Agenda - Planning Commission - 07/05/1995

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Page 2 -- June 15, 1995 Z.B. Special Exception Restaurant Reopens as Strip Club Without Getting Additional Permits M & W Corp. v. Upper Chichester Township, 651 A.2d 630 (Pennsylvania) 1994 M&W Corp. operated Boomerang's, a bar and restaurant that offered "ancillary entertainment." The restaurant was in a section of Upper Chichester Township, Pa., which was zoned as a highway commercial district. The pur- pose of that district was "to provide for and regulate commercial facilities which are related to or require the use of an automobile." Under the ordinance, high- way commercial property could "be used by right" for all uses "permitted by right or by special exception" in the neighborhood commercial district. Land- owners needed a special exception to operate indoor places of amusement or recreation in the neighborhood commercial district. Through newspaper reports, a zoning officer learned M&W was planning to close Boomerang's and reopen as a strip club called Delilah's Dolls. The zoning officer told M&W the new club would need additional permits because its use would become primarily indoor entertainment. M&W opened Delilah's Dolls without applying for any other permits. The township sued, asking the court to stop M&W from operating Delilah's Dolls. The court granted the order, which was affirmed on appeal. At around the same time, M&W sued the township. It asked the court to order the township to let M&W continue operating Delilah's Dolls. The court found that the zoning officer did not~ tell M&W which permits it needed and that M&W's claimed right to the use was not clear from the ordinance. The court denied M&W's request for the order because M&W did not have a clear legal right to the relief it sought. . M&W appealed, arguing it had a right to-use the property as an indoor entertainment-facility without a special exception or any other permit. M&W argued that the ordinance's language meant all permitted uses in the neighbor- hood commercial district (whether as of right or by special exception) were allowed as of right in the highway commercial district. The township said that special exceptions in the neighborhood commercial zone were allowed in the highway commercial zone, but only after an owner got a special exception from the Zoning Hearing Board. DECISION: Affirmed. M&W did not have a clear legal right to use the property as a strip club. Since the zoning officer did not tell M&W what permits it needed, the court did not know what permits M&W wanted it to order issued. Also, both parties' conflicting interpretations of the ordinance were plausible, but the court pre- ferred the township's reading because it kept zoning boards as the first bodies that would interpret the ordinance. M&W should have pursued administrative remedies before bringing its case to court. J.B. Stevens Inc. v. Board of ComJ~ffssio~ers, 643 A.2d 142 ~1994).