Wegman Application

7 Pa. D. & C.3d 726, 1978 Pa. Dist. & Cnty. Dec. LEXIS 281
CourtPennsylvania Court of Common Pleas, Berks County
DecidedAugust 15, 1978
Docketno. 10
StatusPublished

This text of 7 Pa. D. & C.3d 726 (Wegman Application) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wegman Application, 7 Pa. D. & C.3d 726, 1978 Pa. Dist. & Cnty. Dec. LEXIS 281 (Pa. Super. Ct. 1978).

Opinion

SCHAEFFER, J.,

In August, 1977, LeviM. Wegman, appellant “Wegman,” filed a request with the Oley Township Zoning Hearing Board for a special exception to use over five acres of his property as a picnic grove. The areais part of a 29-acre tract owned by Wegman on Wiest School Road near Friendensburg Road in Oley Township, and it is located in an area zoned as an “R-U” Rural District.

A picnic grove is a use authorized as a special exception under §401(5)(a) of the Oley Township Zoning Ordinance in this district.

On September 27, 1977, the board held a public hearing on appellant’s request. From the testimony at the hearing, it appeared that appellant had used the premises 12 times prior to applying for the special exception, and that during one of those times, [729]*729on August 13, 1977, a rock and roll band played until 10:30 p.m.

Besides appellant, 10 witnesses testified, all of whom live near the grove. Of the 10, only 4 objected to granting the special exception, primarily on the grounds either that the music on August 13, 1977, was too loud, or that music at the grove could become a problem.

On November 10, 1977, the board granted the special exception, subject to 14 conditions. On this appeal, appellant objects to each condition.

The conditions imposed by the board are:

“(1) That the applicant conduct the permitted use in the manner stated in the findings of fact supported by the evidence presented as modified by the hereinafter stated conditions and restrictions.

“(2) That the activities be conducted between the hours of 12 noon and 9 p.m., prevailing time.

“(3) That all trash, refuse and garbage from the activities conducted be gathered and removed from the premises as soon as possible, but in any event no later than twenty-four (24) hours after the close of an event.

“(4) That the grounds be policed periodically for foreign objects which shall be removed forthwith.

“(5) That no parking be permitted on the roads abutting the premises and all vehicles be parked on the grounds in the manner described in the findings hereof.

“(6) That the applicant limit the number of persons attending the activities to no more than three hundred (300) at one time.

“(7) That the applicant cause his representative to be present in a supervising capacity at any event wherein more than two hundred (200) persons are expected to be present and for events wherein two [730]*730hundred (200) persons or less are expected cause a periodic check to be made in order to assure himself that the activities are orderly and in accord with this Special Exception.

“(8) That the applicant confine his leasing of the premises to organized groups or family gatherings therein providing some ongoing degree of responsibility.

“(9) That the applicant shall not offer or provide to any degree a catering service on the premises.

“(10) That the applicant maintain all facilities provided in good working order and condition.

“(11) That the applicant refrain from installing or making available any and all public address or other amplifying systems and prohibit the persons using the premises from having music or other sustained noise whether amplified or not at any time.

“(12) That the applicant shall not increase, expand, add to or extend his structures or activities from those stated in the findings without permission from this Board after hearing and notice.

“(13) That the applicant upon petition to this Board and after notice and hearing may obtain a waiver or removal of any of the conditions and restrictions imposed upon the presentation of evidence that the standards of the ordinance will be met.

“(14) That this Board reserves the right after hearing and notice to cancel this Certificate of Special Exception upon finding upon competent evidence of a violation of the terms of this Special Exception.”

Since this court has not taken additional evidence, our scope of review is limited to the question of whether the board abused its discretion or com[731]*731mitted an error of law: Borough of Glenfield v. C. & E. Motors, Inc., 22 Pa. Commonwealth Ct. 115, 347 A. 2d 732 (1975), and Raum v. Board of Supervisors of Tredyffrin Township, 20 Pa. Commonwealth Ct. 426, 342 A. 2d 450 (1975).

Under section 913 of the Pennsylvania Municipalities Planning Code of July 31,1968, P.L. 805, art. IX, 53 P.S. §10913, the board has the right to attach reasonable conditions and safeguards in granting a special exception.

The issue thus presented is whether the conditions imposed upon appellant’s use of his land are reasonable.

The board may deny a special exception if it would adversely affect the public health, safety, morals or general welfare of the community: Hannon v. Zoning Hearing Board of the City of Wilkes-Barre, 32 Pa. Commonwealth Ct. 356, 379 A. 2d 641 (1977), and Baker Appeal, 19 Pa. Commonwealth Ct. 163, 339 A. 2d 131 (1975).

It logically follows, therefore, that when a special exception is granted upon conditions, the conditions imposed must bear a reasonable relationship to the health, safety, morals or general welfare of the community: Pompei et ux. v. Zoning Board of Middletown Twp., 63 Del. Co. 273 (1976); Kenneson v. Whitemarsh Twp. Zoning Hearing Board, 97 Montg. 191 (1973); and Brandywine Youth Club, Inc. v. Zoning Board of the Township of Concord, 60 D. & C. 2d 290, 60 Del. Co. 311 (1972).

Condition 1 is too broad and vague to reasonably apprise appellant of what use he may make of his premises. We have read the board’s findings of fact and, while we can guess at what the board meant by “ the applicant (shall) conduct the permitted use in the manner stated in the findings of fact,” we are [732]*732not certain. We find that the board, as a minimum requirement, must state in exactly what way appellant’s use of his premises is restricted and conditioned. Therefore, condition 1 as imposed is invalid.

Conditions 2, 3, 5, 6, 7, 10 and 12 clearly have a reasonable relationship to the health, safety, morals and general welfare of the community and are, therefore, valid.

Condition 4, like condition 1, is too broad and vague. Foreign objects are in no way defined and literally mean each and every object not naturally on the site. If interpreted in this way, the condition is manifoldly unreasonable and bears no relationship to the health, safety, morals and general welfare of the community. If otherwise interpreted, the interpretation of necessity will be arbitrary and appellant will be unable to determine which foreign objects are permitted and which are not. Therefore, condition 4 is invalid.

Condition 8, like 1 and 4, is too vague. An organized group is not defined. Is it a formally organized association? Is it a group under the sponsorship of a single individual or given number of named individuals? What constitutes a family? Must an individual, or a number of named individuals, sponsor and be responsible for a particular “family gathering”? The condition provides no guidelines to answer any of these questions. Therefore, condition 8 is invalid.

Condition 9 is potentially discriminative and unreasonable. The condition does not prohibit catering. It simply prohibits appellant from being the caterer.

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Related

In Re: Appeal of George Baker
339 A.2d 131 (Commonwealth Court of Pennsylvania, 1975)
PFILE v. Borough of Speers
298 A.2d 598 (Commonwealth Court of Pennsylvania, 1972)
Derr Flooring Co. v. Whitemarsh Township Zoning Board of Adjustment
285 A.2d 538 (Commonwealth Court of Pennsylvania, 1971)
Raum v. Board of Supervisors
342 A.2d 450 (Commonwealth Court of Pennsylvania, 1975)
Borough of Glenfield v. C. & E. Motors, Inc.
347 A.2d 732 (Commonwealth Court of Pennsylvania, 1975)
Hannon v. Zoning Hearing Board
379 A.2d 641 (Commonwealth Court of Pennsylvania, 1977)

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Bluebook (online)
7 Pa. D. & C.3d 726, 1978 Pa. Dist. & Cnty. Dec. LEXIS 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wegman-application-pactcomplberks-1978.