PA Northwestern Distributors, Inc. v. Zoning Hearing Bd. of Tp. of Moon

• Decision Date: 23 May 1989
• Citation: 555 A.2d 1368,124 Pa.Cmwlth. 228
• Court: Pennsylvania Commonwealth Court
• Parties: PA NORTHWESTERN DISTRIBUTORS, INC., Appellant, v. The ZONING HEARING BOARD OF the TOWNSHIP OF MOON, Appellee.

Page 1368

555 A.2d 1368

124 Pa.Cmwlth. 228

PA NORTHWESTERN DISTRIBUTORS, INC., Appellant, v. The ZONING HEARING BOARD OF the TOWNSHIP OF MOON, Appellee.

Commonwealth Court of Pennsylvania.

Argued Feb. 6, 1989.

Decided March 16, 1989.

Reargument Denied May 23, 1989.

William G. Sherr and Howard N. Stark, Allentown, for appellant.

Robert E. Durrant, Meyer, Darragh, Buckler, Bebenek & Eck, and Charles M. Means, Markel, Schafer & Means, Pittsburgh, for appellee.

Before CRAIG and PALLADINO, JJ., and NARICK, Senior Judge.

NARICK, Senior Judge.

This zoning case involves an appeal by Pennsylvania Northwestern Distributors, Inc. (Appellant) from a decision of the Court of Common Pleas of Allegheny County which affirmed a decision of the Zoning Hearing Board (Board) of the Township of Moon (Township). We affirm.

The subject of the instant litigation is Ordinance No. 243 (Ordinance) which was passed by the Township on May 23, 1985. This Ordinance amended the existing zoning regulations (Township Ordinance No. 193) by establishing locational regulations applicable to "adult" businesses.¹ The Ordinance required such businesses to be located within C-2 (commercial) Districts. The Ordinance further restricted the location of these establishments to not within 1000 feet of any residential district nor within 500 feet of a pre-existing school, hospital, nursing home, group care facility, park, church, establishment engaged in the sale of alcoholic beverages or other adult entertainment establishments. All non-conforming uses were subject to a ninety day amortization provision in the Ordinance.

Appellant is the lessee of certain property located on Beers School Road in the Township and owned by Bernard Bercik.² In November 1984, Mr. Bercik filed an application for certification of use and occupancy of the property in question. The application indicated that the nature and character of the proposed use of the property was "RETAIL SALES/GIFT AND VARIETY". A permit was subsequently issued by the Township. On November 16, 1984, Mr. Bercik entered into a lease with Appellant. The initial term of the lease was thirty-six months but the lease had two renewal options which could extend the lease to December 31, 1994. Also, the lease was contingent upon Appellant being able to obtain any and all licenses from governmental authorities necessary for use and occupancy of the premises (including that necessary for operation as an "adult" bookstore). On May 4, 1985, Appellant opened an "adult" bookstore on the property in question.

The record reveals that Appellant's business is located next to a school and is closer to a church and residential district than permitted by the Ordinance. For this reason, Appellant filed a challenge to the substantive validity of the Ordinance with the Board pursuant to Section 1004(1)(a) of the Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11004(1)(a). A hearing was held and the Board determined that the Ordinance including the ninety day amortization provision was valid. The trial court affirmed; hence, this appeal.

Appellant's argument on appeal is that the Ordinance's zoning regulations in effect exclude all "adult" business establishments from the Township. Appellant further challenges the Ordinance's ninety day amortization provision as unconstitutional. We will address the issues raised by Appellant keeping in mind that when reviewing a zoning appeal where the trial court has taken no additional evidence, we are limited to determining whether the Board committed a manifest abuse of discretion or an error of law. The Board has abused its discretion only if its findings are not supported by substantial evidence. Salisbury Township Appeal, 114 Pa. Commonwealth Ct. 493, 539 A.2d 48 (1988).

Zoning classifications are to a great extent within the judgment of the legislative body and this judgment will only be disturbed when it is obvious that the classification bears no substantial relationship to the public health, safety, morals or general welfare. Layne v. Zoning Board of Adjustment, 501 Pa. 224, 460 A.2d 1088 (1983). Moreover, there is a presumption that a zoning ordinance is valid and that the municipal body enacting the legislation did so for the purpose of serving the public welfare. Layne. The burden is on the party attacking the constitutional validity of the ordinance to establish that the ordinance is unconstitutional. Layne.

Appellant's first argument is that the Ordinance is exclusionary per se and if upheld the effect will be to exclude Appellant's business and similar "adult" business establishments from operating within the Township. The mere fact that "adult" businesses such as the one herein are not free to operate within certain distances of schools, residences, churches, nursing homes, etc. does not mean that the zoning classification is exclusionary per se. In Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), reh'g denied 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155 (1976), the owner of two "adult" movie theaters challenged an amendment to the City of Detroit's "Anti-Skid Row Ordinance" which restricted "adult" movie theaters from locating within 500 feet of a residential area or within 1000 feet of any other regulated uses.³ In upholding the validity of the ordinance, the high court wrote:

[W]e have no doubt that the municipality may control the location of theaters as well as the location of other commercial establishments, either by confining them to certain specified commercial zones or by requiring that they be dispersed throughout the city. The mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances.

Young v. American Mini Theatres, Inc., 427 U.S. at 62, 96 S.Ct. at 2448.

The Supreme Court in Young v. American Mini Theatres, Inc. went on to say that "Even though the First Amendment protects communication in this area from total suppression, we hold that the State may legitimately use the content of these materials as the basis for placing them in a different classification from other motion pictures." Young v. American Mini Theatres, Inc., 427 U.S. at 70-71, 96 S.Ct. at 2452.

In City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), the Supreme Court again upheld an ordinance which prohibited "adult" motion picture theaters from locating within 1000 feet of any residential zone, church, park or school. In both Young v. American Mini Theatres, Inc., and Renton the Supreme Court indicated that in considering the constitutionality of an ordinance, the appropriate inquiry is whether the ordinance is designed to serve a substantial government interest and allows for reasonable alternative avenues of communication. Thus, we will continue our analysis as to the exclusionary effects of the Ordinance herein with this question in mind.

In Kacar, Inc. v. Zoning Hearing Board, 60 Pa.Commonwealth Ct. 582, 432 A.2d 310 (1981), an ordinance of the City of Allentown restricted "adult" bookstores and movie theaters from locating within 500 feet of any school, church or residential zone except by way of special exception. The appellant therein, desiring to operate an "adult" bookstore and theater in the city, was denied a special exception under the ordinance. On appeal, the ordinance was attacked as being, inter alia, exclusionary and violative of the principles set forth in Young v. American Mini Theatres, Inc. The Commonwealth Court rejected this argument noting that if the city had adopted an ordinance which regulated the "showing" of sexually explicit movies rather than the "location" of such establishments this Court would have no choice but to conclude that the government interest was related to the suppression of free expression. Kacar, Inc., 60 Pa.Commonwealth Ct. at 592, 432 A.2d at 315. However, in Kacar, Inc., this Court held that there was a legitimate and substantial government interest behind the zoning classification because the purpose of the ordinance's locational restrictions was to protect residential and business neighborhoods from deterioration with only minimal infringements upon constitutional guarantees. Kacar, Inc., 60 Pa.Commonwealth Ct. at 592-93, 432 A.2d at 315-16.⁴

In the matter herein, Appellant's business which is the only establishment of its kind in the Township is in violation of the Ordinance because it is not only located next to a school, but also is located closer to a church and residential district than permitted by the Ordinance. Clearly, the Township has a substantial and legitimate interest here in enacting an Ordinance regulating the location of "adult" establishments.⁵

As to whether the Ordinance allows for reasonable alternatives for communication, Appellant had the burden of proving that there were no locations within the Township from which it could do business.⁶ Appellant did not meet this burden. Instead, the parties stipulated before the Board and the Board accepted as fact that there were areas within the Township where Appellant's business could locate but these areas were either already occupied or were less desirable from a commercial standpoint. The fact that the Ordinance now precludes Appellant from operating from the most commercially feasible location does not require a conclusion that the Ordinance is exclusionary. As our Supreme Court stated in Renton, 475 U.S. at 54, 106 S.Ct. at 932:

That respondents [landowners] must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees does not give rise to a First Amendment violation. And although we have cautioned against the enactment of zoning regulations that have "the effect of suppressing, or greatly restricting access to, lawful speech," ... we...