Agenda - Planning Commission - 02/02/2017

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Zoning Bulletin January 10, 2017 I Volume 11 I Issue 1 "pop-up beer garden" is an outdoor bar that sells beer and food to customers on a seasonal basis. The Beer Companies obtained liquor li- censes, off -premises catering permits, City Health Department permits, and City Department of Licenses and Inspections ("L & I") permits to serve food and nonalcoholic beverages at the Property. The Beer Companies' pop-up beer garden officially opened in May 2015. In June 2015, an L & I inspector ascertained that the pop-up beer garden was being operated without a required zoning or use registra- tion permit or zoning certification in violation of the City's Planning and Zoning Code. The inspector issued a "Notice of Intent to Cease Operations and Order," and on July 8, 2015, issued a cease operations order ("Cease Order"). In the meantime, the Beer Companies had filed a zoning permit ap- plication with L & I to use the property as a beer garden. The applica- tion was eventually denied as commercial uses were prohibited in the RM-1 residential zone. Although the City Code did not address temporary uses, such as a seasonal beer garden, the City Code clearly provided that "no land may be used [in the RM-1 zoning district], with the exception of single-family residential uses, without first obtaining a zoning permit." The Beer Companies appealed the denial to the City's Zoning Board of Adjustment. That appeal was pending, when, in the meantime, the Beer Companies sought a preliminary injunction with the trial court. (This summary addresses the outcome of the prelimi- nary injunction. "A preliminary injunction is designed to preserve the subject of the controversy in the condition in which it is when the order is made, it is not to subvert, but to maintain the existing status quo until the legality of the challenged conduct can be determined on the merits." Meanwhile, at the time of the Commonwealth Court of Pennsylvania's decision here, the appeal of the zoning permit application denial was still pending.) Under Pennsylvania law, a party must establish "six essential prerequisites" in order to obtain a preliminary injunction: (1) the injunction is necessary to prevent immediate and irreparable harm that cannot be compensated adequately by damages; (2) greater injury would result from refusing the injunction than from granting it, and, concomitantly, the issuance of an injunction will not substantially harm other interested parties in the proceedings; (3) the preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct; (4) the party seeking injunctive relief has a clear right to relief and is likely to prevail on the merits; (5) the injunction is reasonably suited to abate the offending activity; and, (6) the preliminary injunction will not adversely affect the public interest. Here, the Beer Companies alleged that the City, by issuing the Cease Order, "violated their due process rights, caused them to suffer irrepa- rable harm without an adequate remedy at law, unlawfully preempted © 2017 Thomson Reuters 9