W. & W. Hewitt v. Hellam Twp. Bd. of Supers. v. G. Geiselman

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William and Wendolyn Hewitt :
:
v. :
: No. 1342 C.D. 2018
Hellam Township Board of Supervisors : Argued: April 11, 2019
:
v. :
:
Gary Geiselman, Suzanne McConkey, :
Adrienne Johnson, and Devin Winand, :
Appellants :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: June 26, 2019
Gary Geiselman, Suzanne McConkey, Adrienne Johnson, and Devin
Winand (Objectors) appeal from an Order of the Court of Common Pleas of York
County (common pleas), which granted William and Wendolyn Hewitt’s
(Applicants) appeal from a decision of the Hellam Township Board of Supervisors
(Board) and reversed the Board’s decision denying Applicants’ conditional use
application (Application) to operate a Winery, Type B. On appeal, Objectors argue
common pleas erred in reversing the Board’s decision, claiming Applicants did not
provide a detailed written plan for noise control as required by the Hellam
Township Zoning Ordinance (Ordinance). In addition, Objectors argue common
pleas erred because Applicants did not demonstrate the proposed use would not
detract from the use or enjoyment of nearby properties or otherwise change the
character of the neighborhood. Finally, Objectors assert common pleas erred
because the principal use is a winery, which is only allowed as an accessory use to
a vineyard, which does not yet exist. Upon review, we find common pleas erred in
concluding Applicants met the specific, objective requirements for noise control,
as set forth in the Ordinance. As a result, we must reverse.
I. BACKGROUND
Applicants are equitable owners1 of 4865 Libhart Mill Road in Hellam
Township, York County, Pennsylvania (the Property).2 The Property is located in
a Rural Agricultural Zone (RA Zone). In an RA Zone, “[w]ineries are permitted
only as an accessory use[3] to the principal use of the property as a vineyard[.]”
(Ordinance § 490-130.1.) “Vineyard” is defined as “[g]round planted with
grapevines cultivated for the purpose of commercially producing wine. A vineyard
is an agricultural use where grapes and/or other wine-producing crops are grown.”
(Id. § 490-11.C.) The Ordinance differentiates between two kinds of wineries: a
Winery, Type A, which is a permitted use in the RA Zone, and a Winery, Type B,
which is permitted only as a conditional use in an RA Zone. (Id. §§ 490-12.B(13),
490-12.C(30).) “Winery, Type A,” is defined, in pertinent part, as “[a] facility
1
The Estate of Evamae Crist is the legal owner of the Property but has an agreement of
sale with Applicants, contingent upon approval of the conditional use.
2
The Property is comprised of two parcels: one of which is 6 acres and the other of
which is 10.62 acres. (Board Decision, Finding of Fact (FOF) ¶ 2.)
3
“Accessory use” is defined as “[a] use on the same lot with, and of a nature customarily
incidental and subordinate to, the principal use or structure.” (Ordinance ¶ 490-11.C.)
2
specially designed to allow processing of grapes and other fruit products or
vegetables, to produce wine or similar spirits.” (Id. § 490-11.C.) On-site sales of
wine are not allowed at a Winery, Type A. In contrast, “Winery, Type B,”
encompasses the definition of Winery, Type A, but “also includes retail and
wholesale sales of wine, catering areas, banquet areas or rooms, halls, winery
events, tours, picnic areas, food service and a tasting facility.” (Id.) Winery events
include activities such as weddings and receptions that are “considered an
accessory function” of a Winery, Type B. (Id.)
A. The Application and Hearings
On October 27, 2017, Applicants filed their Application seeking a
conditional use to operate a Winery, Type B, on the Property.4 Applicants planned
to convert the existing barn into a wedding/event venue for up to 230 people,
reside in the existing home, and continue farming the Property, at least two to five
acres of which would be planted with grapes to produce wine. (Reproduced
Record (R.R.) at 2a, 4a.) Pertinent to this appeal, the Applicant provided the
following in relation to noise:
The events will be mainly indoor events, except for outdoor wedding
ceremonies, and other approved uses as set forth for winery B. These
will take place on the interior part of the property to minimize noise.
We also plan to insulate the barn to reduce noise.
We will be installing a sound system that we can control. Our
contract will include verbiage so that those renting understand noise
concerns. We will be closely monitoring [sic.]
4
Initially, Applicants also sought to operate a bed and breakfast but subsequently
withdrew that portion of their Application.
3
(Id. at 4a.)
In November 2017, Applicants presented their plans to the Hellam Township
Planning Commission, which voted 4-1 in favor of recommending approval. (Id.
at 30a-31a.) The Board held hearings on the matter on December 21, 2017, and
January 18, 2018. (Id. at 37a-39a, 44a-46a.)
Mr. Hewitt elaborated on Applicants’ plans at the first hearing. He testified
as follows. Applicants would remove the barn’s existing siding and install 2½-
inch thick insulation to certain walls. (Id. at 123a.) They would also install a
sound system, which they would control. (Id. at 126a.) Based upon concerns of
neighbors, Applicants agreed to move an 88-space parking lot behind the barn to
minimize the effect of lights and sound. (Id.) Applicants would continue to
contract with a neighboring farm to grow hay on approximately six acres but were
planning to plant grapes as well. (Id. at 125a.) It would take three years to get the
first crop of grapes once they were planted. (Id. at 129a.) Applicants needed to get
cash flow from the wedding/event venue to fund planting. (Id.) Because no grapes
or other wine-producing crops had already been planted, Board’s Solicitor
(Solicitor) advised the Board it could include a deadline for planting as a condition
of approval. (Id. at 142a.)
A number of residents, including Objectors, also testified at the first hearing
and opposed the proposed plan. One resident who lives directly across from the
Property was concerned about noise and suggested Applicants construct two walls
with insulation between them to minimize noise. (Id. at 158a-59a.) Mr. Hewitt
responded that was the plan. (Id. at 159a.) Another resident testified that 10
residents live within 500 feet of the Property, the closest of which was 180 feet.
Because of topography, she testified sound would be amplified and described the
valley as “virtually a natural amphitheater.” (Id. at 192a.) She further asserted that
4
one could stand on her property and hear someone speaking in a normal talking
voice at the site of the proposed parking lot. (Id. at 193a.) Other residents
expressed concern over the amount of traffic that would be generated by the use,
particularly on Libhart Mill Road, which is a windy road that is not heavily
traveled. (Id. at 168a, 173a, 179a.) One resident, for example, lives at a nearby
intersection and estimated 150-250 cars would travel through the “very high traffic
corner[]” in a 30- to 45-minute span. (Id. at 168a.) Objector Geiselman testified
that a wedding/event venue for 250 people “will absolutely have an effect . . . on
the character and enjoyment of our neighborhood.” (Id. at 204a.) Mr. Hewitt
advised that Applicants were seeking to contract with transportation companies to
lessen the impact on traffic. (Id. at 170a.) Chairman advised traffic would be a
concern addressed in the land development process. (Id. at 218a.) Chairman also
asked for a show of hands from attendees who were concerned with noise, and 24
attendees raised their hand. (Id. at 213a-14a.) Twenty-six people raised their
hands when asked if they were concerned about traffic. (Id. at 218a.) Objector
McConkey questioned the true principal use of the Property, as did several other
residents. (Id. at 162a, 165a-66a, 222a.) A few other residents expressed concern
about the proposal’s environmental impact, lighting, and people at events
trespassing onto neighboring properties. (Id. at 173a, 194a, 215a.) One person
spoke in support of the proposal: the individual who currently farms the land, with
whom Applicants have discussed planting the grapes and other wine-producing
crops. (Id. at 191a.)
At the continued hearing on January 18, 2018, Mr. Hewitt testified it would
take one year to get grape plants to plant. (Id. at 245a-46a.) According to Mr.
Hewitt, Applicants would grow 5 to 12 acres total. (Id. at 248a.) When discussing
5
whether to impose some sort of deadline for planting crops, Mr. Hewitt said
Applicants would agree to plant at least two acres of grapes by June 1, 2020. (Id.
at 310a-11a.) In the meantime, because the liquor laws permit a winery to
purchase fruit or juices for use in winemaking, Mr. Hewitt said Applicants
“hope[d] to have everything on the winemaking side ready to go by, give or take,
the end of this year, beginning of next year.” (Id. at 247a.) Mr. Hewitt also
revisited Applicants’ plans in terms of noise control. (Id. at 256a.) He testified the
vinyl siding on the barn would be removed, 2½-inch insulated foam core would be
installed on all the barn’s walls, and new tin siding would be installed. (Id.) He
reiterated that a sound system would be installed that Applicants control, which is
similar to a system used at another venue, which hosts events under a tent. (Id. at
257a.) Aside from the ceremony itself, no other outdoor events were planned, he
said. (Id. at 259a.) Although a deck would be constructed at the back of the barn,
it was meant as a means of ingress and egress and, at most, would be used to serve
hors d’oeurves. (Id. at 260a.) Mr. Hewitt presented a letter from the executor of
the estate that owned the Property expressing support for the proposal. (Id. at
269a.)
On the second day of the hearing, a number of residents and Objectors
testified in opposition to the proposal, voicing complaints about noise and traffic.
Objector Johnson testified that while a tractor may have a higher decibel rating, a
tractor would be operating for only a short time, not several hours, as is the case
for a wedding with music. (Id. at 313a.) In response to a poll by Chairman, 27
attendees raised their hand when asked if they were concerned with noise. (Id. at
326a.) A number of other residents, some of whom testified at the first hearing,
expressed various concerns, ranging from concern about drunk drivers leaving
6
events at the Property to enforcement of noise complaints to compliance with
historic overlay district requirements. (Id. at 319a-20a, 324a, 336a.) Objectors
McConkey and Geiselman again stated the real principal use was a winery not a
vineyard. (Id. at 302a, 338a.) Another resident stated that because there was no
vineyard or even crops planted yet, Applicants were “putting the cart before the
horse.” (Id. at 327a-28a.)
At the close of the hearing, Chairman asked Solicitor to confirm that light,
noise, and traffic concerns would also be addressed as part of a land development
plan, to which Solicitor responded they would. (Id. at 359a.) Following
deliberations, the Board voted 3-2 to deny the Application. (Id. at 375a-77a.)
B. Board Decision
In its written decision that followed, the Board found the proposal was
consistent with Applicants’ description. (Board Decision, Findings of Fact (FOF)
¶¶ 6, 8, 12-18.) The Board also found that over a dozen witnesses, many of whom
were adjoining or nearby property owners, testified that the proposal would
diminish the use and enjoyment of their properties. (Id. ¶ 19.) The Board wrote:
Of specific concern were (a) the noise that would be generated by the
attendance of more than 200 people at events like weddings, and (b)
the traffic on Libhart Mill Road and other nearby roads that would be
generated by that number of attendees, and by the regular use of the
Property as a place of business.
(Id.) The Board found the Property fronted Libhart Mill Road and had direct
ingress to and egress from that road. (Id. ¶ 4.) The existing house and barn are
situated in proximity to Libhart Mill Road, just 20 feet or less from the cartpath.
7
(Id. ¶ 7.) At least two neighboring houses are located within 150 feet of the barn.
(Id.)
The Board further found that the witnesses testified the area, which is known
as Owl Valley, “is a quiet area, with an historic residential and agricultural
character, and that Libhart Mill Road is [a] quiet country road not subjected to high
volumes of traffic.” (Id. ¶ 20.) Only residential and agricultural uses exist within a
one-half mile radius, and “no nearby uses accommodate anywhere near the large
number of patrons and vehicles projected.” (Id. ¶ 21.) The Board found that
another winery that was approved three years ago that is a mile from the Property
was distinguishable from this Application because it is set back further from the
road (200 feet) and is further from the nearest residence (500 feet), is a larger lot,
and has natural topographical features that act as a screen. (Id. ¶ 23.) The noise
and traffic generated by the proposal would adversely impact neighboring property
owners. (Id. ¶ 22.)
Based upon these findings, the Board concluded that Applicants met the
specific criteria in the Ordinance related to minimum lot size; minimum wine-
producing crop size, which would be planted by June 30, 2020; adequate water and
sewage; and no restaurant-style food or cooked to order food would be served.
(Board Decision, Conclusion of Law (COL) ¶ 3.A-D.) However, the Board
concluded Applicants did not “sufficiently demonstrate[] a plan for noise control
that will minimize noise effects on the surrounding community,” as the Ordinance
required. (Id. ¶ 3.E.) The Board interpreted “the Ordinance to require that event
noise . . . be adequately addressed as a prerequisite to conditional use approval.”
(Id.) The Board concluded:
[T]hat event noise produced within the barn, or upon the deck
attached to the barn, or in the planned parking areas, will be audible
8
on neighboring properties. The Board also conclude[d] that such
noise, along with the noise generated by vehicle traffic to, from and
upon the Property during events, being unusual to and not in
conformance with the character of Owl Valley, will disrupt the
surrounding community. While the Board acknowledge[d] that
Winery, Type B, uses are permitted as conditional uses in the RA
Zone, not all RA Zone locations are appropriate for such use; in this
case, the subject Property’s close proximity to other residences, and
the subject Property’s location in Owl Valley on low-volume Libhart
Mill Road, make the Property inappropriate for use as a Winery, Type
B.
(Id.)
In addition to finding Applicants did not meet the specific criteria of the
Ordinance, the Board found Applicants did not meet all of the general criteria for
this type of use. (Id. ¶ 5.A-F.) Although the Board found the proposed use was
“consistent with the purpose and intent of the [RA] Zone[,]” it also found the
proposed use would generate excessive noise and traffic that would “detract from
the use and enjoyment of adjoining or nearby properties” and would “change the
character of . . . Owl Valley, which has never included any high-traffic, high-
attendance uses.” (Id. ¶ 5.A-C.) Accordingly, the Board concluded Applicants did
not meet their burden of proof and denied the Application. (Id. ¶ 6.)
C. Appeal to common pleas
Applicants appealed the Board Decision to common pleas, which accepted
no new evidence. Based upon briefs filed by Applicants, the Board, and Objectors,
who intervened, common pleas granted Applicants’ appeal and reversed the
Board’s Decision. Common pleas noted the Board denied the Application
primarily because of noise and traffic concerns. (Opinion (Op.) at 5.) Common
pleas concluded Applicants satisfied the Ordinance’s requirements for noise
9
control because they planned to insulate the barn; to hold events, except for
ceremonies, inside the barn; to install a sound system they controlled; to address
any noise complaints; to move the parking area behind the barn to block noise; and
to comply with all other recommendations or conditions imposed by the Board.
(Id. at 6.) As for traffic, common pleas noted the Ordinance had no specific
criteria except a plan for parking, which was satisfied. (Id.) Furthermore, noise
and traffic concerns would be addressed in the land development phase. (Id.)
Because Applicants met the specific criteria in the Ordinance, common pleas
concluded the burden shifted to Objectors to demonstrate that the proposal would
be detrimental to the surrounding community. (Id.) Despite multiple chances to
do so, common pleas concluded Objectors did not present evidence to satisfy this
burden, such as “noise studies, police records, property valuations, traffic studies,
or any type of substantive evidence upon which their fears were based[.]” (Id. at 6-
7.) “Instead all that was provided,” common pleas found, “was testimony of
personal opinions and fears that the noise [and] traffic [will] disrupt the
community.” (Id. at 7.) Common pleas concluded:
A winery, and any accessory, being a conditional use of the RA
zoning plan, cannot on its own detract from the character and use of
the community. Objectors provided no substantive evidence, besides
conjecture, that the proposed winery would disrupt the nature of the
community. [Applicants] satisfied their burden and as there was no
substantive evidence to the contrary, the Board . . . abused its
discretion in denying [Applicants’ A]pplication.
(Id.)
10
For the foregoing reasons, common pleas granted Applicants’ appeal and
reversed the Board’s Decision. (Id.) Objectors now appeal to this Court.5
II. PARTIES’ CONTENTIONS
A. Objectors’ arguments
On appeal,6 Objectors raise three issues. First, they allege common pleas
erred in reversing the Board’s denial of the Application because Applicants did not
provide a suitable plan for noise control. Second, they allege common pleas erred
in concluding that the Board’s findings related to the proposal changing or
negatively impacting the community were not supported by substantial evidence.
Third, Objectors allege common pleas erred because the principal use of the
Property would be a winery not a vineyard, and wineries are only permitted as
accessory uses.
Objectors argue that the Ordinance requires a detailed written plan to
address noise control, which includes an explanation of how noise complaints will
5
While Applicants’ appeal was pending before common pleas, Applicants filed an
Amended Application for a conditional use with the Board, proposing to construct a building on
the Property to host weddings and events, instead of using the barn, as proposed here. The Board
ultimately denied that request, which common pleas likewise reversed. The Amended
Application is the subject of a separate appeal, Hewitt v. Hellam Township Board of Supervisors
(Pa. Cmwlth., No. 1518 C.D. 2018, filed June 26, 2019), which was argued seriately with this
appeal.
6
Because common pleas took no additional evidence, our review is limited to
determining whether the Board erred as a matter of law or abused its discretion. Williams
Holding Grp., LLC v. Bd. of Supervisors of W. Hanover Twp., 101 A.3d 1202, 1211 n.8 (Pa.
Cmwlth. 2014). An abuse of discretion occurs if the Board’s findings are not supported by
substantial evidence. Id. Substantial evidence has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” River’s Edge Funeral
Chapel & Crematory, Inc. v. Zoning Hearing Bd. of Tullytown Borough, 150 A.3d 132, 142 (Pa.
Cmwlth. 2016).
11
be addressed. Objectors contend Applicants did not submit a written plan or, for
that matter, any evidence of their plans for noise control at the hearings. In
addition, Objectors urge that the Board’s interpretation of its own Ordinance is
entitled to deference, and because Applicants did not meet their burden of proof,
the Board properly denied the Application.
Objectors also argue that Applicants did not meet their burden of
demonstrating that the proposed use will not detract from the use or enjoyment of
nearby properties or change the character of the neighborhood. Objectors further
assert that, contrary to common pleas’ opinion, they did present specific
information concerning the impact of lights, noise, and traffic on their quiet
neighborhood. Objectors note that the Board considered other event venues, such
as the one proposed by Applicants, and determined that those are located on busier
roads than Libhart Mill Road. In addition, Objectors claim other wineries differ
from the one Applicants propose because they are located farther away from
neighboring homes and are not located in a valley. In short, Objectors argue there
is substantial evidence to support the Board’s finding related to the impact of the
proposed plan on the community.
Lastly, Objectors argue that wineries are only permitted as accessory uses to
the principal use of a vineyard. The proposed winery, Objectors claim, cannot be
incidental to a vineyard that does not yet exist and will not exist for another three
to five years. They point out that the soil has not yet been tested and no plants
have been ordered. Objectors argue that the bulk of the testimony focused on the
winery, which is further evidence that the winery is the principal use, not a
vineyard. Although the Board did not rely upon this as a basis for its decision,
Objectors assert this Court can affirm the Board’s Decision on other grounds.
12
B. Board’s arguments
The Board joined in Objectors’ brief, but filed a separate brief to emphasize
that, in its opinion, common pleas erred by not affording the Board discretion as
factfinder, responsible for weighing the evidence and making credibility
determinations. Like Objectors, the Board asserts Applicants did not meet their
burden of showing compliance with the objective requirements of the Ordinance,
namely, the noise control plan requirement. The Board also disputes that its
findings are not supported by substantial evidence, citing the testimony of
Objectors and other residents who opposed the Application. The Board notes other
venues are located on feeder roads, whereas the access road here is not traveled as
much. It also notes that 10 residents live within 500 feet of the barn, the closest of
which is just 180 feet away. In addition, the Board cites the testimony about
parking and lights associated therewith. Although it acknowledges that testimony
about the impact on the surrounding neighborhood cannot be speculative, the
Board contends an expert witness is not required and that the witnesses here raised
specific issues. It maintains the cumulative, credited, non-speculative evidence
supports the Board’s findings.
The Board also argues that common pleas erred by not providing deference
to the Board’s interpretation of its own Ordinance. It interpreted the Ordinance as
requiring not just a noise control plan to be presented, but also that the noise
control plan adequately address noise control as a prerequisite to conditional use
approval. The Board asserts its interpretation is reasonable and promotes the
purpose of an RA Zone. It argues Applicants did not have a noise control plan,
except for “vague assurances and possibilities.” (Board Brief (Br.) at 13.)
13
C. Applicants’ arguments
Applicants respond that the inclusion of a conditional use in an ordinance
indicates a legislative determination by the governing body that the use is
consistent with the public health, safety, and welfare. It also argues that any
adverse impacts must be greater than those normally associated with uses of the
same type. They also note that the Board’s review should have been limited to
land use, and not land development, issues. With these principles in mind,
Applicants argue they have satisfied their burden, but Objectors have not. They
claim they submitted a written noise plan with the Application and presented
testimony regarding the plan at the hearings. By interpreting the Ordinance to
prohibit any audible noise on neighboring properties, Applicants argue, the Board
erred. They also argue that Objectors’ evidence related to noise was speculative,
and there is no evidence the sound generated by this Winery, Type B would be
different from any other Winery, Type B. Accordingly, Applicants claim the
Board erred in denying the Application.
Applicants also contend that the Board improperly placed the burden on
them to satisfy the subjective criteria of the Ordinance when the burden properly
belonged to Objectors. Further, while the Board attempts to paint the issue as one
involving credibility and evidentiary weight, Applicants contend the issue is,
instead, whether competent, substantial evidence exists to support the Board’s
findings. According to Applicants, Objectors did not satisfy their burden because
much of their evidence was speculative or conjectural, which is insufficient under
the law to carry their burden. Applicants maintain that many of the concerns
would also exist with other Wineries, Type B. Applicants assert they intend to
14
maintain farming on the Property, so it will not be converted to a non-agricultural
use. Applicants also contend that the Board incorrectly treated Owl Valley as a
residential area, although it is located in an RA Zone. Applicants note that the
Ordinance cautions residents that they must be prepared to accept agricultural uses
in an RA Zone.
Finally, Applicants argue that the principal use of the Property is a vineyard,
to which the Winery, Type B, is an accessory use. They acknowledge that because
the issue was not raised at the hearings, there was little testimony concerning the
same. However, Applicants note that a minimum of two acres will be planted with
grapes, while the other acreage is used for other crops. Applicants agree that they
cannot open the winery until the vineyard is planted, which is all that the
Ordinance requires. They also note that they would not be eligible for an
occupancy permit until such occurs. They also point out that less than 1.25 acres
of the Property would be used for winery purposes. Applicants ask the Court to
affirm common pleas’ Order.
III. DISCUSSION
A. General Legal Principles
As a preliminary matter, a conditional use is a use that is “specifically
recognized by the [municipality] as consistent with the zoning plan.” Aldridge v.
Jackson Twp., 983 A.2d 247, 253 (Pa. Cmwlth. 2009). It is similar to a special
exception, with the primary difference being which entity reviews such requests.
Williams Holding Grp., LLC v. Bd. of Supervisors of W. Hanover Twp., 101 A.3d
1202, 1212 (Pa. Cmwlth. 2014). Conditional uses are reviewed by the municipal
15
governing body, and special exceptions are reviewed by the local zoning hearing
board. Id.
The applicable zoning ordinance provides the criteria upon which
conditional uses are to be reviewed. In re Thompson, 896 A.2d 659, 670 (Pa.
Cmwlth. 2006). Each ordinance differs, but usually they provide specific,
objective criteria and general, subjective criteria. Williams Holding, 101 A.3d at
1212-13. Whether a criterion is specific and objective or general and subjective
determines which party bears the burden of persuasion. Id. at 1212-13. An
applicant bears the initial burden of demonstrating that its proposed use meets the
specific, objective criteria of an ordinance. Id. at 1212. Once an applicant meets
its prima facie burden, “a presumption arises the proposed use is consistent with
the general welfare,” Aldridge, 983 A.2d at 253, and “the application must be
granted unless the objectors present sufficient evidence that the proposed use has a
detrimental effect on the public health, safety, and welfare,” In re Thompson, 896
A.2d at 670. Whether a proposed use is a detriment to public health, safety, and
welfare is an example of a general, subjective criterion. Williams Holdings, 101
A.3d at 1213. When a criterion “is nonobjective or too vague to afford the
applicant knowledge of the means by which to comply, the requirement is either
one that is not enforceable . . . or, if it relates to public detriment, the burden shifts
to the objector,” even if the ordinance appears to place the burden on the applicant.
Id. at 1213, 1217. The Court has explained the rationale behind this shifting
burden of persuasion, stating that “it would be manifestly unfair to require [an
applicant] to prove conformity with a policy statement, the precise meaning of
which is supposed to be reflected in specific requirements.” Bray v. Zoning Bd. of
16
Adjustment, 410 A.2d 909, 911 (Pa. Cmwlth. 1980) (emphasis omitted) (quoting
Appeal of Baker, 339 A.2d 131, 135 (Pa. Cmwlth. 1975)).
The burden on the objectors to rebut the presumption that a proposed use is
consistent with the general welfare is a heavy one. Marr Dev. Mifflinville, LLC v.
Mifflin Twp. Zoning Hearing Bd., 166 A.3d 479, 483 (Pa. Cmwlth. 2017).7 It is
not enough for objectors to make “bald assertions” or proffer personal opinions
about the perceived ill effects of the proposed use. In re Cutler Grp., Inc., 880
A.2d 39, 43 (Pa. Cmwlth. 2005). Nor can they “meet their burden by merely
speculating as to possible harm.” E. Manchester Twp. Zoning Hearing Bd. v.
Dallmeyer, 609 A.2d 604, 610 (Pa. Cmwlth. 1992). “[I]nstead [they] must show a
high degree of probability that the proposed use will substantially affect the health
and safety of the community.” Id.; see also Manor Healthcare Corp. v. Lower
Moreland Twp. Zoning Hearing Bd., 590 A.2d 65, 71 (Pa. Cmwlth. 1991) (finding
that the objectors raised “mere possibilities[, falling] . . . short of [a] high degree of
probability”). Furthermore, “the degree of harm required to justify denial of the
conditional use must be greater than that which normally flows from the proposed
use.” In re Cutler Grp., 880 A.2d at 43.
With these principles in mind, we turn to Objectors’ arguments.
B. Specific, objective criteria
Section 490-130.1.B of the Ordinance sets forth a number of specific,
objective criteria that Applicants must satisfy, which include:
7
Although Marr Development involved a special exception, “the law regarding
conditional uses and special exceptions is virtually identical,” and our Court has held “the burden
of proof standards are the same for both.” In re Thompson, 896 A.2d at 670.
17
(1) Minimum lot area: 10 acres.
(2) Minimum wine-producing crop requirement: At least two acres
of the lot on which the Type B winery is located shall be planted on
the same parcel of land which is permitted for and being utilized for
agriculture.
(3) The applicant shall furnish evidence that adequate water supply
and sewage disposal can be provided. If public sanitary sewer is not
available, then the on-site sewage disposal system shall be designed
and sized to accommodate the proposed facility.
(Ordinance, § 490-130.1.B.) In addition, the Ordinance imposes various specific
criteria on winery events. (Id.) Relevant for this appeal is a plan for control of
noise. That provision provides:
The applicant shall provide a detailed written plan addressing . . .
....
Control of noise:
[i] The plan for noise control shall take into account and use
topography and/or buildings to minimize noise effects on the
surrounding community.
[ii] Outdoor functions shall be confined to an area within the interior
of the property to minimize the impact of noise and other activities to
adjacent and/or surrounding properties.
[iii] Explanation of how amplified sound and noise complaints will be
addressed.
(Id.)
If Applicants fail to meet these criteria, our inquiry ends as they have not
met their prima facie burden. Here, the Board concluded Applicants satisfied all of
the specific criteria except for noise control, (Board Decision, COL ¶ 3.E), but
18
common pleas disagreed, (Op. at 6). We agree with the Board that Applicants did
not satisfy the specific, objective criteria related to noise control, but not for the
reasons found by the Board. As set forth above, the Ordinance requires an
applicant to submit “a detailed written plan[,]” which addresses, among other
things, an “[e]xplanation of how amplified sound and noise complaints will be
addressed.” (Ordinance, § 490-130.1.B(e) (emphasis added).) Here, the
Application does not contain a detailed written plan that explains how noise
complaints will be addressed. In terms of noise, the Application provides:
The events will be mainly indoor events, except for outdoor wedding
ceremonies, and other approved uses as set forth for [W]inery B.
These will take place on the interior part of the property to minimize
noise. We also plan to insulate the barn to reduce noise.
We will be installing a sound system that we can control. Our
contract will include verbiage so that those renting understand noise
concerns. We will be closely monitoring [sic.]
(R.R. at 4a.)
These actions – holding events on the interior of the property, insulating the
barn, and advising customers of noise concerns – are geared at minimizing or
reducing noise in an attempt to prevent noise complaints from occurring in the first
place. However, the Application must include an “[e]xplanation of how amplified
sound and noise complaints will be addressed[]” after a complaint is received, as
the Ordinance requires. (Ordinance, § 490-130.1.B(e).) Arguably, installing a
sound system that Applicants control or Applicants monitoring events closely may
be intended to address noise concerns. They also can be preventative steps aimed
19
at squelching noise complaints before they happen.8 Even if we were to accept
these actions as methods of addressing noise complaints, we cannot hold that these
constitute a detailed plan, as required. (Id.) Nor can we accept Applicants’
testimony at the hearings as to how noise complaints will be addressed because the
Ordinance requires the plan be written. (Id.) Therefore, we cannot conclude that
the Applicants satisfied the specific, objective criteria of the Ordinance.
However, we must caution that the Board’s reasoning for concluding the
specific, objective criteria of the Ordinance was not met is also flawed. In
determining that the Applicants did not meet the specific, objective criteria related
to noise control, the Board interpreted the Ordinance as “requir[ing] that event
noise such as music, conversation, public announcements, people celebrating, and
the like, must be adequately addressed as a prerequisite to conditional use
approval.” (Board Decision, COL ¶ 3.E.) Because noise “will be audible on
neighboring properties[]” and this noise is “unusual to and not in conformance
with the character of Owl Valley,” the Board determined the Property was not an
appropriate site for a Winery, Type B. (Id.)
There are several issues with the Board’s reasoning. First, the Board
requires more than the Ordinance requires. Applicants need a plan that minimizes
noise on neighboring properties, not eliminates it. (Ordinance, § 490-130.1.B(e).)
The Board’s own findings demonstrate that “the barn will be improved with
soundproofing, . . . all entertainment (bands, disc jockeys, etc.) shall be provided
inside the barn only[,]” and “Applicants intend to take steps to limit the escape of
8
At oral argument, counsel for Applicants conceded that the Application did not include
a written plan about how noise complaints would be addressed. Counsel indicated it was
obvious or implied that the Applicants would address any such concerns.
20
noise from the inside of the barn while the deck is in use.” (Board Decision, FOF
¶¶ 6, 14.) To the extent the Board sought more detailed design plans, we note that
“[z]oning only regulates the use of land and not the particulars of development and
construction.” In re Thompson, 896 A.2d at 671 (emphasis is original) (citation
omitted); see also In re Richboro CD Partners, L.P., 89 A.3d 742, 749 (Pa.
Cmwlth. 2014) (holding an applicant is not required to provide specific design
details of its proposed development at the conditional use stage); In re Drumore
Crossings, L.P., 984 A.2d 589, 595 (Pa. Cmwlth. 2009) (holding same). While a
board’s interpretation of its own ordinance is generally entitled to deference, “[t]he
rules of statutory construction are applicable to statutes and ordinances alike.” In
re Thompson, 896 A.2d at 669. Thus, when the words are free and clear of
ambiguity, the letter of it should not be disregarded under the “pretext of pursuing
its spirit.” Section 1921 of the Statutory Construction Act of 1972, 1 Pa. C.S.
§ 1921; see also Greth Dev. Grp., Inc. v. Zoning Hearing Bd. of Lower Heidelberg
Twp., 918 A.2d 181, 188-89 (Pa. Cmwlth. 2007) (concluding it was error to
“substitut[e] . . . what it believed the [z]oning [o]rdinance should state for that
which was actually legislated by the [t]ownship”). The general rule towards
deference
must sometimes bend to [a] second rule, found in Section 603.1 of the
[Pennsylvania Municipalities Planning Code9], which provides:
“[i]n interpreting the language of the zoning ordinance 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,
9
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.
21
in favor of the property owner and against any implied extension of
the restriction.”
Williams Holding, 101 A.3d at 1213 (quoting 53 P.S. § 10603.1). In short,
“ordinances are to be construed expansively, affording the landowner the broadest
use and enjoyment of its land.” Aldridge, 983 A.2d at 253. In addition, “it would
be manifestly unfair to require” an applicant to conform to specific, objective
criteria that are not clearly defined. Bray, 410 A.2d at 911; see also Williams
Holdings, 101 A.3d at 1213, 1217 (explaining when a criterion “is nonobjective or
too vague to afford the applicant knowledge of the means by which to comply, the
requirement is either one that is not enforceable . . . or, if it relates to public
detriment, the burden shifts to the objector”).
Second, the Board applied the wrong standard. It concluded the noise was
“unusual to and not in conformance with the character of Owl Valley[.]” (Board
Decision, COL ¶ 3.E.) It is not enough to show that the effects of this Application
will impact the surrounding neighborhood in some way; rather “the degree of harm
. . . must be greater than that which normally flows from the proposed use.” In
re Cutler Grp., 880 A.2d at 43 (emphasis added).
Third, the Board erred in concluding that “not all RA Zone locations are
appropriate” for a Winery, Type B. (Board Decision, COL ¶ 3.E.) The problem
with this statement is that it does not take into consideration what the governing
body already determined when it enacted the Ordinance: Winery, Type B is a
conditional use in all RA Zones, and this designation “evidences a legislative
decision that the particular type of use is consistent with the zoning plan and
presumptively consistent with the health, safety and welfare of the community.” In
re Cutler Grp., 880 A.2d at 42. Furthermore, the Ordinance expressly provides
“[r]esidential uses are severely limited, and any future inhabitants in [an RA Zone]
22
must be willing to accept the impacts associated with normal farming practices.
Owners, occupants and users of property within [an RA Zone] must be prepared to
accept such impacts from [the] agricultural operations . . . .” (Ordinance, § 490-
12.A(1).) If the current Board wants to exclude a Winery, Type B, from RA
Zones, it can do so but it must follow the legislative process and amend the
Ordinance enacted by its predecessors,10 not selectively deny conditional use
applications that otherwise meet the Ordinance’s requirements.
IV. CONCLUSION
Although the Board’s interpretation was erroneous, common pleas’
conclusion that Applicants satisfied the specific, objective criteria in the Ordinance
related to noise control was also in error. The Application was devoid of a
“detailed written plan addressing . . . how amplified sound and noise complaints
will be addressed.” (Ordinance, § 490-130.1.B(e).) Because Applicants did not
satisfy the specific, objective criteria of the Ordinance for a conditional use, they
did not meet their prima facie burden. Accordingly, we reverse common pleas’
Order.
_____________________________________
RENÉE COHN JUBELIRER, Judge
10
We note the Ordinance was just amended in 2014 to include the provisions dealing
with a Winery, Type B, that are at issue in this appeal.
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William and Wendolyn Hewitt :
:
v. :
: No. 1342 C.D. 2018
Hellam Township Board of Supervisors :
:
v. :
:
Gary Geiselman, Suzanne McConkey, :
Adrienne Johnson, and Devin Winand, :
Appellants :
ORDER
NOW, June 26, 2019, the Order of the Court of Common Pleas of York
County, dated September 4, 2018, is REVERSED.
_____________________________________
RENÉE COHN JUBELIRER, Judge