              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Shree Santram, LLC and Riddhi           :
Siddhi, LLC,                            :
                       Appellants       :
                                        :
                   v.                   :
                                        :
City of Wilkes-Barre Zoning             :   No. 739 C.D. 2019
Hearing Board                           :   Argued: May 11, 2020


BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                 FILED: June 5, 2020

            Shree Santram, LLC and Riddhi Siddhi, LLC (collectively, Applicants)
appeal from the Luzerne County Common Pleas Court’s (trial court) May 10, 2019
order denying Applicants’ appeal and affirming the City of Wilkes-Barre’s (City)
Zoning Hearing Board (ZHB) decision denying Applicants’ application for a special
exception (Application). Applicants present two issues for this Court’s review: (1)
whether the ZHB committed an error of law when it considered whether Applicants’
proposed use for property located in a C-N Commercial Neighborhood District (C-N
District) was compatible with the essential character of the abutting R-1 Residential
Single-Family District (R-1 District); and (2) whether the ZHB abused its discretion
when it denied Applicants’ Application. After review, we reverse.
            On June 2, 2016, Applicants filed the Application to change the
nonconforming use of a drug store to a convenience store and a licensed beer store
pursuant to the City’s Zoning Ordinance (Ordinance) as a use not addressed in the
Ordinance. The property is located at 181 Old River Road in the City (Premises). On
July 20, 2016, the ZHB held a public hearing on the Application.
            At the hearing, liquor license consultant Roger Solar (Solar) explained
that he is a general contractor who has consulted on 25-30 liquor licenses during the
prior two years.   See Reproduced Record (R.R.) at 53a. Solar recounted that he
designed the plans for Applicants’ proposed business and that the Premises is to
consist of an unlicensed area selling convenience and grocery items, and a liquor-
licensed area with seating for 30 patrons. See R.R. at 54a, 57a-58a. According to
Solar, Applicants plan to sell hot dogs and sandwiches, malt and brewed beverages in
6-packs, 12-packs and single cans/bottles in the licensed portion of the Premises. See
R.R. at 61a-62a. Solar expounded that Applicants will not offer any entertainment or
music, and although alcohol will be sold primarily for consumption off the Premises,
Applicants will not permit patrons to leave the Premises with open alcohol
containers. See R.R. at 62a. He further stated that Applicants intend to operate the
convenience store portion daily from 5:00 a.m. until 9:30 p.m., and the liquor-
licensed portion from 7:00 a.m. until 9:30 p.m. each day. See R.R. at 60a-61a.
            Solar noted that Applicants applied for a restaurant liquor license from
the Pennsylvania Liquor Control Board (Liquor Board). See R.R. at 58a. Solar
described the area in which the Premises is located as mostly residential with a few
retail businesses, including the Riverside Café, located across the street from the
Premises. See R.R. at 64a. Solar also recounted that the nearest school is 1,267 feet
from the Premises. See R.R. at 65a. He testified that the Premises was formerly used
as a pharmacy and there is public water and sewer service, adequate ingress and
egress to the neighboring streets and available access for emergency vehicles. See
R.R. at 65a-66a. Solar further explained that there are nine parking spaces on the
building’s exterior. See R.R. at 84a. He opined that the proposed business was
harmonious with the other businesses and residences in the area:
                                          2
                It’s mostly a --- you know, it’s a convenience store there,
                because, of course, it’s that there is a ---. A third of the
                space is going to have the beer takeout, basically. Aside
                from that, two-thirds of the rest is a traditional convenience
                store with lottery sales, cigarette sales, soda, candies, chips
                --- pretty much anything you can find in a little corner
                convenience store that serves a little neighborhood.

R.R. at 66a-67a.
                Solar further emphasized that the store will have no exterior signs
advertising beer sales, and will not generate fumes, smoke, vapors, gases, or odors.
See R.R. at 69a. Solar stated several factors would ensure minors would not have
access to alcoholic beverages, including separation of the licensed portion of the
premises from the convenience store area, prohibition of unaccompanied minors in
the licensed area, mandatory identification card scanning for alcohol purchases, and
Liquor Board Responsible Alcohol Management training and certification for all
employees. See R.R. at 70a-72a.
                Applicants’ co-owner and manager Rajesh Patel (Patel)1 related that he
has been a City resident for seven years. See R.R. at 88a-89a. Patel stated that he has
prior convenience store experience and has worked as a liquor-licensed gas station
manager for the past four and one half years and has had no liquor license violations.
See R.R. at 89a-90a. He described that he had purchased an identification scanning
machine and implemented a policy of posting signs mandating identification to
purchase alcoholic beverages and requiring identification scanning for all individuals
appearing underage. See R.R. at 90a. Patel also declared that either he or his brother
would be at the premises during all business hours, and that he planned to employ 10
people. See R.R. at 91a. Patel emphasized that he intends to prohibit patrons from
consuming more than one alcoholic beverage inside the store, and will prohibit
loitering outside. See R.R. at 93a, 95a.

      1
          Patel’s brother is Applicants’ co-owner.
                                                     3
            Area resident Ned Evans (Evans) explained that he is a school board
member, but was appearing on his own behalf. See R.R. at 101a. As a former school
principal, Evans explained his concerns about the likelihood of school children
accessing alcohol. See R.R. at 102a-104a. Evans speculated that because children
would be able to enter Applicants’ business for food and other convenience items,
they will be more likely to steal alcoholic beverages. See R.R. at 103a. Evans
discounted the minors’ potential access to the nearby Riverside Café, stating, “[t]hese
kids know better than to go in [Riverside Café]. They just know better, but here, new
occupants, new people -- and they’re going to test it, and they’re going to test it
early.” R.R. at 104a. Evans acknowledged that the Riverside Café similarly sells
take-out beer. See R.R. at 106a. Area resident Heather Balester (Balester) expressed
her general concerns for neighborhood children, and the likelihood of increased
traffic, crime, and parking problems. See R.R. at 108a.
            Riverside Café owner Bob Hogan (Hogan) explained that the Riverside
Café does not “sell six-packs, but I mean, you could buy a six-pack. But you could
not buy a bottle of beer and walk out, in a brown paper bag, and be drinking it.” R.R.
at 110a. He stated: “I’m not worried about the competition of this place. I don’t
think it’ll be any bearing on me, but I am worried about the people that it’s going to
bring in.” R.R. at 109a. Hogan expounded:

            We’ve all seen it. We’ve all rode [sic] through Wilkes-
            Barre in the different places that have had it, and luckily,
            you know, right here on the square you know, you have the
            Anthracite [Café], and we have the police force. We don’t
            have the police force to be running down to south Wilkes-
            Barre where they’re [sic] not needed, but they [sic] will be
            needed there constantly if we allow this.




                                          4
R.R. at 110a. Hogan denied that the Riverside Café had ever been cited for Liquor
Code2 violations.3 On cross-examination, Hogan admitted that Riverside Café has
sold 6-packs for the last 12 years.
              Joe Jacobs (Jacobs) testified that school bus stops for parochial and
charter schools are located in front of the Premises and he is worried that patrons
carrying alcohol will leave the premises when children are being dropped off. See
R.R. at 115a-116a. Jacobs also expressed parking concerns and that the area schools’
proximity to the Premises would increase the likelihood of underage drinking. See
R.R. at 116a. He voiced confidence in Hogan’s operation of the Riverside Café
because Hogan has been responsive in addressing previous problems. See R.R. at
117a.
              Theresa Spencer (Spencer), George Mesko (Mesko), Fontaine Grady
(Grady), and Lindsey Tasco-Barker (Tasco-Barker) also objected to the Application.
Spencer expressed concerns about increased traffic and childrens’ safety and also
agreed with the other objectors’ concerns. See R.R. at 121a. Mesko revealed that he
was present at the Liquor Board licensing hearing for the Premises. See R.R. at 123a.
Spencer raised questions regarding the reasons that Applicants applied for a
restaurant liquor license rather than a beer-only license. See R.R. at 123a-128a.
Grady explained that he is a delivery driver and services convenience stores. He
stated that such stores with liquor licenses attract the “wrong crowd.” R.R. at 129a.
He also expressed worries about Applicants’ operations’ effect on children and
increased traffic. See id. Tasco-Barker similarly described her concerns regarding



        2
        Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101 - 10-1001.
        3
         During the hearing, Applicants’ attorney presented evidence that in 2008, the Riverside
Café had indeed been fined $500.00 for possessing gambling devices and allowing gambling on the
premises. See Section 5.32 of the Liquor Board’s Regulations, 40 Pa. Code § 5.32 (prohibiting
unlawful gambling associated with an activity on the licensed premises).
                                               5
children, increased crime, traffic, parking and garbage resulting from Applicants’
business. See R.R. at 131a.
              At the hearing’s close, the ZHB denied the Application. On July 21,
2016, the ZHB issued Applicants a denial letter. On August 17, 2016, Applicants
appealed to the trial court. On September 1, 2016, the ZHB filed its Findings of Fact
and Conclusions of Law (Findings and Conclusions). On May 10, 2019, the trial
court affirmed the ZHB’s decision. Applicants appealed to this Court.4
              Initially, Section 324 of the Ordinance states:

              Whenever, in any district established under this Ordinance,
              a use is neither specifically permitted nor denied and an
              application is made by a landowner to the Zoning Officer
              for such use, the Zoning Officer shall refer the application
              to the [ZHB] and Planning Commission to hear and decide
              such request as a special exception. The [ZHB] shall have
              the authority to permit the use or deny the use in accordance
              with the standards governing special exception applications.
              The use may be permitted if it is similar to and compatible
              with permitted uses in the district and in no way is in
              conflict with the general purposes and intent of this
              Ordinance. The burden of proof shall be upon the
              applicant to demonstrate that the proposed use would
              meet the standards and criteria for special exceptions as
              contained in Article 6 of this Ordinance and would not
              be detrimental to the public health, safety and welfare of
              the neighborhood.

Ordinance § 324, R.R. at 32a (emphasis added).                Section 1410.2 of the City’s
Ordinance provides in relevant part:

              The [ZHB] shall grant [special exception] approval only
              upon the determination that the proposed use and/or
              development conforms with all applicable standards and


       4
         “In a land use appeal where common pleas does not take additional evidence, such as here,
our review is limited to determining whether the [ZHB] abused its discretion or committed an error
of law.” Marr Dev. Mifflinville, LLC v. Mifflin Twp. Zoning Hearing Bd., 166 A.3d 479, 482 n.3
(Pa. Cmwlth. 2017).
                                                6
            provisions within this Ordinance and the following
            expressed standards and criteria:
                  ....
              2. Public services and facilities such as streets, sewers,
                 water, police, and fire protection shall be adequate
                 for the proposed use and/or development.
              3. Existing streets and proposed access to the site shall
                 be adequate regarding the width and pavement for
                 emergency service vehicles.
              4. Existing streets and proposed access to the site shall
                 be adequate to accommodate anticipated traffic
                 volumes in a manner that avoids undue traffic
                 congestion, and provides for the safety and
                 convenience of pedestrian and vehicular traffic. The
                 proposed use shall not result in unsafe or dangerous
                 traffic conditions.
              5. The proposed use shall be compatible with
                 adjoining development and the character of the
                 zoning district and neighborhood in which it is
                 proposed to be located. The nature and intensity
                 of the operation of the proposed use shall be
                 considered regarding its compatibility or lack
                 thereof.
              6. The proposed use shall not substantially impair the
                 value of other property in the neighborhood where it
                 is proposed to be located.
              7. The proposed use and/or development shall not be
                 more objectionable in its operations in terms of noise,
                 fumes, odors, vibration, or lights that would be the
                 operations of any permitted use in the subject Zoning
                 District.
                  ....
              9. The proposed use and/or development shall not be
                 injurious to the public interest.
R.R. at 37a (emphasis added).


                                         7
              Applicants first contend that the ZHB erred by considering whether the
proposed use was compatible with the R-1 District’s character rather than that of the
C-N District in which the Premises is proposed to be located.
              Importantly, Section 1410.2(5) of the City’s Ordinance requires that the
proposed use “be compatible with adjoining development and the character of the
zoning district and neighborhood in which it is proposed to be located.” Ordinance
§ 1410.2(5), R.R. at 37a (emphasis added). Thus, although it is true that the proposed
use is required to be compatible with the C-N District’s character,5 it is also required
to be compatible with the character of the neighborhood in which it is located. It
is undisputed that the proposed location is bordered on three sides by an R-1 District,
making up a neighborhood of homes.                 Accordingly, the ZHB did not err in
considering whether the use was compatible with the residential neighborhood
directly abutting the proposed location.
              Applicants next argue that the ZHB abused its discretion when it denied
the application. This Court has explained that a zoning hearing board “abuses its
discretion when its findings of fact are not supported by substantial evidence.
Substantial evidence is defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Marr Dev. Mifflinville, LLC v. Mifflin
Twp. Zoning Hearing Bd., 166 A.3d 479, 482 n.3 (Pa. Cmwlth. 2017) (citation and
quotation marks omitted).

              This Court has explained:
                     Generally speaking, ‘[a] special exception is
                     not an exception to a zoning ordinance, but
                     rather a use which is expressly permitted,
                     absent a showing of a detrimental effect on the

       5
          The Ordinance explains: “The provisions for the C-N District are intended to create,
preserve and enhance business areas to serve residential neighborhoods. They are generally
districts which contain several small-scale retail establishments, in small clustered groupings,
serving frequently recurring needs in locations convenient to residents.” Ordinance § 404.
                                               8
                  community.’ Manor Healthcare Corp. v.
                  Lower Moreland [Twp.] Zoning Hearing [Bd.],
                  . . . 590 A.2d 65, 70 ([Pa. Cmwlth.] 1991). In
                  other words, as stated in our seminal decision
                  in Bray v. Zoning Board of Adjustment, . . . 410
                  A.2d 909, 911 ([Pa. Cmwlth.] 1980)[:] ‘The
                  important characteristic of a special exception
                  is that it is a conditionally permitted use,
                  legislatively allowed if the standards are met.’
                  This Court recently explained that an
                  applicant for a special exception has both the
                  duty of presenting evidence and the burden of
                  persuading the [zoning hearing board] that the
                  proposed use satisfies the objective
                  requirements of the zoning ordinance for the
                  grant of special exception.
            Tower Access Grp., LLC v. S. Union Twp. Zoning Hearing
            Bd., 192 A.3d 291, 300 (Pa. Cmwlth. 2018) (emphasis
            added).

Vineyard Oil & Gas Co. v. N. E. Twp. Zoning Hearing Bd., 215 A.3d 77, 85 (Pa.
Cmwlth. 2019).

            Once the applicant meets these burdens, a presumption
            arises that the use is consistent with the health, safety and
            general welfare of the community. The burden then
            normally shifts to the objectors of the application to present
            evidence and persuade the Board that the proposed use will
            have a generally detrimental effect. Where, as here,
            however, the zoning ordinance specifically places the
            burden on the applicant to show that the proposed use
            will not have a detrimental effect, the applicant only
            retains the burden of persuasion. Objectors still retain
            the initial presentation burden with respect to the
            general matter of the detriment to health, safety and
            general welfare. The evidence presented by objectors
            must show a high probability that the use will generate
            adverse impacts not normally generated by this type of
            use, and that these impacts will pose a substantial threat
            to the health and safety of the community.

Freedom Healthcare Servs., Inc. v. Zoning Hearing Bd. of New Castle, 983 A.2d
1286, 1291 (Pa. Cmwlth. 2009) (emphasis added; citation omitted).
                                          9
            In Bray, this Court distinguished burdens of presentation from burdens
of persuasion. The Bray Court explained:

            [A]s to specific requirements of the zoning ordinance, the
            applicant has the persuasion burden, as well as the initial
            evidence presentation burden. The objectors have the initial
            evidence presentation duty with respect to the general
            matter of detriment to health, safety and general welfare,
            even if the ordinance has expressly placed the persuasion
            burden upon the applicant, where it remains if detriment is
            identified. Hence it appears that an ordinance provision
            placing the ‘burden of proof’ as to general police power
            detriment refers to the persuasion burden but, contrary to
            the rule that the initial evidence presentation duty follows
            persuasion burden, the nature of that subject matter requires
            that the evidence presentation duty be upon the objector in
            order to identify the facts-at-issue.
Bray, 410 A.2d at 912. Thus,
            [i]n outline form, the rules concerning initial evidence
            presentation duty (duty) and persuasion burden (burden) in
            special exception cases may be restated as follows:
            Specific requirements, e.g., categorical definition of the
            special exception as a use type or other matter, and
            objective standards governing such matter as a special
            exception and generally:
            The applicant has both the duty and the burden.

            General detrimental effect, e.g., to the health, safety and
            welfare of the neighborhood:
            Objectors have both the duty and the burden; the ordinance
            terms can place the burden on the applicant but cannot shift
            the duty.
            General policy concern, e.g., as to harmony with the spirit,
            intent or purpose of the ordinance:
            Objectors have both the duty and the burden; the ordinance
            terms cannot place the burden on the applicant or shift the
            duty to the applicant.


                                         10
Id. at 912-13 (citations omitted).

               Applicants offered Solar’s and Patel’s testimony to meet their burden of
demonstrating their proposed use met the Ordinance’s specific requirements. 6 The
ZHB did not conclude that Applicants did not meet their burden. Rather, the ZHB
explained in its Findings and Conclusions that “[t]he [ZHB] finds and concludes that
the property containing the proposed beer store use, directly abuts an R-1 . . .
[D]istrict on three sides and is not compatible with the essential character of the R-1 .
. . [D]istrict/neighborhood.”        R.R. at 13a (bold emphasis omitted).            The ZHB’s
specific factual findings provide in pertinent part:

               3) It is a fact that [t]he [ZHB] did not grant a special
               exception to the aforementioned property pursuant to
               [Applicants’] noncompliance with criteria in ‘Section
               1410.2 [of the Ordinance] PROVISIONS FOR GRANTING A
               SPECIAL EXCEPTION APPROVAL’

               (a) The proposed State licensed beer store is not
               compatible [with] the essential character of the R-1 . . .
               [D]istrict/neighborhood. The beer store location next to
               a convenience store would create a more intensive use,
               increasing pedestrian traffic and vehicular parking
               demands not intended [for] the adjacent R-1 single-
               family residential neighborhood. ‘The provisions for the
               R-1 District are intended to create, preserve and enhance
               areas composed primarily of single-family residences built
               at a [sic] relatively lower densities. These districts are still
               stable and essentially in sound condition and should be
               protected from intrusion of uses and activities incompatible
               with the character of single-family areas.’
               4) It is a fact that the nature and intensity of the
               proposed beer store next to a convenience store would
               be more objectionable in terms of vehicular traffic
               creating more noise, fumes, odors, vibrations effecting
               residential properties in the vicinity, than the previous
               use as a drug store abutting an R-1 [D]istrict.


      6
          Notably, the ZHB made no credibility determinations in its Findings and Conclusions.
                                                11
             5) It is a fact that the proposed beer store would be
             injurious to the public interest in protecting children
             from the exposure to the retail sale of alcohol products,
             given the close proximity to neighborhood children and also
             to Meyers High School and Kistler Elementary [S]chool
             attended by children under 21 years of age. There are two
             parochial and charter school bus stops which pick[ ]up and
             drop[ ]off children in front of the proposed beer store. The
             close proximity to public schools, neighborhood children
             walking pas[t] a store selling alcohol products, increased
             vehicular and pedestrian traffic were also concerns
             pronounced by the . . . City Planning Commission. The
             Planning Commission’s special exception review and
             recommendation to the [ZHB] was to deny the zoning
             appeal application of the proposed beer store.
             6) It is a fact that on May 20, 2015[,] the [ZHB] did not set
             precedent by approving [Riverside Café’s] 12[-]seat
             expansion of an existing nonconforming tavern use. The
             tavern use is significantly different from a beer store which
             permits customers to purchase single cans/bottles of
             beer/malt liquor.

R.R. at 13a-14a (bold emphasis added).
             Importantly, after a thorough review of the record, the objectors’ general
and speculative testimony is the only record evidence supporting many of the ZHB’s
factual determinations. “The law is clear that objectors to a special exception . . .
‘cannot meet their burden by merely speculating as to possible harm . . . .’” Marquise
Inv., Inc. v. City of Pittsburgh, 11 A.3d 607, 615 (Pa. Cmwlth. 2010) (quoting Rural
Area Concerned Citizens, Inc. v. Fayette Cty. Zoning Hearing Bd., 646 A.2d 717, 722
(Pa. Cmwlth. 1994)); see also Boston Concessions Grp., Inc. v. Logan Twp. Bd. of
Supervisors, 815 A.2d 8 (Pa. Cmwlth. 2002) (testimony conveying general fears and
not providing specific details is not considered substantial evidence).
             Other than the objectors’ speculative testimony expressing generalized
concerns, there is no record evidence supporting the ZHB’s finding that “[t]he beer
store location next to a convenience store would create a more intensive use,


                                           12
increasing pedestrian traffic and vehicular parking demands not intended [for] the
adjacent R-1 single-family residential neighborhood.” R.R. at 14a, Finding of Fact
3(a). Similarly, apart from the objectors’ speculative worries, there is no support in
the record for the ZHB’s finding that “the nature and intensity of the proposed beer
store next to a convenience store would be more objectionable in terms of vehicular
traffic creating more noise, fumes, odors, vibrations effecting [sic] residential
properties in the vicinity, than the previous use as a drug store abutting an R-1 . . .
[D]istrict.” R.R. at 14a, Finding of Fact 4. In fact, this finding directly contradicts
Solar’s testimony. See R.R. at 69a.7


       7
          This Court further notes that “an increase in traffic is generally not grounds for denial of a
special exception unless there is a high probability that the proposed use will generate traffic not
normally generated by that type of use and that the abnormal traffic threatens safety.” Accelerated
Enters., Inc. v. Hazle Twp. Zoning Hearing Bd., 773 A.2d 824, 827 (Pa. Cmwlth. 2001). Here, the
proposed use is for a property in a C-N District which district is “intended to create, preserve and
enhance business areas to serve residential neighborhoods[,] [and] contain several small-scale retail
establishments, in small clustered groupings, serving frequently recurring needs in locations
convenient to residents.” Ordinance § 404. It is logical to presume that a C-N District in which
businesses operate to serve the residential district increases traffic in the residential district, and
thus, such a traffic increase is not incompatible with the character of a residential area.

               The Pennsylvania Supreme Court has stated:

                       The anticipated increase in traffic must be of such
                       character that it bears a substantial relation to the
                       health and safety of the community. A prevision of the
                       effect of such an increase in traffic must indicate that
                       not only is there a likelihood but a high degree of
                       probability that it will affect the safety and health of
                       the community, and such prevision must be based on
                       evidence sufficient for the purpose. Until such strong
                       degree of probability is evidenced by legally sufficient
                       testimony[,] no court should act in such a way as to
                       deprive a landowner of the otherwise legitimate use of
                       his land.

               Appeal of O’Hara, . . . 131 A.2d 587, 596 ([Pa.] 1957). When what is
               presented by objectors is a mere ‘speculation of possible harms,’ they
                                                  13
               Further, the record evidence does not support the ZHB’s finding that
“[i]t is a fact that the proposed beer store would be injurious to the public interest in
protecting children from the exposure to the retail sale of alcohol products, given the
close proximity to neighborhood children and [area schools].” R.R. at 69a, Finding
of Fact 5. “[O]ur legislature has established the principle that a [liquor-]licensed
establishment is not ordinarily detrimental to the welfare, health and morals of the
inhabitants of the neighborhood.” Boston Concessions, 815 A.2d at 13 (quoting
SSEN, Inc. v. Borough Council of Eddystone, 810 A.2d 200, 208 (Pa. Cmwlth.
2002)). Moreover, there is no record evidence demonstrating that the manner in
which Applicants plan to operate their establishment will endanger children, that
Applicants’ members’ prior conduct reflects irresponsible operations or that
Applicants’ members have previously sold alcohol to minors.8 Because the ZHB’s
factual findings were unsupported by substantial evidence, the ZHB abused its
discretion when it denied the Application.9
               For all of the above reasons, the trial court’s order is reversed.



                                             ___________________________
                                             ANNE E. COVEY, Judge


               have failed to meet their burden. Accelerated Enters., Inc., 773 A.2d
               at 826.
Marquise Inv., 11 A.3d at 617-18. Here, no traffic study was offered, and the objectors testified
only to generalized speculative fears of increased traffic.
        8
          Further, the Liquor Board is granted discretion to deny the issuance of a license located
within 300 feet of a school, and in the instant matter, approved the issuance of the license on a
prior-approval basis. See Section 404 of the Liquor Code, 47 P.S. § 4-404. Here, the record
evidence reflects that the nearest school is 1,267 feet from the Premises.
        9
          In further support of their argument that the ZHB abused its discretion, Applicants contend
that the ZHB set precedent when, on May 20, 2015, the ZHB approved Riverside Café’s application
for a 12-seat existing nonconforming tavern use expansion, and accordingly, the ZHB was required
to approve Applicants’ Application. Given this Court’s disposition of this matter, we need not
address this issue.
                                                 14
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Shree Santram, LLC and Riddhi               :
Siddhi, LLC,                                :
                       Appellants           :
                                            :
                   v.                       :
                                            :
City of Wilkes-Barre Zoning                 :   No. 739 C.D. 2019
Hearing Board                               :



                                      ORDER

            AND NOW, this 5th day of June, 2020, the Luzerne County Common
Pleas Court’s May 10, 2019 order is reversed and the matter is remanded to the trial
court to reverse the decision of the City of Wilkes-Barre Zoning Hearing Board.
            Jurisdiction is relinquished.



                                       ___________________________
                                       ANNE E. COVEY, Judge
