E. Salahub v. North Cornwall Twp. ZHB v. ROGC Golf Partners, L.P. ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Elise Salahub, Harold Kreider, :
Heidi Bingeman, Daniel Kreider, :
Marilyn Tyson, and Dan Brickley, :
Appellants :
:
v. : No. 1322 C.D. 2017
: Argued: September 14, 2018
North Cornwall Township :
Zoning Hearing Board :
:
v. :
:
ROGC Golf Partners, L.P. :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge (P.)
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: October 11, 2018
Elise Salahub, Harold Kreider, Heidi Bingeman, Daniel Kreider,
Marilyn Tyson and Dan Brickley (Objectors) appeal from an order of the Court of
Common Pleas of Lebanon County (trial court) affirming the North Cornwall
Township Zoning Hearing Board’s (Board) decision granting a request by ROGC
Golf Partners, L.P. (Landowner)1 for a use variance to operate a bowling alley as
an accessory use on property which is already being utilized as a golf course. For
the following reasons, we reverse.
I.
Landowner owns approximately 154 acres of land located at 3350
Oak Street in North Cornwall Township (Township), Lebanon County,
Pennsylvania (Property). The Property is located within the Township’s
Agricultural Zoning District and contains an existing 18-hole golf course, a use
permitted by special exception within the Township’s Agricultural Zoning District
pursuant to Section 200.C. of the Township’s Official Zoning Ordinance
(Ordinance).2 (Reproduced Record (R.R.) at 5a-6a.) Section 440.E. of the
Ordinance provides that:
Golf courses may include the following accessory uses,
provided such uses are responsibly sized, and located so
as to provide incidental services to the golf course
employees and users:
1. Clubhouse, which may consist of:
a. Restaurant, snack bar, lounge, and
banquet facilities;
1
Landowner filed a praecipe to intervene with the trial court and an appellate brief with
this Court. The Board was precluded from filing briefs or presenting oral argument by an order
of this Court dated March 16, 2018.
2
Section 200.C. of the Ordinance provides that golf courses and driving ranges are uses
permitted by special exception within the Agricultural Zoning District, subject to the
requirements of Section 440 of the Ordinance.
2
b. Locker and rest rooms;
c. Pro shop;
d. Administrative offices;
e. Golf cart and maintenance equipment
storage and service facilities;
f. Guest lodging for those using the golf
course, provided:
• no lodging units have separate exterior
means of ingress/egress;
• all lodging units shall be contained within
the main clubhouse; and,
• such guest lodging shall have a total
occupancy of no more than twenty (20) persons;
g. Fitness and health equipment, including
workout machines, spas, whirlpools, saunas, and steam
rooms;
h. Game rooms, including card tables,
billiards, ping-pong, and, other similar table games; and
i. Baby-sitting rooms and connected fence-
enclosed playlots.
2. Accessory recreation amenities located outside
of a building, including:
a. Driving range, provided that no lighting is
utilized;
b. Practice putting greens;
c. Swimming pools;
d. Tennis, platform tennis, handball,
racquetball, squash, volleyball, and badminton courts;
3
e. Bocce ball, croquet, shuffleboard, quoits,
horseshoe pits, and washer courses;
f. Picnic pavilions, picnic tables, park
benches, and barbeque pits;
g. Hiking, biking, horseback riding and
cross-country ski trails; and,
h. Playground equipment and playlot games,
including 4-square, dodgeball, tetherball, and hopscotch.
3. Freestanding maintenance equipment and supply
buildings and storage yards.
(R.R. at 10a-11a.) In accordance with the Ordinance, the Property’s golf course is
improved with accessory uses including a snack bar, lounge, banquet facility, pro
shop, equipment maintenance facilities, driving range and practice putting greens.
John Caporaletti (Caporaletti), one of Landowner’s general partners,
is also a part owner of Cedar Lanes Bowling Alley (Bowling Alley) located at
1451 Quentin Road also located within the Township. The Bowling Alley was set
to close for business and Landowner sought to move the Bowling Alley’s fixtures,
equipment and operations to an already existing steel-framed building on the
Property. Under the Township Zoning Ordinance, a bowling alley is considered a
commercial recreation facility and is not a permitted use – by right or by special
exception – within the Agricultural Zoning District.3 On December 30, 2015,
Landowner filed a request with the Township that a bowling alley be permitted as
3
Bowling alleys are permitted by right within the Township’s Highway Commercial
Zoning District and by special exception within the Planned Commercial Zoning District.
4
an accessory use to the existing golf course on the Property. By letter dated
January 6, 2016, the Township Zoning Officer denied Landowner’s request
because under Section 440.E. of the Ordinance, a bowling alley is not an accessory
use associated with a golf course. (R.R. at 16a.)
Landowner then appealed the Township Zoning Officer’s
determination to the Board and, in the alternative, requested a variance from
Section 440.E. of the Ordinance to allow a bowling alley as an accessory use to the
continuing golf course use at the Property.4
Before the Board, Caporaletti testified that the number of golf rounds
played at the Property was down lessening its revenues. He stated that the
Bowling Alley would be located in an already existing building on the Property
currently used to store maintenance equipment. Caporaletti has been involved in
the golf business for 30 years and stated that he is aware of other golf courses,
outside of Pennsylvania, that incorporate bowling alleys as accessory uses in the
winter. He testified that the Bowling Alley is busiest in the wintertime, when the
golf course use is basically non-existent.
Darrin Armel (Armel), a partner and manager of the Bowling Alley,
testified that the peak season for bowling is from Thanksgiving to April 15, with an
4
Landowner’s petition also requested a special exception to allow a bowling alley as an
adaptive reuse of an agricultural building or a variance from Section 200.B. of the Ordinance to
allow a bowling alley as a principal use at the Property. Landowner ultimately withdrew these
two requests at the hearing before the Board.
5
average of 800 league bowlers per week. He testified that if the Bowling Alley
were moved to the Property, it would have 20 lanes and would continue to abide
by the current operating hours of Monday, Thursday and Sunday 9 a.m. to 9 p.m.;
Tuesday and Wednesday 9 a.m. to 11 p.m.; and Friday and Saturday 9 a.m. to 1
a.m. Armel testified that Landowner’s proposal includes sales of food and liquor
at the Bowling Alley.
Mark Magrecki (Magrecki), principal registered landscape architect at
Penn Terra Engineering, testified as an expert in land development and zoning. He
stated that in his opinion, the Property is unique in that it is 154 acres developed
mainly as a golf course, with “some weird shapes and places to it. . . .” (R.R. at
116a.) He further testified that Landowner has suffered an economic hardship as
business has been down, and the requested variance is necessary in order to
maintain the Property economically. Magrecki testified that it would be very hard
to change the use of the Property from a golf course to something else given its
size and the existing parking and infrastructure. He also testified that the requested
variance would not alter the essential character of the neighborhood because
Landowner would be locating the Bowling Alley within an existing building
currently used for storage.
Objectors provided statements opposing the Bowling Alley on the
Property because it was not an accessory use to the golf course but a commercial
business use not permitted in an Agricultural Zoning District. They expressed
concerns with the increased traffic volume and high speeds given the local farming
use and that the Bowling Alley would further degrade the agricultural area.
6
Objectors stated that it was not the purpose of the Township or the Board to
preserve the Bowling Alley or provide economic relief for the golf course because
that was a business problem and not a zoning ordinance problem. Some expressed
concern with the serving of alcohol and the potential trouble this could cause and
increased security issues.
In its decision, the Board first upheld the Township Zoning Officer’s
determination that a bowling alley does not constitute an accessory use to the golf
course pursuant to Section 440.E. of the Ordinance. However, the Board granted a
variance to Landowner from Section 440.E. of the Ordinance to allow the Bowling
Alley as an accessory use to the existing and continuing golf course located on the
Property. It granted the use variance because there were unique physical
circumstances or conditions peculiar to the Property, specifically, that the Property
is unique in that it is 154-plus acres of land which was developed for a golf course
making it difficult to change from a golf course to a different use; that a new
building is not proposed but Landowner would place the Bowling Alley in an
existing building; that the golf course needs to diversify in order to bring in
additional income; and that the variance would not alter the essential character of
the neighborhood. (Findings of Facts 17-25.)
Objectors appealed to the trial court, which affirmed, and this appeal
followed.5
5
Our standard of review in a zoning case where, as here, the trial court did not take any
additional evidence, is limited to determining whether the Board abused its discretion or
committed an error of law. Marshall v. City of Philadelphia, 97 A.3d 323, 331 (Pa. 2014)
(citations omitted). An abuse of discretion will be found only if the Board’s findings are not
(Footnote continued on next page…)
7
II.
Objectors contend that the Board erred or abused its discretion in
granting the use variance because Landowner failed to demonstrate that the
Property could not be used as zoned to be entitled to a use variance. We agree.
A landowner seeking a variance bears a heavy burden of
demonstrating substantial and compelling reasons for granting the variance. Valley
View Civic Association v. Zoning Board of Adjustment, 462 A.2d 637, 640 (Pa.
1983) (Valley View). Specifically, a landowner must show:
(1) an unnecessary hardship stemming from unique
physical circumstances or conditions of the property will
result if the variance is denied; (2) because of such
physical characteristics or conditions, there is no
possibility that the property can be developed in strict
conformity with the provisions of the ordinance; (3) the
hardship has not been created by the applicant; (4)
granting the variance will not alter the essential character
of the neighborhood nor be detrimental to the public
welfare; and (5) the variance sought is the minimum
variance that will afford relief.
Oxford Corporation v. Zoning Hearing Board of the Borough of Oxford, 34 A.3d
286, 295 (Pa. Cmwlth. 2011) (citing Section 910.2 of the Municipalities Planning
Code, Act of July 31, 1968, P.L. 805, as amended, added by the Act of December
(continued…)
supported by substantial evidence, that is, such relevant evidence which a reasonable mind might
accept as adequate to support a conclusion. Lamar Advertising of Pennsylvania, LLC v. Zoning
Hearing Board of the Borough of Deer Lake, 915 A.2d 705, 709 n.9 (Pa. Cmwlth. 2007).
8
21, 1988, P.L. 1329, 53 P.S. § 10910.2). To establish the unnecessary hardship
required for the grant of a use variance, a landowner must demonstrate that the
physical characteristics of the property are such that it cannot be used for a
permitted purpose, the cost to conform the property for a permitted purpose is
prohibitive, or the property has no value for a permitted purpose. Singer v.
Philadelphia Zoning Board of Adjustment, 29 A.3d 144, 151 (Pa. Cmwlth. 2011)
(citation omitted).
Even assuming that a use variance is available to obtain an accessory
use, Landowner failed to demonstrate an unnecessary hardship that would warrant
a use variance for an accessory use that is not permitted in an Agricultural Zoning
District. The Property is currently being used as a golf course, a permissible use in
the Agricultural Zoning District pursuant to the Ordinance. The Property also
currently contains multiple accessory uses that are permitted under the Ordinance,
including a snack bar, lounge, banquet facility, pro shop, equipment maintenance
facilities, driving range and practice putting greens. Landowner failed to show that
the currently conforming golf course and accessory uses could not continue to be
used as such or that it could not be used for another permitted use within the
Agricultural Zoning District.
Moreover, Landowner’s mere desire to maximize the potential use of
the Property by converting the golf course’s equipment maintenance facility, a
permitted accessory use, to a revenue-generating bowling alley, a non-permitted
accessory use, is not sufficient to establish unnecessary hardship. While a
landowner “is not required to show that his or her property is valueless unless a
9
variance is granted, ‘[m]ere economic hardship will not of itself justify a grant of a
variance.’” Marshall v. City of Philadelphia, 97 A.3d 323, 330 (Pa. 2014) (quoting
Wilson v. Plumstead Township Zoning Hearing Board, 936 A.2d 1061, 1069 (Pa.
2007)). It is well established that “mere evidence that the zoned use is less
financially rewarding than the proposed use is insufficient to justify a variance.”
Marshall, 97 A.3d at 330 (citing Valley View, 462 A.2d at 640); see also Singer, 29
A.3d at 151; Wilson, 936 A.2d at 1070 (“[a] variance will not be granted because a
zoning ordinance deprives the landowner of the most lucrative and profitable
uses”). Here, the only testimony and the only findings of fact made by the Board
regarding hardship are those pertaining to economic hardship and Landowner’s
perceived need or ability to increase revenue for the Property.
Accordingly, because the Board erred in determining that Landowner
met its heavy burden of establishing unnecessary hardship sufficient to warrant the
grant of a use variance to operate a bowling alley as an accessory use to the golf
course, the trial court’s order is reversed.
_________________________________
DAN PELLEGRINI, Senior Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Elise Salahub, Harold Kreider, :
Heidi Bingeman, Daniel Kreider, :
Marilyn Tyson, and Dan Brickley, :
Appellants :
:
v. : No. 1322 C.D. 2017
:
North Cornwall Township :
Zoning Hearing Board :
:
v. :
:
ROGC Golf Partners, L.P. :
ORDER
AND NOW, this 11th day of October, 2018, the order of the Court of
Common Pleas of Lebanon County in the above-captioned matter dated August 23,
2017, is reversed.
_________________________________
DAN PELLEGRINI, Senior Judge