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decided: May 26, 1971.


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.


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 appeal here is: "Is the use sought to be made an 'educational use' under the amended

[ 2 Pa. Commw. Page 243]

    ordinance*fn5 and the terms of the license issued by the Department of Public Instruction so as to be the subject of a special exception?" Appellees urge us to separate the two episodes in the sequence of events and find that the prior determination that an "educational use" was not established is sealed off from further consideration and thus donning the blinkers we would base our judgment as to whether the hurdle had been crossed by the evidence of academic credits and the Department of Instruction's recognition of Fox Farm Equestrian Center, Inc., educational status standing alone.

In short, appellee would have us hold that the final opinion of the court below (1967) is stare decisis. While the holdings of the Courts of Common Pleas should not be passed over lightly by appellate courts, they do not bind us. Orban v. Makarczyk, 166 Pa. Super. 523, 72 A.2d 606 (1950). Nor does the subsequent refusal to hear appeal by the Supreme Court, as in the instant case, elevate the decision of the court below to that position. ". . . the allowance or refusal of the appeal must not be taken as an indication of any opinion on the merits of the decision or the correctness of the application of legal principles in the particular case." Kramer v. Guarantee Trust and Safe Deposit Co., 173 Pa. 416, 419, 33 A. 1047 (1896); see also, Myhalyk v. Lewis, 398 Pa. 395, 158 A.2d 305 (1960). Since the facts and legal questions in the appeal before us are essentially the same as those in the previous appeal, the initial opinion of the court below would be especially persuasive.*fn6 Notwithstanding, after careful

[ 2 Pa. Commw. Page 244]

    consideration, we hold that the court below committed a clear error of law in its interpretation "educational use".

The Supreme Court in Gilden Appeal, 406 Pa. 484, 492, 178 A.2d 562 (1962) described "educational" as follows: "The word taken in its full sense, is a broad, comprehensive term, and may be particularly directed to either mental, moral, or physical faculties, but in its broadest and best sense it embraces them all, and includes, not merely the instructions received at school, college, or university, but the whole course of training -- moral, intellectual and physical."

In the absence of any definition to the contrary in the zoning ordinance, the term . . . [educational use] . . . as used in the ordinance must be presumed to have been employed in its broadest sense, . . . The court below, emphasizing the phrase "embraces them all", has concluded that to be "educational" a use must involve moral, intellectual and physical training. While we may disagree with that court's finding that the appellants use narrowly construed does not include the entire spectrum,*fn7 its legal conclusion is based on the lame premise that every concept of academic instruction with its consequences is essential to the finding that a use is educational. Indeed, is it reasonable to say that Gilden stands for the proposition that an accredited private university is not educational if it fails to include in its curriculum instruction in physical education? The language in Gilden clearly directs itself at " either mental, moral or physical faculties " and " embraces them all . . . not merely the instructions received at school, . . ." (emphasis added). In its "broadest sense" the term "educational use" in the Charlestown

[ 2 Pa. Commw. Page 245]

    ordinance encompasses institutions which conduct moral, intellectual or physical training.*fn8 The court below erred in demanding specifically classified training in every phase of academic pursuit. Having reached this result, we find it unnecessary to discuss the intermingling of moral, intellectual and physical training in the instant case.

The original opinion of the court below also held that "educational use" required a non-commercial use. With this we cannot agree. Section 400(E)(1) of the Township ordinance provides for a special exception as an "Educational, religious, charitable or philanthropic use." As stated in Gilden, these terms must be given their broadest meanings. Any restriction on their use must be explicit and strictly construed. Rolling Green Golf Club Case, 374 Pa. 450, 97 A.2d 523 (1953). It is clear from the construction of Section 400(E)(1) that "educational", "religious", "charitable", and "philanthropic" are independent adjectives and do not modify each other. Construing the ordinance strictly it displays no intent to limit "educational uses". This being so, we find that the court erred initially in requiring educational uses to be non-commercial and, in fact, to a great extent the later opinion of the court below disavowed this position.

The later opinion, now before us, accurately states the prevailing case law: "In the final analysis the nature of the use made and not the identity of the user of the land determines whether appellants' activities may be permitted: Russian Orthodox Church Appeal,

[ 2 Pa. Commw. Page 246397]

Pa. 126, especially 128-29 [152 A.2d 489 (1959)]." (Emphasis original.)

The record reveals abundant uncontradicted testimony as to the instructional nature of the equestrian center -- moral, intellectual, or physical. Three trained professionals were employed to instruct in dressage, cross-country riding, hunting, horse care and stadium jumping, instructing in such techniques and courses as cavalletti, lungeing, plaiting, mucking out, grooming, and many others pursuing the programs of the U.S. Combined Training Association. Moreover, Fox Hollow Farms Equestrian Center, Inc., has in its curriculum a program directed toward qualifying its students to instruct in the Equestrian Art.*fn9 Horses are available only to those taking riding instruction. Accredited educational institutions, among others Bryn Mawr College, included instruction at the Center as part of their physical education programs. The Center is licensed as a Private Academic School by the Department of Public Instruction. We find the holding of the Board in following the dictates of the lower court as set forth in its original opinion that the use

[ 2 Pa. Commw. Page 247]

    was not educational, was both a manifest abuse of discretion in light of the testimony presented and an error of law in light of Gilden, supra.

Appellee suggests, and the court below so held, that the issuance of the Private Academic School license was of minimal probative value The Private Academic School Act*fn10 does not authorize licenses to "private trade . . . business . . . correspondence . . . music . . . dance . . . art . . . dramatic . . . charm or poise . . . [or] . . . driver-training schools, or any type of private school which is nonacademic in character." However, implicit in the license is a finding by the Department of Public Instruction that the equestrian center is "academic" in nature. While this finding is not binding on the court, being an official act by the Commonwealth founded in an investigation and report which details the facts supporting its conclusion, it should be accorded greater consideration and validity than the summary disposal which was afforded it by the lower court. The Board erred by ignoring the action of the Department solely because it had doubt that the use rose above the status "nonacademic in character."*fn11 On the basis of findings by the appropriate agency whose special duty requires supervision of academic processes, there must be clearly enunciated valid reasons for disregarding its findings as evidence.

The Court of Common Pleas of Chester County has held that little league baseball is an educational use although it was nonacademic in the generally accepted use of the term. Kirk Zoning Appeal, 12 Ches. Co. Rep. 229

[ 2 Pa. Commw. Page 248]

(1964). Judge Kurtz there correctly read Gilden's definition of "educational use" and found it did not require moral, academic and physical instruction.

Appellee argues in five parts why neither Kirk nor Gilden countenances the use sought:

(1) Appellants' operation is a common commercial enterprise;

(2) Appellants charge fees designed to produce a profit;

(3) Appellants use its premises at least sixty hours a week while the Kirk use was for only eighty hours a year;

(4) Appellants do not teach fair play, discipline, teamwork and tolerance as in Kirk ; and

(5) Appellants will instruct anyone who can pay while Kirk was limited to a target group.

None of these distinctions has any merit and of them only contention number four addresses itself to the educational nature of the use. Common sense dictates, but for our purpose it need not be elaborated, that equestrian training does in fact embody these attributes. The requested use in the case before us includes academic, moral and physical training and the fact that equestrian instruction calls for the use of a whip and a hurdle and not a bat and a pitcher's mound is immaterial.

When the term "educational" defines uses which are permitted, it is both permissive and restrictive. Without further limiting definition, the permissive nature of the phrase must be taken in its " broadest sense." Gilden, supra. On the other hand, any restrictive nature ascribed to the phrase must be taken in its strictest sense. Rolling Green, supra. This accords the landowner the benefit of the least restricted use and enjoyment of his land.

[ 2 Pa. Commw. Page 249]

It is clear in reviewing the record that the use requested meets the "broadest" definition of "educational". Moreover, the ordinance is devoid of any specific restriction which would prohibit the intended use. The contrary holding of the Zoning Hearing Board was erroneous. Order reversed.



Dissenting Opinion by Judge Mencer:

I respectfully dissent for two reasons.

First: I agree with the lower court's conclusion as expressed in its opinion as follows: "Considering the whole scope of the ordinance we hold that Burgoons' and Burgoon Antiques, Inc.'s use of their lands 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."

Second: When the Supreme Court of Pennsylvania refused the appellants' application under its Rule 68 1/2 for a special allowance of appeal, the case was concluded and the lower court's order became absolutely final. The appellants should not now be able to reopen and retry the original case under a collateral proceeding dealing with a cease and desist order issued by the Zoning Board. Neither should changed circumstances which are the result of appellants' efforts and activities be sufficient to breathe new life into a case that has ended in accordance with normal legal procedures. Even if we now would assume that new factors and circumstances would merit the granting of a special exception to the appellants, the method of making such a determination would be a new request to the Board for a special exception, not a further review of a proceeding that has been legally concluded.

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