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Court Says that Size of the Structure Does Not Dictate its Status as either a Primary or Accessory Use

Patty Salkin — Fri, 04 Jul 2008 21:35:44 +0000

The applicant proposed to construct a 7,776-square-foot stable, a 16,000-square-foot indoor riding ring, and two outdoor riding rings in an R-1 Residential District. The facilities were intended to be used for the boarding of horses, riding lessons, a summer day-camp, and an annual horse show. A neighboring landowner challenged the Zoning Hearing Board’s grant of special exception on several grounds, including that the indoor riding arena could not be considered to be an accessory use because it was planned to be much larger in size than the stable. Rejecting this argument, the Pennsylvania Commonwealth Court ruled that "[t]he size of the structure does not dictate the status as primary or accessory." The court further found that the facts "support[ed] the conclusion that an indoor riding arena [was] a use …subordinate and „customarily incidental to a stable." The court rejected all other contentions raised by the neighbor, and the grant of special exception to the stable owner was affirmed.

Tennyson v. Zoning Hearing Board of West Bradford Township, 2008 WL 2415271 (Pa. Commw. June 17, 2008).

The opinion can be accessed at: http://www.courts.state.pa.us/opposting/cwealth/out/1045cd06_6-17-08.pdf

Special thanks to Prof. Anthony Schutz of the University of Nebraska School of Law for forwarding this abstract from the Penn State Dickison School of Law’s Agricultural Law Center. See, http://www.dsl.psu.edu/centers/aglaw.cfm.

Limiting Dogs as Pets to No More Than Six at Any One Single-Family Residence Upheld

Patty Salkin — Thu, 05 Jun 2008 09:55:38 +0000

The Pennsylvania Commonwealth Court determined that a Township ordinance regulating the maximum number of domestic pets that can be kept as an accessory use is within the municipality’s general authority to promote the health, safety and welfare of the community.

In this case, the landowners, who reside in a rural residential zone, have 14 dogs. It was noted that the property was not fenced and that the dogs are uncontrolled. On a number of occasions, neighbors complained to the police about being physically threatened by the dogs and continual and incessant barking 24-hours a day. After contacting the zoning officer regarding the possibility getting permission to establish a dog kennel on their property, the landowners were informed that this was not a permitted use in the district. About six months later, the landowners were served with an “Enforcement Notice” that thery were in violation of the local ordinance which defines the keeping the domestic animals as an accessory use, and limits the number of pets that may be kept as an accessory use in a single family residence in the applicable zoning district to six. On appeal to the zoning board, the landowners argued that the Ordinance was vague and arbitrary. A neighbor testified that she lived next door to the property and that there was “continual incessant obsessive barking,” and that at night is sounded “like they were murdering each other.” She stated that the noise was so bad, that she could no longer dine outside on her deck and that she was unable to sleep at night. She also testified that the dogs were often in her backyard barking at her and defecating on her property. The board agreed with the zoning officer that the landowners were in violation of the Ordinance. The trial court affirmed.

On appeal to the Commonwealth Court, the landowners raised three issues, all of which the Court found to be without merit. The landowners claimed, among other things, that the municipality may not arbitrarily fix a number that is an acceptable number of pet dogs that may be maintained at a single-family residence. The Court said that it is well settled law in the State that a municipality may enact zoning ordinances reasonably restricting property rights to protect and promote the public health, safety and welfare under its police power, and that “Because the Landowners failed to meet their burden to show that limiting the number of dogs per household is not substantially related to controlling the problems of dog noise and to the health and general welfare of the community as a affected by dogs, the Ordinance must be upheld.”

Colby S. v. Monaghan Tp., 2008 WL 2130260 (Pa. Cmwlth. 5/22/2008).

PA Commonwealth Court Rules Sex Buffet is Not an Accessory Use

Patty Salkin — Tue, 13 May 2008 23:56:22 +0000

Señor Rattler's, a restaurant, operated under the terms of a 1988 variance that prohibited entertainment or a dance floor on the premises, and further provided that the premises would not be used for a club. In 2000, after MAJ had acquired the property, MAJ sought and received a use permit to operate a restaurant with accessory "live entertainment and dancing by patrons...." (2000 permit). MAJ opened an establishment called Club Kama Sutra, which offered buffet dining on the first floor, DJ music and dancing on the third floor, and open cubicles with futon mattresses where patrons could engage in sexual activity, as well as watch other patrons so engaged, on the second floor. The club charged $100 per couple on Saturday nights, $75 per couple on Friday nights, $25 for a single woman to attend on either night, and $100 for single men, who were only allowed in on Friday nights. In 2005, the City issued a "Cease Operations Order" to MAJ to cease operating a restaurant not in accordance with its permit, to cease operating a sex club without a permit, and to cease operating a private club without a permit. On MAJ’s appeal to a zoning board, the board concluded that the 1988 variance terms ran with the land and, therefore, bound MAJ. On further appeal, MAJ argued the sexual activity was "live entertainment," like gambling, and a valid accessory use to the property’s use as a restaurant; therefore, Club Kama Sutra was operating in compliance with the 2000 permit. The trial court ruled that simply because Philadelphia’s zoning ordinances did not specifically prohibit sex clubs did not mean that they were permitted, and held that the use of the property for the sexual activity of patrons was not an accessory use to a restaurant use.

The Commonwealth Court of Pennsylvania affirmed. Even assuming Club Kama Sutra was a restaurant, the accessory use argument failed. On MAJ’s attempt to cite as precedent a case where the state Supreme Court ruled that off-track betting was an accessory use to a restaurant, the court noted that, unlike the situation at bar, legislation had created a custom whereby off-track wagering was associated with fine dining. Further, the use of the property as a sex club did not appear to be subordinate to the facility’s use as a restaurant and was not customarily incidental to that use: "Club Kama Sutra's visitors seem to have paid primarily for access to the ‘party’ rather than for the buffet." This interpretation received additional support from the price structure, which the court noted was "wholly unrelated to the amount of food a patron might consume." The argument that no provision of the city zoning ordinances prohibited MAJ from allowing its patrons to engage in sexual activity was likewise rejected – the ordinance explicitly enumerated "permitted uses." Merely because a zoning ordinance did not explicitly forbid operation of a sex club did not mean that an individual or corporation could obtain a permit for a different use and operate a sex club.

MAJ Entertainment Inc. v. City of Philadelphia, 2008 WL 1913229 (Pa. Cmwlth. Ct. 5/2/2008 )

The opinion can be accessed at: http://tinyurl.com/4po9td

This case brief was prepared by Sophia Stadnyk of IMLA (International Municipal Lawyers Association) for IMLA News Issue No. 7, May 14, 2008. For more information about IMLA visit www.imla.org

Iowa Supreme Court Concludes Prohibition on Sale and Service of Alcoholic Beverages Does not Alter Nonconforming Use Status of Restaurant and it is Accessory Use

Patty Salkin — Mon, 24 Mar 2008 10:09:41 +0000

There is a split of authority regarding whether the addition of the sale of alcohol constitutes an unlawful expansion of a nonconforming restaurant as a matter of law. Courts in Alabama, California, Connecticut and Delaware have determined that such activity does constitute an unlawful expansion of the nonconforming use. Yet courts in Louisiana, Pennsylvania and New York have allowed nonconforming restaurants to add the sale of alcoholic beverages. The Iowa Supreme Court followed the authority in the latter states, concluding that the sale and service of alcoholic beverages at a nonconforming restaurant does not constitute an expansion of a nonconforming use.

Since 1958 when the property was used as a restaurant, alcoholic beverages were sold to patrons until 1994 when the restaurant owners allowed the liquor license for the restaurant to expire. In 1978 the property on which the restaurant operates was rezoned to single-family residential, making the restaurant a nonconforming use. In 2004 the restaurant was purchased and the current owner continues to operate the restaurant the same as in the past, but he applied for a liquor license to resume the sale of alcohol on the premises. The City denied the liquor license determining that the sale and service of alcoholic beverages at the restaurant would violate the zoning ordinance. The District court determined that the new owner could no longer sell alcoholic beverages to the public on the premises because that would constitute a separate and distinct nonconforming use and an expansion of a nonconforming use. The District Court also rejected the owner’s claim that the zoning ordinance constituted impermissible spot zoning.

The Iowa Supreme Court reversed, noted that while nonconforming uses cannot be enlarged or extended, “[l]andowners are given some latitude…and may change the original nonconforming use ‘if the changes are not substantial and do not impact adversely on the neighborhood.’” Citing Perkins v. Madison County, 613 N.W.2d 264 at 270 (Iowa 2000). The Court found that the City did not rely on any facts or circumstances in determining that sale and service of alcoholic beverages by a restaurant would substantially expand the nonconforming use, rather the City relied on the premise that this constituted a separate and distinct use from the use of the property as a restaurant. The Court rejected the conclusion of the District Court that this constituted an expansion of the nonconforming use, and the Supreme Court further rejected the conclusion that the service and sale of alcoholic beverages was a nonconforming use that was abandoned after the enactment of the ordinance.

The Court also found that the City did not address the sale and service of alcoholic beverages as an accessory use to a restaurant. The definition of “restaurant” in the zoning ordinance is silent as to alcoholic beverages, and the Court said that City’s interpretation of the ordinance basically ignores the doctrine of accessory uses of property. The zoning ordinance defines accessory uses as “a use or structure subordinate to the principal use of a building on the lot and serving a purpose customarily incidental to the use of the principal building…” The owner provided ample evidence that the restaurants in the area customarily serve alcoholic beverages to dining patrons. Therefore, the Court found this to be an accessory use to the principal use. The Court declared that the City ordinance does not prohibit a restaurant from serving alcoholic beverages as an accessory use, and that the sale and service thereof does not, by itself, constitute an unlawful expansion of a nonconforming restaurant. The Court expressed no opinion as to whether the owner was entitled to a liquor license.

City of Okoboji v. Okoboji Barz, Inc., 2008 WL 682403 (Iowa 3/14/2008).

The opinion can also be accessed at:

http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20080314/06-269.pdf

New Hampshire Supreme Court Upholds Private Helicopter Use Subject to Special Use Permit

Patty Salkin — Thu, 20 Mar 2008 10:30:53 +0000

The owner of a 230 acre parcel of land located in a rural zoning district planned to use the property, in part, for private recreational use of a helicopter. The town does not permit the use of land for aircraft takeoffs and landings in three districts, but it does allow for the use in the rural district subject to special exception permit. Following a denial of his permit request, the petitioner alleges that the town ordinance violates a State statute which provides, in part, that local governments may regulate and control accessory uses on private land, and that “Unless specifically proscribed by local land use regulation, aircraft take offs and landings on private land by the owner of such land shall be considered a valid and permitted accessory use.” See, RSA 674:16, V.

The Court noted that they have held that permissive zoning ordinances, such as the one at issue here, “prohibits uses of land unless they are expressly permitted as primary uses or can be found to be accessory to a permitted use.” The Court did not agree with the petitioner’s argument that as an accessory use, he has the right under state statute to engage in this activity without first obtaining a special exception permit because the Town has not prohibited the use outright. Stating that such argument is a false dichotomy, the Court notes that the statute specifically allows the town to “regulate and control” accessory uses on private land. The Court went on to explain that “if a town has not expressly prohibited use of land for aircraft take offs and landings, it not accept every proposed use of land for this purpose, but may accept only those proposals that comply with its regulations.” Further, the Court said that that “imposing conditions upon an accessory use does not convert it into an invalid or prohibited accessory use.” Therefore, towns are permitted, through the use of special exceptions, to protect the rights of landowners both in areas where aircraft takeoffs and landings are acceptable and area where they are not acceptable without violating state statute.

Tonnesen v. Town of Gilmanton, 2008 WL 657544 (N.H. 3/13/2008).

The opinion can also be accessed at: http://www.courts.state.nh.us/supreme/opinions/2008/tonne021.pdf

Indiana Appeals Court Rules Occasional Use of Accessory Building to House Guests Does Not Require Variance on Prohibition on Lot Containing More than One Dwelling

Patty Salkin — Mon, 11 Feb 2008 11:35:29 +0000

In 1999 the owners of a house on 10 acres in an agricultural district built a building with a kitchen and bathroom for use in connection with their organic farm operation. After the farm operation ended the owners allowed their son and his wife to live in the outbuilding while attending college. The director of the plan commission notified the owner that the change in use required a variance. The board of zoning appeals affirmed that the use violated the ordinance prohibition on “more than one principal building for residential purposes.” The owners indicated that they intended to seek a variance, but waited several months while the health department evaluated the septic system. The commission sought an injunction and fines. The owners informed the commission that the building was no longer used as a residence, but only as occasional housing for guests. The commission insisted that the owners either render the building uninhabitable or get a variance. Their variance application was denied. The trial court held that the use did not violate the ordinance and that no variance was required. The appeals court affirmed. The ordinance does not define “residential purposes,” but defines a dwelling to not include “any facility normally providing housing for a period of under 30 days,” therefore, the accessory building, which is permitted in the district, is not a dwelling. The owners were not barred by their failure to appeal the commission’s initial determination from arguing that a variance was not required.

Hamilton County Plan Comm’n v. Nieten, 2007 WL 3358136 (Ind. App. 11/14/2007).

The opinion can also be accessed at: http://www.in.gov/judiciary/opinions/pdf/11140701cld.pdf

Special thanks to Lora Lucero, Esq., editor of Planning and Environmental Law for this abstract. Information about PEL is available at: http://www.planning.org/PEL/index.htm