Appeal from the Order of the Court of Common Pleas of Chester County in case of The Oxford Motorcycle Club v. The Zoning Hearing Board of Upper Oxford Township, No. 81 September Term, 1973.
Ronald M. Agulnick, with him Agulnick, Talierco & McShane, Assoc., for appellant.
R. Samuel McMichael, for appellee.
Judges Crumlish, Jr., Kramer and Wilkinson, Jr., sitting as a panel of three. Opinion by Judge Wilkinson.
[ 16 Pa. Commw. Page 230]
Appellee, having leased approximately 30 acres of land in an R-1 Residential District, applied to the zoning officer for a use and occupancy permit. Having been denied the permit, an appeal was taken to the Zoning Hearing Board. A public hearing was held at which time appellant came on the record by having his attorney enter his appearance. Subsequently, a stipulation and an order were filed designating appellant and his wife as intervenors. Appellee is a nonprofit corporation, the purpose of which was testified to be "to promote the recreational activity of motorcycle riding and to promote good public relations between the community and members."
If appellee is to qualify for a use and occupancy permit under the zoning ordinance, it seems to be agreed that it must do so by meeting the requirements of Section 400, either subsection (g) or subsection (i), which provides:
"(g) club, fraternal institution or nonprofit swimming pool provided that a particular activity shall not be one which is customarily carried on as a business and provided that all services shall be for members and their guests.
"(i) Non-commercial recreational use."
[ 16 Pa. Commw. Page 231]
It is to be noted that Section 400 provides for those who qualify to be issued the permit as of right and not as a special exception.
The facts here are uncontested. The hearing before the Zoning Hearing Board appears to have been conducted in an able manner with a record of testimony of some 119 pages and a film which was shown to the Board and made an exhibit. The film is of a motocross which appellee had conducted at his former location in an adjoining township where the club had leased a tract of approximately 15 acres. The principal witness was the president of appellee who described the activities of the organization in a clear and candid manner as well as "narrating" the film. His testimony covers some 85 pages of the record. Another witness testified to the need for reconstruction of a former township road on the leased property as a track at a cost of approximately $3,555.00 and a parking area at a cost of about $2,000.00. Neither would have a paved surface, the cost representing merely grading and draining. Another witness testified as to the nature and structure of The American Motorcycle Association. This witness had been the official at the appellee's "big motocross" (presumably the one in the film) where he officated for 13 hours without stopping long enough to eat, having only a coke brought to him! He testified he could not predict with any accuracy how many people would enter each motocross, especially early in the season. Two witnesses testified ...