshall Township (Township) enacted Ordinance No. 1, a comprehensive zoning ordinance. Under Ordinance No. 1, restaurants were permitted only in "D" (business) zones. In early 1954, Nordev, Inc. (Nordev) acquired 250 acres of land in the Township. The land at that time was partially zoned "A" (residential) and partially zoned "F" (farm district). On July 2, 1954, the Township Supervisors (Supervisors), at Nordev's request, rezoned Nordev's entire tract "A" residential. Concurrently with the rezoning, the Supervisors enacted Ordinance No. 17, which provided that a permissible use in an "A" zone was:

A golf course of not less than nine (9) holes and having an area fully utilized of not less than fifty (50) acres for each nine holes, together with necessary clubhouse and eating facilities, professional shop and locker room facilities. (Emphasis added.)

Thereafter, Nordev constructed an eighteen-hole golf course known as the Venango Trail Golf Course. The golf course included an equipment building and clubhouse. Part of the clubhouse included the "eating facilities," which consisted of twelve stools and eight tables with four chairs each. These "eating facilities" were operated by Marcella Cleary (Cleary) as Nordev's lessee. The golf course was open to the public upon payment of a fixed fee for the privilege of playing golf.

[ 119 Pa. Commw. Page 412]

On April 28, 1955, Nordev was issued a permit to expand the eating facilities. This addition was to include a bar, although the bar was not shown in the plans submitted to the building inspector. At a Supervisor's meeting on November 3, 1955, a representative of Nordev informed that body that it was introducing a liquor license on the golf course. This was to be accomplished by Cleary transferring a hotel restaurant liquor license she held to the "eating facilities." When informed by Nordev that the "eating facilities" would be open to the general public, and not just golfers, the Supervisors stated that a zoning change would be required because the "eating facilities" under Nordev's plan would become a commercial eating establishment, i.e., a restaurant.

Thereafter, Cleary applied to the Pennsylvania Liquor Control Board (PLCB) to transfer the liquor license to the "eating facilities." While Cleary's application was pending before the PLCB, however, the Township, effective March 1, 1956, amended Ordinance No. 17 by Ordinance No. 21 to delete "eating facilities" entirely as a permitted accessory use to a golf ...


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