Lake Adventure, Inc. v. Zoning Hearing Board

440 A.2d 1284, 64 Pa. Commw. 551, 1982 Pa. Commw. LEXIS 1066
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 17, 1982
DocketAppeal, No. 2881 C.D. 1980
StatusPublished
Cited by16 cases

This text of 440 A.2d 1284 (Lake Adventure, Inc. 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
Lake Adventure, Inc. v. Zoning Hearing Board, 440 A.2d 1284, 64 Pa. Commw. 551, 1982 Pa. Commw. LEXIS 1066 (Pa. Ct. App. 1982).

Opinion

Opinion by

Judge MacPhail,

Lake Adventure, Inc. (Appellant) appeals from an order of the Court of Common Pleas of Pike County which affirmed the decision of the Dingman Township Zoning Hearing Board (Board) to deny Appellant’s application for a special exception. We affirm.

Appellant owns a 397 acre tract of land located in Dingman Township (Township) which it is developing as a recreational vehicle park. The tract is located in an R-3 zoning district which allows recreational vehicle parks by special exception. The Board’s approval of Appellant’s application for such a special exception on May 9, 1977 is not at issue in the instant proceeding. Appellant plans to ultimately subdivide its tract into 1,700 campsites.

On May 18, 1977 Appellant applied for a zoning permit to allow it to provide certain “essential commercial services” to the park. Among the services proposed were recreational vehicle sales and servicing, a general store, a laundromat and propane gas sales. The services were to be located on a strip of land bordering Legislative Route (L.R.) 739 and were to be housed in a building constructed outside the park’s guardhouse with a 100-foot setback from the centerline of L.R. 739. The Board denied the application on July 26, 1977 concluding, inter alia, that the services proposed were not “essential” services as defined by the Township’s ordinance.

Appellant subsequently filed a curative amendment request with the Township Board of Supervisors pursuant to Sections 609.1 and 1004(b) of the Penn[554]*554sylvania Municipalities Planning Code (MPC)1, requesting that the proposed commercial services be defined in the ordinance as “accessory uses” to recreational vehicle parks or that the specified portion of Appellant’s tract be rezoned as a commercial district. Following a hearing, the requests were denied in a written decision by the Township Supervisors; however, the Supervisors also decided that the commercial services should be permitted by special exception. Accordingly, on June 20, 1978 the Township Supervisors amended the zoning ordinance to provide, in pertinent part, as follows:

The provision of commercial services or the sale and servicing of recreation vehicles to lot owners in a recreational vehicle campground shall be permitted only by special exception in the R-3 Mobile Home Park Zoning district. The Zoning Hearing Board shall review the application and shall grant or deny the special exception based upon the following standards:
(a) The services permitted shall be specifically stated.
(b) The Board shall consider the size of the campground and its proximity to commercial districts in the Township.
(c) The area to be used for commercial services or the sale and servicing of recreation vehicles shall be adequate in size to provide for necessary facilities, such as access, parking, and, when applicable, on-lot sewage disposal.
(d) The services area shall be set back from public roads and other property so as not to be readily visible from those areas at a location and distance approved by the Board.
[555]*555(e) No signs of any sort located outside of the campground shall direct the general public to the services and all signs of any sort within the Township which refer to the campground and/or services offered there shall receive the prior approval of the Board before erection. (Emphasis added.)

Appellant applied for a special exception on August 15, 1978 pursuant to the above provisions. After two hearings (at which the Township appeared as a protestant) and an amendment to the application, the Board denied the request on April 17, 1979 finding that the services area would create a traffic hazard, would be readily visible from L.R. 739 and other property, would benefit the general public rather than just the lot owners within the campground and would not be in harmony with the spirit and purpose of the ordinance. On appeal, the court of common pleas affirmed, concluding that the proposed use was not of the nature intended by the ordinance since the services were not directed solely toward the park’s lot owners.

Appellant has raised the following issues for our consideration: 1) whether or not the “readily visible” standard in the ordinance is so vague or unrelated to proper zoning purposes as to be invalid, and 2) whether or not the Board committed an error of law or made findings of fact which are unsupported by substantial evidence.

Where, as here, the court below has taken no additional evidence, our scope of review is limited to determining whether or not the Board committed an abuse of discretion or an error of law. Brunner v. Upper Makefield Township Zoning Hearing Board, 12 Pa. Commonwealth Ct. 109, 315 A.2d 359 (1974). If the Board’s fact findings are unsupported by substantial competent evidence of record, it has committed an abuse of discretion. West Whiteland Township v. Sun [556]*556Oil Co., 12 Pa. Commonwealth Ct. 159, 316 A.2d 92 (1974).

Appellant’s initial challenge addresses the substantive validity of the “readily visible” standard in the Township’s ordinance. Appellant argues that the standard grants unfettered discretion to the Board to determine if the proposed services would be readily visible from public roads and other property and is, therefore, invalid due to its vagueness. Appellant further- contends that the standard is unenforceable because it was enacted with the protectionist intent to limit commercial competition within the Township. Since we perceive fatal procedural defects in the manner by which Appellant has raised these substantive challenges, we will not resolve those challenges on their merits.

It is clear that the exclusive procedural devices by which the validity of township ordinances may be challenged on substantive grounds are those provided by Section 1004 of the MPC, 53 P.S. §11004. GFM Associates Appeal, 30 Pa. Commonwealth Ct. 476, 373 A.2d 1370 (1977). The landowner may present such challenges either to the zoning hearing board under Section 1004(1) (a) or by curative amendment to the municipality governing body under Section 1004(1) (b). When proceeding before the zoning hearing board, the íandowner must request in writing that the board hold a hearing on the challenge. The written request must also inform the board of the grounds for the challenge. Section 1004(2)(a) of the MPC, 53 P.S. §11004(2)(a).

In the instant case, all that was before the Board was Appellant’s application for a special exception. The general validity challenges were apparently raised for the first time in Appellant’s brief filed with the Board. There is nothing in the record to indicate that the procedural mandates of Section 1004 were satisfied. No hearing was held on the challenges and [557]*557the record contains no written request for such a hearing. For those reasons, apparently, neither the Board, nor the common pleas court addressed the substantive challenges to the ordinance.

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Bluebook (online)
440 A.2d 1284, 64 Pa. Commw. 551, 1982 Pa. Commw. LEXIS 1066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lake-adventure-inc-v-zoning-hearing-board-pacommwct-1982.