Pennhurst Zoning Appeal Hearing

The Honorable Robert Shenkin of the Chester County Court of Common Pleas heard oral arguments on September 30^th on Rivkin, et.al. vs. East Vincent Zoning Hearing Board.  The issue in dispute is if the ZHB erred in permitting the Pennhurst Asylum to be a use by right in a LR (low density residential) zone.

Representing the primary Appellant, Saul Rivkin, was Michael Crotty of Siena, et. al.  Joining Mr. Rivkin as co-appellants were Diane Benelli, Allen Brodie, Jen Brodie and myself.

Appearing on behalf of the ZHB was Glenn Diehl, Esq. of West Chester, and representing Intervener Pennhurst Associates was Michael Murray, Esq. of O’Donnell, et. al.  Finally, William Brennan, Esq. of Butera, et. al. attended representing Intervener East Vincent Township.

Other interested parties in attendance were County Commissioner and former counsel for Pennhurst Associates Ryan Costello, East Vincent Board of Supervisors Chairman John Funk, Pennhurst Associates owner Richard Chakejian, East Vincent Township Manager Mary Flagg, and East Vincent Supervisor Christine McNeil.

Mr. Crotty began the hearing by stating three issues at hand.  The first is that an LR district is a predominately residential zone and that the ZHB erred in determining that a commercial venture able to entertain 39,000 visitors in a seven weekend or 21 day period generating almost $1,000,000 in gross revenue is inconsistent with an LR zone.

The second point raised was Appellant’s contention that the definition of the word recreation as it appears in the LR zoning ordinance should not be misconstrued by grammatical misadventure or inadvertent comma placement. 

Thirdly, Appellant acknowledges the principles of landowner preference and maintains that usage within a zone must always be consistent with framer’s intent and that any interpretations must be based upon that intent.  The use must be examined in that context.

Mr. Diehl countered with discussing the word recreation and posited that the LR zoning ordinance does not specifically define the word.  Absent such clarity, the ZHB had to rely upon common usage of the word, which the ZHB maintains includes the Pennhurst Asylum usage.

He went on to say that Appellant’s argument of the negative impact of the use has no merit in that the LR zone includes high impact uses such as a hospital or a school.  Thus, since these uses are permitted by right, then any other uses creating high impact are substantially similar in nature.

Mr. Diehl raised the issue of a commercial use versus a non-commercial use, where a commercial use seems to be precluded from existing in an LR zone.  He related part of the ZHB’s written decision wherein the ZHB determined that the Pennhurst Asylum is not wholesale, retail or service as defined by East Vincent zoning definitions and thus is not a commercial venture.

He also said that the argument of primary usage and secondary usage of the tract should not preclude the use.  Mr. Diehl stated that since the Penn Organics composting operation also on the Pennhurst site only uses six or seven acres at most of the 87 acre tract, it is unreasonable to restrict other usage in the remaining 80 or so acres.

Mr. Murray added that amusements are well defined in the General Commercial zoning ordinance and the contested use meets that definition.

Mr. Brennan was then given the opportunity to speak, and he said that East Vincent Township had nothing further to add to the previous arguments.

Judge Shenkin seemed to admonish Mr. Brennan by expressing his disappointment with East Vincent’s lack of argument and went on to infer, in this observer’s opinion, that East Vincent government could have solved this issue without judicial intervention.  Again, in this writer’s opinion, Judge Shenkin seemed to be of the mind that East Vincent had the ability to interpret the ordinance and chose not to do so, resulting in two stages of expensive and possibly needless litigation.

Mr. Crotty was given the final rebuttal, and pointed out that definitions of the word recreation do exist within the Township’s ordinances, albeit with the modifying words active and passive.  With those definitions, Mr. Crotty maintained that Appellee’s argument of using the common definition of the word recreation is without merit or need.

Having concluded oral arguments, Judge Shenkin advised counsels that he would render his decision in about 30 days.

OPINION

There are two clarifications this writer wants to make about Mr. Diehl’s argument.

First, the claim of the Penn Organics composting business only using six or seven acres belies the realities of the LR zoning at question.  The ordinance clearly defines composting as a use by right and approves specific ancillary uses that are consistent with that use.  It goes on, however, to require a 50-acre lot set aside with no more than 30 percent of the tract being used for the composting operation.  The 50-acre set aside contests Mr. Diehl’s argument of primary and secondary use restrictions.

Second, everyone living in East Vincent understands that public use of property anywhere in the Township has the potential to be used for hospitals, schools, parks, playgrounds, and other municipal use.  Such uses may have effects similar to or in excess of the amusement use at question.  However, the difference from public use for the common good and the disputed use inuring to private individuals should be prima facie as to acceptability.