Copeechan Fish & Game Club v. Zoning Hearing Board

378 A.2d 1303, 32 Pa. Commw. 415, 1977 Pa. Commw. LEXIS 1093
CourtCommonwealth Court of Pennsylvania
DecidedOctober 28, 1977
DocketAppeal, No. 1503 C.D. 1976
StatusPublished
Cited by12 cases

This text of 378 A.2d 1303 (Copeechan Fish & Game Club v. Zoning Hearing Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Copeechan Fish & Game Club v. Zoning Hearing Board, 378 A.2d 1303, 32 Pa. Commw. 415, 1977 Pa. Commw. LEXIS 1093 (Pa. Ct. App. 1977).

Opinion

Opinion by

Judge Rogers,

The Copeechan Fish and Game Club (Club) has appealed an order of the Court of Common Pleas of Lehigh County affirming the denial by the Zoning Hearing Board of North Whitehall Township (Board) of the Club’s application for a special use exception.

The Club owns a thirty-three (33) acre tract of land located in the S-C Conservation Zoning District of North Whitehall Township where uses are permitted only by special exception. Among such permitted activities are “recreational uses.”

The Club has used a single trap shotgun range on its land since 1950. It here sought a special exception to construct three additional trap houses at a place about 150 yards from a residential development. The proposed new location is much closer to the residential development than the existing single trap shotgun range. The Zoning Hearing Board, after hearing, denied the application on two grounds; first, that the [417]*417proposed use by reason of noise would be detrimental to the public health, safety and welfare; and second, that the new trap range would “cause or create a nuisance to adjoining properties or the general neighborhood.” The Club appealed the Board’s action. The court below which was not asked to, and did not, receive additional evidence concluded that the Board had not abused its discretion or committed an error of law. We agree and affirm.

Judge David E. Meleenbebg wrote for the court below:

The Board agreed that the proposed trap range was a ‘recreational use’ . . . and that The Club had successfully brought itself within this provision which accords the right to proceed by Special Exception. The burden of proving that a Special Exception Application constitutes a detriment to the public health, safety, or welfare of the community then shifts to the objectors. [Lower Merion Township v. Enokay, Inc., 427 Pa. 128, 233 A.2d 883 (1967); Accord, Delaware County Community College Appeal, 435 Pa. 264, 254 A.2d 641 (1969); Zoning Hearing Board v. Konyk, 5 Pa. Commonwealth Ct. 466, 290 A.2d 715 (1972); Cherbel Realty Corp. v. Zoning Hearing Board, 4 Pa. Commonwealth Ct. 137, 285 A.2d 905 (1972).] The Board found that the objectors had met their burden and that the proposed trap range would constitute a nuisance to the adjoining residential area.
The Club contends initially that The Board abused its discretion in finding that the objectors met their burden and in denying The Club’s application.
As no additional evidence has been presented, the scope of our review is not whether in the [418]*418first instance we would have reached a different determination, but whether The Board abused its discretion or committed an error of law. Haverford Twp. v. Zoning Hearing Board of Haverford Twp., 21 Pa. Cmwlth, 207, 344 A.2d 758 (1975); Rubin v. Upper Southampton Twp. Zoning Hearing Board, 19 Pa. Cmwlth. 469, 338 A.2d 773 (1975); Radnor Twp. v. Falcone, 16 Pa. Cmwlth. 283, 328 A.2d 216 (1974); Amerada Hess Corp. v. Zoning Hearing Board of Adjustment, 11 Pa. Cmwlth. 115, 313 A.2d 787 (1973); Phila. v. Earl Scheib Realty Corp. 8 Pa. Cmwlth. 11, 301 A.2d 423 (1973).
After reviewing the evidence presented to The Board, as well as the briefs and arguments of counsel before this Court, we conclude that The Board did not abuse its discretion or commit an error of law.
A review of the evidence presented initially to the Zoning Board reveals that the proposed three shotgun trap range would be considerably closer to residential uses than the existing one shotgun trap range. Additionally, there is no buffer between the proposed range and the residential area. Only an open field separates the two areas.
The Club proposes to plant a row of trees along Brook Road to serve as a buffer to absorb the sound from the range. This buffer would consist initially of a row of trees three to four feet high, but if the trees will be an effective buffer to the anticipated noise, they will be only after a considerable period of time when the row of trees reach growth maturity.
The Club’s testimony indicates that much heavier use of the trap ranges could be anticipated [419]*419on Saturdays and Sundays. Trap Shooting League Meets would be held on Sundays on the proposed range with as many as eighty-eight (88) persons competing between the hours of 8:00 A.M. and 4:00 P.M. This anticipated heavy weekend use of the proposed range coincides with that portion of the week when most of the protesting residents in the area use their homes and yards for purposes of recreation and relaxation.
That the noise from the anticipated use of the proposed trap range would be annoying and disturbing to the surrounding residents and disruptive of the use of their homes is amply demonstrated by testimony at the Board hearing.
Mrs. Ruth Williams, an objector at the hearing before The Board, testified: ‘That [the single trap shotgun range] is a good distance from my home, and I must admit that I hear that very loud and clear.’ With reference to a Turkey Shoot previously held at the [nearer] site of the proposed range, Mrs. Williams further testified: ‘We sat there, and instead of a nice, leisurely Sunday dinner and enjoying the country and the fresh air coming in my front door and windows, I was listening to a lot of loud noise and a lot of shooting. It was loud. There are no two ways about it.’
When asked about the present noise level of the shooting range, Mr. Ronald Krause, another objector, testified: ‘Well, it’s awful loud, like a war.’ In response to the question of whether or not the noise interfered with the use of his property, Mr. Krause stated: ‘Well, it does in a respect. You know, Saturday and Sunday is the only days that most people have [420]*420off, and to listen to a bunch of shooting on Saturday and Sunday, it’s obviously not what people want.’
Excessive noise and its affect upon the surrounding residential area provide a sufficient basis for the denial of a special exception. In William Chersky Joint Enterprises v. Board of Adjustment of the City of Pittsburgh, 426 Pa. 33, 231 A.2d 757 (1967), the Supreme Court upheld the denial of a special exception solely on the basis of noise and stated at page 38:

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Bluebook (online)
378 A.2d 1303, 32 Pa. Commw. 415, 1977 Pa. Commw. LEXIS 1093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/copeechan-fish-game-club-v-zoning-hearing-board-pacommwct-1977.