On appeal the Commonwealth Court of Pennsylvania affirmed the trial court’s verdict in favor of the Zoning Hearing Board of Smithfield Township (hereinafter “Board”). The Board’s decision stated that under the Smithfield Township Zoning Ordinance (hereinafter “Zoning Ordinance”) camping is not an accessory use to an airport and camping activities are not allowed at the Pocono Stroudsburg Airport. The courts both agreed upon this judgment due to the lack of a customary relationship between camping and an airport.
Sky’s The Limit, Inc. (STL) is a skydiving business that has used the Pocono Stroudsburg Airport since 1995. The Board issued an enforcement notice finding that under the Zoning Ordinance camping was prohibited in M-I Industrial Districts, which included airports. Throughout the duration of STL’s tenure at the airport, there have always been numerous RVs on the premises as well as pilots using tents and tarps to campout at the airport. However, the Board determined that the RV and tent camping was not a non-conforming use because there was insufficient evidence that the camping took place before the Zoning Ordinance was enacted in 1973. Finally, The Board found there was insufficient evidence to establish that camping was a customary connection to the principal use of an airport. For those foregoing reasons, the Board sustained the enforcement notice to cease camping at the Pocono Stroudsburg Airport.
STL appealed arguing that camping was an accessory use to the airport and that Board abused its discretion when making the decision to terminate camping at airports. STL asserted that only two elements are needed to be proven to establish an accessory use: that the use in question is secondary to the principal use and the use is customarily found with the principal use. This common law test is consistent with Section 1002 of the Zoning Ordinance, which states that an accessory use is “a use clearly incidental or subordinate to, and customary in connection with, and located on the same lot with the principal use.” The Board argued, and the court agreed, that no customary connection between camping and airports existed since only 20 of the 127 public airports in Pennsylvania allowed camping. The court also noted that unlike skydiving, which needs an airport to function and exist, camping is not dependent upon the principal use as an airport.
Sky’s The Limit Inc. v. Zoning Hearing Board of Smithfield Township, 2011 WL 1196141 (Pa.Cmwlth. 3/31/2011)
The opinion can be accessed at: http://www.courts.state.pa.us/OpPosting/Cwealth/out/1378CD10_3-31-11.pdf
