Agenda - Planning Commission - 05/02/2002

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Page 4 -- April 10, 2002 I 246 was advised he was in violation of the local .zoning code. He applied for Vari- ances that would enable h/m to use the garage as a dwelling. The Zoning Board of Appeals denied the variances when it determined the subject structure was an "accessory building" and thus, its use as .a dwelling was prohibited. The owner appealed.. DECISION: ReVersed. · ' . The garage was not an accessory building. The board's decision that the garage was a =ara,e and, thus, an accessory building prohibited from use as a dwelling was .arbitrary and had to be an- nulled. The relevant statute provided that an accessorybuilding 'was one "sub- ordinate to the main building on a.tot used for purposes customarily incidental to those of the main building." In this instance, there was no main building. The structure in question was erected in contemplation of becoming an accessory building, but it. did not become one. Thus the statute was not applicable. Citation: Sanzoverino v. BruscetIa, Supreme Court of New 'York, App. Div., 2nd Dept, No. 2000-]0206 (2002). see also: Matter of Sasso v. Osgood, 86 N. Y. 2d 384. Adult Entertainment -- Longstanding club asked for nonconforming use status Did expired variance extinguish nonconforming use status? PENNSYLVANIA (02/25/02) -- In 1969, a nightclub opened near a residen- t/al area. The fac/lity was operated continuously by several owners. At the start, the club catered to rock enthusiasts, then it evolved into a go-go dance bar. Finally, it became an adult cabaret. In 1977, the city enacted a zoning code provision that had the effect of prohibiting certain sexually explicit entertainment within 500 feet of residen- tial areas. The owner was forced co apply for a temporary variance in order to maintain a license. As the temporary variance expired, a large number of residential neighbors and local businesses protested agninst the continued operation of the adult cabaZ ret. A petition with 2,700 signatures was submitted in protest. The city plan- ning commission stated the granting of the temporary variance was a means to determine if the current use was compatible with the surrounding neighbor- hood. Here, the planning commission opined the use proved to be incompatible. The zoning board denied the variance, agreeing the continued use as an adult cabaret was not compatible with the local neighborhood. The owner ap- pealed, and the lower court affirmed. The owner appealed again, contending the club constituted a prior noncon- forming use and was legal. The owner 'also claimed, among other things, the zon- ing board was swayed by the invective of the neighbors and abused its discretion. I I I I ! I