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

HONORABLE 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, Landowners) appeal from

the Court of Common Pleas of Chester County’s (trial court) order affirming the 

Zoning Hearing Board (Board) of East Marlborough Township’s (Township) denial 

of their validity challenge asserting a de jure exclusion of a “place of private 

assembly” use under the Township’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 the 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 area 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 private 

gatherings; a tennis court; a pavilion and a swimming pool with pool house; a 

decorative pond with a fountain; and various out-buildings such as sheds, a garage 

and other similar structures.

In addition to the existing residential dwelling use and bed 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 customers 

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 

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

Contending that the Ordinance does not allow the Proposed Use in any 

of the Township’s zoning districts, Landowners filed a substantive validity challenge 

provided for in Section 916.1(a) of the Pennsylvania Municipalities Planning Code 

(MPC)1contending 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 submissions 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 contain 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 

ordinance. . . .

Act of July 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. Frederick (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 are 

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 desires 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 an 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 

Bethlehem, 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 

“place 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 accommodate 

private parties and, size permitting, could hold a wedding reception. Nonetheless, 

Frederick opined that the Proposed 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 where 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 regulations 

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 

listed 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 

facilities 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 can 

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 stated 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 denying 
7

Landowners’ challenge and upholding the validity of the Ordinance.3 The 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 exclusionary challenges, we have explained:

 

3

In the alternative, the 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 

parks, churches, community centers and similar uses, theaters or other places of amusement, and 

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 constitutionality, 

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 has 

failed to 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 bans 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 Township, 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 

evidence, that the total exclusion “bears a substantial relationship to the public health, 

safety, morality, or welfare.” Township of Exeter v. Zoning Hearing Board of Exeter 

Township, 962 A.2d 653, 661 (Pa. 2009). Such a showing by the municipality will 

rescue an otherwise exclusionary ordinance from a constitutional challenge.

A.

Turning 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 – the leasing of specific premises to hold functions such as

parties, weddings, seminars, and the like. These functions can be held in any

number 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.) What
9

Landowners’ argument ignores is that zoning ordinances do regulate “functions” –

i.e., uses to which the land is being put – not the business model behind that use. 

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

owner, 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 Sultanik v. Board of Supervisors of Worcester Township, 488 A.2d 

1197 (Pa. Cmwlth. 1985), we addressed a similar argument which claimed 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 commercial “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 than 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. Cmwlth. 

1991), a developer again argued that a zoning ordinance was exclusionary because 

it did not provide for a shopping center use. The 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 modernstyle 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 also rejected the contention “that developers have a right to a 
10

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 provision 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 because 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 to ensure profitability. We reiterated 

that the developer’s validity 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 established rule 

applicable to residential uses that if an ordinance provides 

for a particular use, such as apartments, it will not be held 
11

exclusionary because it limits that use to a particular size 

building.

Id. at 289 (citing Board of Supervisors of Northampton 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 commercial uses. Rather, the 

question is whether each of the component uses, not the business model, are

accommodated by the zoning ordinance. Moreover, 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, Landowners’ Proposed Use is best understood as 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 

districts. Although their business 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 

Ordinance because its functions do not fall squarely within the definition for hotel. 

Here, Landowners distinguish the Proposed Use from a hotel use by placing emphasis 
12

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 because 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 use that 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). Grafton credibly testified that it is common for 

hotels to hold private events for weddings, bar mitzvahs, 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 activities 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 Landowners’ bed and breakfast 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 Grafton’s credible testimony 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 Landowners want to do in the Proposed Use. Just because 

Landowners cannot legally perform the Proposed Use on their 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 Many of the Proposed Use’s functions are also permitted under the “restaurant” use 

category. The Ordinance defines “restaurant” as “[a]n establishment where food and beverages 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, Grafton credibly testified that restaurants commonly perform hosting 

functions, including the special events requested by the Landowners. Moreover, when giving 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 the manner in which we resolve this matter, we do not reach the remainder of 

Landowners’ 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