Agenda - Planning Commission - 02/02/2017

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January 10, 2017 I Volume 11 I Issue 1 Zoning Bulletin licenses issued by the [Pennsylvania liquor board], and unlawfully commingled prosecutorial and adjudicatory functions." The trial court granted the preliminary injunction. It found that the Beer Companies "demonstrated a clear right to relief because L & I did not meet the criteria to issue the Cease Order." The court noted that Cease Orders could only be issued "when a property owner engages in a use without one or more required permits and either the missing permits are required to protect the public health or safety or the continued use creates a public nuisance." Here, the trial court found the Beer Companies possessed the permits from the Health Department, li- quor board, and L & I, "which are required to protect public health and safety." Significantly, the trial court found the operation of the beer garden did not create a public nuisance as: there had been no incidents requiring the police to be called to the premises; the State Police had found the beer garden in good standing; the latest the beer garden oper- ated was until 11:00 p.m, on Saturday night; and local registered com- munity organizations "supported the beer garden and benefited from its charity fundraising." The City appealed the trial court's grant of the preliminary injunction. The City contended that the grant of the injunctive relief was in error because: the beer garden was a prohibited commercial use in the RM-1 residential zone; the Beer Companies did not have the required zoning permit to operate the beer garden; and operation of the beer garden cre- ated a public nuisance in the residential location. With regard to the lat- ter argument, the City maintained that the beer garden was a pubic nuisance per se (i.e., in itself) because it was a prohibited commercial use in its location. The City maintained that it did not need to prove that the beer garden was a public nuisance in fact; it argued that the nuisance per se justified its Cease Order. DECISION: Judgment of trial court affirmed. The Commonwealth Court of Pennsylvania found that the trial court properly issued the preliminary injunction to the Beer Companies. The court acknowledged that seasonal beer gardens were not a permitted use in the RM-1 zoning district, and that the Beer Companies had failed to obtain a zoning permit for the use. Notwithstanding those acknowl- edgements, the court stated that in order for L & I to issue a Cease Or- der, it had to show that either: (1) the missing permit was required "to protect public health or safety;" or (2) the continued use was "creating a public nuisance." (Philadelphia Code § 14-306(1)(e)(.1).) The court found that L & I failed to establish either of those requirements. With regard to the permits "to protect public health or safety," the court found that the health inspection licenses and catering licenses for the sale of food and beverages sufficed as permits protecting the public by "ensuring a safe and healthy food supply." "A zoning permit 10 © 2017 Thomson Reuters