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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Marquise Investment, Inc. v. City of Pittsburgh and Pittsburgh City Council, Appellants BEFORE: : : : : : : :

No. 2507 C.D. 2009 Argued: November 9, 2010

HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION BY JUDGE BUTLER

FILED: December 30, 2010

The City of Pittsburgh and Pittsburgh City Council (collectively, the City) appeal the November 23, 2009 order of the Court of Common Pleas of Allegheny County (trial court) granting the conditional use application filed by Marquise Investment, Inc. (Marquise). The issue now before the Court is: whether the burden of proving that there was no harm to the health, safety and welfare of the community shifted back to Marquise (1) where medical professionals testified that the location of a proposed adult cabaret would adversely affect the recovery of the members of a nearby social club for recovering alcoholics and drug addicts; and/or, (2) where community members provided significant testimony regarding existing traffic problems. For the reasons that follow, we affirm the order of the trial court. I. Background

Under Section 911.02 of the Pittsburgh Zoning Code updated June 19, 2009 (Pittsburgh Code), adult entertainment is permitted as a conditional use in the City's Urban Industrial (UI) zoning districts. According to Pittsburgh Code Chapter

926, Adult Entertainment "means an Adult Cabaret or Adult Theater." Reproduced Record (R.R.) at 9a. Adult Cabaret is defined as "a cabaret which features topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers which characterize an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas as defined herein." R.R. at 9a-10a. On June 6, 2008, Marquise filed a conditional use application with the City for the operation of an adult cabaret at 1635 West Carson Street, a property located in a Pittsburgh UI zoning district, which consists of a 5,000 square foot structure that formerly housed a medical office. The business will cater to gentlemen between 21 and 50 years of age. Marquise will operate the cabaret between 9:00 p.m. and 4:00 a.m., seven days per week. It will offer food and non-alcoholic beverages; no alcoholic beverages will be permitted on the premises, unless the Marquise applies for a liquor license, or at some point decides to permit its guests to bring their own alcoholic beverages. The Onala Club, a non-profit social club for recovering

alcoholics and drug addicts, is located within 80 feet of the proposed use. In accordance with Section 922.06.A-B. of the Pittsburgh Code, Marquise's conditional use application was submitted to the City's Planning Commission for its recommendation. A public hearing was held before the Planning Commission on November 18, 2008, at which the City's zoning administrator presented a Conditional Use Report, testimony was provided by Marquise principal Patrick Risha (Risha), and letters and testimony were provided by numerous objectors, including residents and representatives of New Life Fellowship Church and the Onala Club. The Planning Commission recommended that City Council deny Marquise's application.

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Despite the fact that Section 922.06.D.1. of the Pittsburgh Code requires Pittsburgh City Council to hold a public hearing within 45 days of the Planning Commission's action on a conditional use application, Council failed to hold a hearing, which resulted in a deemed denial of Marquise's application. Marquise filed an appeal with the trial court, which remanded the matter to the Council for a hearing. Council, once again, failed to hold a hearing. The trial court entered an order on September 16, 2009 vacating its order of remand and taking jurisdiction of the case. The trial court held a de novo hearing on October 13, 2009, and accepted evidence presented to the Planning Commission, an affidavit from Risha with supplemental testimony and documentation in support of Marquise's application, and argument from Marquise and the City. None of the objectors appeared before the trial court.1 On November 23, 2009, the trial court granted Marquise's application. The City appealed to this Court.2 II. Harm to Health, Safety and Welfare On appeal, the City argues that it presented substantial evidence of a high degree of probability that the proposed strip club would cause harm to the

The objectors are not parties to this action. Where the trial court takes additional evidence on appeal from the denial of a conditional use permit,
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it must determine the case de novo, making its own findings of fact based on the record before the Board as supplemented by the additional evidence, and this Court must then determine on appeal whether the trial court, rather than the [Council], committed an abuse of discretion or an error of law. The trial court abuses its discretion if its findings are not supported by substantial evidence, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. K. Hovnanian Pa. Acquisitions, LLC v. Newtown Twp. Bd. of Supervisors, 954 A.2d 718, 722 n.1 (Pa. Cmwlth. 2008) (citation omitted).

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health, safety and welfare of the community, and Marquise did not meet its burden of rebutting that evidence. We disagree. Section 913.2 of the Pennsylvania Municipalities Planning Code (MPC)3 authorizes municipalities to make exceptions to their zoning ordinances, in the form of conditional uses,4 as long as the ordinances set forth express standards and criteria governing such exceptions.5 "[T]he existence of a conditional use provision in a zoning ordinance indicates legislative acceptance that the use is consistent with the zoning plan and a use application should only be denied where the adverse impact on the public interest exceeds that which might be expected in normal circumstances." In re McGlynn, 974 A.2d 525, 537 (Pa. Cmwlth. 2009). In addressing an application for a conditional use, a local governing body must employ a shifting burden of persuasion. First, the applicant must persuade the local governing body its proposed use is a type permitted by conditional use and the proposed use complies with the requirements in the ordinance for such a conditional use. Once it does so, a presumption arises the proposed use is consistent with the general welfare. The burden then shifts to objectors to rebut the presumption by proving, to a high degree of probability, the proposed use will adversely affect the public welfare in a way not normally expected from the type of use.
Act of July 31, 1968, P.L. 805, as amended, added by Section 93 of the Act of December 21, 1988, P.L. 1329, 53 P.S.

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