IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Marina Elnitski, Maison Lodging, :

LLC and Doug Colkitt :

 :

v. : No. 762 C.D. 2023

 : Submitted: June 7, 2024

Benner Township Board of :

Supervisors :

:

v. :

 :

Jared L. Evey and Kathy E. Evey :

 :

Appeal of: Marina Elnitski :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE MATTHEW S. WOLF, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: July 9, 2024

Marina Elnitski (Appellant), pro se, appeals from an Order of the Court of 

Common Pleas of Centre County (common pleas) denying Appellant’s appeal from

and affirming a written decision of the Benner Township (Township) Board of 

Supervisors (Board), which denied a conditional use application filed by Appellant.1 

Appellant argues common pleas erred in concluding that the Board did not have 

1 Maison Lodging, LLC and Doug Colkitt also were applicants before the Board but filed 

a notice of nonparticipation in this appeal on August 14, 2023. 
2

adequate time to consider Appellant’s alternative plan and had substantial evidence 

of safety concerns. After review, we affirm.2 

I. BACKGROUND

A. First Application for Conditional Use

On June 3, 2021, Appellant initially submitted to the Board an application for 

conditional use to develop a recreational vehicle (RV) park in the Township (First 

Application). Appellant owns properties identified as Centre County Tax Parcel No. 

12-317-019 (Parcel No. 019) and Centre County Tax Parcel No. 12-317-20 (Parcel 

No. 020) (collectively, the Parcels). (November 1, 2021 Conditional Use Decision 

(First Decision), Background.3) Parcel No. 020 is currently being used as the 

Bellefonte Airport and Parcel No. 019 is currently being used to farm crops. (First 

Decision, Findings of Fact (FOF) ¶¶ 13, 15.) Appellant proposed to subdivide the 

Parcels, reduce the size of Parcel No. 019, and expand Parcel No. 020 to provide 

additional setback from the Bellefonte Airport for development of the RV park. (Id.

¶¶ 16-17.) The Parcels are located in an Agricultural Zoning District, and the Benner 

Township Zoning Ordinance (Ordinance)4lists campgrounds, including RV parks,

as conditional uses in Agricultural Zoning Districts. (Id., Background.) Appellant 

planned for a 100-unit RV park with 60 RV lots and 40 “tiny homes,” each with a 

lot size of 40 feet by 100 feet, for events primarily at the Pennsylvania State 

University (Penn State). (Id., Background & FOF ¶ 35.) 

Multiple hearings were held on the First Application on August 2, 2021, 

September 2, 2021, and October 4, 2021 (collectively, First Application Hearings). 

2 This Court granted Appellant’s Application to Expedite on May 16, 2024. 

3 The First Decision is in the Supplemental Reproduced Record at 327b-343b.

4 BENNER TWP., CENTRE CNTY., PA., ZONING ORDINANCE (2021). 
3

At each hearing, Appellant was not present but was represented by her son, John 

Elnitski.5 (Id., Hearings.) Numerous members of the public testified at each of these 

hearings in opposition to the proposal. (Id.) Many of the concerns posed by the 

public were relative to safety, including increased traffic congestion, proximity to 

the airport, and tailgating activities related to Penn State football games and Penn 

State-related events. For example, relative to proximity of the Bellefonte Airport, a 

representative from the Pennsylvania Department of Transportation, Bureau of 

Aviation, voiced “significant” concerns about having the campground/RV park 

adjacent to the Bellefonte Airport. (See First Decision, FOF ¶¶ 31-34, 47.) Further, 

a member of the public submitted an Air Safety Institute Report that documented 

accidents occurring during flight instruction and testified that an incident at the 

Bellefonte Airport occurred “in November of 2020 where a plane went off the 

runway.” (August 2, 2021 First Application Hr’g Tr. at 119;

6 First Decision, Ex. K.) 

Photos of that incident were also submitted. (August 2, 2021 First Application Hr’g 

Tr. at 119; First Decision, Ex. L.) 

At the conclusion of the First Application Hearings, the Board unanimously 

voted to deny the First Application and issued a written decision on November 1, 

2021 (First Decision). The Board denied the First Application because it “did not 

satisfy all the objective criteria set forth in [Section 14.18 of] the . . . Ordinance for 

a campground/[RV] park use” including a lack of adequate toilet facilities, screening 

of adjoining properties, appropriate setbacks and spacing for the RV spots, lighting, 

recreational areas, and a dump station. (First Decision, Conclusions of Law (COL)

5 The First Decision mistakenly identifies Mr. Elnitski as the “mother of the owner of the 

subject properties[.]” (First Decision, Hearings (emphasis added).) However, it is clear from the 

record that Mr. Elnitski is the son of Appellant. 

6 The August 2, 2021 First Application Hearing Transcript can be found in the 

Supplemental Reproduced Record at 173b-204b. 
4

¶¶ 15-21.) The Board also found that the First Application “would be harmful to the 

health, safety and welfare of the community” “in which it is proposed to be located.” 

(Id. ¶ 22.) 

B. Second Application for Conditional Use

Appellant did not appeal the First Decision, but, rather, filed a second 

conditional use application on October 25, 2021 (Second Application). Appellant 

again proposed a RV park on the Parcels with 100 total lots, an internal road system, 

recreational areas, stormwater management facilities, utility services, and a 

clubhouse. (January 3, 2021 Conditional Use Decision (Second Decision), 

Background.) Appellant eliminated the “tiny homes” and instead proposed 60 RV 

lots designated as “RV-A Spaces” and 40 lots designated as “RV-B Spaces.” (Id.) 

The RV-A Spaces would be 40 feet by 100 feet and the RV-B spaces would be 45 

feet by 90 feet or 70 feet by 70 feet. (Id.) The Second Application focused on the 

deficiencies cited by the Board in denying the First Application. One of those 

deficiencies, relevantly, was that the First Application did not have the requisite 

recreational area under Section 14.18(K) of the Ordinance, which requires that “a 

minimum of 20[%] of the gross area of the campground [] be devoted to active and 

passive recreational facilities.” Ordinance § 14.18(K).

7

 Appellant proposed that the 

grass area between RV-A Spaces and RV-B Spaces be calculated toward the 

requisite recreational area under Section 14.18(K). Appellant thereafter submitted 

an amended Second Application on December 1, 2021, with revisions submitted on 

December 7, 2021, designating three alternative areas for recreational space labeled 

7 Relevant sections of the Ordinance are in the Supplemental Reproduced Record at 345b349b. 
5

as consisting of 0.66 acres, 1.03 acres, and 5.19 acres rather than counting the grass 

area between each RV space (Amended Second Application).

8

 

A hearing was held on December 9, 2021 (Second Application Hearing). Mr.

Elnitski again appeared on behalf of Appellant. Mr. Elnitski began his testimony by 

stating that he would be addressing the “highlight[ed]” deficiencies cited by the 

Board in the First Decision. (Second Application Hr’g Tr. at 10.)9 Mr. Elnitski 

stated he would not address the criteria of the Ordinance that the Board found were 

met in the First Application, (id. at 11), and the Board could take notice of the First 

Application and the information obtained at the First Application Hearings to 

supplement any issues not covered in the Second Application Hearing, (Second 

Decision, FOF ¶ 43). Mr. Elnitski structured his presentation by taking the list of 

deficiencies cited by the Board in the First Decision and stating that those 

deficiencies have now been cured. For illustration, beginning with the criteria for 

“outdoor play areas being screened[,]” Mr. Elnitski testified that “we put up a sixfoot privacy fence . . . so it blocks all the residents that are there. So we meet that 

objective criteria now because the outdoor play area within the park is . . . screened 

by that fence.” (Second Application Hr’g Tr. at 11-12.) The Board had no questions, 

so Mr. Elnitski moved to the requirement to have “use of outdoor play areas [] be 

8

It is unclear exactly when and how many times Appellant amended the Second 

Application. The Board states that Appellant amended the Second Application once on December 

1, 2021. (Second Decision, Background.) Common pleas states that Appellant amended the 

Second Application twice – once on December 1, 2021, and again on December 7, 2021. 

(Common pleas Opinion (Op.) at 2.) It appears that Appellant, in a Supplemental Reply Brief 

submitted to common pleas, designated an exhibit (Exhibit B) as the “Reduced 12/7/2021 

Conditional Use Plan.” (See Original Record Item No. 42, Ex. B.) It appears that Exhibit B is the 

same plan that the Board considered as the Amended Second Application in the Second Decision. 

(See Second Decision, Ex. 3.) 

9 The Second Application Hearing Transcript can be found in the Supplemental 

Reproduced Record at 5b-101b. 
6

limited to registered guests and visitors.” (Id. at 12.) Mr. Elnitski pointed to the 

map of the proposed RV park and stated that “[w]e added that to the plan” and asked 

if the Board had any questions, which it did not. (Id.) So, Mr. Elnitski moved to the 

next requirement of the Ordinance that the Board cited as deficient in the First 

Decision. This pattern continued for the remainder of the deficient requirements. 

Relevant to this matter, Mr. Elnitski later discussed the requisite recreational area

under Section 14.18(K), which the Board found deficient in the First Decision. The 

entirety of the discussion between Mr. Elnitski, Randy Moyer, Chairman of the 

Board (Mr. Moyer), and Rodney A. Beard, Township Solicitor (Mr. Beard), 

concerning the recreation/recreational or “rec” areas was follows: 

Mr. Elnitski: . . . [W]e’re designat[ing] rec areas as next to the RV 

spot[s]. . . . 

[. . . .] 

There is nothing in the [O]rdinance that says that that area can’t be used 

as rec area. The only thing I could find, I couldn’t find any case law. I 

asked the attorney if [he] could find any case law, he couldn’t. I did 

send to him a zoning ordinance from Washington that said outside the 

pad, the parking pad for [a] RV, that area could be used for open space 

and rec. . . . 

[. . . .] 

Now, in the alternative that it goes to [development] and we want to 

talk more about this, we’ve shown alternate, not – what we need is six 

acres of rec spot. We have on the plan alternative rec areas that amass

over six [acres] if we have to go that route. So we have the rec area, 

but we would rather designate the rec area at the campsites for now and 

then move on and when we go into development we hash all these 

things out about the rec areas, what we’re going to put there, that type 

of thing, so any questions on that? 

Mr. [] Moyer: No. 
7

Mr. Elnitski: [Mr. Beard], do you have anything? 

Mr. Beard: The only thing I would add is . . . some assistance with 

interpreting the [O]rdinance provisions pertaining to the required 

recreation areas. 

The . . . [O]rdinance defines passive recreation area and active 

recreation area. It does not actually say what specific places are 

calculated as recreation area. It does give examples of what [it] mean[s]

by passive recreation and active recreation. 

When I looked at that in our [O]rdinance, my interpretation is that the 

notion of a recreation area is something that is for the entire, all the 

patrons of the park would be able to use. The individual campsites are 

for individual, you know, patrons to say, hey, this is my space, I can 

exclude others from this space. Even though there might be a picnic 

table there, it doesn’t mean that the patron in [l]ot [n]umber 88 can go 

use the picnic table in [l]ot [n]umber 6. I would anticipate that the folks 

in [lot] [n]umber 6 would not want the folks from [lot] [n]umber 88 

coming down and using their picnic table. So I interpreted the 

definition and the examples given in our [O]rdinance as pertaining to 

the public recreation areas that all patrons of the park could use. That’s 

why my recommendation . . . was not [to] include the individual 

campsites spaces, even though they are outside the pad where a unit 

may be parked. My recommendation was to not include those 

individual spaces as part of the calculation of the recreation area. That’s 

the way I interpreted it. 

Mr. Elnitski: But that was before I gave you a concrete example . . .

and our [O]rdinance here . . . does not say we can’t do that. And you 

can’t impose something on me unless you address it in the [O]rdinance. 

And I have – I can show that it has been used as passive rec. Now we’re 

not going to restrict anybody from going to one spot to the other. We’re 

not going to have a policy like that. And that one picnic table could 

house three campers of people that went together, okay, picnicking 

counts as rec. We’re putting more land per spot because what we could 

do is we could put everybody tighter and then put a square of rec area 

somewhere else. Okay. 

We think it’s beneficial to everybody, including the [T]ownship, that 

we take this approach, but we do have the rec area and other areas as 

an alternate. I think that is something we’ll work out in development. 
8

[. . . .]

Mr. [] Moyer: I don’t – yeah, I mean, I don’t – if our [O]rdinance says 

that, that’s fine. I mean, but, you know, if I was camping and I wouldn’t 

–

Mr. Elnitski: Well, yeah. 

Mr. [] Moyer: – want to rent a pad and then have no say in who’s sitting 

at my table. 

Mr. Elnitski: Right, and I don’t expect that to happen. 

Mr. [] Moyer: That doesn’t make much sense. 

Mr. Elnitski: But at the same time, [the space between each RV-A and 

RV-B spots] can count as rec area, the way I view it. 

Mr. [] Moyer: Okay, well I guess –

Mr. Elnitski: [ B]ut we have the right amount of rec area no matter 

what with the –

Mr. [] Moyer: That was my next question –

Mr. Elnitski: Yes. 

Mr. [] Moyer: – you meet it regardless? 

Mr. Elnitski: Regardless. 

Mr. [] Moyer: Okay. That’s what I –

Mr. Elnitski: Okay. But we want to be open with you what we are 

trying to. 

Mr. [] Moyer: Right. 

[. . . .] 

Mr. [] Moyer: . . . . I was just trying to make sense of it because I know 

when I went camping I thought I was renting the facilities of [l]ot 
9

[n]umber 4, [l]ot [n]umber [6], but anyway you meet it, so it’s not worth 

talking about. 

(Second Application Hr’g Tr. at 14-21.)

In addition, to preliminarily rebut any contention that the proposed use will 

generate increased traffic congestion, Mr. Elnitski presented Greg Shrock, an 

engineer (Mr. Schrock), who testified that the traffic generation does not meet the 

Ordinance’s requirement for a traffic study because it is so low volume. (Id. at 29-

30.) Members of the public then testified in opposition citing similar safety concerns 

as in the First Application Hearings relative to increased traffic congestion, 

proximity to the Bellefonte Airport, and tailgating activities related to Penn State 

football games and Penn State-related events. At the conclusion of the Second 

Application Hearing, the Board unanimously voted to deny. 

The Board issued the Second Decision on January 3, 2022. The Board 

explained that members of the public testified in opposition and cited “safety issues, 

increased traffic, possible alcohol use/abuse at the campground during Penn State 

events, and noise.” (Second Decision, FOF ¶ 33.) The Board found that the 

proposed use of a RV park will “generate significant additional traffic when campers 

and RVs are moving into and out of the campground/RV park.” (Id. ¶ 26.) The 

Board further found that the primary intended purpose of the RV park will be to 

accommodate attendees of Penn State football games and other Penn State-related 

events. (Id. ¶ 27.) In addition to being adjacent to the Bellefonte Airport, which is 

used as a training facility for inexperienced pilots, the Parcels are located 

approximately 500 feet from a public elementary school and an equestrian facility. 

(Id. ¶¶ 23, 35, 37-38.) As the Parcels and surrounding area currently exist, the Board 

found that there are no traffic control measures to address the large RVs and campers 

that will generate significant additional traffic along with the school buses. (Id. ¶
10

30.) The Board also found that individuals staying at the RV park for Penn State 

football games or events will “materially increase safety concerns” from “tailgating 

and reveling activities in close proximity to” the Bellefonte Airport, an equestrian 

facility, and adjoining residences. (Id. ¶ 37.) The Board summarized that members 

of the public testified that “the location of the use is not a good fit for the Township[,

that] the proposed use will change the essential character of the neighborhood[,]” 

which the Board described as “currently low density residential and agricultural[,]” 

and that the Bellefonte Airport “provides pilot training and flight instruction [of] . . 

. inexperienced pilots that increases the likelihood of accidents.” (Id. ¶¶ 31, 34-35.) 

The Board further found that the Second Application only contained “minimal 

recreational areas” as required under the Ordinance. (Id. ¶ 41.) The Board explained 

that at the Second Application Hearing, Mr. Elnitski testified that the space between 

each RV spot should be included in the calculation of required recreation area. (Id.) 

The Board noted that Mr. Beard explained that under the Ordinance, recreation areas 

were “intended to be open and utilizable by all patrons of the campground facility[,]”

and, as such, Mr. Beard opined that the space between each individual RV spot

“occupied exclusively by individual campers” should not be included in the 

calculation of required recreational area space. (Id. ¶ 42.) There was no discussion 

relative to the alternative recreational area proposed in the Amended Second 

Application. 

The Board thus concluded, again, that Appellant did not meet the objective 

criteria for a campground/RV park under the Ordinance as there was not “adequate 

area for active and passive recreation.” (Second Decision, COL ¶¶ 13-14.) Because 

Appellant did not meet her burden, the Board explained that the burden never shifted 

to objectors; however, the Board noted that objectors presented credible evidence 
11

that the proposed conditional use would alter the character of the surrounding area 

and would be harmful to the general health, safety[,] and welfare. (Id. ¶ 15.) 

Specifically, the Board noted “the proposed conditional use, as presented, would 

alter the essential character of the neighborhood”; “[t]he proposed conditional use 

presents significant safety concerns . . . [by] promot[ing] the aggregation of 

individuals in a dense campground/RV park setting near an operating airport used 

for . . . flight training purposes[ ] exposing patrons of the campground and the public 

to risk of accidents”; “[t]he proposed conditional use presents significant safety 

concerns . . . [by] promot[ing] the aggregation of individuals attending Penn State 

football games and engaging in tailgating activities near an operating airport and an 

adjoining equestrian facility”; “[t]he proposed conditional use is harmful to the 

health, safety[,] and welfare of the community . . . [by] promot[ing] the aggregation 

of individuals attending Penn State football games and engaging in tailgating 

activities near adjoining residential properties”; “[t]he proposed conditional use is 

not in harmony with the orderly and appropriate development of the area where the 

proposed conditional use is to be located”; and “[t]he nature and intensity of the 

operations encompassed within the proposed conditional use are not in harmony 

with the orderly and appropriate development of the area where the proposed 

conditional use is to be located.” (Id. ¶¶ 16-19, 21-22.) 

In sum, the Board concluded:

Although campgrounds and RV parks may be permitted as a 

conditional use in the Agricultural Zoning District of the Township, the 

proposed location of the campground/RV park that is the subject of this 

application make it unsuitable in light of the general health, safety, and 

welfare concerns of the community and neighborhood where it is 

proposed to be located.

(Id. ¶ 24.) 
12

C. Appeal to Common Pleas

Appellant appealed to common pleas, which did not take additional 

evidence.

10

 In its Opinion, common pleas first addressed Appellant’s argument that 

the Second Application proposed adequate recreational area by including the area in 

between each RV-A and RV-B space. Common pleas explained that to meet Section 

14.18(K) of the Ordinance, Appellant would have had to demonstrate that

approximately six acres of land in the RV park were being dedicated as active and 

passive recreational area. Common pleas explained that the Board considered the 

exclusivity of each RV spot and concluded that the space in between each spot was 

not devoted to active or passive recreational areas, which are to be communal in 

nature. Although the space between each RV spot could be used as recreational area, 

the primary purpose of these areas was to provide space for each individual spot. 

Thus, these spaces could not be used in the calculation of the six acres of required 

recreational space. Common pleas concluded “this is a reasonable interpretation of 

the Ordinance and the Board’s decision was supported by substantial evidence.” 

(Common pleas’ Op. at 3-4.) 

Common pleas then addressed Appellant’s argument that the Board should 

have considered the alternative acreage proposed in the Amended Second 

Application. Common pleas concluded that the alternative plan only proposed 5.19 

10 Argument was held on January 16, 2023, in front of Senior Judge Daniel J. Milliron. 

Due to emergency circumstances, Senior Judge Milliron could not render a decision, and this 

matter was transferred to President Judge Jonathan D. Grine. President Judge Grine requested a 

transcript of the January 16, 2023 hearing and supplemented the record in this matter with the 

record from the First Application. However, common pleas noted that the First Application was 

necessarily part of the Second Application and would have been considered by the Board in 

resolving that application; therefore, common pleas explained, it did not take additional evidence 

at any stage of the proceeding. (Common pleas’ Op. at 3.) 
13

acres of recreational area adjacent to the Bellefonte Airport’s runway.11 (Id. at 4.) 

Common pleas noted that Appellant amended the Second Application “a few days 

prior to the December 9, 2021 hearing[.]” (Id.) Common pleas opined that 

amendments to conditional use applications are generally permissible, but only if 

there is enough time for the Board to review and for the opposing party to prepare a 

defense. (Id. (citing In re Arnold, 984 A.2d 1 (Pa. Cmwlth. 2009)).) Common pleas 

stated that for the Board to have given adequate attention to the alternative plan at 

the Second Application Hearing would have required the Board to evaluate two 

applications at once. In addition, common pleas noted that the discussion at the 

Second Application Hearing regarding the alternative plan “was limited to a brief 

statement by [Mr. Elnitski] stating the alternative plan would meet the recreational 

area quota, without much, if any, discussion of any potential risks of such an 

alternative.” (Id. at 4-5.) Even if Appellant had given the Board adequate time to 

review the alternative plan, common pleas noted that “there is enough evidence to 

support a finding of substantial harm to the community and safety issues.” (Id. at 

5.) Relevantly, common pleas determined there was substantial evidence of safety 

concerns due to the proximity of the Bellefonte Airport and increased traffic 

congestion.12 Appellant appealed to this Court. 

11 Although common pleas stated the Amended Second Application proposed 5.19 acres 

of alternative recreational area, the plan appears to show two additional areas labeled as alternative 

recreational areas of 0.66 acres and 1.03 acres.

12 Common pleas also noted that the doctrines of res judicata and collateral estoppel are 

not applicable here as the First Application and Second Application, although relating to the same 

property for the same use, “are not the same.” (Common pleas’ Op. at 5.) 
14

II. PARTIES’ ARGUMENTS

Appellant first contends that common pleas13 erred in concluding there was 

not enough time for the Board to review Appellant’s alternative plan regarding the 

required recreational space under Section 14.18(K) of the Ordinance. According to 

Appellant, In re Arnold was erroneously cited by common pleas and actually 

supports Appellant’s argument. Specifically, Appellant contends that In re Arnold

stands for the proposition that where an applicant amends a conditional use

application to bring the plan into compliance with a zoning ordinance, those 

amendments are permissible and, here, Appellant amended the Second Application 

to bring the plan into compliance with Section 14.18(K) of the Ordinance. Appellant 

challenges common pleas’ discussion as to the timing of the amended plan because 

the Board did not discuss timing as an issue in the Second Decision. Appellant 

explains that the alternative acreage proposed in the Amended Second Application 

“is a backup, so the issue could be presented . . . [at] the planning phase for the 

[T]ownship.” (Appellant’s Brief (Br.) at 10.) In describing how the alternative 

acreage was discussed at the Second Application Hearing, Appellant stated that 

“[Mr.] Moyer asked if [] Appellant met the [O]rdinance for recreational area and 

[Mr. Elnitski] answered yes.” (Id. at 11.) Appellant complains that the Board “had 

a one sentence [declaration] that there was not enough recreational area in” the 

Second Decision and contends that “[t]he [T]ownship had [the] following options 

during the hearing[:] The [Township] or [its] attorney could have asked more 

13 Appellant erroneously challenges common pleas’ Opinion. However, in a land use 

appeal where common pleas takes no additional evidence, this Court’s review “is limited to 

determining whether the . . . [B]oard committed an error of law, or whether the [B]oard’s findings 

are supported by substantial evidence.” Tennyson v. Zoning Hearing Bd. of W. Bradford Twp., 

952 A.2d 739, 743 n.4 (Pa. Cmwlth. 2008) (emphasis added). We will consider Appellant’s 

arguments as if they were properly addressed as challenges to the Board’s Second Decision. 
15

questions about the alternative recreational area or had a continuance of the hearing, 

which they had no problem doing in the [F]irst [A]pplication on other issues.” (Id.) 

Appellant secondly argues that common pleas erred in concluding that there 

was substantial evidence of increased traffic congestion and cites Bailey v. Upper 

Southampton Township, 690 A.2d 1324 (Pa. Cmwlth. 1997), and In re Cutler Group, 

Inc., 880 A.2d 39 (Pa. Cmwlth. 2005), to support her argument. Appellant explains

that Mr. Schrock testified at the Second Application Hearing that the traffic 

generated by the RV park would not meet the Ordinance’s requirement for a traffic 

study. Appellant further explains that 40 out of 100 RV spots will already have RVs 

stationed. Appellant lastly challenges the sufficiency of the evidence regarding the 

RV park’s proximity to the Bellefonte Airport and what specific safety concerns 

objectors had on this basis. 

The Board and Jared L. Evey and Kathy E. Evey, who intervened before 

common pleas, (collectively, Appellees), respond that common pleas did not 

exclusively rely on the fact that Appellant presented an alternative plan a few days 

before the Second Application Hearing in concluding that the Board did not err in 

denying the Second Application. Appellees explain that common pleas also relied 

on safety concerns relative to increased traffic congestion and proximity to the 

Bellefonte Airport. Further, Appellees point to tailgating activities as an additional 

safety concern. Appellees dispute Appellant’s use of Bailey and Cutler Group to 

support Appellant’s argument that there was not substantial evidence of increased 

traffic congestion. Appellees rather contend that there was ample testimony of

safety concerns relative to increased traffic congestion and tailgating activities from 

Penn State football games and Penn State-related events in the record. 
16

Appellant filed a Reply Brief, restating many of the arguments presented in 

her principal Brief, including concerns about the lack of evidentiary support for the 

Board’s safety concerns. Appellant contends that Appellees are attempting to 

“create a series of boogeymen and us[e] fear mongering to influence the [C]ourt.” 

(Reply Br. at 1.)14 For example, Appellant argues that Appellees’ discussion of 

concerns regarding tailgating activities is an attempt to “convince and scare the 

[C]ourt that the campground will be filled with intoxicated tailgaters[;]” however,

Appellant will not promote tailgating. (Id. at 2, 6.) In sum, Appellant argues that 

Appellees have only presented mere concerns about safety issues and did not point 

to evidence of record to support their concerns. 

III. ANALYSIS

A. Applicable Law

Section 603(c)(2) of the Pennsylvania Municipalities Planning Code (MPC)15

provides, in relevant part, that a zoning ordinance may have “provisions for 

conditional uses to be allowed or denied by the governing body after

recommendations by the planning agency and hearing, pursuant to express standards 

and criteria set forth in the zoning ordinances.” 53 P.S. § 10603(c)(2). In other 

words, a conditional use is a use that the applicant is “entitled” to, but only if “the 

specific standards enumerated in the ordinance for the [conditional use] are met[.]” 

In re Thompson, 896 A.2d 659, 670 (Pa. Cmwlth. 2006). Applications for 

conditional uses are considered on a case-by-case basis because the language of the 

relevant ordinances will differ. Id. at 671. 

14 Appellant numbers her arguments in her Reply Brief, but also uses numbered pages. We 

will refer to the numbered pages in our citations. 

15 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10603(c)(2). 
17

In applications for conditional uses, there is a burden-shifting framework. 

First, “the applicant must demonstrate its entitlement to a [conditional use] by 

establishing compliance with the specific objective requirements . . . [as] detailed in 

the ordinance.” Sheetz, Inc. v. Phoenixville Borough Council, 804 A.2d 113, 115 

(Pa. Cmwlth. 2002). The applicant must demonstrate its entitlement by “adduc[ing] 

testimony sufficient to support a conclusion that the criteria of the ordinance have 

been met.” Robert M. Anderson, Law of Zoning in Pennsylvania § 18.10 (1982). If 

the applicant satisfies this burden, a presumption is created that “the proposed use is 

consistent with the general welfare.” Aldridge v. Jackson Township, 983 A.2d 247, 

253 (Pa. Cmwlth. 2009). “[T]he burden then shifts to any objectors to establish that 

the proposed [conditional use] would be detrimental to the public health, safety[,] 

and welfare.” Sheetz, 804 A.2d at 115. The objectors must prove “to a high degree 

of probability[ that] the proposed use will adversely affect the public welfare in a 

way not normally expected from the type of use.” Aldridge, 983 A.2d at 253. 

A conditional use application “falls within the jurisdiction of the municipal 

governing body rather than the zoning hearing board.” In re Thompson, 896 A.2d

at 670. As the municipal governing body considers the conditional use application 

in the first instance, “[a] reviewing court must accept the credibility determinations 

made by the municipal body which hears the testimony, evaluates the credibility of 

the witnesses[,] and serves as fact finder.” Id. at 668. Where the record establishes

substantial evidence to support the municipal body’s findings of fact, reviewing 

courts, including this Court, are bound. See id. (“Assuming the record demonstrates 

the existence of substantial evidence, the court is bound by the municipal body’s 

findings which are the result of resolutions of credibility and conflicting testimony.”) 

“It is for the [b]oard to determine whether the applicant has, by credible evidence, 
18

satisfied the substantive criteria in the [z]oning [o]rdinance for a conditional use.” 

Brookview Solar I, LLC v. Mount Joy Twp. Bd. of Supervisors, 305 A.3d 1222, 1237 

(Pa. Cmwlth. 2023). It is not the duty of the municipal government entity to 

“advocate in these matters[,]” and it has “no duty to present evidence on the criteria 

which the [applicant] had the duty to support.” Rubin v. Zoning Bd. of Adjustment 

of Phila., 274 A.2d 208, 210 (Pa. Cmwlth. 1971). 

Section 14.18(A) of the Ordinance provides that a campground, including a 

RV park, is a permitted use in an Agricultural Zoning District if it meets the 

requirements enumerated in that Section, including, relevant here, that “[a] 

minimum of 20[%]of the gross area of the campground shall be devoted to active 

and passive recreational facilities.” Ordinance § 14.18(A), (K). Article 2 of the 

Ordinance defines a “recreation area, active” as “[a]ny area developed in such a 

manner as to be conducive to those activities that fall within the range of active 

recreation. Examples: [A]thletic fields and hard-surfaced courts, pools, large dams, 

bicycle and walking trails, open turf areas and apparatus areas.” Ordinance, Art. 2. 

The Ordinance defines a “recreation area, passive” as “[a]ny area developed in such 

a manner as to be conducive to those activities that fall within the range of passive 

recreation. Examples: [S]cenic vistas, natural areas, craft areas, meeting areas, 

sitting areas, walkways, sunbathing, gardens, streams and impoundments, social 

events, picnicking and spectating areas . . . [.]” Id. 

In addition to the criteria set forth in Section 14.18, Section 21.14 of the 

Ordinance provides: 

Conditional Use – Where the Board . . . , in this Ordinance, has stated 

conditional uses to be granted or denied by the Board . . . pursuant to 

express standards and criteria, the Board . . . shall hear and decide 

requests for such conditional uses in accordance with such standards 

and criteria below: 
19

A. The location of the use, including with respect to the existing or 

future streets giving access to it, is in harmony with the orderly and 

appropriate development for the district in which the use is to be 

located. 

B. The nature and intensity of the operations involved are in harmony 

with the orderly and appropriate development of the district in which 

the use is to be located. 

C. The grant of the conditional use shall not materially increase traffic 

congestion on roads and highways, nor cause nor encourage 

commercial or industrial traffic to use residential streets. 

D. The applicant must meet all specific requirements for the specified 

use in accordance with Article 14, and general requirements in 

accordance with Article 15, herein. 

E. In granting a conditional use, the Board may attach such reasonable 

conditions and safeguards, in addition to those expressed in this 

Ordinance, as it may deem necessary to implement the purposes of this 

Ordinance and the [] MPC . . . . 

Ordinance § 21.14. Therefore, an application seeking to use property zoned in an 

Agricultural Zoning District as a campground or RV park in the Township must meet 

the criteria set forth in both Section 14.18 and Section 21.14 of the Ordinance. 

B. Consideration of the Alternative Plan

Appellant does not argue that the Board erred in concluding that the Second 

Application’s acreage plan, which included acreage between campsites, did not meet 

Section 14.18(K) of the Ordinance; instead, she argues that In re Arnold supports 

her argument that the Amended Second Application was permissible and should 

have been considered by the Board because Appellant’s alternative acreage brought 

the plan into compliance with the Ordinance. In the case of In re Arnold, Walmart 

submitted a conditional use application to a municipal board initially proposing a 
20

gas station on the subject property. Walmart then amended its application to remove 

the gas station. No additional hearing was held on the amended application. After 

noting that “[w]hether amendments require new hearings should be decided on a 

case-by-case basis[,]” this Court explained:

Generally, amendments which do not change the issues should be 

permitted, but a modification in the applicant’s drawings or plans which 

is significant in terms of the issues involved probably requires a remand 

to the zoning officer in cases which must arise by “appeal” . . . or a 

continued hearing in other cases, to afford the opposition time to 

prepare its defense. The obvious exception is the amendment 

designed to conform the application to the requirements of the 

ordinance, as where an applicant who has been seeking three variances 

amends his plans to eliminate the need for one. 

In re Arnold, 984 A.2d at 9 (quoting Robert S. Ryan, Pennsylvania Zoning Law and 

Practice § 9.4.11 (1970)) (emphasis added). Because Walmart withdrew its plans 

to construct a gas station, and “[b]oth the [b]oard and [trial court] [] noted that the 

absence of issues surrounding underground storage tanks at the gas station brought 

the site plan into compliance with the [z]oning [o]rdinance[,]” this Court concluded 

that Walmart properly amended its application without a hearing. Id. at 9-10. 

Here, Appellant amended the Second Application shortly before the Second 

Application Hearing, which took place on December 9, 2021, with the last version 

of the Amended Second Application being submitted on December 7, 2021. 

Common pleas explained that this was just a few days before the hearing, so it was 

not an abuse of discretion for the Board to not consider the alternative because there 

was not adequate time to prepare. (Common pleas’ Op. at 4.) In addition, common 

pleas stated it would have required the Board to essentially consider two separate 

applications simultaneously, and “discussion on the alternative was limited to a brief 

statement by Appellant[] stating the alternative plan would meet the recreational area 
21

quota, without much, if any, discussion of the potential risks of such an alternative.” 

(Id. at 4-5.) We need not resolve whether it was proper for Appellant to amend the 

Second Application just days before the scheduled hearing, however, because even 

if the Amended Second Application was properly before the Board and should have 

been considered by it, Appellant did not meet her burden of establishing the proposal 

satisfied the Ordinance’s requirements.

The case of McGinty v. Zoning Board of Adjustment of City of Pittsburgh, 717 

A.2d 34 (Pa. Cmwlth. 1998), is instructive. In that case, a deli company applied for 

a special exception to expand its restaurant. The special exception would relieve the 

deli company from providing additional parking spaces. To be granted the special 

exception, the deli company had “the initial burden of establishing that the 

modification to the parking requirement [wa]s necessary in order to appropriately 

develop the subject parcel of land because of the land’s unique geographical or 

topographical conditions, or because of its size, shape, or dimensions.” Id. at 37. 

The zoning board granted the deli company a special exception, and the objectors 

appealed arguing that the deli company “failed to establish existence of some unique 

characteristic of the subject property by substantial competent evidence to warrant 

a special exception.” Id. at 36 (emphasis added). The trial court affirmed; however,

this Court reversed. After reciting the burden-shifting framework for special 

exceptions and conditional uses, the Court explained that it did not “find [any] 

testimony . . . specifically addressing the unique characteristics of [the deli 

company’s] land as a detriment to appropriate development.” Id. at 37. The Court 

further explained that the deli company “erroneously focuse[d] on the availability of 

public parking” and the only reference to the applicable zoning ordinance “in the 

transcript” from the hearing was from the deli company’s “representative concerning 
22

his survey of the available public parking in the area.” Id. The Court also rejected 

the deli company’s argument that the zoning board did not have to render any 

findings of fact about the land’s unique characteristics because the board could 

simply look at “where and how the property in question is situated” and “could take 

judicial notice that the parcel has ‘prima facie exceptional geographical 

characteristics.’” Id. (internal quotation marks omitted). This Court explained that 

the deli company had the burden of persuasion regarding the land’s unique 

characteristics. If the deli company met this burden, it is only then that the zoning 

board could fulfill its duty to issue well-reasoned determinations based on 

substantial evidence of record. When the board granted the deli company a special 

exception without rendering any findings of fact relevant to the land’s unique 

characteristics, as that was a required criterion under the applicable ordinance, it 

abused its discretion. Id. at 37-38. 

Similarly, here, there was hardly any testimony from Mr. Elnitski, on behalf 

of Appellant, relative to how the Amended Second Application’s alternative 

acreage plan met the criteria of the Ordinance in order to be properly 

considered as requisite recreational area. Mr. Elnitski rather focused his 

testimony on the original Second Application’s acreage plan, which included the 

land at the individual RV spots, and that plan was rejected as a proper method of 

calculation by the Board. (See Second Application Hr’g Tr. at 14-21.) While 

Appellant appealed that determination initially to common pleas, which agreed with 

the Board’s interpretation of the Ordinance, Appellant has not challenged that 

finding further. Instead, Appellant has focused solely on the alternative acreage plan 

proposed in the Amended Second Application. However, in relation to that specific 

proposal, Mr. Elnitski simply testified that it met the requirements of the Ordinance 
23

and posited that the specifics of the plan would be “hash[ed] . . . out” further along 

in the development process instead of explaining the alternative plan to the Board at 

that time. (See id. at 15.) Unlike Walmart in the case of In re Arnold, Appellant did 

not withdraw the Second Application when she submitted the Amended Second 

Application. Rather, Appellant proposed two plans to the Board—the Second 

Application and the Amended Second Application—and expected the Board to 

choose which plan better fit the criteria of the Ordinance. Appellant cannot make 

the Board rely on submission of the Amended Second Application alone, rely on a 

bare assertion that Appellant met the recreational area requirement, or choose which 

of two plans better fits the requirements of the Ordinance. McGinty, 717 A.2d at 36. 

Although Appellant claims that the Board could have asked more questions about 

the alternative acreage plan or continued the hearing, it is Appellant’s burden to 

present the Board with “substantial competent evidence” that the proposed plan 

meets the Ordinance’s requirements. Id. Without this competent and substantial 

evidence, the Board cannot fulfill its duty to make well-reasoned determinations

relative to the Second Amended Application’s alternative acreage plan,

16 let alone

be responsible for choosing that plan. The Board “is not an advocate in these matters 

and therefore ha[s] no duty to present evidence on the criteria which [A]ppellant 

ha[s] the duty to support.” Rubin, 274 A.2d at 210. Therefore, Appellant did not 

present the Board with substantial, competent evidence at the Second Application 

Hearing demonstrating how the Amended Second Application met the criteria of the

16 Appellant appears to argue that because the areas labeled as alternative recreational areas 

on the Second Amended Application when added together exceed six acres, Appellant necessarily 

meets the Ordinance’s requirements. However, this view is too simplistic and does not account

for other provisions of the Ordinance that may impact whether that land is suitable for that purpose 

or other factors and considerations that the Board, as factfinder, needs to evaluate before 

concluding the proposed acreage could be properly included in the calculation. 
24

Ordinance, and, thus, the Board could not render well-reasoned determinations 

relative to the Amended Second Application’s alternative plan, and it did not err. 

Because Appellant did not meet her burden, the burden never shifted to 

objectors to show “that the proposed [conditional use] would be detrimental to the 

public health, safety[,] and welfare.” Sheetz, 804 A.2d at 115. Thus, we need not 

address the remainder of Appellant’s arguments.17 

IV. CONCLUSION

In sum, the Board did not err in not considering the alternative plan in the 

Amended Second Application because Appellant did not meet her burden in 

establishing the alternative acreage met the objective requirements of the Ordinance. 

Accordingly, we affirm. 

__________________________________________

RENÉE COHN JUBELIRER, President Judge

17 We note that even if we reached Appellant’s arguments regarding the sufficiency of the 

evidence, the Board had substantial evidence to support its findings that there were safety 

concerns. Namely, regarding the safety concerns about the RV park’s proximity to the Bellefonte 

Airport, a representative from the Pennsylvania Department of Transportation, Bureau of Aviation,

voiced “significant” concerns about having a campground/RV park adjacent to the Bellefonte 

Airport at the First Application hearings. (See First Decision, FOF ¶¶ 31-34, 47.) Also, a member 

of the community submitted an Air Safety Institute Report that documented accidents occurring 

during flight instruction and photos of an incident at the Bellefonte Airport where a plane went off 

the runway in November 2020. (August 2, 2021 First Application Hr’g Tr. at 119; First Decision, 

Exs. K-L.) 

The Board’s Second Decision also highlighted the public’s testimony establishing that the 

location, nature, and intensity of the proposed RV park will not be in harmony with the surrounding 

area, which are requirements under Section 21.14(A)-(B) of the Ordinance. See Ordinance 

§ 21.14(A)-(B). Appellant did not challenge the Board’s findings on this basis, nor was this issue 

addressed by common pleas. Thus, it remains an additional, valid reason for denying the Second 

Application. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Marina Elnitski, Maison Lodging, :

LLC and Doug Colkitt :

 :

v. : No. 762 C.D. 2023

 : 

Benner Township Board of :

Supervisors :

:

v. :

 :

Jared L. Evey and Kathy E. Evey :

 :

Appeal of: Marina Elnitski :

O R D E R

NOW, July 9, 2024, the Order of the Court of Common Pleas of Centre 

County, entered on June 14, 2023, is AFFIRMED. 

__________________________________________

RENÉE COHN JUBELIRER, President Judge