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Analyzing whether a proposed use is sufficiently similar to the previous non-conforming use

Jay-Lee, Inc. v. The Municipality of Kingston Zoning Hearing Board, 799 A.2d 923
Note: Appeal denied

Cross Reference: MPC Section 107(a) - Analyzing whether a proposed use is sufficiently similar to the previous non-conforming use

In this case the Court examined whether the proposed use of totally nude entertainment was a pre-existing use where previously the entertainers wore G strings and pasties.

Prior to the municipality's enactment of a zoning ordinance regulating "bring your own bottle" clubs and adult entertainment, the licensed bar owners were in compliance with PLCB regulations; they confined the entertainment to scantly clad dancers. After de-licensing the owners intended to turn the bar into a bottle club and provide totally nude entertainment. Their application for an occupancy permit was denied.

The Commonwealth Court examined the definition of non-conforming use in the MPC:

a use, whether of land or of structure, which does not comply with the applicable use provisions in a zoning ordinance or amendment heretofore or hereafter enacted, where such use was lawfully in existence prior to the enactment of such ordinance or amendment, or prior to the application of such ordinance or amendment to its location by reason of annexation.

Applying the analysis from the Pennsylvania Supreme Court in Limley v. ZHB of PortVue Borough 533 Pa. 340, 624 A.2d 54 (1993) the Commonwealth Court stated that in order to qualify a proposed use as a pre-existing non-conforming use, the proposed use must be sufficiently similar to the pre-existing non-conforming use so as to not constitute a new or different use. 533 Pa.340, 625 A.2d 54. The court also looked at numerous courts' decisions which examined G strings vs. nude in the context of interpreting other Pennsylvania statutes and the U.S. Constitution. In all cases the courts found a distinction between totally nude entertainment and the use of scant cover-ups

The Court held that totally nude entertainment was not sufficiently similar to G strings and pasties dancers to qualify as a pre-existing non-conforming use. The Court declined to accept the owner's argument that a prior potential use is the same or sufficiently similar to the requested use. The bar owners had to apply for a special exception pursuant to the terms of the new adult entertainment regulations.

The decision also addressed the point that where an ordinance is silent as to the time limit for issuance of a permit after an application is filed, the zoning ordinance is read in conjunction with MPC Section 104(a) (90 days). The zoning ordinance did not place an unconstitutional prior restraint on speech by the absence of a time limit expressly provided in the ordinance for the decision maker's action on the application. The MPC steps in to provide the time limit.

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