The opinion of the court was delivered by: Judge Simpson
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge, HONORABLE JIM FLAHERTY, Senior Judge.
In this land use appeal, Objectors*fn1 ask whether the Jackson Township Board of Supervisors (Supervisors) erred in granting JRAD Ventures, Inc.'s (Applicant) conditional use application. The Supervisors determined Applicant's proposed indoor shooting range qualified as a "recreation facility" as defined by the Jackson Township Zoning Ordinance (zoning ordinance). The Supervisors also determined Applicant's proposed retail gun and supply store, club room, gunsmith and classrooms and training rooms, which would be developed in connection with the proposed indoor shooting range, were permissible, accessory uses. Discerning no error in the Supervisors' decision, we affirm.
In July 2005, Applicant entered into an agreement to purchase property near the intersection of Steeb Road and Zehner School Road in the Township (subject property). The subject property lies within the Township's RA Rural Agricultural District.
About a month later, Applicant submitted an application for conditional use approval to the Township for an "indoor shooting range with ancillary uses (class and training rooms, shooting supplies and gun sales)." Supervisors' Op. at 1.
The zoning ordinance permits a "recreation facility" in the RA District by conditional use. See Section 27-603(D) of the zoning ordinance. In turn, Section 27-302 defines a "recreation facility" as "an establishment offering recreation, sports, games of chance, skill or leisure time activities to the general public or private membership for a fee or charge." Of further note, Section 27-302 defines an accessory use as "a use on the same lot with, and of a nature customarily incidental and subordinate to the principal use."
Shortly after Applicant filed its conditional use application, the Township Planning Commission reviewed the application and recommended approval subject to several conditions. Hearings ensued before the Supervisors.
In June 2006, the Supervisors issued an opinion in which they granted Applicant's conditional use request subject to numerous detailed conditions. The Supervisors findings may be summarized as follows.
The subject property is comprised of 2.30 acres*fn2 and is currently used for agriculture and/or agriculture-related purposes. The subject property is located in a rural area characterized by agricultural operations and is sparsely populated by single-family dwellings.
The conceptual plan for Applicant's proposed development consists of an approximate 18,260-square foot, two-story structure. The lower level of the structure would be located partially below grade and would house a 14-lane indoor firearm shooting range along with a check-in area, restrooms and a storage area. The shooting range would measure 25 meters in depth. The upper level would house a retail sales area, club room, restrooms, classrooms, gunsmith area, offices and storage areas.*fn3
The retail sale of goods at the proposed facility would be limited to those types of goods used within the facility for the proposed shooting range.
Clothing would not be sold from the proposed facility, and any food and beverages would be sold from vending machines.
Firearms used in the indoor shooting range would be limited to rim fire and regular center cartridge firearms. No outside ammunition would be brought into the facility nor used in the shooting range. The club room area would be used for cleaning and storing firearms by customers that purchase a membership.
The gunsmith area would be used for the cleaning and repair of firearms, which would be performed by an individual employed by Applicant. The classroom would be used for firearm-related training and instruction of up to seven individuals at a time.
The design of the proposed building and interior improvements would result in a noise level of, at most, approximately 35 to 40 dB(A) outside the building. The initial operating hours of the facility would be 12:00 p.m. to 9:00 p.m. The proposed facility would have no outside activities other than off-street parking. The outdoor entrance to the proposed facility would have a secured, ballistic proof, vestibule area with a firearm unloading station where customers would be required to unload any firearms before entering the facility. The proposed facility is anticipated to generate 120 daily vehicular trips and 25 peak hour trips, which is equivalent to the traffic generated by 10 single-family homes.
The Township has several existing outdoor shooting ranges in the RA District, including the Evans City Sportsmen's Club, Conway Sportsmen's Club and Breakneck Beagle Club. The Supervisors found an indoor shooting range similar to that proposed by Applicant is more conducive to the rural residential area in which the subject property is located than an outdoor shooting range.*fn4
As to their interpretation of the zoning ordinance, the Supervisors concluded Applicant's proposed facility qualified as a "recreation facility." The Supervisors pointed out the zoning ordinance's definition and regulations for recreation facilities do not distinguish between commercial and noncommercial facilities; thus, the fact that Applicant's facility is commercial in nature does not disqualify it as a recreation facility.
The Supervisors stated the objections and testimony presented by Objectors related to the commercial nature of the proposed facility and, through their objections, Objectors actually sought an amendment to the zoning ordinance prohibiting commercial facilities from being located in residential zoning districts. The Supervisors noted such an amendment was beyond the scope of the proceedings.*fn5
The Supervisors further determined Applicant's proposed accessory uses are, in fact, permitted accessory uses because they are customarily incidental and subordinate to an indoor shooting range. Specifically, the Supervisors identified the following uses as accessory: retail sale of goods specifically used within the proposed building for the principal recreation facility use; firearm repair and cleaning (gunsmith); firearm-related training classes; and, storage related to these accessory uses.
The Supervisors also determined that, subject to the imposition of certain conditions, Applicant's proposed facility satisfied both the zoning ordinance's general criteria for conditional uses and the specific conditional use criteria for recreation facilities. The Supervisors further found Objectors did not satisfy their burden of showing a high probability of adverse impacts generated by the proposed facility.
Based on these determinations, the Supervisors granted Applicant's conditional use request subject to 27 detailed conditions. Of particular import here, one condition stated the approval of Applicant's conditional use application automatically expires upon: "[T]he [Applicant's] failure to apply for and obtain a building permit and commence construction within one (1) year after the date of the [Supervisors'] written decision." Supervisors' Op. at 13, Condition 5(a).
Objectors appealed to the Court of Common Pleas of Butler County (trial court). Additionally, Applicant filed an appeal challenging a number of the attached conditions. The trial court consolidated the appeals. Approximately two years after filing its appeal, however, Applicant discontinued its appeal (while Objectors' appeal was still pending).
Without taking additional evidence, the trial court issued an opinion and order affirming the Supervisors' decision. This appeal by Objectors followed.
On appeal,*fn6 Objectors argue the Supervisors erred in determining Applicant's proposed indoor shooting range with a retail gun and supplies store, a club room, a gunsmith, and classrooms and training rooms is a permitted "recreation facility" conditional use under the zoning ordinance. Alternatively, Objectors contend the trial court erred in determining Applicant's conditional use approval did not expire pursuant to condition 5(a) of the Supervisors' decision. The Supervisors join in this latter argument.
I. Conditional Use Approval
Objectors first challenge approval of a commercial indoor shooting range with a retail gun and supply store, a club room, a gunsmith, and class and training rooms as a conditional use within the recreation facility category. Objectors assert that although a shooting range which is used solely for recreation or leisure may fall within the definition of a recreation facility, Applicant's proposal is actually something quite different. Objectors maintain Applicant's proposed use is more aptly characterized as a commercial retail use, which is not permitted, rather than a recreation facility.
In addition, Objectors assert that while Applicant seeks to operate several accessory uses together with its recreation facility, the zoning ordinance does not permit uses that are accessory to conditional uses. Rather, the zoning ordinance specifically limits accessory uses to those that are customarily incidental to a permitted principal use. Given the clear language of the zoning ordinance, Objectors maintain that accessory uses are only allowed for permitted principal uses (uses permitted by right) and no accessory uses are permitted for conditional uses. As such, Objectors argue we should reject Applicant's assertion that its proposed retail gun and supply store, club room, gunsmith and classrooms and training rooms are all allowable accessory uses to a recreation facility. In support of this construction of the zoning ordinance, Objectors point to our decision in Bene v. Zoning Hearing Board of Windsor Township, 550 A.2d 876 (Pa. Cmwlth. 1988).
Objectors also contend that in light of all its proposed ancillary uses, Applicant did not establish its proposed use is a recreation facility. Objectors argue that by including these "accessory uses," none of which are permitted in the RA district, Applicant altered the nature of its principal use, and this altered use does not fall within the definition of a recreation facility. Rather, the proposed use is more aptly characterized as a commercial retail use, particularly in light of the zoning ordinance's definition of "commercial." See Section 27-302 of the zoning ordinance (defining "commercial" as "engaging in a business, enterprise, activity, or other undertaking for profit.") Objectors argue Applicant's proposed use does not fall within the recreation facility category unless all the proposed "accessory uses" are removed.
We begin by recognizing that a conditional use is one specifically recognized by the legislature as consistent with the zoning plan. Bailey v. U. Southampton Twp., 690 A.2d 1324 (Pa. Cmwlth. 1997). As such, it is presumed the particular type of use does not, of itself, adversely affect public interest. Id.
In addressing an application for a conditional use,*fn7 a local governing body must employ a shifting burden of persuasion. Sheetz, Inc. v. Phoenixville Borough Council, 804 A.2d 113 (Pa. Cmwlth. 2002). First, the applicant must persuade the local governing body its proposed use is a type permitted by conditional use and the proposed use complies with the requirements in the ordinance for such a conditional use. In re McGlynn, 974 A.2d 525 (Pa. Cmwlth. 2009). Once it does so, a presumption arises the proposed use is consistent with the general welfare. H.E. Rohrer, Inc. v. Zoning Hearing Bd. of Jackson Twp., 808 A.2d 1014 (Pa. Cmwlth. 2002). The burden then shifts to objectors to rebut the presumption by proving, to a high degree of probability, the proposed use will adversely affect the public welfare in a way not normally expected from the type of use. Id.
The issue of whether a proposed use falls within a given categorization contained in a zoning ordinance is a question of law for this Court. Id. In considering this issue, we are mindful that ordinances are to be construed expansively, affording the landowner the broadest possible use and enjoyment of its land. Id. Thus, "restrictions on a property owner's right to free use of his property must be strictly ...