IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Nicholas Enterprises, Inc., : : Appellant : : v. : No. 1340 C.D. 2014 : Slippery Rock Township Zoning : Argued: April 14, 2015 Hearing Board and Slippery Rock : Township : BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: June 8, 2015 Nicholas Enterprises, Inc. (Applicant) appeals the Order of the Court of Common Pleas of Butler County (trial court) affirming the Decision of the Slippery Rock Township (Township) Zoning Hearing Board (ZHB) denying Applicant s applications for a zoning permit, zoning certificate, and certification of occupancy. The ZHB concluded that Applicant s proposed use did not qualify as a park or playground under the Slippery Rock Township Zoning Ordinance (Zoning Ordinance) because the Zoning Ordinance does not allow commercial uses in the R-1 Low Density Residential District (R-1 District) similar to those

proposed by Applicant. On appeal, Applicant argues that the ZHB erred by not strictly construing the Zoning Ordinance in its favor and by interpreting the Zoning Ordinance to distinguish between a park that is made available to the public free of charge and one that charges a fee. Because the plain meaning of the term parks and playgrounds, left undefined by the Zoning Ordinance is unclear, and the ZHB did not, pursuant to Section 603.1 of the Municipalities Planning Code 1 (MPC), construe the term in favor of Applicant, the property owner, we reverse. Applicant owns two adjoining properties (Property) consisting of approximately 43 acres in Slippery Rock, Pennsylvania. (ZHB Decision, Findings of Fact (FOF) 2-3, 5.) The Property, known as Creek View Manor, lies within a R-1 District under the Zoning Ordinance. (FOF 5.) Under the Zoning Ordinance, R-1 Districts are zones for single-family dwelling and related uses. (Zoning Ordinance 302(F)(1), C.R. Item 20 at 28.) Relevant to this appeal, parks and playgrounds are a permitted use in a R-1 District. 2 (Zoning Ordinance 1 Act of July 31, 1968, P.L. 805, as amended, added by Section 48 of the Act of December 21, 1988, P.L. 1329, 53 P.S. 10603.1. Section 603.1 provides: Id. In interpreting the language of zoning ordinances to determine the extent of the restriction upon the use of the property, the language shall be interpreted, where doubt exists as to the intended meaning of the language written and enacted by the governing body, in favor of the property owner and against any implied extension of the restriction. 2 Other uses that are permitted in the R-1 District are: (1) agriculture; (2) single family housing; (3) essential services; (4) assessory uses; (5) accessory buildings; and (6) family daycare homes. (Zoning Ordinance 306, Table 306, R.R. at 13a.) 2

306, Table 306, R.R. at 13a.) The Zoning Ordinance does not define the term parks and playgrounds and, instead, defines the term Public Parks and Playgrounds as parks and playgrounds which are owned and operated by the Township of Slippery Rock or by an authority created for such purposes by the Township of Slippery Rock. (Zoning Ordinance 202, R.R. at 12a.) (emphasis added). On December 7, 2012, Applicant submitted an application to Harold McDowell, the Township Zoning Officer (Zoning Officer) for a zoning permit and zoning certificate, and an application for a certificate of occupancy. (FOF 8.) Applicant requested that it be permitted to use the Property as a park or playground as allowed under Section 306 of the Zoning Ordinance for R-1 Districts. (FOF 8; Supplement to Application for Zoning Permit and Zoning Certificate (Supplement) at 1, R.R. at 8a.) 3 On February 8, 2013, the Zoning 3 Specifically, the application for a zoning permit and zoning certificate stated, in part: Creek View Manor has been in the Nicholas family for many years and has been, and continues to be, used by the family for family reunions, weddings, and retreats, together with recreation and playground use. Creek View Manor consists of a large area of land that includes lawns, woodlands, and pasture, all attached to 2 country homes. In addition, there are several recreational/playground amenities used on the site, including but not limited to: boating, fishing, badminton, volleyball, horse shoe pitching, soccer, softball, football, tire swing and other activities customarily found in a park and playground.... Although the continued use by the family is ongoing and does not require a permit, the owner is requesting a permit... as it intends to permit other individuals to use Creek View Manor for park and playground purposes.... The Owner will permit the use of the Park by third parties for a rental fee only in daily or longer increments. (Supplement at 1, R.R. at 8a.) 3

Officer denied the applications by letter, stating that the proposed use did not qualify as a Parks and Playgrounds use permitted in the R-1 Zone. (FOF 10.) Applicant appealed the Zoning Officer s decision to the ZHB and a public hearing was held on October 29, 2013. In support of its applications, Lisa Nicholas Konesni, representing Applicant, testified as follows. The Property was developed by her grandfather in 1925 and has been in the family since. (Hr g Tr. at 34, R.R. at 47a.) There are two houses on the Property that are used by the family from time to time, but are essentially vacant. (Hr g Tr. at 42, 44, R.R. at 55a, 57a.) Over the years, the family has held numerous events on the Property, including weddings, graduations, soccer practices, reunions, and other outdoor events. (Hr g Tr. at 47-50, R.R. at 60a-63a.) The largest event hosted around 200 people. (Hr g Tr. at 50, R.R. at 63a.) Applicant would like to continue to use the Property for these outdoor events, but also open the Property to the public for a fee. (Hr g Tr. at 52, R.R. at 65a.) Applicant would not provide any services on the Property or conduct any business whatsoever. (Hr g Tr. at 52-53, R.R. at 65a-66a.) Applicant also presented the testimony of the Zoning Officer. When asked whether parks and playgrounds are a permitted use within the R-1 District, the Zoning Officer testified: [t]o my knowledge, my understanding, parks and playgrounds are a permitted use. However, they are permitted only as a public park and playground and must be owned by the municipality, not by private citizens, in the description of the parks and playgrounds. (Hr g Tr. at 11-12, R.R. at 24a-25a.) Upon receiving the applications, the Zoning Officer sent a letter to 4

Applicant on December 17, 2012, asking a series of question on the proposed use of the Property. (Hr g Tr. at 29, R.R. at 42a.) The Zoning Officer testified that he interpreted Applicant s responses as stating that no one would be allowed on the Property that had not paid to enter. (Hr g Tr. at 30, R.R. at 43a.) When asked for his reasons for denying the applications, the Zoning Officer proffered the following information: Q. Okay. And in [the letter denying the application], you did not state a reason for denying the applications, did you? A. No. Q. Okay. But the reason that you did deny it is because it was a private park? A. Just didn t qualify. I did say that in here. The Township of Slippery Rock does not believe your proposal qualifies as parks and playgrounds as listed in the R-1 District under the Township Zoning Ordinance. Q. I ll agree you absolutely said that. My reason is, the reason for it not qualifying, was that because it was a private park? A. That s right. (Hr g Tr. at 15-16, R.R. 28a-29a.) Although, in the Zoning Officer s opinion, the activities proposed disqualified Applicant from using the Property as a park, he further opined that none of the activities listed on the applications would disqualify the Township from operating the Property as a park. (Hr g Tr. at 25, R.R. at 38a.) The Township presented the testimony of its Zoning and Planning Consultant, Richard Grossman. Grossman was contacted by the Zoning Officer to 5

assist in resolving Applicant s applications. (Hr g Tr. at 102, R.R. at 115a.) Grossman reviewed the applications and responses to the December 17, 2012 letter and determined that the Property was not a park or playground pursuant to the Zoning Ordinance. (Hr g Tr. at 103, R.R. at 116a.) His reason for this recommendation was that the provision of accommodations represents a commercial good or service and that this proposal intends to provide overnight accommodations to temporary guests and that seems to be the principal use of the land, combined with the fact that by the Applicant s written response clarified by our later questions, that the activities are primarily commercial, that they re providing a service of overnight accommodations and they re providing a commercial service of, of basically space for public events. (Hr g Tr. at 104, R.R. at 117a.) Grossman opined that, because Applicant would charge for any use of the Property, the Property served as primarily a commercial venture providing goods and services to patrons. (Hr g Tr. at 105, 107, R.R. at 118a, 120a.) In Grossman s opinion, the proposed use of the Property fell within other types of uses, such as transient trailer camps, motels, or outdoor commercial recreation. (Hr g Tr. at 110, R.R. at 123a.) Grossman admitted that private parks are allowed in the R-1 District, but testified that the distinction between whether the Property was used for public or private purposes only fit into his calculus in a minor way because the issue was whether the Property was a park at all, not whether it was a private or public park. (Hr g Tr. at 112, 114, R.R. at 125a, 127a.) On cross-examination, Grossman stated that he recommended rejecting the applications because renting accommodations was the primary use for the Property, but then admitted that overnight accommodations could be consistent with park use. (Hr g Tr. at 115, R.R. at 128a.) 6

In its December 10, 2013 Decision, the ZHB made the following relevant findings of facts. 14. Testimony at the Hearing showed that [Applicant] plans on using the [Property] for outdoor weddings, events and social gatherings while charging fees for the same. The buildings on the [Property] would also be rented for such uses and guests could stay overnight for a fee. 15. The buildings on the [P]roperty are used by the Nicholas family from time to time, but no one lives there on a permanent basis. 16. The Nicholas family has held weddings on the [P]roperty and other private events. 17. [Applicant] will not sell any goods on the [P]roperty. 18. [Applicant] will allow members of the general public to use the buildings, the fields, and the creek for recreational purposes for a rental fee. 19. The renters of the [Property] would be hiring caterers, entertainers, maintenance people and others. The renters would not be allowed to operate businesses on the site such as catering businesses. 20. [Applicant] would be providing commercial services by renting the [Property] to third party users for a rental fee. No third party activities will occur without a fee being paid. 21. The proposed use submitted by [Applicant] does not qualify as a Parks and Playgrounds use. 22. The use proposed by [Applicant] qualifies under a Motel use, Transient Trailer Camp use, a Commercial Recreation Outdoor use, a Commercial Recreation Indoor use, and/or a Commercial 7

Recreation Intensive use, none of which are permitted in the R- 1 Zone. Slippery Rock Township Zoning Ordinance 202 and 306. 23. [Applicant s] intended utilization of the [Property] to rent the [Property] to private individuals is not consistent or harmonious with the uses allowed in the R-1 Zone. (FOF 14-23.) The ZHB concluded that, [u]nder the [Zoning] Ordinance, no entities, whether public, private, or municipal are allowed to operate commercial enterprises under the Parks and Playgrounds use in the R-1 Zone. (ZHB Decision, Conclusions of Law (COL) 4.) As such, the ZHB decided that the proposed use [was] not compatible with the permitted uses in the R-1 Low Density Residential District, which is intended for single-family dwellings and related uses, and denied the applications. (COL 6, 8-9.) The trial court affirmed the ZHB s Decision without taking additional evidence. This appeal followed. 4 The question before this Court is whether the term parks and playgrounds, as used in the Zoning Ordinance, excludes properties that limit entry to only those 4 Where, as here, the trial court has not taken any additional evidence, this Court s scope of review is limited to a determination of whether the zoning hearing board committed an error of law or abused its discretion. Smith v. Zoning Hearing Board of Huntingdon Borough, 734 A.2d 55, 57 n.2 (Pa. Cmwlth. 1999). The issue of whether a proposed use falls within a given category of permitted use in a zoning ordinance is a question of law, subject to this Court s review. Caln Nether Company, L.P. v. Board of Supervisors of Thornbury Township, 840 A.2d 484, 491 (Pa. Cmwlth. 2004). As with all questions of law, our review is plenary. Tennyson v. Zoning Hearing Board of West Bradford Township, 952 A.2d 739, 744 (Pa. Cmwlth 2008). 8

paying a fee and, if so, whether such a restriction is lawful. The text of the Zoning Ordinance does not define the meaning of park or playground. It only defines Public Parks and Playgrounds as parks and playgrounds which are owned and operated by the Township of Slippery Rock or by an authority created for such purposes by the Township of Slippery Rock. (Zoning Ordinance 202, R.R. at 12a.) However, the term Public Parks and Playgrounds is not used anywhere in the Zoning Ordinance s operative provisions. The qualifier public is dropped when the Zoning Ordinance details which uses are permitted in zoning districts. Applicant argues that, under Section 603.1 of the MPC, any doubt as to the intended meaning of the language written and enacted by the governing body, must be interpreted in favor of the property owner and against any implied extension of the restriction. 53 P.S. 10603.1. The Township responds by arguing that, when a term is undefined in an ordinance, courts must look to the common definition of the term. Here, the Township contends, the uses proposed by Applicant are commercial in nature and do not fit within the common definition or interpretation of parks and playgrounds. According to the Township, Applicant s proposed uses are more akin to a Commercial Recreational use[,] which is not permitted within the R-1 District. (Township s Br. at 6.) When interpreting an ordinance, undefined terms are given their plain meaning. Caln Nether Company, L.P. v. Board of Supervisors of Thornbury Township, 840 A.2d 484, 491 (Pa. Cmwlth. 2004); see also Section 201 of the Zoning Ordinance ( Except as defined within this Chapter, all words and phrases shall have their normal meaning and usage. ). Any doubts as to the interpretation of an undefined term must be resolved in favor of the landowner and the least 9

restrictive use of the land. Tobin v. Radnor Township Board of Commissioners, 597 A.2d 1258, 1264 (Pa. Cmwlth. 1991). In conducting our inquiry we may consult definitions found in statutes, regulations or the dictionary for assistance, though these are not controlling. H.E. Rohrer, Inc. v. Zoning Hearing Board of Jackson Township, 808 A.2d 1014, 1017 (Pa. Cmwlth. 2002). Developing a definition of a park based on its common usage proves to be difficult, if not impossible. See Laird v. City of Pittsburg, 54 A. 324, 325 (Pa. 1903) (failing in its attempt to define the term park by resorting to the dictionary and noting that [w]ith the change of manners and habits of the people came also a change in their associations with the use of words ). Some parks are bucolic and left in a natural state, while others are completely paved over and contain manmade features, such as art installations, fountains, basketball or tennis courts, and pools. Some parks are owned by the government and open to the public, and some are private. Some parks allow for camping and overnight guests, while others close at dusk. The sole common defining feature of a park, as gleaned from dictionary definitions, is that all parks are tracts of land reserved for recreational use. 5 Further, no common definition can be derived from statutes or regulations 5 Dictionary definitions of the term do not shed much light on our inquiry. According to Merriam-Webster s a park is defined as: 1. a: an enclosed piece of ground stocked with game and held by royal prescription or grant; b: a tract of land that often includes lawns, woodland, and pasture attached to a country house and is used as a game preserve and for recreation. 2. a: a piece of ground in or near a city or town kept for ornament and recreation; b: an area maintained in its natural state as a public property. Merriam-Webster s Collegiate Dictionary 901 (11 th ed. 2003). The American Heritage Collegiate Dictionary shows the breadth of the term when it defines park as: 10 (Continued )

since the MPC does not define the term, and different zoning ordinances use different definitions. With no adequate definition readily discernable, we turn to the Township s understanding of the term, which was accepted by the ZHB. According to the Township, the plain meaning of the term parks and playgrounds excludes commercial uses similar to that proposed by Applicant. The Township contends that Applicant s proposed uses constitute a commercial undertaking that falls under other zoning districts, but not the R-1 District. Applicant argues that the ZHB erred by accepting the Township s understanding of the term parks and playgrounds and ignoring binding case law by impermissibly distinguishing between two classes of the same use a park made available to the public free of charge and one that is available only if a fee is paid. We agree with Applicant that the Township s understanding of the term is untenable under our most recent case law. In Keener v. Rapho Township Zoning Hearing Board, 79 A.3d 1205 (Pa. Cmwlth. 2013), we analyzed a zoning ordinance that defined parks and playgrounds as facilities designed and used for recreation An area of land set aside for public use, as: a. A piece of land with few or no buildings within or adjoining a town, maintained for recreational and ornamental purposes. b. A landscaped city square. c. A large tract of rural land kept in its natural state and usu. reserved for the enjoyment and recreation of visitors.... 3. A tract of land attached to a country house, esp.[,] when including extensive gardens, woods, pastures, or a game preserve. 4. Sports A stadium or an enclosed playing field.... 6. An area in or near a town designed and usu. zoned for a certain purpose. American Heritage Collegiate Dictionary 1012 (4th ed. 2004). 11

purposes by the general public that are not operated on a commercial basis. Id. at 1207 (emphasis omitted). Like Applicant in the instant matter, the applicant in Keener argued that, but for the limitation on commerce, his property would qualify as a park or playground. Id. at 1208. Because the definition of park in the zoning ordinance excluded commercial uses, we assessed whether the distinction between commercial and non-commercial was valid and reasoned that when determining whether a restriction is valid, courts must look beyond superficial differences to determine if there is a relevant difference between the actual natures of the uses to justify different treatment. To make a legitimate comparison, a deeper analysis of the actions, events, happenings and the type of activities surrounding each use is required. Charging a fee will not always create a genuine distinction in uses. For example, in the case of a fairground operated by a local community and one operated by a private farm owner, the uses are not necessarily different because the county admits one and all for free while the farm owner charges an admission fee. There is simply no justification in that situation to distinguish between the two uses for purposes of permitting a fairgrounds use in a zoning district.... Accordingly, this Court concludes that it was not reasonable for the common pleas court to find that [the applicant] s proposed use did not meet the definition of Parks and Playgrounds... because it was not open to the general public. Id. at 1216-17 (emphasis in original). Although the zoning ordinance in Keener explicitly excluded commercial uses from its definition of parks and playgrounds and the Zoning Ordinance here makes no such distinction, the ZHB s interpretation of the Zoning Ordinance in this case effectively excludes commercial uses. The Zoning Officer and Grossman admitted during their testimony to the ZHB that the proposed uses would be permitted within the R-1 District if the Property was owned and operated by the Township or if Applicant permitted at least some open access to the public. (Hr g 12

Tr. at 25, 123-26, R.R. at 38a, 136a-139a.) Because the Township acknowledged that the only reason the Property is not a park or playground under the Zoning Ordinance is Applicant s plans to limit entry only to those who pay a fee, the Township s definition of the term parks and playgrounds rests on an irrelevant distinction between properties used for private benefit and those used for the general public. Having determined that the plain meaning of the term parks and playgrounds is unclear and the Township s definition untenable, we must interpret parks and playgrounds in favor of the property owner and against any implied extension of the restriction. 53 P.S. 10603.1. Accordingly, we hold that Applicant s proposed use of its Property as a park and playground fits within an R- 1 District under the Zoning Ordinance. For the foregoing reasons, the trial court s Order upholding the ZHB s Decision is reversed. _ RENÉE COHN JUBELIRER, Judge 13

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Nicholas Enterprises, Inc., : : Appellant : : v. : No. 1340 C.D. 2014 : Slippery Rock Township Zoning : Hearing Board and Slippery Rock : Township : O R D E R NOW, June 8, 2015, the Order of the Court of Common Pleas of Butler County, entered in the above-captioned matter, is REVERSED. _ RENÉE COHN JUBELIRER, Judge