IN THE COMMONWEALTH COURT OF PENNSYLVANIA Board of Supervisors of : Bridgeton Township, : Appellant : : v. : No. 1098 C.D. 2007 : Argued: March 10, 2008 David H. Keller, a/k/a David : H. Keller, III and Carrie C. Keller, : Bucks County Riverboat Company, : Kellers Landing L.L.C. and : Bucks County Trolley Co. : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE McCLOSKEY FILED: April 4, 2008 The Board of Supervisors of Bridgeton Township (hereafter the Township) appeals from an order of the Court of Common Pleas of Bucks County (trial court), which partially granted its motion for a preliminary injunction against David H. Keller a/k/a David H. Keller, III and Carrie C. Keller, Bucks County Riverboat Company, Kellers Landing L.L.C., and Bucks County Trolley Co. (the Kellers). 1 We affirm. The parties first came before this Court in David H. 1 The trial court granted an injunction prohibiting the Kellers from using their property for catered group events, determining that it was an improper expansion of a permitted nonconforming use. The trial court denied the Township s motion for a preliminary injunction as to activities deemed to relate to the Kellers permitted nonconforming use of a boat launch and as to activities that took place on the Delaware River (River).
Keller and Carie [sic] C. Keller, Delaware River Experience v. Zoning Hearing Board of Bridgeton Township, Pa. Cmwlth., No. 1921 C.D. 2005, filed June 30, 2006. In that case, the Kellers sought to establish lawful nonconforming uses as to their property. The evidence therein established that the Kellers are the owners of a parcel of land located at 1469 River Road, Upper Black Eddy, Bridgeton Township, Bucks County, Pennsylvania. They acquired the property in 2003 and, at that time, the property was zoned village residential. 2 The property is approximately one and a half acres in area and contains a framed single-family residential structure, a mobile home, a garage, a paved boat launch, boat docking facilities, public restroom facilities, a camping area, boat storage area, a parking area, and an outdoor area with twelve picnic tables. The Kellers filed an application to the Zoning Hearing Board of Bridgeton Township (Board) requesting a determination that numerous past uses of the property constituted lawful nonconforming uses. They alleged that the nonconforming uses included boat storage; year round boat, kayak and inner tube launching; camping; wedding receptions, birthday parties, family reunions, picnics; yard sales; picture taking facilities; access to fire companies and underwater recovery units for practicing water rescues; use of the framed structure for office units; and parking for all of the related uses. The Kellers also requested a special exception to add an educational use in which a program of environmental education would be offered; to provide a meeting area within the existing frame structure and to include a designated area prior owner. 2 The Kellers purchased the property from H. Lloyd Keller. They are not related to the 2
for outdoor gatherings of up to 200 people. The Kellers further sought an interpretation that the property provided eighty parking spaces and that the spaces were sufficient for the aforementioned uses. In the alternative, the Kellers requested a variance. The Kellers also requested that the Board provide an interpretation that the existing structures on the property comply with the Township s flood plain requirements. A hearing was held before the Board. Following the hearing, the Board determined that the Kellers established a nonconforming use as to the boat launching facility, but failed to establish a nonconforming use as to all other aspects of the property. 3 Thus, the Board denied all of the additional requests to establish nonconforming uses. The Board also denied the Kellers request for a special exception, their request for confirmation as to parking and their request for an interpretation of the Township s flood plain requirements. The Kellers appealed the Board s determination to the trial court. The trial court did not take additional evidence or permit supplementation of the record. Following its review of the record, the trial court affirmed the order of the Board. The Kellers then appealed to this Court. We agreed with the trial court that the only nonconforming use that was established was the boat launching facility and as such, the boat launch was the Kellers only possible source of expansion. We concluded that the proposed use of the property for the above named social functions, educational programs, and office units were not of the same general 3 The Board determined that the boat launching facility had existed on the property and in the past had generated business income. The Board determined that the parking of boat trailers and automobiles on the property would be an extension of the boat launching facility and constituted a nonconforming use. 3
character as a boat launch facility. Therefore, the boat launch use could not be expanded to include social functions, educational programs or office units on the property. Following the Board s 2004 decision permitting the boat launching facility, the Kellers began operating catered and non-catered cruises on the River. Their boat is launched from the boat launching facility that we determined to constitute a lawful nonconforming use. The Kellers also began hosting catered group events on the property and on an attached floating dock. After learning of the new activities taking place at the property, the Township issued a cease-and-desist notice. The Township then filed a complaint and a motion for preliminary injunction with the trial court. The trial court held a hearing as to the motion for preliminary injunction. The hearing was comprised of two witnesses. Mr. Richard O Brien testified concerning the Township s zoning ordinances and David Keller testified as to his current use of the property. Mr. O Brien described the property at issue. He explained that pursuant to Township Ordinance 806.A, new owners of a property may continue a lawful nonconforming use of a property. However, it is the new property owners burden to establish a prior nonconforming use. Mr. O Brien stated that pursuant to prior litigation, the Kellers only established a prior nonconforming use as to a boat launch facility. However, pursuant to his investigation, he discovered that they were operating a boat and holding catered gatherings. Following his investigation, he issued the Kellers a violation notice. At the hearing, Mr. O Brien submitted exhibits in the nature of advertisements the Kellers distributed for riverboat cruises and a trolley shuttle and further provided information with respect to a website run by the Kellers detailing such activities. 4
Mr. Keller testified that after he purchased the property, he decided to replace the existing boat dock. As the dock is in the River, he was required to seek a building permit from the Army Corps of Engineers (ACE). 4 ACE sent a public notice to the Township regarding Mr. Keller s application for a permit. The Township did not respond. Mr. Keller then received a permit to construct a floating dock and platform in the River. Additionally, the Kellers were obligated to lease the submerged lands below the dock from the Pennsylvania Department of Environmental Protection (DEP), for the sum of $250.00 per year. The Kellers lease agreement with DEP provides them with the right to occupy riparian land abutting the River. Mr. Keller testified that he provided catered and non-catered cruises on the River, using his seventy-six-passenger excursion boat. The boat was launched on his property and moored at the dock. Patrons arrive at the property pursuant to their own transportation or by a trolley owned by the Kellers. 5 They then board the boat via the dock. Mr. Keller testified that he provided catered group events on the property, on the boat dock and on the boat. Mr. Keller stated that it was the patron s responsibility to arrange for the food and beverages. When the food and beverages were transported to the property, it was arranged on the property or on the boat pursuant to the patrons instructions. Additionally, the 4 The Kellers were not required to get a permit from the Township in order to build the dock. They were required to seek a permit from ACE, as a portion of the River abutting their property is designated as a United States National Wild and Scenic River System Zone. (Trial court opinion at 7). 5 The trolley is not stored or serviced at the property. The Kellers own four trolleys, which are used to transport patrons throughout Bucks County. 5
Kellers were granted a liquor license from the Pennsylvania Liquor Control Board to serve alcohol on the boat. Mr. Keller testified that the prior owner of the property generated income by charging patrons a fee to launch boats from his property. The prior owner also charged an additional fee based on the number of passengers in the boat. After a boat was launched, the prior owner would tie it to the dock and the passengers would enter and exit the boat from the dock. The trial court determined that the Kellers could launch a boat from the boat launch, operate cruises on the River and provide parking on the property for the patrons for the duration of the cruise. The trial court determined that while the Kellers could provide catered events on the boat, they could not host catered gatherings on the property or on the attached boat dock. 6 The trial court further found that the caterers could park on the property to transport the food and beverages to the boat and that the Kellers could transport the patrons to the property by trolley. However, the trolley could not be stored on the property. The Township now appeals to this Court. The Township is challenging the partial denial of its motion for preliminary injunction. 7 The Township alleges that the trial court erred in permitting the Kellers to dock their boat on the property and use the property for the loading and unloading of patrons, the property. 6 The trial court determined that as the dock was attached to the property it was part of 7 The Kellers argue, in their brief, that the trial court erred in partially granting injunctive relief and placing restrictions on the use of their property. We note that the Kellers did not appeal the partial grant of injunctive relief to this Court. This Court will only consider issues raised by way of a notice of appeal or cross-appeal. Pa. R.A.P. 903, 904. Therefore, we will not address or consider the issues raised by the Kellers involving the partial grant of injunctive relief. 6
caterers and employees. The Township also alleges that the trial court erred in concluding that the Township could not regulate the operation of boat cruises on the River. This case involves the partial denial of a preliminary injunction. In order to obtain a preliminary injunction, a party must establish the following six (6) essential prerequisites: First, a party seeking a preliminary injunction must show that an injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages. Second, the party must show that greater injury would result from refusing an injunction than from granting it, and, concomitantly, that issuance of an injunction will not substantially harm other interested parties in the proceedings. Third, the party must show that a preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct. Fourth, the party seeking an injunction must show that the activity it seeks to restrain is actionable, that its right to relief is clear, and that the wrong is manifest, or, in other words, must show that it is likely to prevail on the merits. Fifth, the party must show that the injunction it seeks is reasonably suited to abate the offending activity. Sixth and finally, the party seeking an injunction must show that a preliminary injunction will not adversely affect the public interest. West Pittsburgh Partnership v. McNeilly, 840 A.2d 498, 505 (Pa. Cmwlth. 2004), citing Summit Towne Centre, Inc. v. The Shoe Show of Rocky Mount, Inc., 573 Pa. 637, 646-7, 828 A.2d 995, 1001 (2003). In reviewing a trial court s decision to deny a preliminary injunction we apply a highly deferential standard of review and consider whether the evidence of record reveals that any apparently 7
reasonable grounds support the trial court s disposition of the preliminary injunction request. Id. As noted by the trial court, the right to expand a nonconforming use to provide for the natural expansion and accommodation of increased trade is a constitutional right protected by the due process clause. Jenkintown Towing Service v. Zoning Hearing Board of Upper Moreland Township, 446 A.2d 716, 718 (Pa. Cmwlth. 1982). [T]he proposed use need not be identical to the current use, but must be sufficiently similar to the nonconforming use as not to constitute a new or different use. Domeisen v. Zoning Hearing Board of O Hara Township, 814 A.2d 851, 856 (Pa. Cmwlth. 2003). This Court has previously determined that the Kellers established a lawful nonconforming use as to a boat launch facility. Mr. Keller testified that this facility involved fees for boat launches and passengers. It also included parking for the boat owners and their passengers. The Kellers current use of the property involves launching their own boat and receiving fees for passengers. It includes parking for the passengers or an option to arrive at the property by trolley. If passengers so choose, they may have food and beverages on the boat. We conclude that the Kellers current use of the property, as permitted by the preliminary injunction, does not differ substantially from its past use. The primary difference is that instead of charging a fee to launch private boats and passengers, the Kellers have launched their own boat and are charging a fee for passengers. In the past, boat owners and passengers traveled to the property in their own vehicle and parked the vehicle and the boat trailer on the property. Now, passengers travel to the property in their own vehicle or have the option of 8
traveling by trolley. Parking a trolley on the property, as opposed to parking a number of individually owned vehicles, does not constitute a new or different use. As to the activities taking place on the Kellers boat, we agree with the trial court that the Township is without authority to regulate activities occurring on the River. The trial court determined that the Township did not have the authority to regulate the activities taking place on the boat, as the activities were not taking place on the property itself. The catered events are taking place on the River and the River is the property of the Commonwealth. Navigable rivers in Pennsylvania are owned by the Commonwealth and land abutting the river is not the personal property of the landowner. Lehigh Falls Fishing Club v. Andrejewski, 735 A.2d 718 (Pa. Super. 1999), petition for allowance of appeal denied, 563 Pa. 702, 761 A.2d 550 (2000). The Delaware River is a navigable river. Lehigh Falls Fishing Club, 735 A.2d at 720. As such, the Kellers were obligated to lease the submerged area under their dock from DEP. As the Kellers property does not include the River or the submerged land below the River that was not leased, the Township s zoning ordinances cannot apply to it. Therefore, the Township cannot prohibit the activities taking place on the boat. As to the issue of walking through the property to place food and beverages on the boat, it is not claimed by the Township that boat owners were prohibited from bringing food and beverages onto their own boats in the past. Instead, passengers are now given the option to hold more formal, catered events on the Kellers boat; and it is the passengers, not the Kellers, who must make arrangements for the delivery of the food and beverages. Thus, the only new activity occurring on the area zoned by the Township is that catering trucks/employees are delivering food and beverages across the property to the boat, 9
as opposed to passengers carrying their own food and beverages to the boat. As such, the Township has not established that this activity is a clear violation of the ordinance or that the Township s right to relief is clear. As our standard of review is merely whether the trial court s determination was reasonable, we reject the Township s allegation of error as to this issue. Accordingly, the order of the trial court is affirmed. JOSEPH F. McCLOSKEY, Senior Judge 10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Board of Supervisors of : Bridgeton Township, : Appellant : : v. : No. 1098 C.D. 2007 : David H. Keller, a/k/a David : H. Keller, III and Carrie C. Keller, : Bucks County Riverboat Company, : Kellers Landing L.L.C. and : Bucks County Trolley Co. : O R D E R AND NOW, this 4 th day of April, 2008, the order of the Court of Common Pleas of Bucks County is affirmed. JOSEPH F. McCLOSKEY, Senior Judge