Appeal from Common Pleas Court, Cumberland County; Honorable Kevin A. Hess, Judge.
Edward R. Eidelman, Black, McCarthy, Usher, Eidelman & Feinberg, with him, Howard N. Stark, Allentown, for appellant.
Charles D. Vance, Jr., with him, Richard C. Snelbaker, Snelbaker & Elicker, Mechanicsburg, for appellee.
Crumlish, Jr., President Judge, and Colins and McGinley, JJ. McGinley, Judge, dissenting.
[ 130 Pa. Commw. Page 20]
Pa. Central Realty Investment, Inc. (Pa. Realty) appeals from an order of the Court of Common Pleas of Cumberland County granting a preliminary injunction to the Township of Middlesex (Township) and a subsequent order issued
[ 130 Pa. Commw. Page 21]
by the trial court directing Pa. Realty to comply with the preliminary injunction or show cause why they should not be held in contempt. The two appeals have been consolidated by this Court by order dated January 10, 1989.
On or about September 12, 1988, Richard Gomes, on behalf of Pa. Realty, applied for a building permit from the Township Zoning Officer with respect to the premises located at 2 South Middlesex Road. Pa. Realty sought to make changes and improvements to the building located thereon. In requesting the building permit, Mr. Gomes described the proposed use of the premises as being for the sale and service of video equipment and video tape rental. Prior to applying for the permit, Mr. Gomes had made a request of Middlesex Township Municipal Authority for water service at this location. In making the application for service, Mr. Gomes represented to that body that the premises were to be used for video equipment retail and repair.
When the business began operating at this location in mid-October 1988, rather than being used for the sale and repair of video equipment and the rental of video tapes, the premises were being used for the sale of sexually oriented materials, for the exhibition of sexually oriented video tapes and motion pictures and for live performances by nude females performing sexually oriented acts, including autoeroticism, for customers' entertainment.
The Middlesex Township Zoning Ordinance (Ordinance), in effect at the time of the application for the building permit, provided for the issuance of zoning permits, building permits and certificates of occupancy. However, at the time complained of, the Township did not as a general rule require separate zoning permits or certificates of occupancy; although, building permits were required. Section 15.02(B)(1) of the Ordinance which governed the issuance of building permits required that an applicant state the existing and intended use of all buildings presently on or to be erected on the property and supply information necessary for determining whether the provisions of the Ordinance were being observed.
[ 130 Pa. Commw. Page 22]
The premises in question are located in a Commercial Highway Zoning District. Section 10.01 of the Ordinance describes this district as being designed to accommodate the needs of transient highway travelers. The use of the premises for the sale and service of video equipment and video tape rental falls within the permitted uses in this district. An adult ...