D. Soland & D. Soland v. ZHB of E. Bradford Twp. ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dorothy Soland and Daniel Soland : CASES CONSOLIDATED
:
v. : No. 362 C.D. 2021
:
Zoning Hearing Board of East :
Bradford Township :
:
v. :
:
The Board of Supervisors of :
East Bradford Township :
:
John Marshall and Dara Gans Marshall :
:
v. :
:
Zoning Hearing Board of :
East Bradford Township :
:
v.
:
The Board of Supervisors of :
East Bradford Township :
:
Appeal of: John Marshall and :
Dara Gans Marshall :
Dorothy Soland and Daniel Soland :
:
v. : No. 403 C.D. 2021
: Argued: November 15, 2022
Zoning Hearing Board of East Bradford :
Township, The Board of Supervisors of :
East Bradford Township, John Marshall :
and Dara Gans Marshall :
:
John Marshall and Dara Gans Marshall :
:
v. :
:
Zoning Hearing Board of East Bradford :
Township, The Board of Supervisors of :
East Bradford Township, Dorothy :
Soland and Daniel Soland :
:
Appeal of: Dorothy Soland and :
Daniel Soland :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: March 6, 2023
John Marshall and Dara Gans Marshall (the Marshalls) appeal from an
order of the Court of Common Pleas of Chester County (trial court), dated February
16, 2021, affirming a decision and order of the Zoning Hearing Board of East
Bradford Township (Board). Dorothy Soland and Daniel Soland (the Solands)
cross-appeal. After careful review, we affirm.
I. BACKGROUND1
The Marshalls own an 11-acre property, designated as a Class I Historic
Resource, at Birmingham Road in East Bradford Township (Township), in an R-2
Residential Zoning District. See E. Bradford, Chester County, Pa. Zoning Ordinance
§ 115-13 (2019). The intent of an R-2 Residential Zoning District is “to provide for
low-density residential development in areas of the Township which are not
generally characterized by steep slopes or floodplains, but which nevertheless
contain soils conditional for on-lot sewage disposal systems and conservation uses”
and to “encourage continued agricultural, open space and conservation uses; and to
1
The recitation of facts is derived from the Board’s decision, which is supported by the
record. See Bd. Op., 5/18/20, at 4-6.
2
encourage and promote phased development throughout the Township by permitting
low-density residential uses” in the district until other areas of the Township are
more fully developed in medium- and high-density residential uses. See id.
On August 30, 2019, the Marshalls filed an application with the Board,
challenging the validity of the Township Zoning Ordinance on several grounds. The
Marshalls alleged: 1) the de jure exclusion of wedding barns; 2) the de jure exclusion
of hotels/motels; and 3) the local noise ordinance was vague, subjective, and
impossible of compliance. The Marshalls did not submit plans for any proposed use,
nor did they propose a curative amendment to the Zoning Ordinance. Nevertheless,
the Marshalls did request site-specific relief for the property. See Validity Challenge
Application, 8/30/19. Although the Marshalls’ original application describes the
requested use as “Wedding Barn (including weddings, receptions and other social
events and Hotel/Motel),” it later became clear that the intended use was a special
events venue with a particular theme, i.e., a barn. See id.
The Board held several public hearings; the Solands, who are neighbors
of the Marshalls, intervened as interested parties. In relevant part, the Marshalls
presented the testimony of David Babbitt, an expert in land planning and zoning, to
testify regarding wedding barns. Mr. Babbitt described a wedding barn as “a venue
where weddings are held in a current or former barn specifically where people who
are looking for a particular flavor or character of a wedding that might be more
bucolic and less rigidly formal.” Notes of Testimony (N.T.), 12/4/19, at 50. Mr.
Babbitt stated that “the written challenge” referenced a “wedding barn” but “it’s
about a wedding barn or a special event usage as a principal use of a property.” Id.
at 45-46. The Marshalls did not provide any other evidence defining a wedding barn
in terms of a zoning use.
3
The Board issued a written decision on May 18, 2020, granting the
challenge as to hotel and motel uses only.2 The Board denied all other requests.
Specifically, regarding the wedding barn challenge, the Board determined that the
Marshalls must demonstrate that the Zoning Ordinance totally excluded a legitimate
use, and five other uses permitted by the Zoning Ordinance encompassed the
proposed use.3
The Marshalls appealed the Board’s decision to the trial court, and the
Solands and Township intervened. The Solands also filed an appeal from the
Board’s decision, and the Marshalls and Township intervened. By agreement, the
trial court consolidated both appeals. On October 20, 2020, the trial court granted
the Marshalls’ motion to include Resolution No. 13-2020 in the record. The
resolution had been adopted by the Township on June 9, 2020, and declared the
2
The Board, in its recommendations, concluded that hotel use was appropriate in the
Township’s C-2 Commercial District, noting the infrastructure available in that district, including
the major arterial road Downingtown Pike, and accessible public water and sewer service. Bd.
Op. at 20. The Board also concluded that, as a result, the Marshalls’ property was not suitable for
hotel use because it was located in a residential area, accessible by local road only. Id. Further,
the Board noted the lack of a public sewer available for hotel use. Id.
3
First, the Zoning Ordinance defines an eating and drinking establishment in the C-2 and
C-3 Zoning Districts as “a restaurant or similar establishment offering service to the public, which
provides for the sale and consumption of food and beverages and which contains inside seating
facilities.” See E. Bradford, Chester County, Pa., Zoning Ordinance § 115-6 (2019). Second,
religious use facilities, allowed in the C-2, R-3, and R-4 Zoning Districts, constitute “[u]se of land
or a building or buildings as and for a convent, monastery, church or similar institution, including
rectory or parish house, not for profit and by an organization organized solely or primarily as a
religious institution . . . .” See id. Third, restaurants, are allowed as part of an adaptive reuse under
Section 115-131.3, defined a restaurant in this context as “provided that all food and drink shall
be prepared, served and consumed within the building.” See E. Bradford, Chester County, Pa.,
Zoning Ordinance § 115-131.3 (2019). Fourth, at a bed and breakfast estate, the Zoning Ordinance
specifies “bed-and-breakfast facilities and bed-and-breakfast estates, subject to all the
supplemental provisions of the Zoning Chapter.” See id. Fifth, at a planned university zoning
district, allowed under Section 115-146(J), the use regulations for this district allow for special
events and programs by persons who are neither students nor employed by the university. See E.
Bradford, Chester County, Pa., Zoning Ordinance § 115-146(J) (2019).
4
Zoning Ordinance’s exclusion of hotel and motel uses invalid. The Township
intended to proceed with a curative amendment.
On February 16, 2021, the trial court affirmed the Board’s decision in
both appeals. The trial court concluded that a wedding barn is not a separate zoning
use, and that the Zoning Ordinance provides for special events venue use in four
zoning districts. Trial Ct. Op., 2/16/21, at 6-12. Rather, a wedding barn is a theme
of wedding, and the Township is not required to provide for every business model
in its Ordinance. See id. The trial court also determined that the Marshalls’
challenge to the noise ordinance was not ripe. See id. at 14-15. The trial court
rejected the Solands’ assertion that hotel/motel use is not an accessory to eating and
drinking establishment use. See id. at 18.
Both the Marshalls and the Solands timely appealed to this Court.
II. ISSUES
A. The Marshalls’ Appeal
1. Whether there is a de jure exclusion of special event venues
The Marshalls raise three issues on appeal. First, they contend that the
Board erred as a matter of law in concluding that the Zoning Ordinance did not
exclude de jure the use of a special event venue as a discrete use. Marshalls’ Br. at
16. According to the Marshalls, the Zoning Ordinance does not specifically provide
for this use, and other specified categories do not encompass the special
events/banquet venue use. Id. Further, the Marshalls assert, even if a special events
use would be permitted as an accessory use,4 such accessory use would be
insufficient or unacceptable. Id. at 16-17. For example, the Marshalls posit, the
4
The Zoning Ordinance defines “accessory use” as “[a] use subordinate to the principal
use of land or of a building on a lot and customarily incidental thereto.” See E. Bradford, Chester
County, Pa., Zoning Ordinance § 115-6(A) (2019).
5
Zoning Ordinance requires that an eating and drinking establishment serve food and
beverages to the public, which they do not wish to do in their event space. Id. The
Marshalls also argue that the Township and the Solands failed to present any
evidence that the exclusion would impact the health, safety, and welfare of the
citizens.5
In response, the Township argues that the Marshalls did not meet their
burden to establish that the Zoning Ordinance is exclusionary because a wedding
barn is a theme of special event venue and not a discrete use, and that the use as
defined by the Marshalls is reasonably encompassed under a variety of other
permitted, allowed uses within the Zoning Ordinance. Twp.’s Br. at 14-17. The
Township points to the testimony of Mr. Babbitt in which he conceded that a
wedding barn is nothing more than a style of building where a special event may be
held. Id. at 16.
2. Whether the Board erred in noting defects in the Marshalls’ property
Second, the Marshalls contend that the Board should not have
considered whether their property was suitable for use as a hotel. Marshalls’ Br. at
33-36. According to the Marshalls, their application merely challenged the Zoning
Ordinance’s exclusion of hotels as a permitted use; it did not include or require a
plan seeking site-specific relief or supporting evidence. Id. at 34. Accordingly, they
argue that issues relating to the suitability of their property for hotel use were never
before the Board, nor were they given an opportunity to litigate those issues. Id. at
35. Rather, the Marshalls suggest, the Board wrongly preempted the Marshalls from
5
We need not reach this argument if the Marshalls have not established that the Zoning
Ordinance totally excludes a proposed use. Beaver Gasoline Co. v. Osborne Borough, 285 A.2d
501, 503 (Pa. Cmwlth. 1971).
6
seeking site-specific relief in the future. Id. The Marshalls cite no case law or other
authority in support of this argument.
The Township responds that this issue is not properly subject to appeal
by the Marshalls due to their failure to object at the hearing, but nevertheless rejects
their claim. Twp.’s Br. at 35. According to the Township, Section 916.1(c)(5)6 of
the Pennsylvania Municipalities Planning Code (MPC) requires the Board to
formulate recommendations to cure defects recognized in its Ordinance. Id.Therefore, because the Board found the Ordinance to exclude hotel/motel uses, and
because the Marshalls did not provide any evidence, plans, or recommendations to
cure the alleged defect, the Board did not err in “taking the next step to provide its
recommendations.” Id. at 36. The Township recognizes that in this case, the
Marshalls had not yet made a formal request for relief and no formal denial had been
issued. Id. However, in light of other applications submitted by the Marshalls, as
well as their original validity challenge application, the Board merely advised the
Marshalls that their property was likely ill-suited for use as a hotel. Id.
3. Whether the noise ordinance is facially vague
In their third issue, the Marshalls assert that the Zoning Ordinance,
which prohibits “physical vibration or noise perceptible at or beyond the lot
boundaries,” is entirely vague, subjective, bereft of any objective standards and
places a property owner at the mercy of the Township. Marshalls’ Br. at 36-37.
According to the Marshalls, virtually any use involves some level of noise, and for
the Township to cite a property owner for a noise violation in this instance would be
6
Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 12, 1988, P.L.
1329, 53 P.S. § 10916.1(c)(5).
7
“a clear example of government overreach serving no legitimate purpose.” Id. at
37.7
The Township responds that the challenge to the noise ordinance is not
justiciable. According to the Township, outside the First Amendment8 context, a
challenger has no standing to raise a facial vagueness challenge to a local ordinance
unless or until charged with its violation. Twp.’s Br. at 29 (citing Commonwealth v.
Heinbaugh, 354 A.2d 244, 245 (Pa. 1976)). The Township notes that the Marshalls
did not raise First Amendment issues and did not introduce evidence that the Zoning
Ordinance had been enforced against their property or any other property in the
Township. Id. at 29-30. Further, according to the Township, the Marshalls did not
allege any particular conduct that had implicated the Zoning Ordinance. Thus, the
Township concludes, the Marshalls’ claim is not ripe for adjudication.
B. The Solands’ Cross-Appeal
In their cross-appeal, the Solands contend that hotels/motels are not
excluded de jure under the Zoning Ordinance. Solands’ Br. at 15. Although the
Zoning Ordinance states that “hotels and motels are not permitted in any zoning
district,” the Solands observe that it permits a “multifamily” dwelling unit structure
in the R-4 District. Id. Because there is no length of stay requirement for these
structures, the Solands suggest that this is equivalent to hotel usage. Id.
The Solands also contend that “eating and drinking establishments” are
permitted in the C-2 District with accessory uses that include hotel/motel use. Id. at
28-33. In support of this assertion, they cite case law pointing to obscure accessory
7
The Marshalls also reference a separate application for a conditional use of their property.
According to the Marshalls, the Township denied the application in part because it failed to comply
with this noise provision, but the Marshalls admit they did not raise this issue at the hearing. See
Marshalls’ Br. at 39.
8
See U.S. Const. amend. I.
8
uses deemed appropriate in other contexts.9 Solands’ Br. at 29 (citing, e.g., Southco,
Inc. & Contact II, Inc. v. Concord Twp., 713 A.2d 607 (Pa. 1998) (off-track betting
use was permitted as an accessory to an eating and drinking establishment despite
the fact that it was the property’s dominant source of income)).
The Township has not filed a brief addressing the Solands’ arguments
on appeal. However, the Marshalls filed a reply brief addressing the Solands’ issue.
They agree with the trial court that a plain-meaning interpretation of the Zoning
Ordinance does not support the interpretation that a “multifamily unit” as provided
for in the R-4 District encompasses a hotel. Marshalls’ Reply Br. at 5.
III. ANALYSIS10
A. There is No De Jure Exclusion of Special Event Venues
The Marshalls argue that the Zoning Ordinance de jure excludes
wedding barn use. A zoning ordinance is presumed valid, and a challenger has a
heavy burden to establish its invalidity; generally, this is done on “substantive due
process grounds, i.e., whether an ordinance is substantially related to a legitimate
interest.” Protect PT v. Penn Twp. Zoning Hearing Bd., 220 A.3d 1174, 1183 (Pa.
Cmwlth. 2019) (citation omitted). In cases of exclusionary zoning, the challenger
“bears the burden of showing that the zoning ordinance completely or effectively
excludes a legitimate use.” In re Charlestown Outdoor, LLC, 280 A.3d 948, 958
9
The Solands also identify several restaurants and inns in various Pennsylvania counties
which they characterize as “primary eating and drinking uses with accessory lodging,” but do not
cite to any legal authority or evidence in the record regarding these establishments, the zoning
ordinances for the townships in which they are located, or any evidence regarding the actual
primary or accessory uses. Solands’ Br. at 29 n.2.
10
The parties presented no additional evidence to the trial court. Therefore, our review is
limited to determining whether the Board committed an abuse of discretion or an error of law.
Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807, 811 n.1 (Pa. Cmwlth. 2005).
9
(Pa. 2022). A zoning ordinance excluding a legitimate use may be unconstitutionally
exclusionary. Id.A de jure exclusion occurs when “the ordinance on its face totally
excludes a use.”11 Charlestown Outdoor, LLC, 280 A.3d at 958. The fact that an
ordinance does not contain a specific provision addressing a proposed use does not,
without more, establish a basis to find an unconstitutional exclusion of that use.
Kratzer v. Bd. of Supervisors of Fermanagh Twp., Juniata Cty., 611 A.2d 809, 812
(Pa. Cmwlth. 1992). “When a proposed use can be considered within another zoning
classification or, where a zoning ordinance is broad enough to encompass the
proposed use, there is no de jure exclusion.” Id. If a challenger meets the burden of
proving that the ordinance is exclusionary, “then the burden shifts to the
municipality to prove that the exclusion bears a substantial relationship to the public
health, safety, morality, or welfare.” Charlestown Outdoor, LLC, 280 A.3d at 958.
In the instant case, the Zoning Ordinance does not specifically provide
for special events venues as a discrete use. Nevertheless, in order to show a de jure
exclusion, the Marshalls must establish that their proposed use would not fit into
another zoning classification. Kratzer, 611 A.2d at 812. Both the Board and the
trial court agreed that the proposed use could be appropriate in several zoning
districts, including eating and drinking establishments, religious use facilities, a
restaurant, a bed and breakfast estate, and a planned university zoning district. See
Bd. Op. at 7, 11-14; Trial Ct. Op. at 7-12. Further, the Board concluded that, based
on the definitions provided by the Marshalls’ expert witness, a “wedding” was a type
11
By contrast, “[i]n a de facto exclusion case, the challenger alleges that an ordinance
appears to permit a use, but under such conditions that the use cannot in fact be accomplished.”
Twp. of Exeter v. Zoning Hearing Bd. of Exeter Twp., 962 A.2d 653, 659 (Pa. 2009).
10
of special event and a “wedding barn” was a theme of wedding rather than a separate
zoning use. See Bd. Op. at 7.
Both the Board and the trial court rejected the Marshalls’ reliance upon
Wimer Realty, LLC v. Township of Wilmington, 206 A.3d 627 (Pa. Cmwlth. 2019).
See Bd. Op. at 14; Trial Ct. Op. at 7-10. In Wimer, the applicants proposed to use
their property as a venue for special events, specifically themed as a “wedding barn.”
Wimer, 206 A.3d at 630. The Wimers’ expert testified that the current local
ordinance would not permit the use, but the Wimers had submitted a curative
amendment to address the deficiency. Id. at 631. Ultimately, the trial court found
in favor of the Wimers. Id. at 631-635.
Wimer is distinguishable from the instant case in several respects. First,
the township never adopted the position that its ordinance provided for this use, and
the township’s expert ultimately agreed that the township should amend its
ordinance to accommodate special event venues. Id. at 641. Further, neither the
trial court nor this Court analyzed the ordinance to determine whether the proposed
use was excluded, but noted that because both parties’ experts agreed that the use of
“wedding barn facility, special event venue, or similar facility” was not provided for
in the ordinance, the burden shifted to the township to show that the exclusion bore
a substantial relationship to public health, safety, morality, or welfare. See id.Because the township did not do so, we affirmed the trial court’s finding that the
zoning ordinance was unconstitutionally exclusionary. See id. at 642. Finally, in
Wimer, this Court did not consider whether permitting special event venues as an
accessory use was de jure exclusionary. See id. at 637.
Instantly, the Board examined each of the five zoning districts which
could encompass “special event” venues as an accessory use and determined that
11
they could be held at eating and drinking establishments, which could be used to
conduct all types of special events, including weddings. Similarly, weddings could
be held at religious establishments and planned university zoning districts,
restaurants, and bed and breakfast estates. The Marshalls’ arguments that special
events venues must be a principal use and cannot be an accessory use reads more
into the language of the ordinances than actually exists. Both the Board and the trial
court reiterated that the Township is not required to provide, specifically, for every
conceivable business use. See, e.g., Montgomery Crossing Assocs. v. Twp. of Lower
Gwynedd, 758 A.2d 285 (Pa. Cmwlth. 2000) (observing that a township must
provide for all reasonable uses but is not “required to zone for every business
model”). Accordingly, the Marshalls did not meet their burden of showing that the
Zoning Ordinance unconstitutionally excluded special events venues.12 The Board
did not abuse its discretion or commit an error of law. Taliaferro, 873 A.2d at 811
n.1.
B. Site-Specific Relief
The Marshalls claim that the Board should not have considered their
property’s suitability for use as a hotel, because issues relating to the suitability of
the use were not properly before the Board. Marshalls’ Br. at 33-36. In cases where
a landowner challenges, on substantive grounds, the validity of a zoning ordinance,
12
To the extent that the Marshalls attempt to raise a de facto challenge by arguing that their
proposed use is functionally incompatible with allowed uses, they have briefed and cited case law
solely relating to de jure exclusions and have, accordingly, waived this issue for purposes of
appeal. See Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as there are
questions to be argued; and shall have at the head of each part . . . the particular point treated
therein, followed by such discussion and citation of authorities as are deemed pertinent.”);
Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1998) (holding that failure to develop issue
in appellate brief results in waiver); Browne v. Department of Transportation, 843 A.2d 429, 435
(Pa. Cmwlth. 2004) (“At the appellate level, a party’s failure to include analysis and relevant
authority results in waiver.”).
12
Section 916.1 of the MPC provides guidance for both the application and the
considerations the Board should undergo following the application. 53 P.S. §
10916.1(a)-(c). The landowner may submit a curative amendment with his request
for the Board to consider at a hearing. 53 P.S. § 10916.1(a)(1). The governing body
which has determined that a validity challenge has merit “may accept” a landowner’s
curative amendment or may adopt an alternative amendment to cure the challenged
defects. 53 P.S. § 10916.1(c) (emphasis added). In adopting a curative defect, the
MPC lays out various aspects that the Board should consider along with any curative
amendments, plans, and explanatory material submitted by the landowner. See id.
All of these considerations center around the proposal and the suitability of the land
for its intended use, including but not limited to the impact upon roads, sewer
facilities, water supplies, natural features of the land, and other new environmental
impacts or land uses essential to public health and welfare. See id.
In the instant case, the Marshalls challenged the substantive validity of
the Zoning Ordinance by contending that hotels and motels were de jure excluded
by the Ordinance. Further, in their application, they requested site-specific relief.
They did not submit and were not required to submit plans or curative amendments
on their own. However, it is disingenuous to claim that the Board could not consider
the reality of the property when making its recommendations. The MPC is clear
regarding the Board’s responsibilities: it may adopt an alternative amendment to
cure the challenged defects, and in doing so, it must consider the impact of the
proposal on the surrounding land. 53 P.S. § 10916.1(c)
Here, the Board determined that the Marshalls’ property was located in
an R-2 Residential District. See Bd. Op. at 2. The R-2 District was created
specifically “for low-density residential development in areas of the Township
13
which are not generally characterized by steep slopes or floodplains, but which
nevertheless contain soils conditional for on-lot sewage disposal systems and
variable groundwater yields . . .” See E. Bradford, Chester County, Pa., Zoning
Ordinance § 115-13 (2019). Further, Mr. Babbitt, the sole witness at the hearing
before the Board, admitted that a hotel/motel is a commercial use, which is
inconsistent with the purposes of the R-2 District, particularly where the property
lacked public water and sewer. N.T., 12/4/19, at 76-77. On the contrary, the Board
concluded that hotel use was appropriate in the Township’s C-2 Commercial
District, noting the infrastructure available in that district, including the major
arterial road Downingtown Pike, and accessible public water and sewer service. Bd.
Op. at 20.
The record does not reveal any error by the Board. While remedying
the exclusion of hotel/motel use from the Zoning Ordinance, the Board also
appropriately concluded that this use may be appropriate in the C-2 Commercial
District of the Township but was ill-suited for the R-2 Residential District in which
the Marshalls’ property is situated. Accordingly, the Board did not abuse its
discretion or commit an error of law in noting that the property was not suitable for
hotel use. Taliaferro, 873 A.2d at 811 n.1.
C. A Challenge to the Township Noise Ordinance is Premature
The Marshalls assert that the Ordinance prohibiting physical vibrations
or noises perceptible at or beyond the lot boundaries is impermissibly vague.
Marshalls’ Br. at 36-37. A statute is void for vagueness “when it fails to define an
offense with sufficient definiteness so that ordinary persons can understand what
conduct is prohibited.” Baumgardner Oil Co. v. Com., 606 A.2d 617, 623 (Pa.
Cmwlth. 1992) (citation omitted). However, in order to bring a challenge to an
14
unconstitutionally vague statute, the challenge must be in a First Amendment
context, or the party must have standing to raise such a challenge. Heinbaugh, 354
A.2d at 245. To establish standing, a person must show that he is adversely affected
and aggrieved by the matter he seeks to challenge. See Fumo v. City of Philadelphia,
972 A.2d 487, 496 (Pa. 2009). “An individual can demonstrate that he has been
aggrieved if he can establish that he has a substantial, direct and immediate interest
in the outcome of the litigation.” See id. (citation omitted). The interest is “direct if
there is a causal connection between the asserted violation and the harm complained
of; it is immediate if that causal connection is not remote or speculative.” See id.Initially, we note that insofar as the Marshalls argue that the Township
denied their application for conditional use in part because they failed to comply
with the noise provision, they admit they did not raise the issue before the Board.
Marshalls’ Br. at 39. Accordingly, they did not preserve the issue for consideration
on appeal. See Kennett Consol. Sch. Dist. v. Chester Cnty. Bd. of Assessment
Appeals, 228 A.3d 29, 42 (Pa. Cmwlth. 2020); Pa.R.A.P. 302(a) (noting that issues
not raised in the lower court are waived for purposes of appeal).
Even if we did not find waiver, the Marshalls did not raise First
Amendment issues and did not and cannot introduce evidence that the Zoning
Ordinance had been applied to or enforced against their property. Therefore, they
cannot establish standing, and the Board and trial court appropriately determined
that the Marshalls were not entitled to relief on this issue. Heinbaugh, 354 A.2d at
245; see also Taliaferro, 873 A.2d at 811 n.1.
D. Solands – De Jure Exclusion of Hotel/Motel Use
In their cross-appeal, the Solands contend that the Zoning Ordinance
does not de jure exclude hotel/motel use. Solands’ Br. at 15. Rather, they suggest
15
that multi-family dwellings permitted in the R-4 Residential District are equivalent
to hotel usage. See id. When interpreting an ordinance, undefined terms are given
their plain meaning. Caln Nether Co., L.P. v. Bd. of Supervisors of Thornbury Twp.,
840 A.2d 484, 491 (Pa. Cmwlth. 2004). Any doubts as to the interpretation of an
undefined term “must be resolved in favor of the landowner and the least restrictive
use of the land.” Tobin v. Radnor Twp. Bd. of Comm’rs, 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 sources are
persuasive rather than controlling. H.E. Rohrer, Inc. v. Zoning Hearing Bd. of
Jackson Twp., 808 A.2d 1014, 1017 (Pa. Cmwlth. 2002).
In the instant matter, the Ordinance does not define a hotel or motel, so
those terms must be interpreted in their plain meaning. The Board decision defined
hotel/motel use as “use that provides lodging for profit to guests” and “a commercial
establishment letting rooms for short term stays.” Bd. Op. at 15. The Solands define
this use as “an establishment providing overnight short-term transient lodging stays
to guests for profit.”
The Zoning Ordinance defines “dwelling unit,” “multifamily,”
“apartment,” and “family” as follows. A “dwelling unit” is a “building or entirely
self-contained portion thereof containing complete housekeeping facilities for
occupancy by only one family.” See E. Bradford, Chester County, Pa., Zoning
Ordinance § 115-6. “Multifamily” means a building “containing three or more
dwelling units . . . .” Id. An “apartment” is a “building containing three or more
dwelling units separated by party walls, which may have more than one dwelling
unit from ground to roof and common outside access and hallways.” Id. A “family”
can be either “a single person occupying a dwelling unit,” “two or more persons
16
related by blood or marriage occupying a dwelling unit, including not more than two
boarders, roomers, or lodgers,” or “not more than four unrelated persons occupying
a dwelling unit, living together and maintaining a common household.” Id.
The Zoning Ordinance does not define the length of time a family,
boarder, roomer, or lodger may occupy a dwelling unit. The Solands argue that a
dwelling unit may be used for short term or transient stays as a hotel because there
is not a specific prohibition against such use, contending that the trial court
misapplied Slice of Life v. Hamilton Township Zoning Hearing Board, 207 A.3d 886(Pa. 2019). Solands’ Br. at 26. According to the Solands, Slice of Life involved a
zoning ordinance with a significantly different definition of “family” than the
ordinance in East Bradford. Id. In Slice of Life, the ordinance defined family as “a
single housekeeping unit,” where, as noted above, the East Bradford ordinance has
several definitions of family. Slice of Life, 207 A.3d at 889; Zoning Ordinance, §
115-6.
The Solands’ attempt to distinguish the definition of family in the two
ordinances is inapposite. The trial court cited Slice of Life, specifically to note that
a dwelling used by families is not intended to be used for transient uses or short-term
rentals. Trial Ct. Op. at 17. This is true whether, as in Slice of Life, family has a
narrow definition or, as in East Bradford, a broader definition. The trial court
correctly noted the plain language of the statute regarding dwellings implies
permanency, not transient use, while the language around hotels and motels implies
transience. As the trial court notes, “hotels and motels do not require disclosure of
familial relationships prior to occupancy of a room” and “an apartment building or
multifamily housing unit is intended for residential use [while] a hotel/motel is
intended for commercial use.” Trial Ct. Op., 2/16/21, at 17-18. Accordingly, the
17
Board did not abuse its discretion or commit an error of law. Taliaferro, 873 A.2d
at 811 n.1.
E. Solands – Hotel/Motel as Accessory Use
Finally, the Solands contend that “eating and drinking establishments”
are permitted in the C-2 District with accessory uses that include hotel/motel use.
Solands’ Br. at 28-33. Regarding this issue, the Solands’ argument is simply not
persuasive. Rather, as the trial court reasoned, the Ordinance defines an Eating and
Drinking Establishment as a “restaurant or similar establishment offering service to
the public, which provides for the sale and consumption of food and beverages and
which contains inside seating facilities.” Trial Ct. Op. at 18 (citing Zoning
Ordinance, § 115-6). Accessory use is defined as a “use subordinate to the principal
building on a lot and used for purposes customarily incidental to the principal use of
the building.” Id. Common sense reasoning is that “while an eating and drinking
establishment may be an accessory use to a hotel/motel, a hotel/motel is not
customarily incidental to an eating and drinking establishment.” Id. Accordingly,
the Board correctly determined that a hotel/motel is not an accessory use to an eating
and drinking establishment and did not abuse its discretion or commit an error of
law when making this determination. Taliaferro, 873 A.2d at 811 n.1.
IV. CONCLUSION
For the foregoing reasons, we affirm the order of the trial court denying
the appeals of the Marshalls and the Solands.
LORI A. DUMAS, Judge
Judge Fizzano Cannon did not participate in the decision in this case.
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dorothy Soland and Daniel Soland : CASES CONSOLIDATED
:
v. : No. 362 C.D. 2021
:
Zoning Hearing Board of East :
Bradford Township :
:
v. :
:
The Board of Supervisors of :
East Bradford Township :
:
John Marshall and Dara Gans Marshall :
:
v. :
:
Zoning Hearing Board of :
East Bradford Township :
:
v. :
:
The Board of Supervisors of :
East Bradford Township :
:
Appeal of: John Marshall and :
Dara Gans Marshall :
Dorothy Soland and Daniel Soland :
:
v. : No. 403 C.D. 2021
:
Zoning Hearing Board of East Bradford :
Township, The Board of Supervisors of :
East Bradford Township, John Marshall :
and Dara Gans Marshall :
:
John Marshall and Dara Gans Marshall :
:
v. :
:
Zoning Hearing Board of East Bradford :
Township, The Board of Supervisors of :
East Bradford Township, Dorothy :
Soland and Daniel Soland :
:
Appeal of: Dorothy Soland and :
Daniel Soland :
ORDER
AND NOW, this 6th day of March, 2023, the trial court’s order entered
February 16, 2021, is AFFIRMED.
LORI A. DUMAS, Judge