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CARROLL F. BURGOON v. ZONING HEARING BOARD CHARLESTOWN TP. (05/26/71)

decided: May 26, 1971.

CARROLL F. BURGOON, M.D., AND JANE S. BURGOON, M.D., HIS WIFE, AND BURGOON ANTIQUES, INC.
v.
ZONING HEARING BOARD OF CHARLESTOWN TP., CHESTER COUNTY



Appeal from the order of the Court of Common Pleas of Chester County, No. 49 March Term 1969, in case of In Re: Appeal of Carroll F. Burgoon, M.D., and Jane S. Burgoon, M.D., his wife, and Burgoon Antiques. Appeal transferred September 14, 1970 to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.

COUNSEL

Joseph F. Harvey, with him MacElree, Platt & Harvey, for appellants.

Leonard Sugerman, with him Sugerman, Massinger & Weiss, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino and Mencer. Judge Rogers disqualified himself. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Mencer.

Author: Crumlish

[ 2 Pa. Commw. Page 240]

Appellants sought to continue to utilize three tracts of land in Charlestown Township, Chester County, as an Equestrian Center with the stated purpose of: ". . . instructing pupils in the techniques of horsemanship, . . ."*fn1 They applied to the Zoning Hearing Board of Charlestown Township for a special exception as an "educational use" and it found that the use was not "educational" and rejected the application. The Court of Common Pleas of Chester County affirmed. Both erred.

[ 2 Pa. Commw. Page 241]

The appellants, individual and corporate, own three contiguous tracts of land zoned F R Farm Residential. The individual appellants have owned and operated upon these tracts since May 1966, an equestrian training center known as Fox Hollow Farms Equestrian Center, Inc. In April 1967, the Zoning Board of Adjustment (now Zoning Hearing Board) of the Township granted appellants a special exception to operate the equestrian center as an educational use.*fn2 The Court of Common Pleas of Chester County hearing the appeal reversed the Zoning Board. In its opinion, the court said: "Considering the whole scope of the ordinance we hold that Burgoons' and Burgoon Antiques, Inc.'s use of their land is not an educational use within its provisions; that on this record its operations as a whole are not a charitable or philanthropic use; that on the contrary, such use is a commercial one and not permissible under special exception." An application to the Supreme Court under Rule 68 1/2 for special allowance of appeal followed and in due course it was denied.

On June 13, 1968, Fox Hollow Farms Equestrian Center, Inc., was awarded by the State Board of Private Academic Schools, Pennsylvania Department of Public Instruction, a "license to operate or conduct a Private Academic School or Class in Tutoring Equestrian Arts."*fn3 Moreover, since September 1967, the Center

[ 2 Pa. Commw. Page 242]

    has been providing equestrian instruction to area school and college students for which they receive course credits toward their academic degrees.

Relying on these changed circumstances, the owners have appealed a cease and desist order issued by the Board. In addition, they again seek a special exception for their "educational use". The denial of the special exception and the cease and desist order were affirmed by the court below. Under Section 402(4) of the Appellate Court Jurisdiction Act, Act of July 31, 1970, No. 223, 17 P.S. ยง 211.402(4), the decision of the Zoning Hearing Board as affirmed by the court is now before us.*fn4

By agreement of counsel, the record before the Board, the Court of Common Pleas and this Court includes the testimony adduced at the first special exception hearing as well as that presented to support the present application. Appellees urge us to affirm the position taken by the court below which held that the single question on ...


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