          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

SPTR, Inc., Newbolds Brew LLC,            :
The American Sardine Bar, Inc.,           : No. 1264 C.D. 2015
and the Point Breeze Fund LLC             : Argued: May 12, 2016
                                          :
                   v.                     :
                                          :
City of Philadelphia,                     :
                          Appellant       :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION
BY JUDGE WOJCIK                                      FILED: November 21, 2016

             City of Philadelphia (City) appeals from an order of the Court of
Common Pleas of Philadelphia County (trial court) granting an emergency petition
for preliminary injunction to allow the operation of a pop-up beer garden in a
residential district in the City pending disposition of a use permit application. The
City argues the trial court erred because the beer garden is a prohibited commercial
use in a residential zone. Upon concluding reasonable grounds exist to uphold the
preliminary injunction, we affirm.

                                     I. Background
             SPTR, Inc., Newbolds Brew, LLC, the American Sardine Bar, Inc.,
and the Point Breeze Fund, LLC (collectively, Appellees) are four commercial
entities. The first three entities are licensed by the Pennsylvania Liquor Control
Board (PLCB) to sell liquor. Point Breeze Fund, LLC, is a separate entity that
owns a vacant lot in the City located at 1622-40 Point Breeze Avenue (Property),
which is located in a residential, multi-family zone (RM-1).1
             Appellees planned to operate a pop-up beer garden on the Property,
which is an outdoor bar that sells beer and food to customers on a seasonal basis.
They acquired PLCB liquor licenses, off-premises catering permits, City Health
Department permits, and City Department of Licenses and Inspections (L&I)
permits to serve food and nonalcoholic beverages at the Property. Appellees also
invested $30,000 to clear, clean and landscape the Property.
             The pop-up beer garden officially opened in May 2015. The beer
garden operates as a “membership party” and fundraiser for local charities. The
beer garden operates from May through September, during limited hours: Thursday
from 5:00 p.m. to 10:00 p.m., Friday from 5:00 p.m. to 11:00 p.m., Saturday from
1:00 p.m. to 11:00 p.m., and Sunday from 1:00 p.m. to 10:00 p.m.
             In June 2015, an L&I inspector inspected the beer garden and
ascertained that the beer garden operated without a required zoning or use
registration permit or zoning certification in violation of Title 14 of the
Philadelphia Code (Zoning and Planning). On June 25, 2016, the inspector issued
a “Notice of Intent to Cease Operations and Order” (Notice) informing Appellees
that within 10 days a cease operations order would be issued unless they obtained a
zoning permit. The Notice stated: “[T]hese violations may pose a threat to the
safety, health or welfare to the occupants or surrounding community and require
immediate correction.” Reproduced Record (R.R.) at 49a. The Notice advised a
cease operations order “can only be vacated by obtaining an immediate stay of

      1
          John Longacre is the principal of Point Breeze Fund, LLC, and he owns the liquor
licenses for and possesses ownership interest in the other entities.


                                            2
enforcement as set out in the Administrative Code or correcting the cited violation
and passing inspection” prior to the issuance of a cease operations order effective
date. Id. It further directed appeal forms may be obtained from the Board of
License and Inspection Review (L&I Board).
              On June 29, 2015, L&I issued a final warning advising Appellees that
the failure to correct the violation will require L&I to pursue additional
enforcement action, including the assessment of fines in the amount of $150 to
$2,000 per day. R.R. at 50a.
              On July 1, 2015, Appellees filed a zoning permit application with L&I
to use the property as a beer garden, but they were informed the application had a
“due date” of July 29, 2015, and would not be initially approved. Trial Court
Opinion, 10/2/15, at 3. The application was subsequently denied.2
              L&I then issued a cease operations order (Cease Order) directing
Appellees to immediately cease all business operations and related occupancy at
Property as of midnight on July 8, 2015. R.R. at 51a. Appellees attempted to
appeal the Cease Order with the L&I Board, which was rejected.
              Thereafter, Appellees filed a complaint in equity and an emergency
petition for preliminary injunction with the trial court. Appellees alleged that the
City, by issuing the Cease Order, violated their due process rights, caused them to
suffer irreparable harm without an adequate remedy at law, unlawfully preempted
licenses issued by the PLCB, and unlawfully commingled prosecutorial and
adjudicatory functions.



       2
          Appellees appealed the denial to the Philadelphia Zoning Board of Adjustment; the
appeal is pending. Appellees’ Brief at 10; Appellant’s Brief at 12 n.1.


                                            3
              The City opposed the emergency petition, but it did not file an answer
to the complaint. The trial court issued a rule to show cause why the emergency
petition should not be granted. After hearing evidence and arguments on the rule,
the trial court granted the preliminary injunction, vacated the Cease Order, directed
no further enforcement activity under the Cease Order shall occur until disposition
of the zoning permit application, and required Appellees to post a bond in the
amount of $500. Trial Court Order, 7/10/15.
              The City then filed a notice of appeal in this Court, which
automatically stayed the preliminary injunction. In response, Appellees filed an
emergency petition for supersedeas with the trial court, which the trial court
granted, thereby allowing Appellees to continue operating their pop-up beer
business on the Property during the pendency of the City’s appeal.
              The trial court directed the City to file a statement of errors
complained of on appeal pursuant to Pa. R.A.P. 1925(b), which it did. The trial
court then issued an opinion in support of its order. The trial court determined the
issues raised in the City’s Rule 1925(b) statement were waived for purposes of
appeal because the City did not file an answer to Appellees’ complaint.3
              Nevertheless, the trial court addressed the merits of the preliminary
injunction. The trial court prefaced its discussion by noting there is little guidance
on the procedure to acquire zoning permits for temporary uses. It also commented
on the enduring and pervasive issue of vacant lots blighting the City, noting as



       3
         Although the City did not file an answer to the complaint, it responded to the
emergency petition for preliminary injunction. In so doing, the City preserved its challenges to
the preliminary injunction order. See Levin v. St. Peter’s School, 578 A.2d 1349, 1352
(Pa. Cmwlth. 1990).


                                               4
many as 10 City agencies, including pest control, police and fire, are called upon to
“upkeep” vacant lots. Trial Court Opinion, 10/2/15, at 9.
             As to the merits, the trial court determined Appellees met all
prerequisites for injunctive relief. Of relevance to this appeal, the trial court found
that Appellees demonstrated a clear right to relief because L&I did not meet the
criteria to issue the Cease Order. A cease operations order may be ordered only
when a property owner engages in a use without one or more required permits and
either the missing permits are required to protect the public health or safety or the
continued use creates a public nuisance. Trial Court Opinion at 10-11 (citing
Section 14-306(1)(e)(.1) of the Philadelphia Code).           The trial court found
Appellees possessed the permits from the Health Department, PLCB and L&I,
which are required to protect public health and safety.
             Significantly, the trial court found the operation of the beer garden did
not create a public nuisance. The evidence presented showed that there had been
no incidents requiring the police to be called to the premises. The State Police
visited and found the beer garden in good standing. No threat to public safety
existed. The latest the beer garden operated was until 11 p.m. on Saturday night.
Local registered community organizations, including South Philadelphia Homes,
supported the beer garden and benefited from its charity fundraising. Ultimately,
the trial court opined Appellees’ use of the Property “as a beer garden, along with
its fundraising efforts and expenditure put forth to clear the lot of trash, vermin,
and other unsightly blight, was an improvement to the neighborhood; such
development should be encouraged even on a temporary basis.”              Trial Court
Opinion at 9 (emphasis added). Upon determining Appellees met the prerequisites




                                          5
for injunctive relief, the trial court granted the preliminary injunction. This appeal
now follows.
                                      II. Issues
             The City contends the trial court erred by granting injunctive relief.
The City maintains L&I was authorized to shut down the operation because the
beer garden is a prohibited commercial use in the RM-1 residential zone, Appellees
do not have the required zoning permit to operate the beer garden, and its operation
created a public nuisance in its residential location. Moreover, the City asserts the
mere existence of a commercial beer garden in a residential zone amounts to a
public nuisance per se.

                                  III. Discussion
                              A. Clear Right to Relief
             First, the City contends the trial court erred by granting injunctive
relief because Appellees did not show a likelihood of success on the merits.
Appellees are not entitled to operate a beer garden in the RM-1 residential zone
without a zoning permit. Appellees cannot circumvent the zoning law by simply
cleaning trash off of a vacant lot, selling food in a hygienic manner, and obtaining
other permits for the sale of food and beverages. The possession of other permits
does not obviate the need for a zoning permit or make a commercial use in a
residential zone otherwise lawful. Without a permit, L&I was authorized to shut
the beer garden down under the Philadelphia Code.
             Preliminary injunctive relief is an equitable remedy available in equity
actions. Barcia v. Fenlon, 37 A.3d 1, 6 (Pa. Cmwlth. 2012). “A preliminary
injunction is designed to preserve the subject of the controversy in the condition in
which it is when the order is made, it is not to subvert, but to maintain the existing
status quo until the legality of the challenged conduct can be determined on the
                                          6
merits.” Greater Nanticoke Area Education Association v. Greater Nanticoke
Area School District, 938 A.2d 1177, 1183 (Pa. Cmwlth. 2007).
             Our review of a trial court’s order granting or denying preliminary
injunctive relief is “highly deferential.” Summit Towne Centre, Inc. v. Shoe Show
of Rocky Mount, Inc., 828 A.2d 995, 1000 (Pa. 2003). “[W]e do not inquire into
the merits of the controversy, but only examine the record to determine if there
were any apparently reasonable grounds for the action of the court below.” Id.
(quoting Roberts v. Board of Directors of School District, 341 A.2d 475, 478 (Pa.
1975)). Only when it is clear no grounds exist to support the decree, or the rule of
law was “palpably erroneous or misapplied,” will such order be reversed. Id.;
accord Novak v. Commonwealth, 523 A.2d 318, 319 (Pa. 1987). Such reasonable
grounds exist when the essential prerequisites for the granting of an injunction are
met. Summit Towne, 828 A.2d at 1000.
             There are six essential prerequisites a party must establish before
obtaining preliminary injunctive relief:

             (1) the injunction is necessary to prevent immediate and
             irreparable harm that cannot be compensated adequately
             by damages; (2) greater injury would result from refusing
             the injunction than from granting it, and, concomitantly,
             the issuance of an injunction will not substantially harm
             other interested parties in the proceedings; (3) the
             preliminary injunction will properly restore the parties to
             their status as it existed immediately prior to the alleged
             wrongful conduct; (4) the party seeking injunctive relief
             has a clear right to relief and is likely to prevail on the
             merits; (5) the injunction is reasonably suited to abate the
             offending activity; and, (6) the preliminary injunction
             will not adversely affect the public interest.
SEIU Healthcare Pennsylvania v. Commonwealth, 104 A.3d 495, 502 (Pa. 2014)
(citing Warehime v. Warehime, 860 A.2d 41, 46-47 (Pa. 2004)). Because the grant

                                           7
of a preliminary injunction is an extraordinary remedy, the failure to establish a
single prerequisite requires the denial of the request for injunction. Summit Towne,
828 A.2d at 1000.
            With regard to the clear right to relief criterion, which is the sole focus
of this appeal, we examine the provisions of the Philadelphia Code. Section 14-
104(1) of the Philadelphia Code provides “[a]ll development and every principal
and accessory use conducted within a structure or on a lot must conform with this
Philadelphia Code.” No land may be used in the City “except in accordance with
all of the applicable regulations established by this Philadelphia Code, unless
otherwise expressly stated, and, except for single-family residential uses, without
first obtaining a use registration or zoning permit from L&I in accordance with the
procedures set forth in § 14-303(6) (Zoning Permits).” Section 14-104(2) of the
Philadelphia Code. Eating and drinking establishments fall into the category of
“commercial services use,” which is not identified as a permitted use in the RM-1
residential district. See Sections 14-601(7)(f) and 14-602(3) of the Philadelphia
Code.
            The Philadelphia Code bestows certain enforcement powers to L&I.
Section 14-306 of the Philadelphia Code. Of relevance here:

            L&I may issue a cease operations order directing that
            occupancy, use, and other activities cease immediately,
            and that the premises be vacated pending compliance
            with the cease operations order whenever (1) any
            occupancy, use, or other activity is being performed in or
            on any building, structure, or land without one or more
            required permits or special exceptions, and either (2) the
            missing permits or special exceptions are required to
            protect public health or safety, or (3) the continued
            occupancy, use, or activity without the required permits
            or special exceptions is creating a public nuisance.

                                          8
Section 14-306(1)(e)(.1) (emphasis added).
             A property owner creates a “public nuisance” by unreasonably
interfering with the rights of his neighbors and the local community. Muehlieb v.
City of Philadelphia, 574 A.2d 1208, 1209 (Pa. Cmwlth. 1990).             “A public
nuisance is an inconvenience or troublesome offense that annoys the whole
community in general, and not merely some particular person, and produces no
greater injury to one person than to another--acts that are against the well-being of
the particular community--and is not dependent upon covenants.” Blue Mountain
Preservation Association v. Eldred, 867 A.2d 692, 704 (Pa. Cmwlth. 2005)
(quoting Groff v. Borough of Sellersville, 314 A.2d 328, 330 (Pa. Cmwlth. 1974)).
A nuisance “affects health, safety or morals.” Id. at 705 (quoting Menger v. Pass,
80 A.2d 702, 703 (Pa. 1951)).
             Here, although the Philadelphia Code does not address temporary
uses, such as seasonal beer gardens, it clearly provides no land may be used, with
the exception of single-family residential uses, without first obtaining a zoning
permit. Section 14-104(2) of the Philadelphia Code. Appellees applied for a
permit and are in the appeal process, but do not possess a zoning permit to operate
a beer garden. Appellees’ possession of other permits or licenses for the sale of
food and beverages, including alcohol, does not give them a right to operate in a
particular area of the City. Consequently, L&I met the first criterion of Section 14-
306(1)(e)(.1) of the Philadelphia Code.
             Notwithstanding, in order for L&I to issue a cease operations order, it
was required to show that either the missing permit is required “to protect public
health or safety” or the continued use “is creating a public nuisance.” Section 14-




                                          9
306(1)(e)(.1) of the Philadelphia Code. The trial court found L&I did not satisfy
either criterion.
              First, with regard to public health and safety, the trial court found
Appellees have the appropriate health inspection licenses and catering licenses for
the sale of food and beverages on the Property. Such permits protect the public by
ensuring a safe and healthy food supply. Appellees also possess licenses from the
PLCB to sell alcohol off-premises, which protects the public by regulating the sale
of alcohol. A zoning permit authorizing Appellees to serve otherwise permitted
food and beverages, in a particular location, is not necessary to protect public
health or safety.
              Second, the trial court found that the “continued” operation of the beer
garden without the required zoning permit is not “creating a public nuisance.”
Section 14-306(1)(e)(.1) of the Philadelphia Code (emphasis added). The police
were never called to the beer garden. When the State Police visited, they found the
beer garden in good standing. The beer garden is only open four days a week,
from May to September, with limited hours of operation and a maximum closing
time of 11 p.m. Prior to its use as a beer garden, the Property was a vacant, trash-
strewn lot. Appellees cleaned off the lot and landscaped it at their own expense, to
the tune of $30,000. Appellees donate a portion of their proceeds to several local
charitable organizations.
              Significantly, no evidence was offered that the pop-up beer garden is
“an inconvenience or troublesome offense that annoys the whole community.” See
Blue Mountain, 867 A.2d at 704. In fact, the trial court found that the operation of
the pop-up beer garden was beneficial to the well-being of the community because
Appellees improved an otherwise blighted lot and put it to a use that benefits


                                          10
charitable endeavors. Thus, the trial court determined the beer garden was not a
nuisance in fact. On this basis, the trial court concluded Appellees showed a clear
right to relief because L&I did not meet the prerequisites to issue a cease
operations order under the Philadelphia Code.           As the other elements for
preliminary injunction are not in dispute, the record contains “apparently
reasonable grounds” to support the preliminary injunction during the pendency of
the zoning appeal.

                             B. Public Nuisance per se
             The City contends the trial court erred in granting the preliminary
injunction because the beer garden is a public nuisance per se.               When a
commercial use is permitted, and the City seeks to enjoin that use, the City must
show that the current operation of that business amounts to a nuisance in fact.
However, when a commercial use is prohibited, it is a nuisance per se. The use of
the Property as a commercial beer garden is not a permitted use in RM-1
residential districts. As such, the City maintains it is a nuisance per se. Thus, the
City maintains it did not need to show that the prohibited use was a nuisance in
fact. According to the City, it does not matter how the beer garden is conducted
because it is a nuisance per se as to its residential location and surroundings. The
harm inherent in the use of a residential property as a prohibited commercial
enterprise formed the proper basis for L&I’s Cease Order.
             Appellees counter the City waived this argument by not raising it
before the trial court. Notwithstanding, Appellees argue a commercial use in a
residential zone does not automatically constitute a nuisance per se.
             We first address Appellees’ waiver claim. Pursuant to Pa. R.A.P. 302,
issues not raised in the trial court are waived and cannot be raised for the first time

                                          11
on appeal.     Moreover, issues not included in the 1925(b) Statement are also
waived. Pa. R.A.P. 1925(b)(4)(vii).
              Upon review of the record, the City never uttered the phrase “nuisance
per se” at the preliminary injunction hearing or otherwise made this legal argument
to the trial court. Furthermore, there is no reference to “nuisance per se” anywhere
in the City’s 1925(b) Statement. Consequently, the trial court did not address the
nuisance per se issue and instead analyzed whether the use created a public
nuisance in fact. Although the City did not expressly raise the per se issue, we
decline to find waiver because the City raised the broad issue of nuisance and we
believe that issue fairly embraces the subsidiary issues of nuisance per se and
nuisance in fact.
              Nevertheless, we find the City’s nuisance per se arguments
unavailing. The City maintains that the operation of a beer garden in a residential
district without a permit is a nuisance per se justifying its cease operations order.
However, in order for L&I to properly issue a cease operations order pursuant to its
authority under Section 14-306(1)(e)(.1) of the Philadelphia Code, L&I must
satisfy two prongs. It cannot satisfy the nuisance criterion by simply showing lack
of a permit. Rather, L&I must also show that the “continued” use, without a
permit, “is creating a public nuisance.”              Section 14-306(1)(e)(.1) of the
Philadelphia Code. To interpret this provision otherwise, would nullify the latter
provision of this section.4

       4
         Although the Statutory Construction Act, 1 Pa. C.S. §§1921-1939, is not expressly
applicable to the construction of local ordinances, the rules of statutory construction are
applicable to statutes and ordinances alike. Council of Middletown Township v. Behham,
523 A.2d 311, 315 (Pa. 1987); In re Thompson, 896 A.2d 659, 668 (Pa. Cmwlth. 2006), appeal
denied, 916 A.2d 636 (2007). “One of the primary rules of statutory construction is that an
ordinance must be construed, if possible, to give effect to all of its provisions.” Thompson,
(Footnote continued on next page…)
                                             12
              Insofar as the City argues the sale of alcohol in a residential area
constitutes a nuisance per se, this argument lacks legal support. “Whether the
courts may determine a given act a nuisance, or whether, within certain uniform
conditions, they may hold it a nuisance per se, depends on the evidence showing
the necessary relation between the acts or repeated acts and the basic principles
which underlie nuisances.” Nesbit v. Riesenman, 148 A. 695, 697 (Pa. 1930).
Typically, “a nuisance per se is an act which is a nuisance at all times and at all
places.” Id. at 697. “[C]ertain types of business, by the necessary incidents of
their normal operation, deleteriously affect the health and comfort of the
community, [and] their establishment in residential districts has been held to
constitute a nuisance as a matter of law.” Menger, 80 A.2d at 703.
              Indeed, our Supreme Court has described a “nuisance per se” as:

              an act or use of property of a continuing nature offensive
              to, and legally injurious to, health and property, or both.
              A given condition may be, at all times and places, a
              nuisance per se. As related to business, its inherent
              qualities or elements must be such that it must reasonably
              follow, in a particular locality or surrounding, that there
              will be an injury to property or a discomfort to the
              individual, with a resulting injury to property. The
              difference between a business, which, no matter how it is
              conducted, is a nuisance per se as to certain location and
              surrounding, and a business which is being so conducted
              as to become a nuisance, lies in the proof, not in the
              remedy.




(continued…)

896 A.2d at 668. “An interpretation of an ordinance which produces an absurd result is contrary
to the rules of statutory construction.” Id.


                                              13
Pennsylvania Co. for Insurance on Lives and Granting Annuities v. Sun Co., 138
A. 909, 910-11 (Pa. 1927).
             The Court continued, “[a] given business is in itself a nuisance per se
when it is generally known to be injurious to health and to cause legal damage to
property in certain localities and surroundings, regardless of how it may be carried
on.”   Id. at 911.   The Supreme Court described the following circumstances
attending a business or property give rise to a nuisance per se: “Offensive or
noxious odors or smells, undue noise of crowds, music, motors, gambling,
improper construction of buildings, and the like, that are injurious to morals, life,
health, and property.” Id.
             In addition, the law has determined that some businesses are, under
certain conditions, nuisances per se because of location and surroundings. Id. at
911. For example, locating a commercial business, such as a gas and service
station, a fast food chain or public garage, in a purely residential neighborhood
may constitute nuisance per se. Blue Mountain, 867 A.2d at 704; see Menger,
80 A.2d at 703; see, e.g., Nesbit, 148 A. at 698 (public garage in exclusively
residential district is a nuisance per se); Edmunds v. Duff, 124 A. 489, 492 (Pa.
1924) (an amusement park near dwellings is a nuisance per se because of attendant
crowds, music, and noise until late at night, and other detractions); Eckels v.
Weibley, 81 A. 645, 646 (Pa. 1911) (a cattle stockyard in a residential section was a
nuisance per se); Evans v. Reading Chemical and Fertilizing Co., 28 A. 702 (Pa.
1894) (the manufacture of bone fertilizer was held to be a nuisance per se because
noxious odors and offensive smells were inseparable from the manufacture).
             However, a commercial use in an exclusively residential area does not
automatically render it a nuisance per se. Blue Mountain, 867 A.2d at 704; see


                                         14
also Daniels v. Notor, 133 A.2d 520, 525 (Pa. 1957) (a motel located within a
strictly residential neighborhood is not a nuisance per se). Only where “certain
recognized unavoidable inherent characteristics of the use make it injurious to
health and property in certain locations,” may it be enjoined as a matter of law. Id.
             Relying on Reid v. Brodsky, 156 A.2d 334, 336 (Pa. 1959), the City
contends the sale of alcohol in a residential neighborhood amounts to a nuisance
per se. However, the case does not support this proposition. In Reid, our Supreme
Court considered whether an injunction was properly entered against a taproom
that was approved by a zoning board. In dicta, the Court observed “the operation
of a restaurant in which liquor and malt or brewed beverages are sold, duly
licensed by the [PLCB], is a lawful business and, even though located in a
residential district, is not a nuisance per se.”     Id. at 337 (emphasis added).
Because the taproom was a permitted use under the zoning ordinance, its operation
could only be enjoined if it was a nuisance in fact. Id. Ultimately, the court
enjoined the use of the taproom in question upon finding it was a nuisance in fact
because it “disturbed the peace and quiet of this residential area and affronted the
sensibilities of [residents] endeavoring to maintain in this urban area a decent,
clean and wholesome environment in which to live and rear their families.” Id. at
339.
             The City also relies on Diehl v. Lockard, 385 A.2d 550 (Pa. Super.
1978), in support of its position that the sale of beer and wine is a nuisance per se.
In Diehl, residents were granted a preliminary injunction to enjoin construction of
a commercial fast food establishment in a zoned residential area as a nuisance per
se. The trial court found that:

             To permit construction of the premises would result in
             such noise, fumes, smells, dust and lights that the normal
                                         15
              enjoyment of property surrounding the proposed
              construction and located within that residential area . . .
              would be unduly disrupted. Rest and sleep would be
              [a]ffected and the increase in traffic would be a danger to
              residents and especially the children of the area. In
              addition, the service of beer and wine, a venture
              previously excluded from the area, would present an
              additional possibility of danger. The particular character
              of the ... neighborhood should be maintained and a ‘Pizza
              Hut’ under the circumstances presented here would be
              out of keeping with the character of the neighborhood,
              and for the reasons set forth above, a nuisance per se.
Id. at 551.
              On appeal, the enjoined property owner argued the injunction was
premature and that residents should await the construction of the "Pizza Hut" and
then bring their action after they experience the activity of the restaurant to
establish a nuisance.    The Superior Court disagreed and determined allowing
construction “would prevent ... efforts to keep [the] area residential.” 385 A.2d at
551. Because reasonable grounds existed that the construction and operation of a
fast food restaurant in a purely residential neighborhood would alter the character
of the community and constitute a nuisance per se, the Superior Court concluded
that the trial court did not abuse its discretion in granting the injunction to preclude
the use. Id. Contrary to the City’s assertions, Diehl does not hold that the sale of
beer and wine is a nuisance per se. Rather, the opinion merely noted that the
service of beer and wine presented “an additional possibility of danger” when
combined with the attendant harms of noise, fumes, smells, dust, lights, and
increased traffic that rendered the use a nuisance per se. Id. at 551 (emphasis
added).
              Here, although the beer garden is located in a residential community,
its mere existence in the residential area does not automatically render it a nuisance

                                          16
per se. See Blue Mountain. In order to declare the use of the Property as a beer
garden a nuisance per se, it still must have certain recognized, unavoidable,
inherent characteristics that make it injurious to health and property. See id.
Although our courts have recognized inherent problems resulting from the sale and
consumption of alcoholic beverages, they have not declared the sale, service or
consumption of alcoholic beverages a nuisance per se. See Vernon Township
Volunteer Fire Department, Inc. v. Connor, 855 A.2d 873, 882 (Pa. 2004); Reid;
Diehl. We decline to make such a declaration in this case.


                                  IV. Conclusion
            For these reasons, we conclude the trial court did not abuse its
discretion or misapply the law in finding “apparently reasonable grounds” exist to
support Appellees’ preliminary injunction where L&I did not meet the
prerequisites to issue a cease operations order under the Philadelphia Code.
            Accordingly, we affirm.




                                      MICHAEL H. WOJCIK, Judge




                                        17
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


SPTR, Inc., Newbolds Brew LLC,         :
The American Sardine Bar, Inc.,        : No. 1264 C.D. 2015
and the Point Breeze Fund LLC          :
                                       :
                   v.                  :
                                       :
City of Philadelphia,                  :
                        Appellant      :


                                    ORDER


            AND NOW, this 21st day of November, 2016, the order of the Court
of Common Pleas of Philadelphia County, dated July 10, 2015, is AFFIRMED.




                                     __________________________________
                                     MICHAEL H. WOJCIK, Judge
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


SPTR, Inc., Newbolds Brew LLC                    :
The American Sardine Bar, Inc.,                  :
and the Point Breeze Fund LLC                    :
                                                 :
               v.                                : No. 1264 C.D. 2015
                                                 : Argued: May 12, 2016
City of Philadelphia,                            :
                   Appellant                     :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


DISSENTING OPINION BY
SENIOR JUDGE COLINS                                            FILED: November 21, 2016

               I must respectfully dissent from the well-crafted opinion of the
majority.
               As noted by the majority, a commercial beer garden is not a permitted
use in a Residential Multi-Family (RM-1) zoning district in the City of
Philadelphia (City). It is uncontested that the beer garden is being operated in a
residential neighborhood without an appropriate use permit. Regardless of the
salutary nature1 of this so-called “pop-up beer garden,” it is still being operated in
derogation of the Philadelphia Code (Code). The novelty of a use does not render
passè the presumption that a zoning ordinance is a legitimate exercise of the police


1
  The conclusion of the Court of Common Pleas of Philadelphia County that Appellee’s
“expenditure put forth to clear the [subject property] of trash, vermin, and other unsightly blight,
was an improvement to the neighborhood,” is particularly dubious. (Trial Court Op. at 9.) The
care and maintenance of one’s own property is not extraordinary, rather it is the minimum
expected and required of any landowner.
power enacted to protect and preserve the public health, safety, and welfare. The
burden to rebut this presumption does not lay with the agency tasked with
enforcing the law but with the landowner seeking to show that the restrictions
imposed are invalid.
               By showing that the beer garden was operating in a residential zone
and was doing so without a use permit, the City satisfied the criteria necessary to
issue a valid Cease Operations Order; the City was not required to provide
additional evidence to demonstrate that operating a non-residential use in a
residential district without a permit was contrary to the public welfare. 2 The Court
of Common Pleas of Philadelphia County (Trial Court) committed a palpable error
of law by placing the evidentiary burden on the City rather than requiring
Appellees to prove that operation of the beer garden was not contrary to the public
welfare. As noted by the Majority, the Code makes clear that no land may be used
for purposes other than single-family residential use without first obtaining a
zoning permit. The burden to demonstrate that the Cease Operations Order was
issued in error because it is an illegitimate exercise of the police power to require a
property owner to obtain a permit to use property for purposes other than a
permitted or single-family residential use is a heavy one, which Appellees failed to


2
  The Philadelphia Code allows the Department of Licenses and Inspections to issue a cease
operations order whenever (1) any occupancy, use, or other activity is being performed in or on
any building, structure, or land without one or more required permits or special exceptions, and
either (2) the missing permits or special exceptions are required to protect public health or safety,
or (3) the continued occupancy, use, or activity without the required permits or special
exceptions is creating a public nuisance. Philadelphia Code § 14-306(1)(e)(.1). The beer garden
was a commercial use being operated in a residential zone without a use permit and the
requirement for a use permit in a zone where the use in question is not permissible is
presumptively required to protect the public health and safety. Therefore, the City of
Philadelphia met its burden to issue the Cease Operations Order and the burden shifted to
Appellees to show that the Cease Operations Order was issued in error.

                                              JGC-2
carry.    Therefore, Appellees did not establish reasonable grounds to support
injunctive relief.
               Moreover, Appellees were free to apply for a permit, as they have
now done, or to challenge any alleged failure of the Code to provide for temporary
commercial uses. Appellees’ failure to seek relief through the process available to
them does not transform that process into one that is less than what Appellees are
due or provide a justification for Appellees to circumvent the law altogether.
               Finally, this Court, by affirming the preliminary injunction
erroneously issued by the Trial Court, is usurping the Zoning Board of
Adjustment’s statutory function; the merits of this matter have been appealed to the
Board and it is within the province of that body to determine, in the first instance,
whether the Code is preempted by the Pennsylvania Liquor Control Board’s
(PLCB) issuance of off-premises catering permits and whether temporary use of a
property zoned RM-1 for a seasonal beer garden as a result of stringing together
off-premises catering permits issued by the PLCB is a valid use or contrary to the
public welfare.3
               The courts should not, and cannot, rewrite valid local zoning
ordinances or enjoin their enforcement under the auspices of the judiciary’s




3
  Smith v. Zoning Hearing Board of Huntingdon Borough, 734 A.2d 55, 58 (Pa. Cmwlth. 1999)
(“a zoning hearing board is the entity charged with the interpretation and application of the
zoning ordinance. It is well settled that a zoning hearing board's interpretation of its own zoning
ordinance is entitled to great weight and deference from a reviewing court. This principle is also
codified in Section 1921(c)(8) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(c)(8).
The basis for the judicial deference is the knowledge and expertise that a zoning hearing board
possesses to interpret the ordinance that it is charged with administering.”) (citations omitted).

                                             JGC-3
inherent equitable powers.4           The order of the Court of Common Pleas of
Philadelphia County dated July 10, 2015 should be reversed.




                                           ______________________________________
                                           JAMES GARDNER COLINS, Senior Judge




4
  See American Federation of Labor v. American Sash and Door Co., 335 U.S. 538, 553 (1949)
(Frankfurter, J, concurring) (“Even where the social undesirability of a law may be convincingly
urged, invalidation of the law by a court debilitates popular democratic government. Most laws
dealing with economic and social problems are matters of trial and error. That which before trial
appears to be demonstrably bad may belie prophesy in actual operation. It may not prove good,
but it may prove innocuous. But even if a law is found wanting on trial, it is better that its
defects should be demonstrated and removed than that the law should be aborted by judicial fiat.
Such an assertion of judicial power deflects responsibility from those on whom in a democratic
society it ultimately rests the people.”); Bilbar Construction Co. v. Board of Adjustment of
Easttown Township, 141 A.2d 851, 856 (Pa. 1958) (“…what serves the public interest is
primarily a question for the appropriate legislative body in a given situation to ponder and
decide. And, so long as it acts within its constitutional power to legislate in the premises, courts
do well not to intrude their independent ideas as to the wisdom of the particular legislation.
Specifically, with respect to zoning enactments, judges should not substitute their individual
views for those of the legislators as to whether the means employed are likely to serve the public
health, safety, morals or general welfare.”).
                                              JGC-4
