Abington Tp. v. Dunkin' Donuts Franchising Corp.

• Decision Date: 23 May 1972
• Parties: TOWNSHIP OF ABINGTON, Appellant, v. DUNKIN' DONUTS FRANCHISING CORP. and Mark Cohen, Owner, Intervenor, Appellees, and Walter J. Krantz, M.D., Intervenor-Protestant.
• Court: Pennsylvania Commonwealth Court

291 A.2d 322

5 Pa.Cmwlth. 399

TOWNSHIP OF ABINGTON, Appellant, v. DUNKIN' DONUTS FRANCHISING CORP. and Mark Cohen, Owner,

Intervenor, Appellees, and Walter J. Krantz, M.D., Intervenor-Protestant.

Commonwealth Court of Pennsylvania.

May 23, 1972

Argued Feb. 7, 1972.

Daniel B. Michie, Jr., Fell, Spalding, Goff &amp Rubin, Philadelphia, for appellant.

Moss Rounick & Hurowitz, Norristown, Emanuel A. Bertin Norristown, for appellees.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, WILKINSON, MENCER, ROGERS and BLATT, JJ.

MENCER, Judge.

On March 20 1970, a building permit was issued to appellee Dunkin' Donuts Franchising Corporation (Dunkin' Donuts) to permit the erection of a building on property zoned F--1 Commercial District located on the northwest corner of Old York Road and Berrell Avenue, Abington Township, Montgomery County. The purpose of the building, as stated on the permit application, was to erect a 'retail baked goods and restaurant.'

Walter J. Krantz, M.D., whose property is located immediately adjacent to the property in question, appealed on March 27, 1970, to the township Zoning Hearing Board (Board) from the issuance of the permit. After a public hearing, the Board, on June 10, 1970, rendered its decision in which it rescinded the permit on the grounds that (1) the parking requirements were not met for a combination restaurant and retail baked goods shop; and (2) the proposed establishment is a 'restaurant specializing in take-out foods' which is prohibited in a F--1 Commercial District by Section 1101(4) of the township ordinance. ^[1] On July 9, 1970, Dunkin' Donuts appealed from the Board's decision to the Montgomery County Court of Common Pleas. The owner of the subject property and Dr. Krantz then intervened. After argument before the court en banc on April 7, 1971, the court on April 15, 1971, reversed the Board's determination that the proposed use of the property is prohibited in an F--1 Commercial District and remanded the matter to the Board on the issue of compliance with the parking requirements for the double usage as a retail baked goods shop and restaurant. This was in accord with the court's determination that a Dunkin' Donuts enterprise '. . . constitutes a double usage, namely, a restaurant and retail bakery, both permitted uses under Article XI, Section 1101(4) and (7) of the Ordinance.' The township then intervened in the case and brought this appeal on May 12, 1971.

Initially, as to a Motion to Quash filed by appellee, after considering the supplemental briefs filed by each party, we dismiss such motion as having no merit.

Since the court below took no additional testimony, our duty is to determine whether the Board clearly abused its discretion or committed an error of law. Lower Providence Township and Wood v. Ford, 3 Pa. Commonwealth Ct. 380, 283 A.2d 731 (1971), and cases cited therein.

The following Standard and Poor's Corporation 1970 Annual Stock Report discription of the Dunkin' Donuts Corporation Franchise is a part of the record:

'The company is engaged primarily in developing, franchising, and operating shops that feature a wide variety of donuts and donut pasteries, as well as coffee and other beverages. It also franchises or operates drive-in restaurants that serve inexpensively priced hamburgers and other food and beverage items.

Dunkin' Donuts shops feature more than 52 varieties of donuts, as well as donut pasteries, all freshly prepared at the shop, and also coffee and other beverages, both for take-out and on premises consumption.' ^[2]

The record reveals that Dunkin' Donuts sells coffee, hot chocolate, hot tea, milk, iced coffee, iced tea, soft beverages, such as grape and orange drinks, and juices of many types. It operates 24 hours a day and 7 days a week.

Approximately 400 square feet of the proposed building would be used for the sale of these beverages and doughnuts to customers at a 'sit-down counter' which has twenty stools. Approximately 80 square feet of the building, near the entrance and exit doors, would be taken up with a smaller counter, with a separate cash register, where doughnuts would be sold by the dozen.

Appellants of course argue that Dunkin' Donuts deals in a specialty item, I.e., doughnuts, the majority of which it is alleged are taken out for consumption elsewhere, and therefore such store falls within the meaning of 'restaurants specializing in take-out foods', a use prohibited by Section 1104(4) of the ordinance in an F--1 Commercial District.

Dunkin' Donuts counters that, as stated on the original building permit application, its operation will be a 'retail baked goods and restaurant' and therefore allowable under subsections (4) and (7) of Section 1101.

Both parties to this appeal agree that the contemplated Dunkin' Donuts operation is a 'restaurant' although the township ordinance provides no definition of 'restaurant', 'restaurants specializing in take-out foods', or 'bakery'. We turn to Webster's Third New World Dictionary 164, 1910, 1936 (15th ed. 1966) which provides the following definitions:

'restaurant'--'an establishment where refreshments or meals may be procured by the public; a public eating house.'

'refreshment'--'something (as food, drink) that refreshes'; and in the plural means 'a light meal; lunch.'

'bakery'--'a place in which baked products (as bread, cakes, cookies) are made; an establishment (as a retail shop) that sells baked products chiefly or exclusively.'

Black's Law Dictionary 181 (4th ed. 1968) defines 'bakery' as:

'Any place used for the purpose of mixing, compounding, or baking for sale or for purposes of a restaurant, bakery or hotel, any bread, biscuit, pretzels, crackers, buns, rolls, macaroni, cake, pies, or any food products of which flour or meal is a principal ingredient.'

In the absence of an ordinance definition, it would seem, at least by accepting Black's more general definition, that Dunkin' Donuts' proposed use could be described (Section 1101(7)) as a 'Personal service shop or custom shop . . . for making articles to be sold at retail on the premises, such as: . . . bakery or confectionery; or similar establishment.' See Kane v. Livingston, 11 Misc.2d 330, 170 N.Y.S.2d 98 (1957).

Again in the absence of an ordinance definition, in its attempt to determine whether the proposed Dunkin' Donuts enterprise is encompassed by the phrase 'restaurants specializing in take-out foods', the lower court stated:

'Certain cases which have interpreted zoning regulations dealing with restaurants are of import. In Food Corporation v. Zoning Board of Adjustment, 384 Pa. 288 121 A.2d 94 (1956) the Pennsylvania Supreme Court included under the general term 'restaurant' a drive-in restaurant as a permitted use. Following this, zoning ordinances in Pennsylvania sought to avoid this result by expressly prohibiting drive-in restaurants in certain districts. Courts in other jurisdictions determined that operations such as 'Burger King', and 'Gino's', where meals were prepared to take out, were to be...