BEFORE THE ZONING HEARING BOARD OF EAST BRADFORD TOWNSHIP

IN RE: Validity Challenge and Application to the East Bradford Township Zoning Hearing Board of John Marshall and Dara Gans-Marshall 415 Birmingham Road, West Chester, East Bradford Township, PA Tax Parcel No. 51-7-113.1

DECISION AND ORDER

On August 30, 2019, John Marshall and Dara Gans-Marshall (“Applicants”) filed

with the Zoning Hearing Board of East Bradford Township (“Zoning Hearing Board”) a

challenge to the validity (“Challenge”) of the East Bradford Township Zoning

Ordinance of 1970, as amended (“Zoning Ordinance”). The Challenge asserted the

Zoning Ordinance was substantively invalid in three respects: a) a de jure exclusion of

“wedding barns”; b) a de jure exclusion of hotels/motels; and c) that Section 115-60.F

pertaining to noise is vague, subjective and impossible of compliance. Applicants own

a property located at 415 Birmingham Road, East Bradford Township, Chester County

U.P.I No. 51-7-113.1 (“Property”). The Property is located in the Township’s R-2

Residential Zoning District and is approximately 11 acres in gross area.

The Board conducted public hearings on the Application on December 4, 2019,

January 13, 2020 and February 19, 2020 (collectively the “Hearing”); all convened at

the East Bradford Township (“Township”) Municipal Building at 7:00 p.m., prevailing

time. Public Notice (“Public Notice”) of the December 4, 2020 session of the Hearing

was published in the Daily Local News, a newspaper of general circulation in the

Township, on November 13, 2019 and November 20, 2019. The December 4, 2019

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Hearing session was continued on the record until January 13, 2020; the January 13,

2020 Hearing session was continued on the record until February 19, 2020. In

addition, the Public Notice was posted on the Property and mailed to all property

owners in accordance with Section 115-81.A(2) of the Zoning Ordinance.

Alfred A. Gollatz, Esquire, Chairman, Kamil Ali-Jackson, Esquire, Vice Chair,

and P. Andrew Schaum, Esquire, Member, attended all sessions of the Hearing and

heard the evidence. The Zoning Hearing Board was represented by its Solicitor,

Joseph E. Brion, Esquire; the Applicant was represented by Debra A. Shulski, Esquire;

and the Township was represented by Michael G. Crotty, Esquire. Party status was

requested and granted to the following individuals: Daniel and Dorothy Soland; Craig

and Julie Greer; Mark Haake; Loretta Rochford; Linda Ives and Philip Rymiszewski;

Dante Capelli; Lisa Schaffer Bagosy; Marc Bertrando; Warren and Amy Reyburn; Jon-

Michael and Sarah Childers; Thomas and Patti Lechmanik; John and Emilie McGrath;

Mike and Terri Iannetta; Carol and Jim Blair; John Barrett; Mark and Anna Ouimet; and

Ross and Janet Dolan. John Mezzanotte, Esquire represented Daniel and Dorothy

Soland.

At the Hearing the following exhibits were admitted into evidence:

Zoning Hearing Board Exhibits

B – 1 Application / Challenge of the validity of the East Bradford Township Zoning Ordinance, dated August 30, 2019

B – 2 The Code of East Bradford Township (by reference) B – 3 Proof of Publication of public notice of December 4, 2019 hearing in the

Daily Local News on November 13, 2019 and November 20, 2019.

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B – 4 Letter of Debra Shulski, Esquire, attorney for Challengers, dated September 17, 2019, granting an extension of time within which to hold the hearing to November 28, 2019.

B – 5 Letter of Debra Shulski, Esquire, attorney for Challengers, dated October

3, 2019, granting an extension of time within which to hold the hearing to December 31, 2019.

B – 6 Letter dated October 29, 2019 from Zoning Hearing Board Solicitor,

Joseph E. Brion, Esquire to Applicants, via certified mail, return receipt requested, acknowledging Application/Challenge, providing hearing date, notice requirements, notice of hearing, and posting notice.

B – 7 Certified Mail Return Receipt “Green Card” evidencing receipt by

Applicants of Exhibit B-6. B – 8 Affidavit of Mailing Notice of Robyn A. Cahill on behalf of East Bradford

Township Zoning Hearing Board per Section 115-81.A of the East Bradford Code

B – 9 East Bradford Township Zoning Ordinance (by reference) B – 10 Completed Request for Party Status Forms (17) Applicants Exhibits A – 1 Application to the East Bradford Township Zoning Hearing Board/Validity

Challenge dated August 30, 2019 A – 2 Property deed for 415 Birmingham Road A – 3 Affidavit of Notice A – 4 Affidavit of Posting A – 5 CV of David Babbitt, AICP, NJPP A - 6 Stricken A – 7 Stricken A – 8 Stricken A – 9 Stricken A – 10 Chesco View of PU District

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A – 11 Chester County Real Estate assessment for properties zoned PU District A – 12 Stricken Township Exhibits The Township did not offer any exhibits.

From the testimony given and exhibits admitted, the Zoning Hearing Board

makes the following:

FINDINGS OF FACT

1. Applicants are John Marshall and Dara Gans-Marshall.

2. Applicants own property located at 415 Birmingham Road, East Bradford

Township, Chester County U.P.I No. 51-7-113.1 (“Property”).

3. The Property is located in the Township’s R-2 Residential Zoning District

and is approximately 11 acres in gross area.

4. The Property is designated as a Class I Historic Resource by the

Township, identified as #135 on the Township Historic Resource Map.

5. The Board takes judicial notice of the following:

a. Birmingham Road is a two-lane state road categorized by the

Township Comprehensive Plan as a local distributor road or local road based on criteria

of the Multi-Modal Circulation Handbook for Chester County, Update 2016.

b. The Multi-Modal Handbook describes a local distributor road as one

with narrow lanes that connects neighborhoods with some intermunicipal trips; and a

local road as one with narrow lanes that links individual properties to distributor and

collector roads.

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c. Birmingham Road provides access to residential properties fronting

on Birmingham Road and located on Township streets that intersect Birmingham Road.

d. The properties fronting on Birmingham Road are residential,

agricultural or homeowners’ association properties.

e. The properties surrounding the Marshall Property are all developed

and used for residential purposes.

f. The Marshall Property is located in a residential neighborhood.

g. There is no public sewer available to the Property.

6. Applicants filed with the Zoning Hearing Board a Challenge to the validity

of the Zoning Ordinance.

7. The Challenge asserted the Zoning Ordinance was substantively invalid in

three respects: a) a de jure exclusion of “wedding barns”; b) a de jure exclusion of

hotels/motels; and c) that Section 115-60.F pertaining to noise is vague, subjective and

impossible of compliance.

8. Applicant did not submit plans for any proposed use on the Property and

did not submit a proposed amendment to the Zoning Ordinance to cure any alleged

defect.

9. The Application does not include a definition of “wedding barn”.

10. The Application does not include a definition of “hotel/motel”.

11. Applicants presented the testimony of David Babbitt who was accepted as

an expert in land planning and zoning.

12. Mr. Babbitt was the Applicants only witness.

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13. Although the Application did not refer to a “special event venue use”,

Applicants amended their Application at the December 4, 2019 Hearing to include a

validity challenge for a de jure exclusion of “special event venue use”.

14. 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, shall we say.”

15. No other evidence was presented by way of ordinances, treatises, statutes

or other authorities that define “wedding barn” as a zoning use.

16. A wedding is a type of special event that can be held in a barn, a dwelling,

restaurant, fire hall, banquet hall or similar structure.

17. A hotel/motel is a use that provides lodging for profit to guests.

18. A hotel/motel use can be of any size for any number of guests.

19. The Zoning Ordinance does not define “hotel”, “motel” or “hotel/motel”.

20. The Zoning Ordinance does not specifically provide for “hotel”, “motel” or

“hotel/motel” as a permitted use in the Township.

21. No evidence was presented that the Township Zoning Officer or other

Township official has made a determination that special event uses, hotels or motels

are not permitted in the Township.

22. No expert or credible testimony was presented that Section 115-60.F of

the Zoning Ordinance pertaining to noise is vague, subjective and/or impossible of

compliance.

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CONCLUSIONS OF LAW

1. The Zoning Hearing Board has exclusive jurisdiction to hear and decide

the subject Zoning Appeal/Validity Challenge filed by John Marshall and Dara Gans-

Marshall, pursuant to the Sections 909.1(a) and 916.1 of the Pennsylvania

Municipalities Planning Code.

2. The issues raised in the Challenge and the Hearing thereon were

properly advertised; the Property was properly posted with the Public Notice and

owners of nearby property were notified as required by the Zoning Ordinance.

3. Party status was properly granted to those individuals who requested it.

4. The Zoning Ordinance does not de jure exclude special event uses,

including wedding barn uses.

5. The Zoning Ordinance does de jure exclude hotel and motel uses.

6. Zoning Ordinance Section 115-60.F is not vague, subjective and

impossible of compliance.

7. The development of the Property with a hotel or motel would have an

adverse impact on the surrounding road network and the residential neighborhood.

8. The development of the Property with a hotel or motel is not feasible due

to the unavailability of public sewer facilities.

DISCUSSION

“Zoning Ordinances in Pennsylvania enjoy a presumption of constitutionality

and validity, and the party challenging one bears the ‘heavy burden’ of proving

otherwise.” Macioce v. Zoning Hearing Board of the Borough of Baldwin, 850 A.2d

882, 887 (Pa. Cmwlth. 2004), citing APT Pittsburgh Ltd Partnership v. Penn Twp.,

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196 F.3d 469, 475 (3rd Cir.1999), and Schubach v. Silver, 461 Pa. 366, 336 A.2d

328, 335 (1975). The challenger must prove that the Ordinance is clearly, palpably,

and plainly unconstitutional to overcome this burden. Judd v. Zoning Hearing Board of

Middletown Township, 460 A.2d 404 (Pa. Cmwlth. 1983) (emphasis supplied). “Where

the validity of the zoning ordinance is debatable, the legislative judgment of the

governing body must control.” McGonigle v. Lower Heidelberg Township Zoning

Hearing Board, 858 A.2d 663, 668 (Pa. Cmwlth 2004).

In “order to overcome the presumption of constitutionality, the challenger must

demonstrate that ‘the ordinance totally excludes an otherwise legitimate use.’” Macioce,

850 A.2d at 887, citing Farrell v. Worcester Twp. Board of Supervisors, 481 A.2d 986,

989 (Pa. Cmwlth. 1984). “Unless the challenger demonstrates that the ordinance in

question completely or effectively excludes a legitimate use, ... the challenger has

failed to carry its burden ....” Id. The burden of proof rests with the challenger to

establish that a use is totally excluded within the four corners of the Zoning Ordinance.

Omnipoint Communications Enterprises, LP v. Zoning Hearing Board of Easttown

Township, 248 F.3d 101 (3d Cir. 2001).

Section 916.1(c)(5) of the Pennsylvania Municipalities Planning Code (MPC)

prescribes as follows:

If a challenge heard by a zoning hearing board is found to have merit, the decision of the zoning hearing board shall include recommended amendments to the challenged ordinance which will cure the defects found. In reaching its decision, the zoning hearing board shall consider the amendments, plans and explanatory material submitted by the landowner and shall also consider:

(i) the impact of the proposal upon roads, sewer facilities, water

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supplies, schools and other public service facilities; (ii) if the proposal is for a residential use, the impact of the proposal upon regional housing needs and the effectiveness of the proposal in providing housing units of a type actually available to and affordable by classes of persons otherwise unlawfully excluded by the challenged provisions of the ordinance or map; (iii) the suitability of the site for the intensity of use proposed by the site's soils, slopes, woodlands, wetlands, flood plains, aquifers, natural resources and other natural features; (iv) the impact of the proposed use on the site's soils, slopes, woodlands, wetlands, flood plains, natural resources and natural features, the degree to which these are protected or destroyed, the tolerance of the resources to development and any adverse environmental impacts; and (v) the impact of the proposal on the preservation of agriculture and other land uses which are essential to public health and welfare.

53 P.S. 10916.1(c)(5).

Moreover, the Zoning Hearing Board is entitled to considerable deference in

interpreting the Zoning Ordinance (particularly in light of the heavy burden of proving

that an ordinance is unconstitutionally exclusionary) and the deference in favor of a

landowner that must be applied in the face of any ambiguity. See Caln Nether Co.

L.P., v. Board of Supervisors of Thornbury Township, 804 A.2d 484, 491 (Pa.

Cmwlth. 2004). Whether a proposed use, as factually described or in testimony, falls

within a given category specified in a zoning ordinance is a question of law. Southco v.

Concord Township, 552 Pa. 66, 713 A.2d 607 (1998).

“The fact that a zoning ordinance does not contain a specific provision

addressing a proposed use is not, in and of itself, a basis for finding an

unconstitutional exclusion of that use.” Id., citing Kratzer v. Bd. of Supervisors of

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Fermanagh Township, 611 A.2d 809 (Pa. Cmwlth. 1992). “Where an ordinance does

not mention a specific use, we must determine whether the proposed use is included

within another use specifically provided for.” Id. “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.

In considering this issue, the Courts have “recognized that ordinances are to be

construed expansively, affording the landowner the broadest possible use and

enjoyment of its land.” Id., citing H.E. Rohrer, Inc. v. Zoning Hearing Bd. of Jackson

Township, 808 A.2d 1014 (Pa. Cmwlth. 2002). “Undefined terms are given their plain

meaning, and any doubt is resolved in favor of the landowner and the least restrictive

use of the land.” Id., citing Kissell v. Ferguson Township Zoning Hearing Bd., 729

A.2d 194 (Pa. Cmwlth 1999). In addition, a zoning hearing board is entitled to

considerable deference in interpreting a zoning ordinance. Id., citing Montgomery

Crossing Assocs. v. Township of Lower Gwynedd, 758 A.2d 285 (Pa. Cmwlth. 2000).

“While a township must in its zoning scheme provide for all reasonable uses, it is not

required to zone for every business model.” Crystal Forest v. Buckingham Township,

872 A.2d 206 (Pa. Cmwlth. 2005).

The Caln Nether Commonwealth Court case is particularly instructive. In it, the

applicant asserted that the Thornbury Township Zoning Ordinance was exclusionary

because it did not allow for a “new and used car dealership.” Id. at 488. The Zoning

Ordinance, however, did allow for “retail stores.” Id. at 492. In light of the

commonly understood meaning of it and the above-referenced standard (particularly

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that any undefined terms or ambiguous terms must be read in the light most favorable

to the landowner), the Commonwealth Court held that the permitted “retail store” use

encompassed new and used car dealerships, even though the term is not explicitly

referenced and despite provisions that prohibit the outdoor display of goods. Id.

The role of the Zoning Hearing Board and the weight to be applied to witness

testimony is equally well-settled. The Zoning Hearing Board is the finder of fact, with

the exclusive province over matters of credibility and the weight to be afforded the

evidence. In re Realen Valley Forge Greenes Associates, 799 A.2d 938 (Pa. Cmwlth.

2002). The Zoning Hearing Board, as the fact finder and ultimate judge over the

application of the applicable ordinance provisions, is not obligated to credit an expert’s

testimony, even if it is unrebutted. LHT Associates LLC v. Township of Hampton, 809

A.2d 1072 (Pa. Cmwlth. 2002).

A. The Special Event Use.

We conclude that a “Wedding Barn” is a type of building where a special event

can be held and/or a theme of a wedding, and further conclude that special event uses

are permitted in the Township. A wedding barn is a type of venue where a wedding

ceremony and reception can be held, as well as other special events. A wedding is a

type of special event. A wedding barn is not a zoning use.

Special events can be held in the Township. Special events, including

weddings, can be held at Eating and Drinking Establishments (allowed in the C-2 and

C-3 Zoning Districts); at Religious Use facilities (allowed in the C-2, R-3 and R-4 Zoning

Districts); at a Restaurant (allowed as part of an adaptive reuse under Zoning

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Ordinance Section 115-131.3), or a Bed and Breakfast Estate (allowed also under

Zoning Ordinance Section 115-131.3).

“Eating and Drinking Establishment” is defined as a “restaurant or similar

establishment offering services to the public, which provides for the sale and

consumption of food and beverages and which contains inside seating facilities.” An

eating and drinking establishment could be located in a renovated barn. The eating

and drinking establishment facilities can be used to conduct all types of special events,

including birthday and anniversary parties, bar and bat mitzvahs and weddings. The

Zoning Ordinance does not prohibit such uses and no evidence was presented that

such uses would be prohibited by the Township.

Southco, Inc. v. Concord Township, 552 Pa. 66 (1998) is instructive. Concord

Township approved the Turf Club (offering food and beverage service together with

simulcast gambling). The Township approved the use, noting that it fell within the

scope of a Restaurant as defined by the Concord Township Zoning Ordinance (a

business devoted to the sale and consumption of food and beverages and consumed

only inside the building where patrons are seated at counters or tables). Id. at. 71-

72. The Concord Township Zoning Ordinance, like the East Bradford Township

Zoning Ordinance, contained no other definitional requirements of what constitutes a

restaurant, nor did it limit the business exclusively to the sale of food and beverages.

The Pennsylvania Supreme Court held that the Concord Township Zoning Ordinance

did not expressly limit a restaurant to a business which is exclusively dedicated to

serving food and beverages. Instead, the Zoning Ordinance only requires that the

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business be “devoted” to the sale and consumption of food and beverages. The word

“devote” as ordinarily defined in Webster’s Second New World Dictionary, 387 (1986),

is as follows: “to give up (oneself or one’s time, energy, etc.) to some purpose, activity or

person.” Since the plain meaning of the word “devote” generally does not connote

exclusivity, the proposed Turf Club qualified as a permitted restaurant use by right

since it will devote a significant amount of time, money and energy towards the sale

and consumption of food and beverages.

Similarly, the East Bradford Township Zoning Ordinance does not preclude an

Eating and Drinking Establishment from being rented out to select groups for special

events, including weddings. The special event use can be part of the restaurant or

eating and drinking establishment uses.

Additionally, special events can be held and conducted as part of a Church or

Religious Use as permitted in the C-2, R-3 and R-4 Zoning Districts. These uses

contemplate “use of land or a building or buildings as and for a convent, monastery,

church or similar institution ….” See Zoning Ordinance Section 115-6. Nothing in the

Zoning Ordinance prohibits these uses from hosting weddings or receptions –

undeniably a component of a church use. Nothing prohibits the use from being held in

a barn or a building constructed to look like a barn. And no evidence was adduced to

demonstrate that the Township has denied the right of a church or religious use from

holding a wedding ceremony or reception.

Special events are also permitted in the Planned University Zoning District.

Section 115-146(J) provides that “buildings, recreational facilities, and parking lots or

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structures may be used for special events and programs open to persons who are

neither students nor employed by the university (either together with students and

employees or where students and employees will not participate). All such events and

programs shall be conducted in a reasonable manner so as to not unduly interfere with

the use of properties in any zoning district adjoining the PU Planned University

District.” Zoning Ordinance Section 115-146(J).

Applicants argue that the Commonwealth Court decision in Wimer Realty, LLC v.

Township of Wilmington, 206 A.2d 627 (Pa. Cmwlth. 2019) is controlling and requires

this Board to find the Zoning Ordinance is exclusionary because it does not specifically

provide for a wedding barn use. We disagree. In Wimer, unlike the instant case,

Wilmington Township conceded that its ordinance was exclusionary. The Court was not

presented with the issue of whether the special event use, including the wedding barn

use, was permitted in other zoning districts. Wimer does not hold that a “Wedding Barn”

is not a use permitted as part of another permitted zoning use, such as in our case, an Eating

or Drinking Establishment, a Church or Religious Use, or a special event permitted in

the PU District.

In the context of this Challenge, as noted above, the Township does not

concede that the East Bradford Township Zoning Ordinance is exclusionary. Instead,

as noted above, the use (really a theme of a type of use) is subsumed within several

other categories of permitted uses. Thus, Wimer does not control our decision in this

case.

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B. Hotel and Motel Uses.

However, we conclude that the Zoning Ordinance is exclusionary as it does not

provide for hotel and motel uses. The Zoning Ordinance does not define hotel, motel or

hotel/motel and does not specifically provide for any of those uses in any zoning district.

Unlike the special event use, we cannot find that the hotel or motel use is

subsumed in another use category. In our view, a hotel or motel is a commercial

establishment letting rooms for short term stays. Hotels and motels are principal uses

of varying sizes and provide varying services. They are typically not owner-occupied.

The Township does provide for two uses as defined in Section 155-6 of the

Zoning Ordinance – “bed and breakfast facility” and “bed and breakfast estate” and the

Township argues that these uses are types of hotels and therefore hotels are not

excluded. Although a bed and breakfast is a place for short-term lodging and in that

respect has attributes of a hotel use, it is a distinct use. The Commonwealth Court has

found that a bed and breakfast and a hotel are two distinct uses for zoning purposes.

See Thomason v. Zoning Hearing Board of Radnor, 26 A.3d 562 (Pa. Cmwlth. 2011).

The Zoning Ordinance defines a “bed and breakfast facility” as an accessory use

limited to no more than ten rooms. The bed and breakfast must be accessary to an

owner-occupied single-family detached dwelling that is a Class-I historic resource.

Section 115-48.1 includes additional restrictions on bed and breakfast facilities. A “bed

and breakfast estate”, although a principal use, also must be located in a Class I historic

resource and must be owner-occupied. Section 115-48.2 of the Zoning Ordinance

includes additional restrictions on bed and breakfast estates.

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We conclude that the Zoning Ordinance restrictions placed on the bed and

breakfast facility and the bed and breakfast estate uses preclude the typical commercial

hotel or motel use. Therefore, there is a de jure exclusion of hotels and motels in East

Bradford Township.

C. Section 115-60 of the Township Code.

Applicant challenges the validity of Section 115-60.F of the Township Code as

vague, subjective and impossible of performance. Section 115-60.F is a subsection

of Section 115-50 of the Township Code which is set forth in Article XIII of the Zoning

Ordinance titled “Design Standards.” Section 115-60 in its entirety provides as

follows:

§ 115-60. Emission of smoke, fumes or odors.

Uses applicable in districts are controlled so that they:

A. Emit no noxious, toxic, or corrosive fumes or gases.

B. Discharge no smoke of a consistency which will restrict the

passage of sunlight.

C. Emit no odor perceptible at the lot boundaries.

D. Produce no heat above ambient temperatures perceptible at or beyond the lot boundaries.

E. Produce no glare perceptible at or beyond the lot boundaries.

F. Produce no physical vibration or noise perceptible at or beyond

the lot boundaries.

G. Produce no electromagnetic radiation or radioactive emission injurious to human beings, animals or vegetation. Electromagnetic radiation or radioactive emissions shall not be of an intensity that interferes with the use of any other property.

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H. Discharge no untreated potentially dangerous waste from their operation.

Other design standards in Article XIII include regulations for buffers, storage, bus

stops and shelters, access and traffic control, interior circulation, lighting, off-street

parking and off-street loading. No evidence was presented regarding the Township’s

interpretation, application or enforcement of Section 115-60.F.

As previously noted, zoning ordinances in Pennsylvania enjoy a presumption of

constitutionality and validity, and the party challenging one bears a heavy burden of

proving otherwise. We conclude Applicant has not met this burden.

It is well settled that as a matter of due process a statute is void for

vagueness if it fails to give a person of ordinary intelligence fair notice of what

conduct is forbidden under the statute. Colautti v. Franklin, 439 U.S. 379. 99 S.Ct.

675. 58 L.Ed. 2d 596 (1979). In Commonwealth v. Heinbaugh, 467 Pa. 1, 354

A.2d 244 (1976), the Pennsylvania Supreme Court stated the applicable standard,

as follows:

"Statutes which are challenged on the ground of vagueness are not,

however, to be tested against paradigms of legislative draftsmanship.

The fact that [the legislature] might without difficulty have chosen

'clear and more precise language' equally capable of achieving the

end which is sought does not mean that the statute which it in fact

drafted is unconstitutionally vague. (Citation and quotations omitted.)

Rather, the requirements of due process are satisfied if the statute in

question contains reasonable standards to guide the prospective

conduct." Id., 467 Pa. at p. 6.

It is apparent that Section 115-60.F is not vague. It is a design standard requiring uses

that are permitted by the Zoning Ordinance to not produce any noise perceptible at or

beyond the lot boundaries.

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Applicants’ actual complaint is that they do not know if a hypothetical land use

can comply with this standard. They contend that it may be impossible to comply with

the regulation as it may be applied by the Township. This is asserted without any

evidence of whether the Township has ever applied or enforced the regulation or how

the regulation has been enforced.

Applicants mount what might be termed a “hypothetical as-applied challenge” to

Section 115-60.F In Pennell v. City of San Jose, 485 U.S. 1, 108 S. Ct. 849, 99 L. Ed.

2d 1 (1988), the United States Supreme Court found a challenge to a rent control

ordinance was not ripe where the plaintiff landlords had never requested a rent increase

under the ordinance, and in fact, there was no indication the ordinance had ever been

applied at all. Similarly, in Philadelphia Entertainment and Development Partners, L.P.

v. City of Philadelphia, 594 Pa. 468, 937 A.2d 385 (Pa. 2007), the Pennsylvania

Supreme Court found a challenge to a zoning ordinance was not ripe where that

ordinance had not been applied.

Applicants failed to present evidence to support an as-applied circumstance

against which the regulation can be measured. The proper time for a challenge is either at

the time that an enforcement action has been undertaken or in the context of a specific

zoning application, with presentation of specific plans and a specific delineation of the

noise emanating from a use that could be objectionable to neighboring properties or the

interests of the public health, safety and welfare. We cannot invalidate Section 115-

60.F on speculation that the regulation may negatively affect a hypothetical

development.

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D. Recommendation.

As noted above, Section 916.1(c)(5) of the MPC requires that, if we find merit to

the Challenge, our decision include recommended amendments to the Zoning

Ordinance that will cure the defect we determined, that is that the Zoning Ordinance

does not provide for hotel and motel uses. In making the recommendation, we are to

consider the amendments, plans and explanatory material submitted by the landowner

and the other factors set forth in Section MPC Section 916.1(c)(5).

The Applicants did not provide any proposed amendments, plans or explanatory

material with their Application or submit any evidence at the Hearing for a proposed use

of the Property, including any plans for a hotel. Applicants argue that we may not

consider the factors set forth in MPC Section 916.1(c)(5) because the Applicants did not

submit plans and explanatory materials describing the use or development proposed by

the Applicant on the Property, citing Appeal of Chester County Outdoor, LLC, 167 A. 3d

280 (Pa. Cmwlth. 2017) and Budco Theaters, Inc. v. Zoning Hearing Board, 632 A.2d

1072 (Pa. Cmwlth. 1993). We disagree since neither case holds that this Board should

not consider the cited factors. Chester County Outdoor held that a trial court has broad

discretion to fashion relief under the MPC and it may or may not give deference to the

decision of a zoning hearing board. Budco Theaters held that an applicant submitting a

validity challenge to a zoning hearing board need not include plans and explanatory

materials.

As conceded by the Applicants, we are required to recommend amendments to

the Zoning Ordinance to cure any defect we find. Based on those facts we have taken

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judicial notice of, our knowledge of the Property and its surroundings and the factors

set forth in MPC Section 916.1(c)(5), we conclude that the Property is not suitable for a

hotel use. The Property is located in a residential area and is accessed by a local road.

The surrounding road network is not designed or suitable for a hotel use. There is not

public sewer available for a hotel use. The development of the Property with a hotel or

motel will have a negative impact on the surrounding residential area and the road

network.

A hotel use is appropriate in the Township’s C-2 Commercial District. Other uses

permitted there are compatible with a hotel such as retail sales, automotive sales,

personal service shops, offices and eating and drinking establishments. Downingtown

Pike, a major arterial road, provides access to most of the properties in the C-2 District.

The District is currently developed with commercial uses, including a shopping center

and other retail stores. Public water and sewer service are accessible. We recommend

that the Zoning Ordinance be amended to define hotels and motels and permit hotels

and motels in the C-2 Commercial Zoning District.

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ORDER AND RECOMMENDATION PURSUANT TO SECTION _916.1(c)(5) OF THE PENNSYLVANIA MUNICIPALITIES PLANNING CODE

AND NOW, this 18th day of May 2020, based on the Findings of Fact,

Conclusions of Law and reasoning set forth hereinabove, the Application and Validity

Challenge of John Marshall and Dara Gans-Marshall, is granted in part and denied in

part as follows:

1. The Zoning Ordinance does not unlawfully exclude special event uses or a

wedding barn use as a type of special event use.

2. The Zoning Ordinance does unlawfully exclude hotel and motel uses.

3. Section 115-60(F) of the Zoning Ordinance as it relates to noise is not

vague, subjective and impossible of compliance.

The Zoning Hearing Board further recommends that the Board of Supervisors of

East Bradford Township amend the East Bradford Township Zoning Ordinance of 1970,

as amended, to define hotels and motels and permit hotels and motels in the C-2

Commercial Zoning District.

ZONING HEARING BOARD EAST BRADFORD TOWNSHIP

By: Alfred A. Gollatz Alfred A. Gollatz, Esquire, Chairman

By: Kamil Ali-Jackson

Kamil Ali-Jackson, Vice Chair

By: P. Andrew Schaum

P. Andrew Schaum, Esquire, Member