Posted by: Patricia Salkin | March 14, 2017

PA Appeals Court Affirms Denial of Challenge Asserting Failure to Provide for of a “Place of Private Assembly” Use under Township’s Zoning Ordinance was Exclusionary

Lance Shortt and Sandra Shortt owned property in East Marlborough Township consisting of approximately 11 acres and zoned in an RB Zoning District. The Shortts wanted to use the property for what they contend is a second principal use as a “place of private assembly.” As such, the Shortts’ planned to lease their property to customers as “a place to accommodate meetings, events, and other private group assemblies, including private parties, business conferences, weddings, seminars and similar activities and might include the providing of catered meals to accommodate the attendees. Contending that the Ordinance did not allow this proposed use in any of the Township’s zoning districts, Landowners filed a substantive validity challenge provided for in Section 916.1(a) of the Pennsylvania Municipalities Planning Code (MPC) alleging that the Ordinance was invalid as a de jure exclusion. In this case, Landowners appealed from the Court of Common Pleas of Chester County’s order affirming the Zoning Hearing Board of East Marlborough Township’s denial of their validity challenge.

On appeal, Landowners’ argued that the Ordinance was unconstitutionally exclusionary because it did not permit a primary use for leasing property to private parties regardless of the activities to occur on the property. At the outset, the court noted that a zoning ordinance is not exclusionary just because it does not have a defined use that recognizes a landowner’s business model or it does not mention every conceivable commercial operation deriving from a combination of legitimate commercial uses. Here, Landowners’ proposed use was viewed as a business model that would allow someone to lease their property to undertake functions that, Landowners admitted, would be permitted uses in other Township zoning districts. The court found that even though their business model was different, as long as the uses for which the property was being sought were allowed in a Township district under the Ordinance, the Ordinance was not exclusionary.

The Landowners next alleged that their proposed use was excluded from the Ordinance because its functions did not fall squarely within the definition for hotel. The court determined that the definition for hotel provided for more than just lodging, but also included hosting private functions, events and services. As such, the court found that any activities under the Proposed Use were also permitted under a hotel use. Additionally, the court found that there was nothing to prevent a hotel from leasing out its facilities in the same way as the landowners planned on doing with their planned use. Accordingly, because there were a number of areas within the Township where the Ordinance permitted Landowners to accomplish their proposed use, the court affirmed the trial court’s order.

Shortt v East Marlborough Township Zoning Hearing Board, 2017 WL 817121 (PA Cmwlth 3/2/2017)


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