Southco, Inc. v. Concord Township

NIGRO, Justice,

dissenting.

The majority’s opinion departs from Pennsylvania authority requiring that an accessory use of property be subordinate to and customarily found with the property’s principal use. The majority does not discuss existing precedent on accessory uses and cites no evidence of record supporting that off-track betting at the Turf Club is an accessory use to the property’s use as a restaurant. A consideration of the relevant authority and the evidence dictate that the Commonwealth Court’s decision should be reversed.

The applicable zoning ordinance defines accessory use as:

A use conducted on the same lot as, and subordinate to, a principal use to which it is related (which use is clearly *77incidental to and customarily found) in connection with a particular principal use.

Concord Township Zoning Ordinance 104. Thus, Applicants had to show (1) that off-track betting is subordinate to the principal use of the property as a restaurant and (2) that offtrack betting is customarily found with properties used for restaurants. Applicants established neither requirement.

With respect to the first requirement, courts have looked at the activity taking place on the property as well as its physical characteristics to determine whether a proposed accessory use is secondary to a primary use. In Borough of Fleetwood v. Zoning Flearing Board, 538 Pa. 536, 649 A.2d 651 (1994), for example, the Supreme Court considered whether the operator of a convenience store could install a gasoline pump as an accessory use of the property. The Court found that the zoning board did not abuse its discretion in concluding that the gas pump was subordinate to the convenience store. 538 Pa. at 545-46, 649 A.2d at 655. The Board had found that the number of people who bought items other than gasoline at comparable properties far exceeded the number of people who bought only gasoline. Id.

In Gross v. Zoning Board, 424 Pa. 603, 227 A.2d 824 (1967), the Supreme Court considered whether a proposed restaurant would be an accessory use to a bowling alley. In finding the restaurant subordinate to the use of the property for a bowling alley, the Court found evidence in the record that it would occupy only 3.5% of the premises and that the income generated would constitute only a small fraction of the gross business income. Id. at 605-06, 227 A.2d at 826.

Unlike in Fleetwood and Gross, there is no evidence here supporting that the use of the Turf Club for off-track betting is subordinate to its use as a restaurant. While there is evidence describing the restaurant, there is little information about the use of the property for off-track betting and how the two uses compare. The evidence that does exist suggests that people will go to the Turf Club primarily for off-track betting.

*78The Applicants state that 75% of the building will be used for a restaurant, bar and lounge area with television simulcasting, while bets are placed in an area occupying 25% of the building. When the Board of Supervisors’ Chairman asked the Turf Club’s operator to describe its hours of operation, he replied:

The main racing takes place in the afternoon. And, depending upon the time [of] year, it is either a 12:30 or a 1 o’clock post time. We normally open at 11:00 or 11:30 so the people could come for an early lunch. We serve food in the restaurant from 11:30. The evening session normally starts at 7:00 in the evening and goes through to approximately 11 or 11:30.

N.T. 11/2/93 at 20. In addition, individuals under the age of twenty-one may not enter the premises without a parent. N.T. 11/2/93 at 16. While a comparable number of employees would do work related to food and beverage and wagering, people will spend more money on wagering.1 In contrast to other cases finding accessory uses, the evidence does not establish that off-track betting is a secondary use of the property. To the contrary, off-track betting activities appear to be an integral part of the establishment.

The Commonwealth Court failed to address the requirement that off-track betting be subordinate to the property’s use as a restaurant. Since there is no evidence that off-track betting is a subordinate use, the majority of this Court relies heavily upon legislation requiring that simulcasting and wagering be conducted at a facility with a restaurant. This requirement, however, equally supports that wagering is the primary activity at the Turf Club and that the Club complies with the law by also providing a restaurant. The legislation that the majority' relies upon requires that off-track betting be associated with a restaurant “so that all or part of the ... facility will resemble *79the clubhouse facilities of a racetrack.” 4 Pa. Stat. 325.218(g)(5)(ii).

The majority’s treatment of the second requirement — that the accessory use is customarily found with a principal use — is more troublesome. The majority concludes that an accessory use exists notwithstanding its acknowledgement that off-track betting is not customarily found in other area restaurants. The majority has in effect eliminated the second zoning ordinance requirement.

As recognized by Judge Pellegrini in his dissent below, this Court and the Commonwealth Court have considered evidence about properties in the area to determine whether a proposed accessory use is customarily found with a principal use. In Gross v. Zoning Board, 424 Pa. 603, 227 A.2d 824 (1967), also discussed above, the owner of a bowling alley sought to operate a restaurant on the premises as an accessory use. The Supreme Court held that the proposed accessory use was customarily incidental to the property’s primary use based upon evidence that a substantial percentage of bowling alleys in the area had restaurants. Id. at 606, 227 A.2d at 826.

Similarly, in Thomas v. Zoning Hearing Board, 121 Pa. Commw. 393, 397-98, 550 A.2d 1045, 1047-48 (1988), the Commonwealth Court held that a stable was an accessory use. The court found that stables were customarily found with houses in the rural area based upon evidence that area residents kept livestock in stables.2 In Champaine v. Zoning Hearing Board, 30 Pa. Commw. 544, 547-48, 374 A.2d 752, 753-54 (1977), the Commonwealth Court held that selling horse equipment is not customarily incidental to running a *80horse farm because there was no evidence that a substantial percentage of area farms sold such equipment. Thus, selling horse equipment could not be justified as an accessory use. In light of this authority, the majority improperly concludes that an accessory use exists where off-track betting is not customarily found with restaurants.3

Finally, the fact that Pennsylvania legislation requires that off-track betting facilities be established in connection with restaurants does not support that they are usually found with restaurants for purposes of a municipality’s zoning ordinance. Permissible accessory uses vary by location. For example, while horse stables may be customarily found with houses in rural communities, they may not be customarily found with houses in urban areas. Thus, whether a secondary use is customarily found with a principal use depends upon evidence about the area in question, not whether state legislation requires that one activity be conducted with another. In sum, Applicants have not established that off-track betting is subordinate to the property’s use as a restaurant or that off-track betting is customarily found in restaurants. Thus, the Commonwealth Court’s decision should be reversed.

. The Turf Club’s operator stated that at another Turf Club, 43 employees work in food and beverage, 40 work in admissions, security, cleaning, management and office staff, and 29 accept wagers and do the video displays. N.T. 11/2/93 at 21. He stated that people spend three times more on wagering than on food and beverage. Id.

. The majority misconstrues Thomas in finding that it supports that an accessory use is allowed where properties in the area do not have the proposed use. Thomas involved a house in a development in a rural area. The court stated that it did not matter that other houses within the clevelopment did not have stables. Rather, the relevant area included the surrounding community. Likewise, in Klein v. Township of Lower Macungie, 39 Pa. Commw. 81, 395 A.2d 609 (1978), the Commonwealth Court found that a tennis court was an accessory use where there was evidence that tennis courts are usually incidental to homes in the township, although not in the neighborhood where the property at issue was located.

. The majority’s reliance upon Valley Forge Plaza Assoc, v. Zoning Hearing Board, 141 Pa Commw. 686, 596 A.2d 1201 (1991), is misplaced. Valley Forge considered whether an off-track betting facility and an assembly hall were "of the same general character” under a zoning ordinance. It does not address accessory uses.