Appeal from the Order of the Court of Common Pleas of Lehigh County in case of Copeechan Fish and Game Club v. Zoning Hearing Board of North Whitehall Township, No. 311 April Term, 1976.
Oldrich Foucek, III, with him Robert J. Johnson, and Butz, Hudders & Tallman, for appellant.
Michael J. Piosa, Worth Law Offices, P.C., for appellee.
Judges Rogers and Blatt, sitting as a panel of two. Opinion by Judge Rogers.
[ 32 Pa. Commw. Page 416]
The Copeechan Fish and Game Club (Club) has appealed an order of the Court of Common Pleas of Lehigh County affirming the denial by the Zoning Hearing Board of North Whitehall Township (Board) of the Club's application for a special use exception.
The Club owns a thirty-three (33) acre tract of land located in the S-C Conservation Zoning District of North Whitehall Township where uses are permitted only by special exception. Among such permitted activities are "recreational uses."
The Club has used a single trap shotgun range on its land since 1950. It here sought a special exception to construct three additional trap houses at a place about 150 yards from a residential development. The proposed new location is much closer to the residential development than the existing single trap shotgun range. The Zoning Hearing Board, after hearing, denied the application on two grounds; first, that the
[ 32 Pa. Commw. Page 417]
proposed use by reason of noise would be detrimental to the public health, safety and welfare; and second, that the new trap range would "cause or create a nuisance to adjoining properties or the general neighborhood." The Club appealed the Board's action. The court below which was not asked to, and did not, receive additional evidence concluded that the Board had not abused its discretion or committed an error of law. We agree and affirm.
Judge David E. Mellenberg wrote for the court below:
The Board agreed that the proposed trap range was a 'recreational use' . . . and that The Club had successfully brought itself within this provision which accords the right to proceed by Special Exception. The burden of proving that a Special Exception Application constitutes a detriment to the public health, safety, or welfare of the community then shifts to the objectors. [ Lower Merion Township v. Enokay, Inc., 427 Pa. 128, 233 A.2d 883 (1967); Accord, Delaware County Community College Appeal, 435 Pa. 264, 254 A.2d 641 (1969); Zoning Hearing Board v. Konyk, 5 Pa. Commonwealth Ct. 466, 290 A.2d 715 (1972); Cherbel Realty Corp. v. Zoning Hearing Board, 4 Pa. Commonwealth Ct. 137, 285 A.2d 905 (1972).] The Board found that the objectors had met their burden and that the proposed trap range would constitute a nuisance to the adjoining residential area.
The Club contends initially that The Board abused its discretion in finding that the objectors met their burden and in ...