Keener v. Rapho Twp. Zoning Hearing Bd.

• Decision Date: 31 July 2013
• Citation: 79 A.3d 1205
• Parties: James C. KEENER, Appellant v. RAPHO TOWNSHIP ZONING HEARING BOARD, LANCASTER COUNTY, Pennsylvania; and Rapho Township, Lancaster County Pennsylvania.
• Court: Pennsylvania Commonwealth Court

79 A.3d 1205

James C. KEENER, Appellant

v.RAPHO TOWNSHIP ZONING HEARING BOARD, LANCASTER COUNTY, Pennsylvania; and Rapho Township, Lancaster County Pennsylvania.

Commonwealth Court of Pennsylvania.

Argued June 17, 2013.

Decided July 31, 2013.

Scott T. Wyland, Carlisle, for appellant.

Jill M. Laskowitz, Lancaster, for appellee Rapho Township.

BEFORE: McGINLEY, Judge, and LEADBETTER, Judge, and COLINS, Senior Judge.

OPINION BY Judge McGINLEY.

James C. Keener (Keener) appeals from the order of the Court of Common Pleas of Lancaster County (common pleas court) which affirmed the denial by the Rapho Township Zoning Hearing Board (ZHB) of Keener's Application for a Special Exception.

Keener is the owner of a 130–acre parcel located in the Agricultural Zoning District. He has an equitable interest in an adjoining 3–acre lot (collectively Property). The Property is being used as an active farm. The Property contains 60 acres used for growing crops, a breeding herd of Scottish Highland Cattle, an 18th century bank barn ¹, a farmhouse, an equestrian trail and a pond.

On March 16, 2010, Keener sought approval of the following mixed use of the Property: use of a historically restored bank barn and adjacent farmhouse for a banquet/wedding/meeting venue; use of the outdoor areas for a banquet/wedding/meeting venue; farm tours; guided walking and riding tours; bird watching; hayrides; picnicking; walking/equestrian trails; and use of the pond and paddle boats. Special Exception Application, Zoning Narrative, March 16, 2010, at 1; Reproduced Record (R.R.) at 3a.

Keener submitted that given the unique combination of uses, the proposed use, as a whole, did not fit neatly within a single use, but qualified as several uses.

Parks and Playgrounds Permitted By Right

First, Keener asserted that the proposed use must be permitted under Section 201.2.6 of the Rapho Township Zoning Ordinance (Zoning Ordinance) which permits “Park and Playgrounds” by right in the Agricultural Zoning District. ²

By definition, “Parks and Playgrounds” includes a wide range of recreational activities, including, “banquet and social halls,” as long as they are “not operated on a commercial basis.” Zoning Ordinance, § 112. Section 112, of the Zoning Ordinance defines “Parks and Playgrounds” as follows:

PARKS AND PLAYGROUNDS— Those facilities designed and used for recreation purposes by the general public that are not operated on a commercial basis. This definition is meant to include the widest range of recreational activities, excluding adult-related uses, amusement arcades, amusement of theme parks, golf courses, off-track betting parlors, racetracks, and shooting ranges. Such uses may include: (Emphasis added)

1. Outdoor park and recreation facilities, including athletic fields, courts, playgrounds, open play areas, stadiums, skating rinks, skateboard, stunt-bicycle

or BMX bicycle courses, and other similar uses.

2. Indoor recreation facilities, including community centers, gymnasiums, weight and fitness rooms, tennis courts, gymborees, game rooms, bowling alleys, skating rinks, locker rooms, and other similar features.

3. Outdoor passive recreation facilities, including picnic pavilions, hiking, biking and fitness trails, park benches, fountains, statues and other memorials, barbeque grills, ponds, natural and cultural exhibits, amphitheaters, and other similar uses.

4. Indoor community service uses and activities, including meeting rooms, classrooms, theaters, auditoriums, banquet and social halls, scout cabins, libraries, museums and galleries of materials that are not for sale, clubhouses, accessory cafeterias and kitchens, and other similar uses. (Emphasis added)

5. Outdoor community service facilities and activities, including fairgrounds, community bulletin boards and other similar uses.

6. Indoor and outdoor swimming pools, including related amenities, like bathhouse, wading pools, spas, snack bars, and other similar uses.

7. Uses accessory to the above permitted uses, including parking and loading spaces, signs, offices, rest rooms, maintenance equipment storage areas and buildings, lights, waste receptacles and dumpsters, bleachers, and other similar uses.

Zoning Ordinance, § 112.

According to Keener but for “the prohibition against operations on a commercial basis, the Proposed Use would qualify as Parks and Playgrounds.” Application for Special Exception, Zoning Narrative at 3; R.R. at 5a. He asserted that the proviso, which distinguished between commercial and non-commercial operations, violated the uniformity requirement of Section 605 of the Municipalities Planning Code ³ (MPC) because it treated the same use differently based on the form of ownership.

In the alternative, Keener asserted that the proposed use met the Special Exception requirements of an “Adaptive Reuse of Existing Agricultural Building.”

Section 401.1 of the Zoning Ordinance permits the “Adaptive Reuse of Existing Agricultural Buildings” in the Agricultural Zone by Special Exception. ⁴ Section 401.3 of the Zoning Ordinance sets forth the Specific Criteria for any such proposed use. To qualify as an Adaptive Reuse of Existing Agricultural Building, the proposed use “must be permitted [elsewhere] within the Township, but not be permitted by right, special exception or conditional use, within the Agricultural Zone.” Zoning Ordinance, § 401.3. The proposed use must not adversely impact adjoining uses.

Keener contended that the proposed use qualified as a “Commercial Recreational Facility” or “Restaurant” both of which are permitted in other zones, but not in the Agricultural Zone.

A “Commercial Recreational Facility” is defined as:

An activity operated as a business, open to the public, for the purpose of public recreation or entertainment, including, but not limited to bowling alleys, drive-in motion picture facilities, swimming pools, health clubs, miniature golf courses, museums, etc. This does not include adult-related uses or amusement arcades, as defined herein.

Zoning Ordinance, § 112.

A “Restaurant” is defined as:

An establishment that serves prepared food primarily on nondisposable tableware, but can provide for incidental carry-out service so long as the area used for carry-out service does not exceed five percent (5%) of the total patron seating area nor eighty (80) square feet (whichever is less). Caterers shall be included in this definition.

Zoning Ordinance, § 112.

In a second alternative, Keener argued that the use met the definition of a “Tourist Farm” which is defined in Section 459 of the Zoning Ordinance as follows:

TOURIST FARM—A commercial recreation use that is principally designed to portray an agrarian life-style and/or farming technologies. Such use may include the following accessory uses, only if they are incidental to, and located upon the same lot as, the principal use: bed and breakfast, restaurant, snack bar, gift shop, roadside stand, buggy or wagon rides, and similar uses.

Zoning Ordinance, § 459.

Tourist Farms are permitted in the Agricultural Zone by Special Exception under Section 201.4.13.

As a final alternative, Keener submitted that the proposed use should be permitted by Special Exception under Section 107 of the Zoning Ordinance as a “Use Not Otherwise Provided For.”

Hearings before the ZHB, Remand and Decision

Public hearings were held on April 6, 2010, May 4, 2010, and June 1, 2010. Numerous neighboring property owners objected to the Application.

On July 6, 2010, the ZHB voted to deny the Application. The ZHB found that the proposed use of the Property as a rental facility was to generate income and the proposed use was commercial in nature. Board Decision, July 6, 2010, Finding of Fact (F.O.F.) No. 6 at 4; R.R. at 25a. The use of the Property as a banquet/rental facility would be available to the public via reservation only. Board Decision, July 6, 2010, F.O.F. No. 19 at 6; R.R. at 27a.

The ZHB rejected Keener's request for Special Exception for an “Adaptive Reuse of Existing Agricultural Building” under Section 401.1 of the Zoning Ordinance because the proposed use encompassed more than the mere use of an “Agricultural Building.” The ZHB interpreted “Agricultural Building” to apply to the actual bank barn only, and not the farmhouse (which it deemed to be a residential use), or the outdoor areas of the Property including the yard, trails and pond. In addition, the ZHB found that although Keener met part ⁵ of the standard of Section 401.3 of the Zoning Ordinance, Keener did not comply with the parking or water supply and sewage disposal requirements, and he failed to establish that the proposed use did not adversely impact adjoining residential uses due to the hours of operation, noise, and insufficient screening.

With regard to Keener's request to operate the Property as a “Tourist Farm” the ZHB found that the principal use of the farm was not principally designed to portray an agrarian lifestyle of farming technologies. The proposed use was primarily designed to accommodate weddings and other events.

The ZHB further found that Keener's proposed use was not a “Park or Playground” as the term is defined in Section 112 of the Zoning Ordinance because the facility would not be available for use by the general public. The proposed use would be operated on a commercial basis and only be available to those who pay for the use of the facilities. Board Decision, July 6, 2010, F.O.F. No. 38 at 10; R.R. at 31a.

Finally, the ZHB found that because the proposed use was classified as a “Commercial Recreational Facility” it could not be considered to be a “Use Not Otherwise Provided For” under Section 107 of the Zoning Ordinance.

Keener filed a notice of appeal. The common pleas court found no reason to overturn the ZHB, but noted an inconsistency in the ZHB's decision. According to the ZHB, the proposed use was a “Commercial Recreational Facility [[⁶ ” because it was open to “the public,” but it was not a “Park or Playground”...