Pennsburg Council considers a decision by the borough's zoning hearing board to allow a business to maintain "games of chance" as arbitrary, capricious and an abuse of discretion as a matter of law. A six-page, civil appeal filed earlier this month to the Montgomery County Common Pleas Court argues that the board's decision "is not supported by substantial evidence."

           On June 11, at the direction of council, Solicitor Mark Hosterman filed an appeal in county court challenging the board's May 13 decision allowing Pennsburg Mart, LLC, located at 738 Main St., to maintain "games of chance" at the business. No one from the public attended the two-hour hearing on May 12 to complain about the presence of the machines, according to Zoning Board Chairman Matthew Christy.

            Two days after the filing, Christy expressed his disappointment with council's decision to file an appeal. Christy declined to comment on any specifics, writing in a June 13 text message that he needed to choose his words carefully since the case is in active litigation.

            "As chairman of the zoning board I was caught completely off guard by the decision by borough council," he wrote. "I want to let it be known while the borough has the right to challenge the Zoning Hearing Board, I am extremely disappointed that they decided to take this to the county Common Pleas Court."

            The suit argues that the machines are not allowed in the RC Residential-Commercial Zoning District. It states that a complete review of Section 110-901 reveals that the convenience store is an allowed use in the zoning district as a "general retail commercial establishment," and that a "Game Room" and "Indoor Place of Amusement" usages are not permitted.

            On or about Jan. 7, Stephen Wanner – the borough's code enforcement officer – viewed four Pace-O-Matic skill games installed at the store. He issued a violation the following day, according to the legal paperwork.

            One month later, the business filed an appeal. It claimed the presence of skill games does not convert the convenience store into a game room or indoor place of amusement, that the machines are a standard component of a convenience store, and skill games are an accessory use. The appeal also sought relief, in the form of a variance, to permit skill games in the RC zoning district as alternative relief, according to the document. 

            During the May 12 zoning hearing, Wanner testified that the borough's zoning ordinance disallows the game room and indoor place of amusement uses. He said he interprets this prohibition in the zoning ordinance to be intended to exclude the presence of skill games.

            A witness for the business – identified in the records as "Vikram," the principal of Pennsburg Mart – testified that the presence of skill games does not convert the convenience store into a game room or an indoor place of amusement. He also described the customers' usage of the games "is in the ordinary course of their usage of the convenience store itself."

            A second witness, identified as Brent Bauman, testified that skill games are very commonly placed in convenience stores throughout the Commonwealth and that such skill games are usually allowed under other municipalities' zoning ordinances. According to the paperwork, the business attempted to utilize a third witness as an expert in land use and planning matters. However, the board decided to disallow Erik Hetzel from testifying.

            The Zoning Hearing Board voted unanimously to grant the appeal and overturn the borough's Notice of Violation. It declared the business variance request as moot.