Agenda - Planning Commission - 02/02/2017

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Zoning Bulletin January 10, 2017 I Volume 11 I Issue 1 authorizing [the Beer Companies] to serve otherwise permitted food and beverages, in a particular location, [was] not necessary to protect public health or safety," said the court. The court also found that the continued beer garden use was not "creating a public nuisance." In support of that finding, the court cited: the lack of police calls to the Property; the fact that the State Police found the beer garden to be in "good standing;" the fact that the beer garden was only open four days a week, seasonally; and the fact that prior to the use as a beer garden the Property was "a vacant, trash - strewn lot." As to the City's nuisance per se arguments, the court found them "unavailing." The court reiterated that in order for L & I to issue a Cease Order under the City Code, it had to satisfy those two prongs. And the court said that the City could not satisfy the nuisance prong "by simply showing lack of a permit." Rather, L & I had to show that the "continued" use, without a permit, "was creating a public nuisance," (which the court had held it was not, in fact, creating a public nuisance). Moreover, the court said that "a commercial use in an exclusively resi- dential area does not automatically render it a nuisance per se." Rather, the court explained that in order to declare the use of the Property as a beer garden a nuisance per se, "it still must have certain recognized, unavoidable, inherent characteristics that make it injurious to health and property." Further, noted the court: "[a]lthough our courts have recognized inherent problems resulting from the sale and consumption of alcoholic beverages, they have not declared the sale, service or consumption of alcoholic beverages a nuisance per se." The court concluded that the Beer Companies "showed a clear right to relief [with a preliminary injunction] because L & I did not meet the prerequisites to issue a [Cease Order] under the [City] Code." Thus, the court found there were reasonable grounds to support the preliminary injunction during the pendency of the zoning appeal. See also: Blue Mountain Preservation Ass'n v. Township of Eldred, 867A.2d 692 (Pa. Commw. Ct. 2005). See also: Reid v. Brodsky, 397 Pa. 463, 156 A.2d 334 (1959). Zoning News from Around the Nation CALIFORNIA In response to the passage of the Adult Use Marijuana Act (AUMA), the City of San Francisco plans "to establish interim zoning controls © 2017 Thomson Reuters 11 •