Sites v. West Goshen Zoning Hearing Board , 5 Pa. Commw. 78 ( 1972 )

Opinion by

Judge Wilkinson,

This is an appeal from an Order of the Court of Common Pleas of Chester County, affirming the granting of a Special Exception by the Zoning Hearing Board of West Goshen Township to the applicant to operate a club, i.e., an American Legion Post, in an R-3 Residential District. The Zoning Ordinance provides for a Special Exception in an R-3 District: “Club, fraternal institution, nonprofit swimming pool, provided that a principal activity shall not be one which is customarily carried on as a business, and provided that all services shall be for members and their guests.” The Board, affirmed by the court below, found that the applicant met the requirements for a Special Exception as provided in the Zoning Ordinance, and that the protestants had not met their burden of showing that granting the Special Exception would be detrimental to the health, safety, welfare, and morals of the community.

We must reverse on the basis that the applicant has not met the requirements to be eligible for the Special Exception. The testimony of applicant’s President and only witness makes it quite clear that the applicant intends to secure a liquor license and carry on a principal activity that is customarily carried on as a business. In many places in the record, the President of applicant equivocated as to whether the club would secure a liquor license. For example:

“Q. You are familiar with the American Legion in West Chester here or the YFW in Paoli, or places of that type, where you can go, you know, any time during the afternoon or in the evening, seven days a week, and get a drink if you are a member?

“A. If you are a member.

“Q. Do you contemplate that type of a facility either now or sometime in the future?

“A. In all probability maybe sometime in the future.” However, when the question was put directly, it was given a direct answer:

“Q. Question was asked previously about the serving of alcoholic beverages in your present location. I don’t believe the question was answered as to whether you planned to apply for a license should you be granted the special exception at the Westtown Road location. Do you plan to apply for a liquor license either now, immediately or in the future?

“A. Yes, we do.”

In our opinion, it would be difficult to think of a more appropriate example of what the Zoning Ordinance was aiming to exclude from the Special Exception provision than a club with a liquor license. The law is quite clear that the burden is on the protestants or Board to show the proposed Special Exception would be detrimental to the health, safety, welfare, and morals of the community. See Delaware County Community College Appeal, 435 Pa. 264, 254 A. 2d 641 (1969); Appeal of Stefonich, 1 Pa. Commonwealth Ct. 13, 271 A. 2d 707 (1970). However, before this burden must be assumed by the protestants or the Board, the applicant must bring itself within the class eligible for the Special Exception. The most recent case pointing out the distinction between the applicant’s burden to bring himself within the class eligible for the Special Exception and the burden of the protestants to show it would be contrary to the public welfare is Berlant, et al. v. Lower Merion Toionship Zoning Hearing Board, 2 Pa. Commonwealth Ct. 583, 279 A. 2d 400 (1971), wherein it is stated: “In this case, the Synagogue met its requirements by showing that its application fell within the provision of the ordinance permitting a religious use by special exception and by putting forth a plan showing the proposed use of its land.”

The order of the lower court is reversed.