          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Fred Brown, aka Fred Heffelfinger, Jr., :
                       Appellant        :
                                        :           No. 1260 C.D. 2017
           v.                           :           Argued: September 18, 2018
                                        :
Tioga Township Zoning Hearing Board :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ROBERT SIMPSON, Judge (P)
               HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                                FILED: November 14, 2018

               This zoning appeal deals with a nonconforming use of a property and
whether the primary use changed. In particular, Fred Brown a/k/a Fred Heffelfinger,
Jr. (Brown) appeals from an order of the Court of Common Pleas of Tioga County 1
(trial court) that affirmed a decision of the Tioga Township (Township) Zoning
Hearing Board (Board). The trial court held Brown’s current nonconforming use of
his property (Property) for adult entertainment was not sufficiently similar to the
prior use as a bar and restaurant to prevent enforcement of the Township’s zoning
ordinance. Upon review, we affirm.


                                        I. Background
               The Property is located on Route 287 in the Township. Tr. Ct., Slip
Op., 8/9/17, Finding of Fact (F.F.) No. 2. Brown or his family has operated a
business on the Property since before 1990. F.F. No. 9. The business was originally


      1
          The Honorable John B. Leete, Senior Judge, specially presided.
known as Fred’s Woodshed and later as Fred’s Lobster Garden. F.F. No. 12. From
the late 1980s until about 2009, it was primarily a restaurant, bar, and motel. Id.
During that period, there was occasional adult entertainment on the premises.


             Sometime around 2009, the business surrendered its liquor license. F.F.
No. 15. The business’s sales tax license was revoked in 2011. Id. For about a year
around this period, a swap shop operated on the Property. Id. However, adult
entertainment was the main business at that point; the swap shop was incidental,
providing a place for customers to sell or trade items for money to spend on the adult
entertainment. F.F. No. 17. Of significance, although the Property’s outward
appearance suggested little activity of any kind during that period, the adult
entertainment was in fact continuing. F.F. No. 26.


             The timing of events is somewhat vague, but by 2013 the sole business
on the Property was adult entertainment. F.F. No. 27. The business is currently
known as Fred’s Gentlemen’s Club. F.F. No. 21. It is open three nights a week and
exclusively provides adult entertainment. Id. Customers bring their own alcoholic
beverages. Id. No food or beverages are sold on the Property. Id.


             The Township enacted a zoning ordinance in 2005. F.F. No. 5. It is
undisputed that the Property is located in District No. 4, Commercial/Industrial, in
which the zoning ordinance does not permit adult entertainment.2 F.F. No. 4. In
2016, the Township issued a zoning enforcement notice relating to Brown’s business
of providing adult entertainment on the Property. F.F. No. 3. After a hearing, the

      2
         The zoning ordinance does permit adult entertainment in District No. 5, Special
Agricultural/Industrial.


                                           2
Board rejected Brown’s argument that his use of the Property as an adult
entertainment business predated 2005. F.F. No. 6. The Board also denied Brown’s
request for a variance. Id.


               Brown appealed the Board’s decision to the trial court, which held
hearings in April and July of 2017. F.F. Nos. 7, 8. The trial court concluded: “While
appellant Brown permissibly expanded his adult entertainment over time, he
changed the essential nature of his business by closing the popular bar, restaurant,
and music portion of the business, thereby violating the ordinance.” Tr. Ct., Slip
Op., Concl. of Law No. 2. Accordingly, the trial court affirmed the Board’s decision
that Brown’s current business is not a permissible nonconforming use of the
Property, although the court adopted a different rationale.


               This timely appeal by Brown followed.


                                            II. Issues
               On appeal,3 Brown argues the doctrine of laches bars the Township’s
enforcement of the zoning ordinance. He contends several important witnesses have
died, remaining witnesses’ memories, including his own, have faded, and supporting
documentary evidence has disappeared because of the Township’s purported delay

       3
          When a trial court reviewing a zoning decision takes additional evidence on the merits,
this Court reviews the trial court’s findings of fact and conclusions of law for abuse of discretion
or errors of law. Newtown Square, E., L.P. v. Twp. of Newtown, 38 A.3d 1008 (Pa. Cmwlth.
2011), aff’d, 101 A.3d 37 (Pa. 2014). This standard of review applies even where, as here, the
trial court takes only limited additional evidence on the merits. Id. An abuse of discretion occurs
when the trial court’s findings are not supported by substantial evidence in the record. Coal Gas
Recovery, L.P. v. Franklin Twp. Zoning Hearing Bd., 944 A.2d 832 (Pa. Cmwlth. 2008).



                                                 3
from 2005 to 2016 in issuing an enforcement notice. Brown asserts he suffered
prejudice because the delay hindered his ability to prove the extent to which he was
using the Property for adult entertainment when the Township enacted the zoning
ordinance in 2005. Brown further contends his laches defense applies equally to the
Township’s delay in alleging he closed the Property from about 2009 to 2010.4


               In response, the Board argues Brown abandoned his nonconforming use
of the Property because of the revocation of his sales tax license from 2009 to 2010.
The Board contends Brown could not legally continue to operate the adult
entertainment business on the Property without a sales tax license. The Board also
points out that the final revocation of Brown’s sales tax license did not occur until
2011. The Board argues its five-year delay from that point did not rise to the level
of laches.


                                         III. Discussion
               The equitable defense of laches arises where, under the facts and
circumstances of the particular case, one party shows a want of due diligence in
asserting a claim, to the prejudice of the other party. Weinberg v. Commonwealth,
501 A.2d 239 (Pa. 1985). Because laches is an affirmative defense, the party
asserting it has the burden of proof. Id.; Shah v. State Bd. of Med., 589 A.2d 783
(Pa. Cmwlth. 1991).

       4
         At oral argument, Brown raised a constitutional property right issue. To the extent he
intended to assert that as a separate issue on appeal, he neither raised nor argued any such issue in
his appellate brief. Consequently, he waived that issue. Pa. R.A.P. 2116(a) (no issue will be
considered unless the statement of questions lists or reasonably suggests it); Kull v. Guisse, 81
A.3d 148 (Pa. Cmwlth. 2013) (same; citing Rule 2116(a)); Whitehall Manor, Inc. v. Planning
Comm’n, 79 A.3d 720 (Pa. Cmwlth. 2013) (issue is deemed waived when party fails to explain or
develop it in his brief).


                                                 4
             The applicability of the laches defense in a given matter is a question
of fact. Coney Island, II, Inc. v. Pottsville Area Sch. Dist., 457 A.2d 580 (Pa.
Cmwlth. 1983).      Accordingly, courts determine it on a case-by-case basis,
considering the individual facts and circumstances. In re Lokuta, 964 A.2d 988 (Pa.
Cmwlth. 2008) (en banc); Shah.


             Under settled Pennsylvania law, a municipality has authority to enact
zoning ordinances under its police power. BR Assocs. v. Bd. of Comm’rs Twp. of
Upper St. Clair, 136 A.3d 548 (Pa. Cmwlth. 2016); Plaxton v. Lycoming Cty. Zoning
Hearing Bd., 986 A.2d 199 (Pa. Cmwlth. 2009). Several decisions have held that
the defense of laches does not apply in municipal enforcement actions exercising
police powers. See, e.g., Adams Outdoor Adver., Ltd. v. Dep’t of Transp., 860 A.2d
600 (Pa. Cmwlth. 2004); Clearview Land Dev. Co. v. Commonwealth, 327 A.2d 202
(Pa. Cmwlth. 1974) (en banc). Nonetheless, the defense has occasionally been
asserted successfully in zoning enforcement actions. See, e.g., Heidorn Appeal, 195
A.2d 349 (Pa. 1963); Haverford v. Spica, 328 A.2d 878 (Pa. Cmwlth. 1974) (citing
Heidorn); see also Weinberg (citing Heidorn with approval).


             The doctrine of laches, as it applies in this context, is similar to other
equitable defenses against enforcement of zoning ordinances, including the defenses
of vested right, variance by estoppel, and equitable estoppel. This Court has
observed that these various labels overlap each other, such that rigid distinctions
among them are not necessarily useful. See In re Kreider, 808 A.2d 340 (Pa.
Cmwlth. 2002). All these equitable defenses have common elements of good faith
(essentially, clean hands) and detrimental reliance on the part of the property owner,



                                          5
as well as hardship resulting from enforcement. Id. Here, despite overlap in the
various equitable defenses, Brown couches his argument in terms of laches.
However, our analysis could apply equally to a defense under any of the other related
labels.


                         A. Laches and Loss of Evidence
             The party asserting laches must present a stronger case, including a
higher degree of prejudice, against a government entity than against a private party.
Adams Outdoor Adver. (citing St. Clair Area Sch. Dist. Bd. of Educ. v. E.I. Assocs.,
733 A.2d 677 (Pa. Cmwlth. 1999) and Weinberg); Shah. A party may establish the
requisite degree of prejudice where witnesses die or become unavailable or records
are lost or destroyed. Adams Outdoor Advert. (citing Weinberg); Shah.


             Here, the trial court held a supplemental hearing to address the laches
issue. Brown offered evidence that several potential witnesses died and numerous
financial and other documentary records became unavailable during the period of
the Township’s delay in seeking enforcement of the zoning ordinance. Brown
insisted the unavailable witnesses and documents would have demonstrated regular
and ongoing incidental use of the Property for adult entertainment throughout the
entire period during which its main use was as a restaurant and bar. Brown also
appeared to contend the lost evidence would have supported his claim that he did
not abandon the adult entertainment usage during or after 2009.


             The trial court issued a separate supplemental opinion rejecting
Brown’s laches defense. Relying on Heidorn and Springfield Township v. Kim, 792



                                         6
A.2d 717 (Pa. Cmwlth. 2002), the trial court found that Brown did not demonstrate
any substantial financial expenditure in reliance on his ability to continue using the
Property for adult entertainment.


              The trial court did not consider whether Brown’s evidence was
sufficient to demonstrate prejudice from loss of witnesses and documents. However,
the trial court’s error in that regard, if any, was harmless in the circumstances of this
case.   Any loss of evidence allegedly arising from the Township’s delay in
enforcement of the zoning ordinance is irrelevant.


              As discussed above, Brown argues the unavailability of witnesses and
documents prejudiced him in two ways. First, he contends he lost evidence that
would have proven his use of the Property included adult entertainment throughout
the entire period from about 1990 and ongoing. Second, he asserts he lost evidence
that would have proven he did not abandon the adult entertainment usage during or
after 2009.    However, proving either or both of these contentions would not
demonstrate prejudice entitling Brown to relief.


              Regarding his first argument, Brown does not dispute that from at least
1990 until sometime after 2005, the Property’s main use was as a restaurant and bar.
The adult entertainment, even assuming it occurred throughout that period, was
merely incidental to the restaurant and bar. The trial court specifically found: “The
premises, originally known as Fred’s Woodshed and later as Fred’s Lobster Garden
was primarily a restaurant, bar and motel from the late 1980s to about 2009.” F.F.
No. 12. “During this period of time, according to testimony, there was occasional



                                           7
use of the premises for adult entertainment, although it remained a popular din[ing],
bar and motel destination.” F.F. No. 13. Brown does not dispute these findings;
indeed, the trial court credited Brown’s testimony on the Property’s use.


             Regarding Brown’s second argument, there is no genuine issue of
abandonment of a use.       Although the Board argued that Brown necessarily
abandoned his use of the Property by reason of losing his sales tax license, the trial
court did not so find. To the contrary, the trial court found as a fact that even while
Brown was allowing a swap shop to operate on the Property, he was continuing to
provide adult entertainment. F.F. Nos. 16-17, 26. The trial court apparently credited
Brown’s testimony that the swap shop was merely an incidental use, while the adult
entertainment was the primary use by that time. F.F. No. 17.


             Additional evidence on either of these issues would not help Brown in
this case. The trial court’s decision did not rest on either the failure of Brown’s
laches defense or a purported abandonment of the premises. Rather, the trial court
based its decision on the change in Brown’s main restaurant/bar use of the Property.


                         B. Change in Use of the Property
             The trial court determined, as a matter of law, that the undisputed shift
in use of the Property from mainly a restaurant and bar to exclusively adult
entertainment with no beverage or food service was not a permissible expansion of
the prior incidental nonconforming use. We agree.




                                          8
             As summarized by a respected commentator in this field, Robert S.
Ryan,

                     There is a difference between the treatment accorded
             an owner who seeks to continue, modernize, or expand his
             existing use and the owner who seeks to add a new
             nonconforming use, or to change from one nonconforming
             use to another. The starting point in any analysis of ‘addition
             of use’ or ‘change of use’ cases is recognition of the fact that,
             if the use really is being changed or a new use is being added,
             neither is within the protection afforded by constitutional
             principles to existing nonconforming uses.

Robert S. Ryan, PENNSYLVANIA ZONING LAW AND PRACTICE, §7.6.1 (2001).


             Brown argues this case is analogous to Foreman v. Union Township
Zoning Hearing Board, 787 A.2d 1099 (Pa. Cmwlth. 2001). In Foreman, the
property owner operated a bar and restaurant that became a pre-existing
nonconforming use upon the township’s enactment of a zoning ordinance. At some
point, allegedly predating the zoning ordinance, the owner changed the business’s
name to Sensations Bar & Grill and brought in dancers as adult entertainment. After
enactment of the zoning ordinance, the frequency of the adult entertainment
increased over time from its original two events per month to three nights a week,
and the activities expanded to include such events as wet t-shirt contests and lingerie
shows as well as male and female dancing.


             This Court found the increased adult entertainment activity in Foreman
was a permissible expansion of the pre-existing nonconforming use. The Court
reasoned that “the main characteristics of Foreman’s business had not changed from
the bar/restaurant to a new establishment mainly devoted to adult entertainment.


                                           9
Foreman still serves food and drinks daily and offers the adult entertainment only
three nights a week from 9:30 p.m., not throughout the entire daily business
hours….” Id. at 1104.


             In Foreman, this Court distinguished its prior decision in Philm
Corporation v. Washington Township, 638 A.2d 388 (Pa. Cmwlth. 1994). In Philm,
the owner of the property at issue operated a restaurant/tavern for many years. That
use predated the township zoning ordinance and continued after enactment of the
ordinance, as a pre-existing nonconforming use. Later, however, the property owner
renamed the business The Fox and began featuring continuous live go-go dancing
from noon to midnight six days a week. He served little food, reduced the menu
severely, and no longer maintained any wait staff. Thus, the principal use of the
premises changed from a restaurant/bar to an adult entertainment facility.


             In Philm, this Court held the chief activity on the premises changed
significantly, from serving food and drink with incidental entertainment to providing
adult entertainment with incidental food and drink service. Therefore, we concluded
the new nonconforming use of the property was not of the same general character as
the prior use and was not sufficiently similar to qualify as a continuation of the pre-
existing nonconforming use.


             Here, the trial court rejected Brown’s analysis under Foreman and
found the facts more closely resemble those in Philm. We agree. Brown argues that
like the owner in Foreman, he provided adult entertainment before the Township
enacted its zoning ordinance, and he merely increased that pre-existing use.



                                          10
However, this Court’s reasoning in Philm indicates the critical distinction between
the two decisions is not the timing of the introduction of adult entertainment. Rather,
Foreman concerned an expansion of an incidental use without a change in the main
use, while Philm involved a change in the main use itself. Brown, like the owner in
Philm, changed the main use of the Property from a restaurant/bar to adult
entertainment. In fact, the contrast between uses here is even more stark than that
in Philm, as Brown no longer serves any food or drinks at all, using the Property
solely for adult entertainment. Thus, he has completely eliminated the Property’s
former primary use.


             In these circumstances, Brown’s use of the Property does not constitute
a continuation or permissible expansion of a pre-existing nonconforming use.


                                   IV. Conclusion
             Based on the foregoing, we affirm the trial court’s decision.




                                        ROBERT SIMPSON, Judge




                                          11
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Fred Brown, aka Fred Heffelfinger, Jr., :
                       Appellant        :
                                        :   No. 1260 C.D. 2017
           v.                           :
                                        :
Tioga Township Zoning Hearing Board :


                                   ORDER

            AND NOW, this 14th day of November, 2018, the order of the Court of
Common Pleas of Tioga County is AFFIRMED.




                                     ROBERT SIMPSON, Judge
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Fred Brown, aka Fred Heffelfinger, Jr.,    :
                  Appellant                :
                                           :
             v.                            :   No. 1260 C.D. 2017
                                           :   Argued: September 18, 2018
Tioga Township Zoning Hearing Board        :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ROBERT SIMPSON, Judge (P)
             HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

DISSENTING OPINION
BY PRESIDENT JUDGE LEAVITT                             FILED: November 14, 2018

             Before the adoption of zoning regulation by Tioga Township, Fred
Brown offered adult entertainment at his restaurant and bar. In 2005, the Tioga
Township Zoning Ordinance (Zoning Ordinance)1 made adult entertainment
unlawful in the Industrial/Commercial District, where Brown’s establishment is
located.   Because his adult entertainment is a lawful non-conforming use, I
respectfully dissent from the majority’s contrary holding.
             Brown has long used his land to operate a motel, restaurant and bar,
where he offered adult entertainment several times a month. In 2005, the Township
enacted the Zoning Ordinance, which authorized restaurants and motels in the
Industrial/Commercial Zoning District but not adult entertainment. See ZONING
ORDINANCE, Article V; R.R. 156a. Adult entertainment was authorized only in the
Special Agricultural/Industrial District. ZONING ORDINANCE, Article V; R.R. 156a.


1
 TIOGA TOWNSHIP ZONING ORDINANCE, adopted May 10, 2005, by Ordinance No. 57 (ZONING
ORDINANCE). Reproduced Record at 138a-193a (R.R. __).
However, the 2005 enactment did not affect the lawfulness of Brown’s adult
entertainment in the Industrial/Commercial Zoning District. Article IX of the
Zoning Ordinance specifically provides that uses that were lawful prior to the
adoption of zoning would be allowed to continue “until they are removed.” ZONING
ORDINANCE, §900.1. Section 902 further addresses non-conforming uses as follows:

            Where, at the effective date of adoption or amendment of this
            ordinance, lawful use of land exists that is made no longer
            permissible under the terms of this ordinance as enacted or
            amended, such use may be continued, so long as it remains
            otherwise lawful, subject to the following provisions:

                  902.1 – No such non-conforming use shall be enlarged or
                  increased, nor extended to occupy a greater area of land
                  than was occupied at the effective date of adoption or
                  amendment of this ordinance, except as specified by
                  Section 900 of this ordinance.

                  902.2 – No such non-conforming use shall be moved in
                  whole or in part to any other portion of the lot or parcel
                  occupied by such use at the effective date of adoption or
                  amendment of this ordinance.

                  902.3 – If any such non-conforming use of land is
                  abandoned by discontinuance for any reason for a period
                  of more than twelve (12) consecutive months, any
                  subsequent use of such land shall conform to the
                  regulations specified by this ordinance for the district in
                  which such land is located.

ZONING ORDINANCE, §902.
            This Court has explained, with regard to continuing a lawful non-
conforming use, that

            [a] proposed use need not be identical to the preexisting use….
            As long as the proposed use is sufficiently similar to the use that
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             existed at the time of the enactment of the zoning ordinance, the
             proposed use may not be characterized as a new or different use.

Foreman v. Union Township Zoning Hearing Board, 787 A.2d 1099, 1103 (Pa.
Cmwlth. 2001) (citations omitted). A lawful continuation of a non-conforming use
allows for natural expansion. The Pennsylvania Supreme Court has explained that

             [t]he doctrine of natural expansion … permits a landowner to
             develop or expand a business as a matter of right notwithstanding
             its status as a nonconforming use…. [W]e stated that “once it
             has been determined that a nonconforming use is in existence, an
             overly technical assessment of that use cannot be utilized to stunt
             its natural development and growth.”

Limley v. Zoning Hearing Board of Port Vue Borough, 625 A.2d 54, 56 (Pa. 1993).
(quotations and citations omitted).
             Brown’s use of his property for adult entertainment is a lawful
continuation of a non-conforming use. The increase in the number of offerings of
such entertainment from once or twice a month to once or twice a week did not
change the lawfulness of Brown’s non-conforming use. This Court has stated that
“[t]he mere increase in intensity of the use does not justify a finding of a new or
different use.” Foreman, 787 A.2d at 1103.
             The Court of Common Pleas of Tioga County (trial court)
acknowledged that “Brown permissibly expanded his adult entertainment over
time[,]” but mistakenly reasoned that because he stopped the operation of his motel
and restaurant, which were conforming uses, he lost his ability to continue his non-
conforming use. Trial court op., 8/9/2017, at 3; Conclusion of Law No. 2. However,




                                       MHL-3
the continued use of the motel and restaurant was irrelevant to Brown’s ability to
continue his non-conforming use.2
               There is no question that Brown complied with the conditions for
continuing a non-conforming use in Section 902 of the Zoning Ordinance. He did
not enlarge the amount of land used for adult entertainment, move the entertainment
to an “other portion of the lot or parcel” or abandon this non-conforming use.
ZONING ORDINANCE, §902.1 - §902.3. Notably, the Township asserted that from
2009 to 2010 Brown’s property was used as a swap shop. However, the trial court
found that, “[d]uring the swap shop era encompassing approximately one and one-
half years, … there was adult entertainment on the premises.” Trial court op.,
8/9/2017, at 3, Finding of Fact No. 26. Thus, the trial court found in Brown’s favor
on abandonment.
               The trial court stated that Brown “changed the essential nature of his
business by closing the popular bar, restaurant and music portion of his business.”
Id. However, Brown’s restaurant and motel were lawful uses both before and after
the enactment of the Zoning Ordinance. The only non-conforming use of Brown’s
land was the adult entertainment; under the express terms of Article IX of the Zoning
Ordinance, it continued to be lawful as a non-conforming use.3




2
  At the hearing, Ronald Stevens, a member of the Township’s Planning Commission and Zoning
Hearing Board, testified that the property had been primarily used for “selling food, selling alcohol
and renting the motel[; …] that’s why [Brown] was not grandfathered because selling alcohol,
food and motel was legal in the zone that he existed.” Notes of Testimony, 4/28/2017, at 55 (N.T.
__); R.R. 78a.
3
  Indeed, the Township does not contend that the adult entertainment was an accessory use or that
it cannot be the basis for establishing a non-conforming use.
                                             MHL-4
              The trial court attempted to shoehorn Brown’s adult entertainment into
Philm Corporation v. Washington Township, 638 A.2d 388 (Pa. Cmwlth. 1994). It
is not a good fit.
              In Philm, the township enacted a zoning ordinance that prohibited the
placement of a restaurant and bar in the R-2 zoning district. At issue was a restaurant
and bar that were established prior to the enactment of zoning and, thus, continued
as a lawful non-conforming use. Sometime later, the owner renamed the business,
changed the structure, reduced the restaurant menu and, for the first time, introduced
entertainment by live go-go dancers. This Court held that the change from a
restaurant and bar to an adult entertainment facility was not a continuation of a non-
conforming use.
              Philm is inapposite because it dealt with a multi-use property, where
each business use was non-conforming. By contrast, Brown’s motel and restaurant
are expressly permitted in the Industrial/Commercial District. It is irrelevant that
they have been abandoned. The only nonconforming use of Brown’s land was the
adult entertainment, and it has continued lawfully under the terms of the Zoning
Ordinance. Unlike Philm, there is no evidence or finding that Brown made structural
changes to his establishment, placed adult entertainment in another place in the
building not previously devoted to this use or introduced a totally new type of
entertainment. ZONING ORDINANCE, §902. The majority’s reliance on Philm is
misplaced.
              Perhaps if Brown’s non-conforming use involved the sale of penny
candy twice a week, instead of adult entertainment, we would not be here today.
However, the nature of Brown’s business should not be a factor in applying the
Zoning Ordinance. In any event, on this record, the motel and restaurant uses that


                                       MHL-5
the majority incorrectly labels the “main” uses are irrelevant to determining whether
Brown’s adult entertainment is a lawful non-conforming use. For these reasons, I
would reverse the trial court.
                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge




                                      MHL-6
