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HomeMy WebLinkAbout98-1654 civil . .....BOROUGH .0F~.NEW ..... CUMtkE..R ~_~.~D_ : IN THE COURT OF COMMON PLEAS OF ...... ,: ....... . _ -:~:-:,:,:~ ?~-,~--CU,~~.~~D c-o~N~y.~i-i-' P~.~NSYLVANIA'~ · ZONING HEARING BOARD OF : NO. 98-1654 CIVIL TERM BOROUGH OF NEW CUMBERED : IN RE: APPEAL FROM DECISION OF ZONING HEARING BOARD BEFORE HOFFER, P.J., OLER, and GUIDO, J.J. AND NOW, this ORDER OF COURT day of SEPTEMBER, 1998, the appeal of the Borough of New Cumberland from the decision of the Zoning Hearing Board dated March 16, 1998, is hereby DISMISSED. By the Edward E. Guido, J. Marvin Beshore, Esquire For the Zoning Hearing Board of New Cumberland Borough John R. Kachur, Esquire Andrew C. Sheely, Esquire Solicitor for New Cumberland Borough :sld BOROUGH OF NEW CUMBERLAND '~'~ : IN THE couRT"OF~ COMMON PLEAS : CUMBERED cOUNTy, PENNSYLV/~IIA Vo : ZONING HEARING BOARD OF BOROUGH OF NEW CUMBERLAND : NO. 98-1654 CIVIL TERM : IN RE: APPEAL FROM DECISION OF ZONING HEARING BOARD BEFORE .HOFFER, P.J., OLER, and GUIDO, J.J. OPINION AND ORDER OF COURT On December 1, 1997, the Firehouse Brew Pub, Inc., (hereinafter "Applicant") filed an application for a variance and special exception in order to be able to operate a restaurant with liquor license at the old firehouse located on Fourth Street, in the Borough of New Cumberland. Testimony was taken at a public hearing before the Zoning Hearing Board (hereinafter "Board") on January 20, 1998. A second hearing was scheduled for February 23, 1998. At the conclusion of the second hearing the Board rendered an oral decision granting the requested relief, subject to certain conditions. On March 16, 1998, the Board issued a written decision confirming its previous oral decision. On March 25, 1998, the Borough of New Cumberland (hereinafter "Borough") filed the instant appeal.~ The issues have been briefed and argued by both parties. After a thorough review of the briefs and the extensive record, this matter is now ready for disposition. ~The Applicant did not file an appeal nor has it sought to intervene in this appeal. NO. 98-1654 CIVIL TERM In order to fully understand the issues in this case, we must go back to a previous application for special exception and variance filed in connection with the subject property. The property had been a firehouse until it was converted into a restaurant by William Grace in 1994. In order to make the conversion, Mr. Grace needed relief form various provisions of the Borough's Zoning Ordinance. Since the property is located in a C-2 Zoning District, a special exception was needed to operate a restaurant.2 Additionally, the property does not have any off street parking.3 Therefore, in the fall of 1994 Mr. Grace filed an application for a special exception to use the premises as a restaurant as well as an application for a varianc'e from the off street parking requirements contained in the Ordinance. A public hearing was held before the Zoning Hearing Board in connection with Mr. Grace's request for a variance and special exception. Mr. Grace indicated that he intended to operate a unique restaurant on the premises, one in which the beer consumed on the premises would be brewed on the premises. On October 27, 2Section 302.1 of the New Cumberland Borough Zoning Ordinance allows "restaurants ... and other places serving food and beverage" as a use by special exception in the C-2 Zoning District. 3Section 301.12 of the New Cumberland Borough Zoning ordinance requires the owner to provide a total of fifty-one (51) parking spaces for the proposed use. NO. 98-1654 CIVIL TERM ........ to operate a "restaurant brew pub" on the premises.4 It also granted a variance to the offstreet parking requirements, subject to certain conditions,s No appeal was taken from that decision. Mr. Grace opened his restaurant brew pub. Apparently, however, he did not prosper. He eventually sold the business to the current owner, and Applicant, Firehouse Brew Pub, Inc. The current controversy arose in September 1997 when the new owner made arrangements to purchase a restaurant liquor license from another business in New Cumberland. As required by law, the Borough received notice of the proposed liquor license transfer along with a copy of the application for transfer. By letter dated October 10, 1997, the Borough advised Applicant that its proposed sale of liquor on the premises would not be in compliance with the use as a "restaurant brew pub" for which the special exception and variance had been granted in 1994. In response to the Borough's letter, the Applicant filed the instant request to modify the prior special exception and variance. The only modification requested is that the use be 4Mr. Grace was 'also granted permission to use the top floor of the premises as a community room. That particular use is not relevant to the issues before use. SThe only conditions were that Mr. Grace keep in effect a License Agreement for offstreet parking in the lot of a neighboring bank and that he limit his hours of operation. ~ NO' 98 1654 civiL'TERM The Borough has raised numerous issues in its appeal. However, in its brief, it preserved only three issues for us to address.7 They are as follows: 1) The Board committed an error of law by allowing the applicant to expand a special exception without showing a substantial change in circumstances. 2) The Board committed an error of law and abused its discretion in issuing findings of fact inconsistent with the testimony. 3) The Applicant failed to demonstrate that the hardship justifying the variance was not of his own making. We need only address the first issue because we are satisfied that the 1994 decision did not (nor could it) limit the type of restaurant to be operated on the premises to one serving beer only. Therefore, the Applicant's decision to sell liquor was not a change in the type of use for which the special exception and variance were granted. Consequently, no new variance or..special exception can be required and the Borough's appeal must be dismissed. Since we have taken no new evidence, our scope of review is limited to a determination of whether the Zoning Hearing Board 6The restaurant will have the same capacity and same hours of operation. The License Agreement with the neighboring bank also remains in full force and effect. 7 See Local Rule 210-7. "Issues raised, but not briefed, shall be deemed abandoned." NO. 98-1654 CIVIL TERM Civic kssoc, v. Zoninq Bd. of Adjustment, 501 Pa. 550, .14~6,2 A.-2d_ ~. 637 (1983). In view of the recent Commonwealth Court case of Compton v. Zoninq Hearinq Bd. of Pennsburg Township, 708 A.2d 871 (Commw. Ct. 1998), we have no alternative but to find that it did neither. The crux of the Borough's argument is that in granting the 1994 special exception and variance, the Board limited the use of the property to a "restaurant brew pub". In other words, if the owner ceases to brew beer on the premises and/or obtains a restaurant liquor license, the use has changed such that it is no longer in conformity with the use approved. We disagree with this interpretation. We do not read the 1994 decision as requiring the presence of the brew pub to be a sine qua non for the operation of a restaurant. But, rather, we feel that the Board allowed the property's use as a restaurant that just happened to serve beer." Even if the Board intended to limit the use of the property as a brew pub type of restaurant, such a limitation would not have been appropriate. The Commonwealth Court in Compton clearly and unequivocally restated what has long been the law of Pennsylvania, i.e. that local zoning boards "may still only place "Section 302.1 of the Borough's Zoning Ordinance allows restaurants as a use by special exception in a C-2 zoning district. "Restaurant brew pub" is not a recognized use under the ordinance. Nor was its use as a brew pub specifically listed as a condition in the Board's decision. NO. 98-1654 CIVIL TERM ~ iqu~~- ~ Obviously~ the a~emp~ ~o limit ~he use of ~he res~auran~ ~o on~ ~ha~ serves only beer and no~ liquor is not a liquor neutral condition. In view of Compton we are convinced that the 1994 Board had no authority to limit the type of alcoholic beverages that could be served by Mr. Grace in his restaurant. Therefore, the decision of the new owner to obtain a restaurant liquor license cannot be deemed to be a use inconsistent with the use of the property as a restaurant for which the original special exception and variance were granted. Consequently, the appeal of the Borough must be dismissed. AND NOW, this ORDER OF COURT day of SEPTEMBER, 1998, the appeal of the Borough of New Cumberland from the decision of the Zoning Hearing Board dated March 16, 1998, is hereby DISMISSED. By the Court, Marvin Besh°re, Esquire John R. Kachur, Esquire Andrew C. Sheely, Esquire /s/ Edward E. Guido Edward E. Guido, J. 9There was some question after the 1994 amendment to the liquor code as to whether the prior law had changed. On October 5, 1004 Section 4-493.1 of the Liquor Code became effective. That section provides: Nothing in this act shall be construed to preempt the right of any municipality to regulate zoning and enforce any other local ordinances and codes dealing with health and welfare issues.