Daily Development for
Tuesday, February 2, 1999

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

These two Pennsylvania accessory use cases address different issues, but appear to reflect quite distinct philosophies nevertheless.

ZONING AND PLANNING; USE RESTRICTIONS; ACCESSORY USES; GAMBLING: Proposed turf club which would offer food and beverage service as well as wagering on simulcasted horse races, was a permitted "restaurant use" under township zoning ordinance, even though wagering component would generate significant revenue, since club would devote a large amount of building space and manpower towards the restaurant component of the club.

Southco, Inc. v. Concord Township, 713 A.2d 607 (Pa. 1998).

The court found that the wagering component of the proposed turf club would qualify as an accessory use under the township zoning ordinance, since the wagering would be dependent on the restaurant. The zoning ordinance neither expressly allowed nor expressly prohibited offtrack wagering facilities in the particular zoning district. The zoning ordinance did, however, designate a restaurant use as permissible in the particular district.

ZONING AND PLANNING; USE RESTRICTIONS; ACCESSORY USES; SKYDIVING: Skydiving business is not considered an accessory use to airport permitted by special exception, since business was not one which would customarily be located at airport site similar in size and location to airport.

Smith v. Zoning Hearing Board of Conewago Township, 713 A.2d 1210 (Pa. Commw. 1998).

Business operator argued that the airport was a nonconforming use because it was in existence before the adoption of the local ordinance, and that skydiving was an accessory use to the nonconforming airport. Thus the skydiving business, as an accessory to a nonconforming use, should have the same vested right to continue as was afforded to the main use. The court disagreed. First, the ordinance, although enacted after the existence of the airport, permitted the airport as a special exception in that particular district. As the airport was a use permitted by special exception, the skydiving business would have to have been considered as an accessory use to the airport in order for the business owner to be allowed to continue the business. The court concluded that the appellants did not satisfy their burden of proving that a skydiving school is "customary and incidental to an airport."

The court also held that federal regulation of skydiving as an activity may preempt local regulation of the activity, but does not preempt local regulation of the place where the activity occurs.

Comment: Was this merely a failure to muster appropriate proof? Although the editor is not a skydiver, and not volunteering to be one, the editor has difficulty imaging that many skydiving schools are located outside of airports. Although not all airports have such schools, they obviously require proximity to airports and likely are not an unusual feature of small local airports such as the one involved here.

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