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PA NORTHWESTERN DISTRIBUTORS v. ZONING HEARING BOARD TOWNSHIP MOON (03/16/89)

decided: March 16, 1989.

PA NORTHWESTERN DISTRIBUTORS, INC., APPELLANT
v.
THE ZONING HEARING BOARD OF THE TOWNSHIP OF MOON, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of PA Northwestern Distributors, Inc. v. The Zoning Hearing Board of The Township of Moon, No. S.A. 1218 of 1987.

COUNSEL

Howard N. Stark, with him, William G. Sherr, Stark and Sherr, for appellant.

Charles M. Means, Markel, Schafer & Means, P.C., for appellee, The Zoning Hearing Board of the Township of Moon.

Robert E. Durrant, Meyer, Darragh, Buckler, Bebenek & Eck, for appellee, The Township of Moon.

Judges Craig and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 124 Pa. Commw. Page 230]

This zoning case involves an appeal by Pennsylvania Northwestern Distributors, Inc. (Appellant) from a decision of the Court of Common Pleas of Allegheny County which affirmed a decision of the Zoning Hearing Board (Board) of the Township of Moon (Township). We affirm.

The subject of the instant litigation is Ordinance No. 243 (Ordinance) which was passed by the Township on May 23, 1985. This Ordinance amended the existing zoning regulations (Township Ordinance No. 193) by establishing locational regulations applicable to "adult" businesses.*fn1 The Ordinance required such businesses to be located within C-2 (commercial) Districts. The Ordinance further restricted the location of these establishments to not within 1000 feet of any residential district nor within 500 feet of a pre-existing school, hospital, nursing home, group care facility, park, church, establishment engaged in the sale of alcoholic beverages or other adult entertainment establishments. All nonconforming uses were subject to a ninety day amortization provision in the Ordinance.

Appellant is the lessee of certain property located on Beers School Road in the Township and owned by Bernard Bercik.*fn2 In November 1984, Mr. Bercik filed an application for certification of use and occupancy of the property in question. The application indicated that the nature and character of the proposed use of the property was "RETAIL SALES/GIFT AND VARIETY". A permit

[ 124 Pa. Commw. Page 231]

    was subsequently issued by the Township. On November 16, 1984, Mr. Bercik entered into a lease with Appellant. The initial term of the lease was thirty-six months but the lease had two renewal options which could extend the lease to December 31, 1994. Also, the lease was contingent upon Appellant being able to obtain any and all licenses from governmental authorities necessary for use and occupancy of the premises (including that necessary for operation as an "adult" bookstore). On May 4, 1985, Appellant opened an "adult" bookstore on the property in question.

The record reveals that Appellant's business is located next to a school and is closer to a church and residential district than permitted by the Ordinance. For this reason, Appellant filed a challenge to the substantive validity of the Ordinance with the Board pursuant to Section 1004(1)(a) of the Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 11004(1)(a). A hearing was held and the Board determined that the Ordinance including the ninety day amortization provision was valid. The trial court affirmed; hence, this appeal.

Appellant's argument on appeal is that the Ordinance's zoning regulations in effect exclude all "adult" business establishments from the Township. Appellant further challenges the Ordinance's ninety day amortization provision as unconstitutional. We will address the issues raised by Appellant keeping in mind that when reviewing a zoning appeal where the trial court has taken no additional evidence, we are limited to determining whether the Board committed a manifest abuse of discretion or an error of law. The Board has abused its discretion only if its findings are not supported by substantial evidence. Salisbury Township Appeal, 114 Pa. Commonwealth Ct. 493, 539 A.2d 48 (1988).

[ 124 Pa. Commw. Page 232]

Zoning classifications are to a great extent within the judgment of the legislative body and this judgment will only be disturbed when it is obvious that the classification bears no substantial relationship to the public health, safety, morals or general welfare. Layne v. Zoning Board of Adjustment, 501 Pa. 224, 460 A.2d 1088 (1983). Moreover, there is a presumption that a zoning ordinance is valid and that the municipal body enacting the legislation did so for the purpose of serving the public welfare. Layne. The ...


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