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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steven G. Conklin, : : Appellant : : v. : No. 1336 C.D. 2004 : The Zoning Hearing Board of : Submitted: January 28, 2005 Warrington Township : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: April 1, 2005 Steven G. Conklin (Conklin) appeals from an order of the Court of Common Pleas of York County (common pleas), which upheld a decision of the Zoning Hearing Board of Warrington Township (ZHB), affirming in part, a Notice of Violation and Cease and Desist Order (Notice and Order) issued by a Code Enforcement Officer for Warrington Township (Township). This Notice and Order cited Conklin for various violations of the WARRINGTON TOWNSHIP ZONING ORDINANCE (TOWNSHIP ORDINANCE) resulting from multiple uses of his property without the requisite Township approval. Conklin is the sole owner of Satori Farm, the property at issue. A principal use of Satori Farm is as a residence. There is a website for Satori Farm. (ZHB Finding of Fact (FOF) ¶¶ 14-15; O.R. Ex. 5-7.) The record contains a printout of the Satori Farm homepage, accessed on May 27, 2003, which provides, among other things, links to pages on the amenities available at Satori Farm: a Bed & Breakfast, Picnics & Outings, Festivals & Events, Private Camping, and Horseback Riding. (O.R. Ex. 5.) The ZHB found that, while Conklin's son prepares the website, Conklin possessed the ability and, in fact, did edit information on the webpage. (FOF ¶ 15.) Parties, picnics and concerts are held at Satori Farm. Some of these events are financed by non-profit organizations. Conklin testified to having five sponsored events and/or private parties on the farm from April through June 2003, some of which were multi-day, and where attendees camped overnight. (Tr. at 34-37.) Conklin claims that there is no charge for anything at the farm; however, he admittedly receives donations sometimes "tethered to some activity" (Tr. at 23) or for staying in his residence. (FOF ¶ 13.) Satori Farm is located in the Township's Conservation Zone, which allows the following relevant uses1 by right: 1) Single Family Detached Dwelling; 2) 1 "Use" is defined as, "[t]he specific purpose for which land or a building or structure is designed, arranged, intended, occupied or maintained." (TOWNSHIP ORDINANCE, Art. II § 203.) "Principal Use" is defined as, "[t]he main or primary use of property, buildings, or structures. Only one (1) use permitted by right or by special exception shall be permitted as a principal use on an individual lot except as provided in Section 306-h." Id. (emphasis added). "Accessory Use" is defined as, "[a] use customarily incidental and subordinate to the principal use, building or structure, and located on the same lot with this principal use, building or structure." Id. 2 Agriculture; 3) Forest and Wildlife Preserve; ... 5) Club Room, Club Grounds, Meeting Hall; ... 7) Bed and Breakfast Inn; and 8) Riding Academy or Boarding Stable. TOWNSHIP ORDINANCE, Art. III § 303(b)(emphasis added). The following uses are also allowed in the Conservation Zone by special exception: 1) Campground or Recreational Vehicle Park; ... 3) Outdoor Commercial Recreational Establishment; 4) Park or Other Recreational Area of a Nonprofit Nature unless required as part of a Subdivision; 5) Public Buildings and Facilities; ... 7) Community Recreational Development.... (TOWNSHIP ORDINANCE, Art. III § 303(c)) (emphasis added). Conklin did not apply for or receive any special exceptions, use certificates or building permits, except for a temporary special exception permitting a mobile home for use by an elderly relative. (FOF ¶ 11.) Furthermore, under the TOWNSHIP ORDINANCE, "[o]nly one (1) use permitted by right or by special exception shall be permitted as a principal use on an individual lot except as provided in Section 306-h."2 (TOWNSHIP ORDINANCE, Art. II § 203.) On May 29, 2003, a Code Enforcement Officer issued a Notice and Order to Conklin that contained eight violations of the TOWNSHIP ORDINANCE.3 Conklin 2 Section 306-h of the TOWNSHIP ORDINANCE allows for two or more independent uses in the Township's Village Zone, pursuant to certain limitations. 3 The eight violations are: 1) Operating a campground or recreational vehicle park without a special exception (TOWNSHIP ORDINANCE, § 303(c)); 2) Operating greater than one principal use of property (i.e., residence with bed and breakfast and camp ground and/or commercial recreational establishment, or alternatively, residence and club grounds (if no camping) and/or residence with bed and breakfast and club grounds (if no camping) (TOWNSHIP ORDINANCE, Definition of USE); 3) Failure to obtain a proper use certificate (TOWNSHIP ORDINANCE, § 801(b)); 4) Failure to obtain a building permit (TOWNSHIP ORDINANCE, § 801(a)); 5) Operating an outdoor commercial recreational establishment without a special exception (TOWNSHIP ORDINANCE, § 303(c)); 6) Operating a park or 3 appealed and the ZHB held a hearing. After the hearing, the ZHB upheld four of the violations, as described in the following conclusions of law: a. Applicant is operating a campground on the property because the use of the property meets the definitions of CAMPSITE and CAMPGROUND found in Warrington Township Zoning Ordinance Section 203. (Violation One) b. Applicant has more than one principal use of his property because Applicant is using his property as a residence, bed and breakfast inn, campground and outdoor commercial recreational establishment where USE, ACCESSORY USE, and PRINCIPAL USE are defined under the Warrington Township Zoning Ordinance definitions. (Violation Two) c. Applicant is required to obtain a USE CERTIFICATE as defined by the Warrington Township Zoning Ordinance Section 801(b) for the additional uses of bed and breakfast inn, campground, and outdoor commercial recreational establishment. (Violation Three) d. Applicant is operating an outdoor commercial recreational establishment without a special exception as required by Warrington Township Zoning Ordinance Section 303(c). (Violation Five) recreational area of a non-profit nature without a special exception (TOWNSHIP ORDINANCE, § 303(c)); 7) Failure to complete a land development plan (Township Subdivision and Land Use Ordinance and Definition of LAND DEVELOPMENT); and 8) Installing sewage disposal systems without a planning module for land development as required by the Pennsylvania Department of Environmental Protection (Township Subdivision and Land Use Ordinance, § 403). (FOF ¶ 2(a)-(h).) 4 (ZHB Conclusion of Law (COL) ¶ 1.) Conklin appealed the order of the ZHB to common pleas which, without taking additional evidence, affirmed. Conklin now appeals that order to this Court. 4 On appeal, Conklin argues to this Court: 1) that the ZHB did not base its decision on substantial evidence,5 and, 2) that relevant provisions of the TOWNSHIP ORDINANCE do not "provide[] reasonable standards by which a person might gauge his future conduct[,]" thereby making each provision "unconstitutionally vague and overbroad."6 (Appellant Br. at 5, 13.) Conklin, first, in a very general way, argues that there was not substantial evidence to support the ZHB's factual findings or legal conclusions because his 4 Where, as here, the trial court did not take additional evidence, our standard of review is limited to determining whether the ZHB committed a manifest abuse of discretion or an error of law. Evans v. Zoning Hearing Bd. of Borough of Spring City, 732 A.2d 686 (Pa. Cmwlth. 1999). The ZHB abuses its discretion only if its findings are not supported by substantial evidence. Constantino v. Zoning Hearing Bd. of Borough of Forest Hills, 618 A.2d 1193, 1195 n.2 (Pa. Cmwlth. 1992). 5 Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Bailey v. Upper Southampton Tp., 690 A.2d 1324, 1325 n.1 (Pa. Cmwlth. 1997). 6 Conklin additionally argues: 1) that the ZHB violated due process because of its alleged racial bias; and, 2) that common pleas abused its discretion. However, Conklin admits that he did not raise the due process issue before common pleas. Because it was not raised below, it was not preserved for our review. Second, in arguing that common pleas abused its discretion, Conklin is essentially asking this Court to find that common pleas erred in affirming the ZHB. However, where, as here, the trial court did not take any additional evidence, we review the ZHB's findings of fact and conclusions of law, not the trial court's decision, so this issue is not properly before us for review. Constantino. Accordingly, this Court will not address those issues. 5 use of Satori Farm does not fit within the definitions for "Campground," "Bed and Breakfast Inn" or "Outdoor Commercial Recreational Use." These definitions are found in Article II, Section 203 of TOWNSHIP ORDINANCE as follows: CAMPGROUND OR RECREATIONAL VEHICLE PARK - A lot, tract or parcel of land upon which two (2) or more campsites are located or established, intended and maintained for occupancy by transients in recreational vehicles or tents. (Emphasis added.) CAMPSITE - A plot of ground within a campground intended for occupancy by a recreational vehicle or tent. BED AND BREAKFAST INN - A single family residence or portion thereof containing not more than five (5) guest rooms which are used by not more than fifteen (15) guests where rent is paid in money, goods, labor or otherwise. (See Boarding House,7 Rooming House.8) (Emphasis and footnotes added.) OUTDOOR COMMERCIAL RECREATIONAL ESTABLISHMENT - A use of open land for leisure time activities, such as a swimming pool, tennis court, golf driving range, miniature golf, golf course, ski slopes or drive-in theater. It however excludes a trap, skeet, rifle or archery range. (Emphasis added.) 7 "Boarding House" is defined as, "[a] building, where for compensation, provisions are made for lodging and meals for at least three (3), but not more than fifteen (15), persons. (See Bed and Breakfast Inn, Rooming House)." (TOWNSHIP ORDINANCE, Art. II § 203) (emphasis added). 8 "Rooming House" is defined as, "[a] residential building, other than a hotel, containing not more than one (1) dwelling unit where lodging is provided with or without meals for compensation, for at least three (3) but not more than fifteen (15) persons in addition to the family unit. No medical or personal care is provided to roomers by the operators of the facility." (TOWNSHIP ORDINANCE, Art. II § 203) (emphasis added). 6 Conklin contends that he did not operate a "Campground" because there is no testimony to support a finding of two "Campsites" on his property. 9 However, as the ZHB correctly points out in its brief, "Campsite" is defined as more than one recreational vehicle or one tent, not more than one delineated section of ground. (Appellee Br. at 7; TOWNSHIP ORDINANCE, Art. II § 203.) The ZHB found that Conklin admitted that "people, not necessarily related to him or his family," camped at Satori Farm in conjunction with concerts/festivals (FOF ¶ 17), and that he leased Satori Farm for $1.00 to groups whose members/attendees sometimes camped overnight. (FOF ¶ 18.) In describing an "incidental benefit" to membership-based club groups that lease Satori Farm, Conklin stated: Camping, I would think, would be incidental because from what I can tell that they have done is they have come down to listen to some music. Some have left. Some have slept in cars. Some may have pitched tents. But there's no defined, like this is where you must camp. This is a campsite and so on and so on. None of that exists, nor was it intended to. (Tr. at 32)(emphasis added). Based on this evidence, there was substantial evidence for the ZHB to conclude that Conklin permitted multiple people to use multiple tents at Satori Farm, which activity falls within the definition of a "Campground" or "Campsite." Conklin also argues that his activities do not fall within the definition of a "Bed and Breakfast Inn" or an "Outdoor Commercial Recreational Establishment" 9 Conklin argues in his brief, that "`Park' is defined as a place where two or more campsites are located." (Appellant Br. at 11.) However, the TOWNSHIP ORDINANCE contains no definition of "Park." Apparently, Conklin mislabels "Campground" as "Park." 7 because he was not engaged in a commercial enterprise. (Appellant Br. at 11, 12.) He claims that he did not "accept remuneration" or solicit donations. However, a commercial enterprise does not become a non-commercial venture simply because donations are accepted in lieu of charging a fee. Warren v. Collier Tp. Bd. of Comm'rs, 437 A.2d 86 (Pa. Cmwlth. 1981)(holding that a proposed Biblical exhibition did not constitute a non-commercial recreational use simply because there was no intention to charge for admission); Bryson v. Oxford Motorcycle Club, Inc., 327 A.2d 880 (Pa. Cmwlth. 1974)(holding that use of land for a motocross event was commercial even though spectators were only asked to donate a dollar). With regard to his use of the property as a "Bed and Breakfast Inn," the ZHB found that Conklin, on at least one occasion, received donations from people in exchange for staying in Conklin's home (FOF ¶ 13; Tr. 43), and that the Satori Farm website describes the Satori Farm Bed and Breakfast as offering smoking and non-smoking areas, pet accommodations and requiring reservations. (FOF ¶ 14.) Therefore, regardless of the fact that Conklin accepted donations and did not charge persons for staying at his house, there is substantial evidence that his activity was, nonetheless, commercial in nature and, accordingly, falls within the ambit of a "Bed and Breakfast Inn." With regard to whether his use of Satori Farm constituted an "Outdoor Commercial Recreational Establishment," the ZHB found, among other things, that Conklin admitted to: 1) seeing signs directing people to his property for events and activities occurring at Satori Farm (FOF ¶ 20); 2) receiving donations that were 8 sometimes "tethered to an activity" at Satori Farm (FOF ¶ 21); 3) receiving contributions from supporters, which, in one instance, amounted to $4,000 to $5,000 (FOF ¶ 22); 4) furnishing "memberships" that allow people to contribute to Satori Farm (FOF ¶ 23); and, 5) having Porta Potties with five partially in-ground holding tanks located on the property. (Tr. at 28.) The ZHB also found that seventy-five acres of Satori Farm is designated primarily for recreational purposes, such as picnics, festivals, weddings and reunions, (FOF ¶ 25), and that Conklin maintains a movable, freestanding stage. (FOF ¶ 27.) The Ordinance defines an "Outdoor Commercial Recreational Establishment" as a use of open land for leisure time activities, and then gives some specific examples. Although Conklin's use of Satori Farm is not listed as one of the specific examples, that list is not exclusive, as indicated by the use of the words "such as" in the definition. The findings of the ZHB are based on substantial evidence of record and support the conclusion that Conklin's use of Satori Farm falls within the scope of "leisure time activities," as those words are used in the definition. Moreover, although Conklin generally argues that he wishes to provide assistance to others, he presented no evidence that the farm is a non-profit organization as defined by Section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3), or that he has applied for such status. (FOF ¶ 26.) Thus, there is substantial evidence to affirm the ZHB's findings regarding the commercial use of his property as an "Outdoor Commercial Recreational Establishment." Contrary to Conklin's arguments, there is substantial evidence to support the ZHB's factual findings and conclusions that his activities fall within TOWNSHIP ORDINANCE definitions of "Campground," "Bed and Breakfast Inn" and "Outdoor 9 Commercial Recreational Establishment."10 Conklin admits that he does not have a use certificate for these additional uses, nor did he apply for a special exception for operating an outdoor commercial recreational establishment. He makes no other argument with regard to these violations. Therefore, we agree that the Township met its burden with regard to Violation 1 (operating a "Campground"), Violation 3 (failing to obtain a use certificate for the additional uses) and Violation 5 (operating an "Outdoor Commercial Recreational Establishment" without a special exception). Conklin does not set forth an argument regarding the merits of Violation 2 (having more than one principal use of his property), so that issue is waived. Commonwealth v. Feineigle, 690 A.2d 748, 751 n.5 (Pa. Cmwlth. 1997). Conklin also asserts, throughout his brief, that the definitions in the TOWNSHIP ORDINANCE are vague and overbroad. In particular, he asserts that the relevant definitions in the TOWNSHIP ORDINANCE do not "provide[] reasonable standards by which a person might gauge his future conduct." (Appellant Br. at 13.) An ordinance violates Due Process for vagueness and overbreadth, under the Fourteenth Amendment to the United States Constitution, if it: 1) does not give fair notice to people of ordinary intelligence that their contemplated activity may be unlawful; and 2) does not set reasonably clear guidelines for law officials and 10 Conklin also contends that he did not need to apply for a building permit because the "temporary stage" is made up of a "few concrete blocks and some plywood," can be owned by a third party and, thus, is not a "structure." (Appellant Br. at 12.) However, the ZHB found that the stage was not a structure as defined by TOWNSHIP ORDINANCE, Art. II § 203 and Pennsylvania case law and, therefore, Conklin did not to need to obtain a building permit. (COL ¶ 2a.) Therefore, it is unclear why he makes this argument. 10 courts, thus, inviting arbitrary and discriminatory enforcement. Scurfield Coal, Inc. v. Com., 582 A.2d 694, 697 (Pa. Cmwlth. 1990). As explained by this Court in Zangrilli v. Zoning Hearing Bd. of Borough of Dormont, Having difficulty ascertaining the meaning of statutory language and determining whether certain acts fall within the coverage of that language because of vagueness does not necessarily render a statute unconstitutional under the concept of due process unless the language "fails to convey sufficiently definite warning as to proscribed conduct when measured against common understanding and practices." 692 A.2d 656, 659-60 (Pa. Cmwlth. 1997)(quoting Slovak-American Citizens Club of Oakview v. Pennsylvania Liquor Control Bd., 549 A.2d 251, 253 (Pa. Cmwlth. 1988), petition for allowance of appeal denied, 549 Pa. 710, 700 A.2d 446 (1997). In this case, Conklin does not point to any specific language or any particular ordinance as being vague and overbroad. He expands on his general statement only by saying that his activities do not fall under TOWNSHIP ORDINANCE definitions of "Bed and Breakfast Inn," "Campground" and "Outdoor Commercial Recreational Establishment." Thus, without further elucidation, Conklin fails to meet his burden of proving that these TOWNSHIP ORDINANCES are unconstitutionally vague and overbroad. Therefore, because evidence of record supports the ZHB's conclusions, we affirm the order of common pleas. ______________________________ RENÉE COHN JUBELIRER, Judge 11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steven G. Conklin, : : Appellant : : v. : No. 1336 C.D. 2004 : The Zoning Hearing Board of : Warrington Township : O R D E R NOW, April 1, 2005, the order of the Court of Common Pleas of York County in the above-captioned matter is hereby affirmed. ___ ______________________________ RENÉE COHN JUBELIRER, Judge
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