James C. Keener, Appellant
Rapho Township Zoning Hearing Board, Lancaster County, Pennsylvania; and Rapho Township, Lancaster County Pennsylvania
Argued: June 17, 2013
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
BERNARD L. McGINLEY, Judge
James C. Keener (Keener) appeals from the order of the Court of Common Pleas of Lancaster County (common pleas court) which affirmed the denial by the Rapho Township Zoning Hearing Board (ZHB) of Keener's Application for a Special Exception.
Keener is the owner of a 130-acre parcel located in the Agricultural Zoning District. He has an equitable interest in an adjoining 3-acre lot (collectively Property). The Property is being used as an active farm. The Property contains 60 acres used for growing crops, a breeding herd of Scottish Highland Cattle, an 18th century bank barn, a farmhouse, an equestrian trail and a pond.
On March 16, 2010, Keener sought approval of the following mixed use of the Property: use of a historically restored bank barn and adjacent farmhouse for a banquet/wedding/meeting venue; use of the outdoor areas for a banquet/wedding/meeting venue; farm tours; guided walking and riding tours; bird watching; hayrides; picnicking; walking/equestrian trails; and use of the pond and paddle boats. Special Exception Application, Zoning Narrative, March 16, 2010, at 1; Reproduced Record (R.R.) at 3a.
Keener submitted that given the unique combination of uses, the proposed use, as a whole, did not fit neatly within a single use, but qualified as several uses.
Parks and Playgrounds Permitted By Right
First, Keener asserted that the proposed use must be permitted under Section 201.2.6 of the Rapho Township Zoning Ordinance (Zoning Ordinance) which permits "Park and Playgrounds" by right in the Agricultural Zoning
By definition, "Parks and Playgrounds" includes a wide range of recreational activities, including, "banquet and social halls, " as long as they are "not operated on a commercial basis." Zoning Ordinance, §112. Section 112, of the Zoning Ordinance defines "Parks and Playgrounds" as follows:
PARKS AND PLAYGROUNDS – Those facilities designed and used for recreation purposes by the general public that are not operated on a commercial basis. This definition is meant to include the widest range of recreational activities, excluding adult-related uses, amusement arcades, amusement of theme parks, golf courses, off-track betting parlors, racetracks, and shooting ranges. Such uses may include: (Emphasis added)
1. Outdoor park and recreation facilities, including athletic fields, courts, playgrounds, open play areas, stadiums, skating rinks, skateboard, stunt-bicycle or BMX bicycle courses, and other similar uses.
2. Indoor recreation facilities, including community centers, gymnasiums, weight and fitness rooms, tennis courts, gymborees, game rooms, bowling alleys, skating rinks, locker rooms, and other similar features.
3. Outdoor passive recreation facilities, including picnic pavilions, hiking, biking and fitness trails, park benches, fountains, statues and other memorials, barbeque grills, ponds, natural and cultural exhibits, amphitheaters, and other similar uses.
4. Indoor community service uses and activities, including meeting rooms, classrooms, theaters, auditoriums, banquet and social halls, scout cabins, libraries, museums and galleries of materials that are not for sale, clubhouses, accessory cafeterias and kitchens, and other similar uses. (Emphasis added)
5. Outdoor community service facilities and activities, including fairgrounds, community bulletin boards and other similar uses.
6. Indoor and outdoor swimming pools, including related amenities, like bathhouse, wading pools, spas, snack bars, and other similar uses.
7. Uses accessory to the above permitted uses, including parking and loading spaces, signs, offices, rest rooms, maintenance equipment storage areas and buildings, lights, waste receptacles and dumpsters, bleachers, and other similar uses.
Zoning Ordinance, §112.
According to Keener but for "the prohibition against operations on a commercial basis, the Proposed Use would qualify as Parks and Playgrounds." Application for Special Exception, Zoning Narrative at 3; R.R. at 5a. He asserted that the proviso, which distinguished between commercial and non-commercial operations, violated the uniformity requirement of Section 605 of the Municipalities Planning Code (MPC) because it treated the same use differently based on the form of ownership.
In the alternative, Keener asserted that the proposed use met the Special Exception requirements of an "Adaptive Reuse of Existing Agricultural Building."
Section 401.1 of the Zoning Ordinance permits the "Adaptive Reuse of Existing Agricultural Buildings" in the Agricultural Zone by Special Exception.Section 401.3 of the Zoning Ordinance sets forth the Specific Criteria for any such proposed use. To qualify as an Adaptive Reuse of Existing Agricultural Building, the proposed use "must be permitted [elsewhere] within the Township, but not be permitted by right, special exception or conditional use, within the Agricultural Zone." Zoning Ordinance, §401.3. The proposed use must not adversely impact adjoining uses.
Keener contended that the proposed use qualified as a "Commercial Recreational Facility" or "Restaurant" both of which are permitted in other zones, but not in the Agricultural Zone.
A "Commercial Recreational Facility" is defined as:
An activity operated as a business, open to the public, for the purpose of public recreation or entertainment, including, but not limited to bowling alleys, drive-in motion picture facilities, swimming pools, health clubs, miniature golf courses, museums, etc. This does not include adult-related uses or amusement arcades, as defined herein.
Zoning Ordinance, §112.
A "Restaurant" is defined as:
An establishment that serves prepared food primarily on nondisposable tableware, but can provide for incidental carry-out service so long as the area used for carry-out service does not exceed five percent (5%) of the total patron seating area nor eighty (80) square feet (whichever is less). Caterers shall be included in this definition.
Zoning Ordinance, §112.
In a second alternative, Keener argued that the use met the definition of a "Tourist Farm" which is defined in Section 459 of the Zoning Ordinance as follows:
TOURIST FARM – A commercial recreation use that is principally designed to portray an agrarian life-style and/or farming technologies. Such use may include the following accessory uses, only if they are incidental to, and located upon the same lot as, the principal use: bed and breakfast, restaurant, ...