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a date is prior to the enactment of zoning within the
Township.
6. The Appellant's real estate Is currently zoned
as R-1 Residential, Appellant's use constitutes a valid
non-conforming use protected by applicable provisions of
both the Township Zoning Code and the laws of the
Commonwealth.
7, On or about Apri I 1997 Appe 11 ant commenced
preliminary grading and layout of forms for tho
construction of two horseshoe pits on a portion of its
property located to the rear of the existing meeting hall
on the premises. Appellant's officers believed that such
use and construction was a lawful recreational use
incidental to and consistent with the primary use of the
premises by veterans and members of the Post,
8. On or about May 1, 1997 an employee of the
Township, (Timothy Duerr. Zoning Officer) advised
Appellant that the construction and use proposeq
required a permit, Mr, Duerr provided the Appellant with
an application to the Zoning Hearing Board, advised the
Appellant what to request, and suggested the language to
employ in completing said application. A copy of said
Application is attached hereto as Exhibit A)
9. On August 14, 1997 the Appellee, having held a
hearing and voting to deny the request, ent.rod a written
decision denying the Relief requested by Appellant In
accordance with a copy of said decision attached hereto as
Exhibit B.
10. Appellant believes the decision of the Board is
incorrect and contrary to the evidence and law as follows:
a. The decision as written is contrary to law and does
not constitute a val id decision in that none of the
conclusions of law therein "contain a reference to the
provision relied upon" as mandated by MPC . 10908 (9)
b. The decision Is contrary to law and an abuse of
discretion in that the conclusions therein are not based
upon the specific fIndings of fact contained therein, but
rather upon "suggestions" from the testimony mentioned in
the DISCUSSION portion of the said decision. Such
"suggestions" do not constitute findings of fact upon
which a decision can be based.
c, The Zoning Hearing Board's conclusion that the
Appollants use constituted an "expansion" llnd a "change"
in use is inherently contradictory and an error of law.
Said conclusion Is based upon a mlsinter'pretation of the
ordinance which provides not merely that a use shall not
be "changed". but rather that a use "sha 11 not be changed
t.Q Il!JQ_tbllL,.u..". The Board made no finding of fact nor
conclusion that the Appellant's proposed use would in fact
constitute "another use" nor was substantial competent
evidence presented to warrant such a conclusion,
~_.
d, As a consequence of the aforesaid
misinterpretation of the ordinance the Board incorrectly
imposed upon Appellant the standards applicable to a
change to another use as statsd in the DISCUSSION portion
of the decision, Consequently the Imposition of this
burden upon Appellant constituted an error of law,
e. The aforesaid error of law In interpreting and
applying restrictions on change of use denied to Appellant
the right of natural expansion of its use and has the
effect of unlawfully preempting any use of a
substantial portion of its property for any purpose
whatsoever,
f. Finding of fact No.5 is an abuse of discretion
and unsupported by the evidence. Contrary to the arbitrary
statement set forth as Appellant's "use" the activities of
Appellant include a broad range of social and membership
functions devoted to Veterans and ths community which the
Zoning Board finding completely ignored.
g. The Zoning Board failed to incorporate into its
deliberations and decision a comprehensive, accurate and
inclusive description of Appellant's non-conforming use
thereby precluding a fair and accurate consideration of
the scope and extent of any modification or expansion
thereof. The lack of a comprehensive analysis and
consideration of the full scope and nature of Appellant'.
non-conforming use and activities is an error of law in
that it purports to unlawfully restrict and
limit Appellant's protected non-conforming use to only
those activities which the Board arbitrarily delineated.
h. Board conclusion No.4 constitutes an error of law
in that no finding of fact to support said conclusion was
made, In addition no competent evidence was presented nor
was any finding made as to the actual area of the
non-conforming use, as a result whereof no determination
of expansion could be made except upon pure speCUlation.
In fact, no increase in the area of the Appellant's
property or use was requested since the entire tract has
been devoted to said use since the use was established,
Accordingly, Appellee's finding that an expansion was
proposed is contrary to the evidence.
i, Conclusion No.4 constitutes an error of law in
that the Board misapplied and misinterpreted the ordinance
by ruling that the construction of the proposed horse shoe
pits would exceed the ordinance limitation on expansion
despite the fact that no additional area would be rend~red
non-conforming, The effect of this interpretation of the
ordinance is to limit Appellant's activities rather than
the "area" of nonconformity as specified by Section
1900 (2). Given that Appellant's entire tract is
non-conforming no increase in the area of non-conformity
as defined by the ordinance is proposed. Accordingly, the
Board's conclusion is an error of law.
j, Conclusion No, 2 constitutes an error of law and
abuse of discretion in that no finding of fact was made to
support the conclusion that construction of a horse shoe
pit was in any way detrimental to the health, safety, and
welfare of ths community, Further, no substantial
competent evidence of ~~t~~l negative impact from the
proposed use was presented. To the contrary, the Board
abused its discretion by relying upon vague, speculative
critical comments from adjoining property owners who
object generally to Appellant's use. In particular, the
Board in its DISCUSSION referred repeatsdly to "noise"
although no finding of unusual, excessive or unlawful
noise was made, nor was it dsmonstrated that noise
from Appellant's uee exceeded any established standard or
for that matter that the alleged noise levels generated by
Appellant's existing or proposed use exceeded noise from
other uses in the area inclUding normal traffic and
outdoor activities in general,
k. Conclusion No.3 constitutes an error of law in
that the Zoning Code requirement that a new use be " more
in compliance" appl!es only when, as stated in Code.
1904 (d), a person seeks permission to change a
non-conforming use "to any other use", As, stated
herein no such change of use was sought by Appellant.
Accordingly, the Board impr'operly applied the "more in
conformity standard" to what is at most a natural
lawful modification and improvement of its existing and
protected uee,
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3
Applicant ill a Veteran's ol Foreign Wara (VFW) lacility and haa
operated that lacility .t the Subject Property lor . number of
years.
4
The Subject Property is located an in R-l Residential-Zoning
District pursuant to the Ordinance.
5
The Applicant's use of the property as a VFW includes inside
restaurant activities, bar activities including the .ale of
alcoholic beveragea and meeting ~oom activities.
6
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The Applicants existing use of the property is not an allowed use
in the R-l Zoning District.
7
Applicant's existing use of the Subject Property pre-dates the
Zoning Ordinance and is a non-conforming use as that tenn is
deline~ under $300 ol the Ordinance.
8
Applicant'. exi.ting and prior use of the Subject Property has not
included any outside activities.
9
Applicant proposes to install
Property which would be 48' in
(see Applicant's Exhibit 1).
DISCUSSION
two horse shoe pits at the Subject
length and a combined 12' in width
Testimony presented at the hearing before the Board by the
Applicant suggested that the installation of the horse ahoe pits
was designed to allow membership of the VFW to participate in horse
shoe leaguea. The horse shoe games would be played on an
elaborately constructed dual horse shoe facility consisting of
concrete. The VFW would sponsor horse shoe matches with 8 players
competing at one time. The Applicant suggested that there would be
no .tands for aeating constructed at the facility and that there
would be no alcoholic beverages allowed outside.
A number of neighbors to the Subject Property appeared and
proteated the propoaed expansion by the Applicant. Neighbors
voiced serious concerns with respect to the existing noise problems
-
,
,
at the Subject Property. At the VFW, the Subject Property has
evening hours and the adjacent properties, all of which are
residential in nature, are subjected to the natural noise from the
comings and goings of the parking area and the voices of people
entering and leaving the VFW premises. The neighbors were very
concerned over the construction of this elaborate horse shoe arena
which would promote outdoor leagues. The neighbors felt that the
creation of this use would cause a great deal of additional noise
by virtue of the outside activities. Neighbors felt that
conducting horse shoe matches by organized leagues would be a
different use than the existing inside activities conducted at the
Subject Property, and the neighbors were of the opinion that the
new use would create a further additional burden on the adjacent
residential property owners.
The neighbors also testified that the Applicant has been before the
Board on prior occasions requesting expansion of its facilities and
that those prior expansions have already exceeded the 25' maximum
increase as allowed by S1904(2)(b) of the Ordinance.
The Ordinance at S1904 allows a non-conforming use to be changed or
expanded upon approval by the Board after a special exception
hearing. Pursuant to S 1904 (2), the Appl ican t in these special
exception hearings carries th& burden to demonstrate a number of
conditions including that the proposed change will not be contrary
to the welfare of the residents of the immediate area of tIle
Subject Property (Sub-Section A), that such change is more in
compliance with the applicable provisions of the Ordinance than the
existing non-conformance (Sub-Section D) and that the proposed
change would not exceed the 25' maximum increase .s set forth in
51900(2).
The Applicants did not rebut the test.imony of the neighbors that
the proposed expansion of the existing non-conforming use by
construction of the concrete horse shoe pits, when coupled with
prior expansions requested by the Applicant and approved by this
Board, would exceed the 25' maximum increase under S1900 of the
Ordinance.
The Board is also satisfied that the proposed outdoor use of a
horse shoe pit of the nature as proposed by the Applicant would be
a change in the existing use of the property. To date, Applicant
has not conducted any outside activities at the Subject Property.
The horse shoe pit as proposed is not a simple type of back yard
horse shoe pit that would be naturally constructed for the
occasional leisurely enjoyment of the property owners. The pit is
an elaborate concrete structure and, in accordance with the
testimGny of the Applicants, is being constructed to allow for
members of the VFW to compete in horse shoe matches. The Board is
not ignorant to the fact that such matches will naturally draw a
crowd of the membership of the VFW and the opposing teams. The
matches would include the team members, score keepers and
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2
,-~ 1 INDEX TO TESTIMONY
2 WITNESSES EXAMINATION PAGE
3 James Baker 3
4 Ferman Landis 3
5 Carl Cecil 19
6 Scot;t Hoaglund 22/26
7 Donna Hoaglund 27
8 Mark Burkhead ' , 28
9
10
11 ~PPIiICANT'S EXHIBITS
12 NO. DESCRIPTION PAGE
,-'" 13 1 Sketch 3
I_'t.~
14 2 Sketch 10
15
16
17 "ROTESTANT'b EXHIBITS
,
18 NO. DESCRIPTION PAGE
19 ' 1, Photograph 23
20 2 Photograph 23
21
22
23
24
...) 25
C.P.C.R.S. @ pacourt@kna.net
(717) 258-3657 or 800-863-3657
4
1 It's just a nonconforming use for the purpose of
2 installing a horseshoe pit structure. The property is
3 located at 26A Hamilton Road, Boiling springs,
4 We intend to put in a horseshoe pit, daylight
5 hours only, in the back of the VFW.
6
THE SOLICITOR: There will be no lights?
7
MR. BAKER: No lights.
8
And ~ 2-foot wide concrete walk. If it's muddy
9 back there and wet, they don't get in the mud.
10
MR. LANDIS: This sketch looks like it might be
11 a bui~ding, but it's only a horseshoe pit.
12
MR. HAYMAN: There's two of them, side by
13 side?
."+.--,
MR, LANDIS: They're side by side. Then
14
15 there's an 8-by-10 area for picnic tables to keep score,
16 because we expect to have a league. There's a league of
17 horseshoes and we want to get in that league. And that's
18 why.
19
MR. HAYMAN: That's their standard?
20
MR. LANDIS: Their standard, state
21 specificatJ.on. That's why they have to be that way.
,
i
22
MR. STOUT: So the sketch is j.ust a 11 t tle bi t
23 off. It's 8-by-10 feet.
24
MR. LANDIS: They're going to have to cut them
,..)
25 back.
C.P.C.R.S. @ pacourt@kns.net
(717) 258-3657 or 800~863-3657
7
1 affixed to the ground, So the concrete slab --
.2
THE SOLICITOR, Because it's a Cadillac thing
3 rather than just regular horseshoe pits.
4
MR. BAKER: How about if we don't affix the
5 concrete to the ground?
6
MR. HEISHMAN: I'm not quite sure how this will
7 be laid out on your lot, and whether there's any screening
8 there now,
9
MR. LANDIS: Well, there's some brush there,
10 the screening.
11
MR. HEISHMAN: Shrubbery.
12
MR, LANDIS: Some shrubbery and some trees.
, I
,
13
MR. STOUT, This sketch that they provided was
14 just like the rules are and state requirements.
15
MR. HEISHMAN: It really doesn't show the
16 site.
17
MR. STOU~, It's not the plot plan that was
18 supposed to be required,
19 MR. HEISHMAN: Where are the adja,ccnt
20 properties next to where this pit is?
21 MR. LANDIS: It's about 20 feet off the line.
22 MR. HEISHMAN: Off the line?
23 MR. LANDIS, The property line.
24 MR. HEISHMAN: The adjacent is a private
'....I
25 resident's backyard?
C.P.C.R.S. @ pacourt@kns.net
(717) 258-3657 or 800-863-3657
9
1 would be over in here. I mean the right side and property
2 line. Then there's a row of trees and pine trees and all
3 kinds
we use it there for.,.
4
MR. HEISHMAN: You're going to be 20 feet off
5 the rear property line?
6
MR, LANDIS: We're about 100 feet off the rear
7 line. ,We're only 20 feet off of Hoaglund's line.
8
MR, HEISHMAN: South--
9
MR. BAKER: Actually, it's the east side.
MR. LANDIS: East side. Then on the other
10
11 side, there's --
12
THE SOLICITOR: That's the east, Hoaglund is
13 on the east side. 100 feet off the property line on the
14 south, or is that north?
15 MR. Bi\KER: North.
16 THE SOLICITOR: And how about the west?
17 MR. LANDIS: It's probably 125.
18 MR. BREAM: I'm lost.
19 This is the building?
20 MR. LANDIS: This is the building.
21 THE SOLICITOR: Let's mark that sketch as
22 Applicant's Exhibit Number 2. And when you say here or
23 marking things, please write it down on the sketch,
24 because people reading the record aren't here later on, if
-.-J
25 need be.
C,P.C.R.S. @ pacourt@kns.net
(717) 2'58-3657 or 800-863-3657
10
1
(Applicant'. Bxhibit No. ~ wa. marked.)
THE SOLICITOR: Good ahead.
2
3 So referring to Applicant's Exhibit Number 2,
4 Mr, Bream, your question now was?
10
11
5 MR. BREAM: He was mentioning so many feet from
6 the west property line. Unless I'm wrong, up here would
7 be the west.
8
MR. BAKER: It's kind of cockeyed. This is
9 Springville Road.
MR. LANDIS: This is Hamilton Road.
MR. BREAM: So that's on the west side of the
12 building?
13
MR. HEISHMAN: I believe they're saying the
14 south.
15
16
17
18
19
MR. LANDIS: So that would be the south.
MR. BAKER: The south is towards the building.
MR. BREAM: Put north on that map.
MR. HEISHMAN: Just for our reference here.
MR. BAKER: Here's north. That's what the
20 problem is.
21
22
MR. HEISHMAN: Not a true north.
THE SOLICITOR: Do you have any current outside
23 activities?
~
......"
24
25
MR. LANDIS: No.
MR. BREAM: The north side, you would be 20
C.P.C.R.S. @ pacourt@kns.net
(717) 258-3657 or 800-863-3657
18
1 I asked.
2
MR. LANDIS t We find bottles in the pal'king lot
3 now. They didn't carry it out of the building. There is
4 some cars that pull in and they have a can, throw it out
5 in the parking lot. It's hard to control the outside. We
6 have a pool game going on, there would be no drinks out
7 there. It didn't matter who it was.
8
He might have a soft drink. But he couldn't
9 have any alcohol.
10 THE SOLICITOR: Any other questions?
11 MR. BURKHEAD: You said there was no structure
12 being built as a part of this, only the concrete for the
13 pads?
14 MR. LANDIS: Right. yes.
15 MR. BURKHEAD: And a picnic table or score
16 tables or something like that?
17
MR. BAKER: That's correct.
18
THE SOLICITOR: Do you folks have any further
19 testimony?
20
Thank you. You can sit down.
21
Does anyone in the audience want to offer any
22 testimony? Do you want to come right up.
23 CARL CICIL, called as a witness, being duly
24 sworn, was examined and testified as follows:
-J
25
C.P.C.R.S. @ pacourt@kns.net
(717) 258-3657 or 800-863-3657
21
1
THE SOLICITOR: Any questions from the Board
2 for Mr, Cecil?
3
MR. HEISHMAN: Mr. Cecil, you seem to point out
4 especially the problems with late night activity, Could
5 you envision a scenario where the horseshoe operation
6 would operate within the limits that would be acceptable?
7 And could you maybe help define what limits you think
8 would be acceptable.
9
THE WITNESS: I honestly and truly have to tell
10 you, there would be nothing acceptable to me. Once it's
11 there, who's going to control it? If it goes one night
12 and causes trouble, you know, is it worth it? If there's
13 one more impaired driver that went there and shot
14 horseshoes and went in there and had a couple beers and
15 drove home when he shouldn't, is it worth it? I'm sorry,
16 sir, it's not.
17
The people use it now. That's fine and dandy.
18 All we're doing is increasing more traffic on that road.
19 And honestly any time we put more traffic on that road,
20 we're creating a hazard, There is another development
21 down at the bottom. And I just don't want any more people
22 drinking beer for whatever reason or whatever. I don't
23 want any more traffic than there has to be. It's a safety
24 concern. A noise concern, yes.
-'-;
2S
And like I said, even with screening as high up
-
C.P.C.R.S. @ pacourt@kns.net
(717) 258-3657 or 800-863-3657
23
1 sir, and describing them, refer to them by exhibit
2 number.
3 (prote.tant'. Exhibit No.. 1 and ~ were marked.)
4
THE WITNESS: This first photograph, Number 1,
5 shows the structure as it was excavated and formed. The
6 pads -- I measured the pads, and they are 10 feet by 12
7 feet; the 12 feet heading towards my property line,
8 south. From that point, it's 15 feet to my property
9 line. The back of this rear most structure of the
10 horseshoe pit is, I'm going to guess, 70 feet from my back
11 door. Now I'm guessing. But I'd say it's less than 100.
12 I'm saying 70 to 80 feet from my back door.
"
13 ~hotograph Number 2, Protestant's Number 2,
14 shows -- I'm standing -- photograph from the property l~ne
15 showing the VFW and my home and the location of the
16 horseshoe pits.
17 Under the R-1 residential zoning, something
18 like this for league competition is not allowed. It's not
19 a permitted use. The only thing I could find in the
20 regulations was under Agricultural, 602, conditional use.
21 That would be number 3. And then there was several
22 cond.itions that went along with that as fal' as the
23 property, scr'eening, etcetera. Nowhere in R-1 residential
24 is this allowed to exist. It's for league competition.
.....,1
25 This will be bringing people in. It will be evidently a
C.~.C.R.S. @ pacourt@kns.net
(717) 258-3657 or 800-863-3657
1 trees as the years go by, but there's not much at the
2 well, there's very little, very small trees I planted two
3 years ago at the east end of the horseshoe pit. So
4 there's really nothing there to stop any noise or anythir.g
5 from coming through.
.6 As it stands now, the pad is 15 feet from my
7 property line.
8
MR. HEISHMAN, I ask you as I asked Mr. Cecil,
9 can you envision any conditions that this would be
10 acceptable, perhaps farther from your property line,
11 screening, whatever, limits on hours of use?
12
THE WITNESS: You're asking me to give up my
---'''\
13 privacy to an organization for business. They would like
" ..J
14 to do this for social members. I understand that. And I
15 also want to retain the peace and quiet of my property and
16 be able to enjoy my backyard, my back deck, etcetera,
17 whenever I feel it's appropr.iate for me.
18 I'm assuming that this would be primarily
19 weekend competition, if it's during the day, or late
20 evening after people get off work. Those are t.he times I
21 try to enjoy the privacy of my home. The fact that the
22 structure is currently so close to my property is causing
23 great alarm. There's much more room where it could be
24 placed elsewhere, where it would be less objectionable to
c-'"
25 me, but then would encroach on someone else's property,
C.P.C.R.S. . pacourt@kns.net
(717) 258-3657 or 800-863-3657
25
28
1 many wonderful things and I applaud you for that, But one
2 injury is not worth any amount of money in my eyes, And
3 those are my concerr:s, I say to these gentlemen, if this
4 were your backyard, Mr, Baker, would you want it there?
5 THE SOLICITOR: So you I re opposed?
6 THE WITNESS: Yes, I am opposed.
7 THE SOLICITOR: Any questions for Mrs.
8 Hoaglund? Anyone in the audience have any questions for
9 this witness? Thank you.
10 And 1 think there's a gentleman back there
11 waiting to testify.
12
13 MARK BURKHEAD, called as a witness, being duly
14 sworn, was examined and testified as follows:
15 EXAMINATION
16
THE WITNESS: Mark Burkhead.
17 I can't do a whole lot more besides reiterate
18 the concerns that Mr. Cecil and the Hoaglunds have already
19 expressed. The noise, the increased traffic, and
20 definitely the impaired drivers. As Mrs, Hoaglund said,
21 even one "- I've got a teenage son who likes to ride his
22 bike. I can't keep him in the yard. And, unfortunately,
23 I don't think any of the neighbors write down exactly when
24 the times occur that you hear a car door slam and somebody
J
25 tear out of the parking lot. But it does happen.
- -
C.P.C.R.S. @ pacourt@kns.net
(717) 258-3657 or 800-863-3657
30
1 still it's not going to stop it all.
2 THE SOLICITOR: Anything else?
3 THE WITNESS: Nothing right now.
4 THE SOLICITOR: Any questions from the Board?
5 Anybody else in the audience have any questions?
6 MR, LANDIS: I jus t want to say one mol'S thing.
7
TilE SOLICITOR: Do you want to ask questions or
8 do you want to testify, sir?
9
MR, LANDIS: Testify.
THE SOLICITOR: Okay. Thank yo~', sir.
10
11 Is there any other witnesses besides the
12 applicant wanting to testify?
13
MR. BAKER: I would like to say 7-
14.
THE SOLICITOR: You're still other oath in
15 testifying. Is that right?
16
MR. BAKER: Yes.
17
There seems to be an increase in population,
18 and with one drive!' -- I live on Forge Road. I don I t like
19 all the traffic there. And it's gotten heavier and
20 heavier as the years go by. But this is a growing
21 community, And it would be really nice if we could put a
22 soundproof bell around some of these houses so they won't
23 hear anything. But that's like an ostrich sticking its
24 head in the sand. Our population is, in fact,
.....,)
25 increasing.
C.P.C.R.S. @ pacourt@kns.net
(717) 258-3657 or 800-863-3657
at the Subject Property. At the VFW, the Subject Property has
evening hours and the adjacent properties, all of which are
residential in nature, are subjected to the natural noise from the
comings and goings of the parking area and the voices of people
entering and leaving the VFW premises. The neighbors were very
concerned over the construction of this elaborate horae shoe arena
which would promote outdoor .Zeagues. The neighbors felt that the
creation of this use would cause a great deal of additional noise
by virtue of the outside activities. Neighbors felt that
conducting horse shoe matches by organized leagues would be a
different use than the existing inside activities conducted at the
Subject Property, and the neighbors were of the opinion that the
new use would create a further additional burden on the adjacent
residential property owners.
The neighbors also testified that the Applicant has been before the
Board on prior occasions requesting expansion of its facilities and
that those prior expansions have already exceeded the 25\ maximum
increase as allowed by Sl904(2)(b) of the Ordinance.
The Ordinance at S1904 allows a non-conforming use to be changed or
expanded upon approval by the Board after a special exception
hearing. Pursuant to Sl904 (2), the Appl icant in these special
exception hearings carries the burden to demonstrate a number of
conditions including that the proposed change will not be contr.ary
to the welfare of the residents of the immediate area of the
Subject Property (Sub-Section A), that such change is more in
compliance with the applicable provisions of the Ordinance than the
existing non-conformance (Sub-Section D) and that the proposed
change would not exceed the 25% maximum increase as set forth in
S1900(2),
The Applicants did not rebut the testimony of the neighbors that
the proposed exparjsion of the existing non-conforming use by
construction of the concrete horse shoe pits, when coupled with
prior expansions requested by the Applicant and approved by this
Board, would exceed the 25\ maximum increase under S1900 of the
Ordinance.
The Board is also satisfied that the PI'oposed outdoor use of a
horse shoe pit of the nature as proposed by the Applicant would be
a changp in the existing use of the property. To date, Applicant
has not conducted any outside activities at the Subject Property.
The horse shoe pit as proposed is not a sin~le type of back yard
horse shoe pit that would be naturally constructed for the
occasional leisurely enjoyment of the property owners. Th() pit is
an elaborate concrete structure and, in accordance with the
testimony of the Applicants, is being constructed to allow for
members of the VFW to compete in horse shoe matches. The Board is
not ignorant to the fact that such matches will naturally draw a
cr.owd of the membership of the VFW and the opposing teams. The
matches would include the team members, score keepers and
a date i. prior to the enactment of zoning within the
Townehip.
e. The Appellant'. real e.tate i. currently zoned
aa R-l Residential. Appellant's u.e constitutes a valid
non-conforming use protect.d by applicable provision. of
both ths Township Zoning Code and the laws of the
Commonw.alth.
7. On or about April 1997 Appellant comm.nced
preliminary grading and layout of forms for the
con.truction of two hor..sho. pits on a portion of it.
property locat.d to the r.4r of the .xisting me.ting hall
on the pr.mi.... Appellant's offic.rs believed that auch
uae and conatruction was a lawful recr.ational u.e
incidental to and con.i.tent with the primary us. of the
premi.e. by veteran. and members of the Po.t.
8. On or about May 1. 1997 an .mployee of the
Township, (Timothy Duerr, Zoning Offic.r) advi..d
Appellant that the con.truction and use propos.d
r.quir.d a permit. Mr. Duerr provid.d the Appellant with
an application to the Zoning Hearing Board, advi..d the
App.llant what to requ.st, and .uggested the language to
.mploy in completing said application. (A copy of aaid
Application i. attach.d h.reto a. Exhibit A)
9. On Auguat 14, 1997 the Appellee, having h.ld a
hearing and voting to deny the reque.t, .nt.r.d a writt.n
d.ciaion d.nying the R.lief r.quest.d by App.llant in
accordanc. with a copy of said decision attached her.to ..
Exhibit B.
10. Appellant beli.ves the decision of the Board is
incorr.ct and contrary to the evidence and law as follows:
a. The decision as written is contrary to law and do.s
not constitute a valid decision in that none of the
conclu8ion8 of law therein "contsin a reference to the
provi8ion relied upon" as mandated by MPC . 10908 (9)
b. The deci8ion i8 contrary to law and an abuse of
discrvtion in that the conclusions therein are not based
upon the specific findings of fact contained therein, but
rather upon "suggestions" from the testimony mentioned in
the DISCUSSION portion of the 8aid decision. Such
".ugge.tion8" do not constitute finding8 of fact upon
which a decision can be based.
c. The Zoning Hearing Board's conclusion that the
Appellllnt. use constituted an "expansion" AD..It a "chang."
in u.e i. inherently contradictory and an .rror of law.
Said conclusion i. bas.d upon a mi8interpretation of the
ordinanc. which provide. not merely that a U8. shall not
b. "changed", but rather that a use "shall not be chang.d
to anoth.r u..... The Board made no finding of fact nor
conclueion that the Appellant'. proposed us. would in fact
constitute "another U8." nor was .ub.tantial competent
.vid.nce pres.nt.d to warrant such a conclu8ion.
d. As a consequence of the aforesaid
mhinte,'pretation of the ordinance the Board incorrectly
imposed upon Appellant the standards applicable to a
change to another use as stated in the DISCUSSION portion
of the decision. Consequently the imposition of this
burden upon Appellant constituted an error of law.
e. The aforesaid error of law in interpreting and
applying restrictions on change of use denied to Appellant
the right of natural expansion of its use and has the
effect of unlawfully preempting any use of a
substantial portion of its property for any purpose
whatsoever.
f. Finding of fact No.5 is an abuse of discretion
and unsupported by the evidence. Contrary to the arbitrary
statement set forth as Appellant's "use" the activitieli of
Appellant include a broad range of social and memberShip
functions devoted to Veter-ans and the community which the
Zoning Board finding completely ignored.
g. The Zoning Board failed to incorporate into ita
deliberations and decision a comprehensive, accurate and
inclusive description Of Appellant's non-conforming u.e
thereby preClUding a fair and accurate consideration of
the scope and extent of any modification or expansion
thereof. The lack of a comprehensive analysis and
consideration of the full scope and nature of Appellant'.
non-conforming use and activities is an error of law in
that it purports to unlawfully restrict and
limit Appellant's protected non-conforming use to only
those activities which the Board arbitrarily delineated.
h. Board conclusion NO.4 constitutes an error of law
in that no finding of fact to support said conclusion was
made. In addition no competent evidence was presented nor
was any finding made as to the Kctual area of the
non-conforming use, as a result whereof no determination
of expansion could be made except upon pure speculation.
In fact, no increase in the area of the Appellant's
property or use was rsquested since the entire tract has
been devoted to said use since the use was established.
Accordingly, Appellee's finding that an expansion was
proposed is contrary to the evidence.
i. Conclusion No.4 constitutes an error of law in
that the Board misapplied and misinterpreted the ordinance
by ruling that the construction of the proposed horse shoe
pits would oxceed the ordinance limitation on expansion
despite the fact that no additional area would be rendered
non-conforming. The effect of this interpretation of the
ordinance is to limit Appellant's acti~ities rather than
the "area" of nonconformity as specified by Section
1900 (2). Given that Appellant's entire tract i.
non-conforming no increase in the area of non-conformity
as defined by the ordinance is proposed. Accordingly, the
Board'. conclusion is an error of law.
j. Conclusion No.2 constitutes an error of law .nd
abuse of discretion in that no finding of fact was made to
support the conclusion that construction of a horse shoe
pit was in any way detrimental to the health, safety, and
welfare of the community. Further, no substantial
competent evidence of actual negative impact from the
proposed use was presented. To the contrary, the Board
abused its discretion by relying upon vague, speculative
critical comments from adjoining property owners who
object generally to Appellant's use. In particular, the
Board in its DISCUSSION referred repell.tedly to "noise"
although no finding of unusual, excessive or unlawful
noise was made, nor was it demonstrated that noise
from Appellant's use exceeded any established standard or
for that matter that the alleged noise levels generated by
Appellant's existing or proposed use exceeded noise from
other uses in the area inCluding normal traffic and
outdoor activities in general.
k. Conclusion No. 3 constitutes an error of law in
that the Zoning Code requirement that a new use be " more
in compliance" appliee only when, as stated in Code'
1904 (d), a person seeks permiSSion to change a
non-conforming use "to any other use". As, stated
herein no 8uch change of use was sought by Appellant.
Accordingly, the Soard improperly applied the "more in
conformity standard" to what 18 at most a natural
lawful modification and improvement of its existing and
protected use.
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NOTE: PLACE 48"' HIGH .p
CHAIN LINK FENCE HIN 4
'" 7 FT, BEHIND AND 6 FT.
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, . SUBSEQUENT COURTS
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.
FOR MORE INFORMATION PLEASE CONTACT THE ~
NHPA SECRETARY. TREASURER DONNIE ROBERTS
P.O. BOX 79Tl . COLUMBUS, OHIO 43207
614-444-8510
BACKBOARDS
1. H~GHT........... ...... ..... .12INCHES
2. WiDTH............... . . . . . .. .3FEEl
3. DISTANCE BEHIND PEG . . . . . . . . . . . .4 FEET
1 v "IolMlnWnnn
3
Applicant is a Veteran's of Foreign Wars (VFW) facility and has
operated that facility at the Subject Property for a number of
years.
4
The Subject Property is located an in R-l Residential-Zoning
District pursuant to the Ordinance.
5
The Applicant's use of the property as a VFW includes inside
restaurant activitie., bar activiti.. including the .ale ot
alcoholic beverages and meeting ~oom activities.
6
The Applicants existing use of the property is not an allowed use
in the R-l Zoning District.
7
Applicant's existing use of the Subject Property pre-dates the
Zoning Ordinance and is a non-conforming use as that term is
detine~ under S300 of the Ordinanc~.
8
Applicant'. existing and prior use of the Subject Property has not
included any outside activities.
9
Applicant proposes to install
Property which would be 48' in
(see Applicant's Exhibit 1).
two horse shoe pits at the Subject
length and a combined 12' in width
DISCUSSION
Testimony presented at the hearing before the Board by the
Applicant suggested that the installation of the horse shoe pits
was designed to allow membership of the VFW to participate in horse
shoe leagues. The horse shoe games would be played on an
e14borately construct.ed dual horse shoe facility consisting of
concrete. The VFW would sponsor horse shoe matches with 8 players
competing at one time. The Applicant suggested that there would be
no stands for seating constructed at the facility and that there
would be no alcoholic beverages allowed outside.
A number of neighbors to the Subject Property appeared and
protested the proposed expansion by the Applicant. Neighbors
voiced serious concerns with respect to the existing noise problems
....
"
at the Subject Property, At the VFW, the Subject Property has
evening hours and the adjacent properties, all of which are
residential in nature, are subjected to the natural noise from the
comings and goings of the parking area and the voices of people
entering and leaving the VFW premises. The neighbors were very
concerned over the construction of this elaborate horse shoe arena
which would promote outdoor leagues. The neighbors felt that the
creation of this use would cause a great deal of additional noise
by virtue of the outside activities. Neighbors felt that
conducting horse shoe matches by organized leagutls would be a
different use than the existing inside activities conducted at the
Subject Property, and the neighbors were of the opinion that the
new use would create a further additional burden on the adjacent
residential property owners.
The neighbors also testified that the Applicant has been before the
Board on prior occasions requesting expansion of its facilities and
that those prior expansions have already exceeded the 25\ maximum
increase as allowed by 51904(2) (b) of the Ordinance,
The Ordinance at 51904 allows a non-conforming use to be changed or
expanded upon approval by the Board after a special exception
hearing. Pursuant to S1904(2), the Applicant in these special
exception hearings carries the burden to demonstrate a number of
conditions including that the proposed change will not be contrary
to the welfare of the residents of the immediate area of the
Subject Property (Sub-Section A), that such change is more in
compliance with the applicable provi.sions of the Ordinance than the
existing non-conformance (Sub-Section D) and that the proposed
change would not exceed the 25' maximum increase as set forth in
S1900(2).
The Applicants did not rebut the testimony of the neighbors that
the proposed expansion of the existing non-conforming use by
construction of the concrete horse shoe pi ts, when coupled wi th
prior expansions requested by the Applicant and approved by this
Board, would exceed the 25\ maximum increase under S1900 of the
Ordinance.
The Board is also satisfied that the proposed outdoor use of a
horse shoe pit of the nature as proposed by the Applicant would be
a change in the existing use of the property. To date, Applicant
has not conducted any outside activities at the Subject Property.
The horse shoe pit as proposed is not a simple type of back yard
horse shoe pit that would be naturally constructed for the
occasional leisurely enjoyment of the property owners. The pit is
an elaborate concrete structure and, in accordance with the
testimony of the Applicants, is being constructed to allow for
members of the VFW to compete in horse shoe matches. The Soard is
not ignorant to the fact that such matches will naturally draw a
crowd of the membership of the VFW and the opposing teams. The
matches would include the team members, score keepers and