IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lance Shortt and Sandra Shortt, :

Appellants :

:
v. : No. 1401 C.D. 2015 : Argued: February 7, 2017 East Marlborough Township : Zoning Hearing Board :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

H ONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE PELLEGRINI FILED: March 2, 2017

Lance Shortt and Sandra Shortt (collectively, Landowne rs) appeal from

the Court of Common Pleas of Chester County ’s (trial court) order affirming the Zoning Hearing Board (Board) of East Marlbor ough Township ’s (Township) denial of their validity challenge asserting a de jure exclusion of a “place of private assembly” use under the To wnship ’s Zoning Ordinance (Ordinance). We affirm.

I. Landowners own property located at 370 Valley Road, East Marlborough Township, Chester County, Pennsylvania (property) consisting of approximately 11 acres and zoned in the RB Zoning District under th e Township’s Ordinance and Zoning Map.2

The property is improved with the following: a principal dwelling wherein Landowners reside; an accessory dwelling where a relative resides; a converted barn that contains bed and breakfast guest units, a dining are a where breakfast is served to guests and a full kitchen with room for caterers to arrange and set up food; cottages containing bed and breakfast units; an outdoor area immediately adjacent to the barn where a tent may be erected to accommodate outdoor pri vate gatherings; a tennis court; a pavilion and a swimming pool with pool house; a decorative pond with a fountai n; and various out

- buildings such as sheds, a garage

and other similar structures.

In addition to the existing residential dwelling use and b ed and breakfast operation, Landowners now desire to utilize the property for what they contend is a second principal use. Describing this new principal use as a “place of private assembly” use (Proposed Use), Landowners want to lease their property to cu stomers as “a place to accommodate meetings, events, and other private group assemblies, including, without limitation, private parties, business conferences, weddings, seminars and similar activities and may or may not include the providing of catered

mea ls to accommodate the attendees .” (Reproduced Record (R.R.) at 137a.)

Contending that t he Ordinance does not allow the Proposed Use in any of the Township’s zoning districts

, Landowners filed a substan tive validity challenge provided for in Section 916

. 1 ( a ) of the Pennsylvania Municipalities Planning Code
(MPC) 1 contending that the Ordinance is invalid as a de jure exclusion. 2

1 Act of July 31, 1968, P.L. 805, added by Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. § 10916.1. Section 916.1 of the MPC provides, in pertinent part:
(Footnote continued on next page...)3

(continued...)

(a) A landowner who, on substantive grounds, desires to challenge the validity of an ordinance or map or any provision thereof which prohibits or restricts the use or development of land in which he has an interest shall submit the challenge .

. . :

(1) to the zoning hearing board under section 909.1(a)

. . . .

* * *

(c) The submiss ions referred to in subsection[](a) .

. . shall be governed by the following:

(1) In challenges before the zoning hearing board, the challenging party shall make a written request to the board that it hold a hearing on its challenge. The request shall c ontain the reasons for the challenge .

. .

* * *

(5) Based upon the testimony presented at the hearing or hearings .

. . the zoning board .

. . shall determine whether the challenged ordinance or map is defective, as alleged by the landowner. . . . If a challenge heard by a zoning hearing board is found to have merit, the decision of the zoning hearing board shall include recommended amendments to the challenged ordinance which will cure the defects found.

. . .
53 P.S. § 10916.1 (a). Section 909.1 (a) of the MPC provides, in pertinent part:

(a) The zoning hearing board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:

(1) Substantive challenges to the validity of any land use

o rdinance

. . . .

Act of J uly 31, 1968, P.L. 805, as amended, added by Section 87 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10909.1 (a)

.

2 A zoning ordinance is invalid as de jure exclusionary when it totally excludes a legitimate

use. H.R. Miller Co., Inc. v. Board of Supervisors of Lancaster Township
, 605 A.2d 321 (Pa. 1992). (Footnote continued on next page...)4 II.

A. During the course of hearings before the Board on their challenge
, Landowners presented the testimony of Charles J. Frede rick (Frederick), a registered architect, landscape architect and certified planner. Frederick testified that he is a land planner who practices predominantly in southeast Pennsylvania and has been responsible for the preparation of numerous comprehensive plans and zoning ordinances. He stated that the uses surrounding the property range from remnant agricultural, residential and industrial uses with Longwood Gardens to the south

.

Frederick testified that the activities to be conducted on the property a re weddings, bar mitzvahs, birthday parties and events that are fairly substantial in the

number of attendees. He explained that the method of operation for this Proposed Use is to lease the entire property to the party who desire s to host the particular function, except for the Landowners’ and their relative’s residence. Food involved in

these events would not be cooked on

- site, but would be brought in and perhaps heated and arranged and served. The bed and breakfast operation would not be operated as a n independent use during the time that Landowners leased out the property for the Proposed Use. While Frederick opined that the property is suitably equipped for the Proposed Use, he admitted that he has never attended an event at the

(continued...)

A party challenging the lawfulness of the ordinance bears the burden of proving that the ordinance completely excludes a legitimate use. Atiyeh v. Board of Commissioners of the Township of Beth lehem , 41 A.3d 232, 236 (Pa. Cmwlth. 2012). Once the challenger’s burden is met, the burden shifts to the municipality to show that the exclusion is substantially related to the promotion of public health, safety and welfare. Id.5

property and did not have first

- hand knowledge of the scope of the Proposed Use or the noise level of such an operation.

As a land planner, Frederick has never drafted anything like the Proposed Use into an ordinance. He was not aware of any ordinance that allows for a “pl ace of private assembly” use in the surrounding suburban townships, including Montgomery, Delaware, Chester or Bucks Counties. Frederick stated that weddings, receptions, bar mitzvahs, business meetings and other similar assemblages can be

held in hotels and commercial facilities in the Township in compliance with the Ordinance. He also stated that restaurants in any municipality can accommodat e private parties and, size permitting, could hold a wedding reception. Nonetheless, Frederick opined that the P roposed Use cannot be conducted anywhere in the Township as a principal use. He opined that he does not believe the Proposed Use could be conducted as a “restaurant” because he interprets that use category to require

food to be cooked at the location wher e it is served.

B. The Township presented the testimony of Wayne Grafton (Grafton), an expert land planner and the owner of a land use planning firm. Grafton testified that he does planning work on behalf of municipalities and land development regulatio ns and comprehensive plans. He stated that the primary use of the property is residential with an accessory bed and breakfast use. He opined that a “place of private assembly” is not a use but rather a group of functions provided for by multiple uses

lis ted in the Ordinance. Grafton reviewed the Ordinance and believes that the activities proposed by Landowners could be performed as either a hotel or restaurant

use under the Ordinance.6

Regarding the hotel use category, Grafton testified that the hotel

fa cilities in the surrounding area are examples of hotels which provide for functions similar to Landowners’ special events and that lodging, dining, recreation, conference and meeting activities are all integral functions to a hotel. He stated that a hotel is, in fact, located within the Township and is situated in the C

- 2 Commercial Highway Zoning District. He has personally attended business lunches and wine tastings at that hotel and other hotels in the area. Both hotel guests and independent persons c an lease this hotel’s meeting facilities, and this particular hotel is a common venue for local activities and events to occur. He stated that many hotels include conference and/or banquet facilities as integral components of their principal use. He stat ed that while not every hotel has meeting rooms, there has been an evolution in the common definition of hotel to include activities such as pools, kitchens, meeting rooms and reception facilities.

Regarding the restaurant use category, Grafton testified that restaurants are allowed in the Mixed Use District, the Willowdale Multiple Use District, and the

C

- 1 and C

- 2 Commercial Districts. He stated that the Ordinance does not preclude restaurants from hosting functions, including any of the special events requested by

Landowners.

Finding that the Proposed Use is actually just a group of functions already permitted as a hotel and restaurant use , both of which are permitted uses in the MU Multiple Use District, LMU Limited Multiple Use District and the C

- 2 Highway Commercial District, the Board issued an Opinion and Order denying7

Landowners’ challenge and upholding the validity of the Ordinance. 3 T he Board found Grafton more credible than Frederick, and used Grafton’s testimony to support its findings and conclusions.

Landowners timely filed an appeal to the trial court. Taking no additional evidence or testimony, the trial court issued an order dismissing Landowners’ appeal and upholding the Board’s determination. This appeal by

Landowners followed. 4

III.

On appeal, Landowners ’ core contention is that the Ordinance is unconstitutionally exclusionary because it does not permit a primary use for leasing property to private parties regardless of the activities to occur on the property

.

In considering e xclusionary challenges, we have explained :

3 In the alternative, t he Board found the Proposed Use could also be permitted under other permitted use categories in the Ordinance including under the MU and LMU District which permit park s , church es , community center s and similar uses
, theater s or other places of amusement
, a nd indoor and outdoor commercial recreational use. In addition, the AP and RB Districts permit a club or lodge building which could accommodate the Proposed Use.

4 In a zoning appeal where the trial court takes no additional evidence, our scope of review is limited to determining whether the zoning hearing board has committed an error of law or an abuse of discretion. Catholic Social Services Housing Corporation v. Zoning Hearing Board of Edwardsville Borough, 18 A.3d 404 (Pa. Cmwlth. 2011). An abuse of discretion occurs when the findings of the zoning hearing board are not supported by substantial evidence. Id. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.8 Zoning ordinances in Pennsylvania enjoy a presumption of constitutionality and validity, and the party challenging one bears a heavy burden of proving otherwise. In order to overcome this presumption of constit utionality, the challenger must demonstrate that the ordinance totally excludes an otherwise legitimate use. Unless the challenger demonstrates that the ordinance in question completely or effectively excludes a legitimate use, the challenger ha s failed t o carry its burden. To prove total or effective exclusion of a permitted use, the challenger can show that the ordinance is either de jure or de facto exclusionary. A de jure exclusion exists where an ordinance, on its face, totally b ans a legitimate use

. A de facto exclusion exists where an ordinance permits a use on its face, but when applied, acts to prohibit the use throughout the municipality.

Interstate Outdoor Advertising v. Zoning Hearing Board of Warrington T ownship , 39
A.3d 1019, 1024

- 25 (Pa. Cmwlth. 2012) (citations omitted). If the challenger meets this heavy burden, the burden then shifts to the municipality to show, through

evid ence, that the total exclusion “ bears a substantial relationship to the public health, safety, morality, or welf

are.” T ownship of Exeter v. Zoning Hearing B oard of Exeter

T ownship
, 962 A.2d 653, 661 ( Pa. 2009). Such a showing by the municipality will rescue an otherwise exclusionary ordinance from a constitutional challenge.

A.

T urning first to the argument that the Proposed Use constitutes a new

use discrete from other uses , Landowners contend “[s]pecifically, the Proposed

Use is a business use

– t he leasing of specific premises to hold functions such as parties, weddings, seminars, and the like. These function s can be held in any

nu m ber of places: hotels, restaurants , and even private residences. Zoning,
however, does not regulate functions. Rather, the Proposed Use is the leasing of specific premises to hold such functions

. ” ( Landowners ’ Brief at 6. ) What9

Landowners’ argument ignores is that zoning ordinance s do regulate “functions”

– i .e. , uses to which the land is being put

– n ot the business model behind th at use

. For zoning purposes, it is irrelevant whether the function is being carried out by the

ow ner, lessee or licensee because the use and the effects of the use are the same no matter who is the subject of the use

.

In S ultanik v. Board of Supervisors of Worcester Township , 488 A.2d 1197 (Pa. Cmwlth. 1985) , we addressed a similar argument which cl aimed that an

ordinance was exclusionary because it failed to address a different business model in providing for commercial uses. In that case, the landowner argued that the ordinance was exclusionary because it did not provide for a comme rcial “shopping

center” use. We held that a failure to specifically provide for shopping centers

where one owner rents out all the commercial space is not exclusionary “because a shopping center constitutes simply a particular configuration of commercial uses,

rather th an a separate land use category in itself, [and] there is no basis for concluding, as a matter of law, that there is a total exclusion of a legitimate commercial use category.” Id. at 1205.

In East Marlborough Township v. Jensen , 590 A.2d 1321 (Pa. Cmwl th.
1991), a developer again argued that a zoning ordinance was exclusionary because it did not prov ide for a shopping center use. T he developer in that case contended

that the shopping center use was effectively excluded as a result of the zoning
scheme’ s failure to provide sufficient space for developers to construct a modern

style shopping center. In rejecting that argument
, we found that it was not exclusionary because the zoning ordinance permitted each of the shopping center’s
component uses. We al so rejected the contention “that developers have a right to a10

zoning scheme guaranteeing their ability to build a neighborhood shopping center. ‘But [sic] we have found no authority for requiring that every municipality’s zoning ordinance must make provis ion for every planning variation or combination
which has been conceived, nor have the landowners cited any such authority.’” Id. at 1324 (quoting Cambridge Land Company v. Marshall Township
, 560 A.2d 253, 260 (Pa. Cmwlth. 1989)) (corrections in Jensen ).

Similarly, in Montgomery Crossings Associates v. Township of Lower Gwynedd , 758 A.2d 285 (Pa. Cmwlth. 2000), a developer contended that a zoning ordinance explicitly excluded a shopping center use or, in the alternative, effectively excluded the use beca use it did not permit many of its component stores

– i.e. , movie theatres, department stores, indoor recreation facilities, lumber supply

stores, etc.

– to be built at the scale necessary t o ensure profitability. W e reiterated that the developer’s validit y challenge must demonstrate that the zoning ordinance prohibits “certain types of commercial uses that might conceivably occupy a shopping center.” Id. at 287. We then held that the ordinance did not de jure exclude any of the uses implicated under the shopping center. Regarding that developer’s contention that the shopping center was effectively excluded, we explained:

[ W]hile a township must in its zoning scheme provide

for all reasonable uses, it is not required to zone for every business model; if a smaller version of a commercial use may be constructed in the D business district, townships need not zone specifically to allow larger versions to avoid the conclusion that their ordinance is exclusionary. This holding is consistent with the long estab lished rule applicable to residential uses that if an ordinance provides for a particular use, such as apartments, it will not be held11

exclusionary because it limits that use to a particular size building.

Id. at 289 (citing Board of Supervisors of North ampton Township v. Gentsch
, 414 A.2d 1102, 1105 (Pa. Cmwlth. 1980)) (emphasis added)

.

What the above cases demonstrate is that a zoning ordinance is not exclusionary just because it does not have a defined use that recognizes a

landowner ’ s business model or it does not mention every conceivable commercial operation deriving from a combination of legitimate commerci al uses . Rather, the question is whether each of the component uses, not the business model, are accommodated by t he zoning ordinance. Moreov er, a business design that merely attempts to patch together other discrete, commercial uses is not a new, discrete use

that a township has a duty to ensure

.

Similar to a shopping center constituting a particular configuration of
commercial uses, Landown ers’ Proposed Use is best understood a s a business model

that essentially allows someone to lease their property to undertake functions that

Landowners admit
, with some quibbles, are permitted uses in other Township zoning

district s. Although their busine ss model may be different
, as long as the uses for

which the property is being sought are allowed in a Township district under the
Ordinance, the Ordinance is not exclusionary.

B.

Landowners also contend that the Proposed Use is excluded from the

Ordinan ce because its functions do not fall squarely within the definition for hotel. Here, Landowners distinguish the Proposed Use from a hotel use by placing emphasis12

on the fact that hotels primarily provide lodging to guests and are intrinsically open to

the public. 5 In contrast, Landowners contend that under the Proposed Use
, their property would only be available for private guests and the Proposed Use would not involve the provision of lodging, events, food or other services by Landowners.

Simply becaus e a zoning ordinance does not specifically mention a proposed use is not a basis for finding an unconstitutional exclusion of that use. Atiyeh v. Board of Commissioners of the Township of Bethlehem , 41 A.3d 232, 236 (Pa. Cmwlth. 2012). If the proposed us e th at is alleged to be excluded is included within another specifically provided for use in the ordinance , the ordinance is not exclusionary

.

Although the Ordinance does not define “hotel,” the term is normally

understood to mean “an establishment that provides lodging and [usually] meals, entertainment, and various personal services for the public.” Webster’s Ninth New Collegiate Dictionary 583 (1989). Gr afton credibly testified that it is common for hotels to hold private events for weddings, bar mit zvahs, business conferences, etc. He explained that the hotel facilities in the surrounding area are examples of hotels that provide for functions similar to Landowners’ special events and that lodging, dining, recreation, conference and meeting activitie s are all integral functions to a hotel. He also stated that a hotel is, in fact, located within the Township and that he

5 Because Lando wners’ b ed and b reakfast operation on the property is not a principal use, Landowners do not contend that the Proposed Use is an accessory use to it , which the Ordinance defines as “[a] use customarily incidental and subordinate to the principal use on the same Lot.” Section 202 of the East Marlborough Township Zoning Ordinance of 1992

.13

has personally attended business lunches and wine tastings at that hotel and other

hotels in the area.

Given G rafton’s credible tes timony and, more importantly
, that the definition for hotel plainly encompasses providing more than just lodging but also private functions and events and services, it is clear that any activities under the Proposed Use are also permitted under a hotel use

. Moreover, while informative but not determinative, there is nothing to prevent a hotel from leasing out its facilities in the same way as Landowner s want to do in the Proposed U se. J ust because Landowners cannot legally perform the Proposed Use on thei r zoned property does

not mean that it is de jure excluded under the Ordinance

. 6

Accordingly, because there are a number of areas within the Township where the Ordinance permits Landowners to essentially accomplish their Proposed
Use, we affirm the trial court’s order. 7

________________________________ DAN PELLEGRINI, Senior Judge

6 M any of the Proposed Use’s functions are also permitted under the “ restaurant ” use category. The Or dinance defines “restaurant” as “ [a] n establishment where food and be verages are prepared, served, and consumed primarily within the principal building. ” Section 202 of the East Marlborough Township Zoning Ordinance of 1992, as amended , added by Order No. 99

- 1 on February 8, 1999. Here, G rafton credibly testified that res taurants commonly perform hosting functions, including the special events requested by the La ndowners. Moreover, when giv ing the
term the broadest interpretation so as to allow the least restrictive use of the land, the “preparation” of food can obviously take a variety of forms beyond its actual cooking
, including catering services that warm and arrange the food being served

. Accordingly, many, if not all, of the functions under the Proposed Use would be permitted under this use category.

7 Because of t he manner in which we resolve this matter, we do not reach the remainder of Landowner s’ or the Township’s contentions.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lance Shortt and Sandra Shortt, :

Appellants :

:
v. : No. 1401 C.D. 2015

: East Marlborough Township : Zoning Hearing Board :

O R D E R

AND NOW, this 2 nd day of March , 2017, it is hereby ordered that the order of the Court of Common Pleas of Chester County dated July 16, 2015, is

affirmed.

________________________________ DAN PELLEGRINI, Senior Judge