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HomeMy WebLinkAbout2007-3721 RODNEY L. YENTZER, CAROL M. : IN THE COURT OF COMMON YENTZER, JEFFREY A. YENTZER: PLEAS OFCUMBERLAND COUNTY, AND RODNEY L. YENTZER, II, t/d/b/a : PENNSYLVANIA DOUBLIN GAP MOTOCROSS, INC., : PLAINTIFFS : : V. : : HOPEWELL TOWNSHIP, : DEFENDANT : 07-3721 CIVIL TERM IN RE: OPINION AND ORDER OF COURT Masland, J., July 24, 2012:-- I. Background The dispute underlying this lengthy litigation arises from a Public Gathering Ordinance amended by Defendant Hopewell Township in 2007. Originally, in 1979, Hopewell Township, a second class Township, adopted the following ordinance No. 79-2: AN ORDINANCE REGULATING PUBLIC GATHERINGS, PROVIDING FOR PUBLIC GATHERING PERMITS AND REQUIRING ADEQUATE FACILITIES THEREFORE, PROHIBITING CONSUMPTION OF ALCOHOLIC BEVERAGES AND POSSESSION OF OPEN CONTAINERS OF ALCOHOLIC BEVERAGES ON PUBLIC PROPERTY AND PUBLIC HIGHWAYS, PROHIBITING PUBLIC DRUNKENNESS, AND PROHIBITING FIGHTING, INDECENT CONDUCT, AND GATHERINGS FOR UNLAWFUL PURPOSES WITHIN THE TOWNSHIP, AND PRESCRIBING PENALTIES FOR VIOLATION. It is hereby ordained and enacted by the Board of Supervisors of Hopewell Township, Cumberland County, Pennsylvania, as follows: Section 1. It shall be unlawful to hold, manage or conduct any public gathering, entertainment, or party of any kind in the Township, 07-3721 CIVIL TERM except in compliance with the provisions of this ordinance. Section 2. It shall be unlawful to collect, gather, or be a member of any disorderly crowd, or any crowd gathered for any unlawful purpose. Section 3. It shall be unlawful for any person to commit any indecent act; or to appear in any public place not properly or decently garbed. Section 4. It shall be unlawful for any person to be in an intoxicated condition in or on any street, highway, or public place within the Township. Section 5. It shall be unlawful for any person to knowingly start a fight, or to fight, or to commit any assault or battery in any public place within the Township. Section 6. Any public gathering or event not held in a building shall be terminated not later than midnight, and it shall be unlawful for any person to remain on the premises between the hours of 1:00 and 6:00 a.m.; provided that employees of the holders, managers or conductors of such gathering or event whose duties necessitate it, may remain on the premises for the performance of such duties. Section 7. No such gathering, entertainment, or party shall be held or presented in any premises, unless such premises have been examined by the building inspector of the Township not more than three days in advance of the date of such gathering and found free of any fire hazard and found to be suitable for the purpose. Section 8. It shall be unlawful, within Hopewell Township, for any person to drink “liquor” or “malt or brewed beverages” upon any public street, public municipal parking lot, private parking lot open to public use or public park, or in any vehicle being operated or parked thereon. Section 9. It shall be unlawful, within Hopewell Township, for any person to have in such person’s possession or in a vehicle under such person’s control any open container containing “liquor” or “malt or brewed beverages” upon any public street, public municipal parking lot, private parking lot open to public use or public park. Section 10. The following words or phrases, unless the context clearly indicates otherwise, shall have the meaning ascribed to them in this section: -2- 07-3721 CIVIL TERM “Liquor” and “Malt or Brewed Beverages” and “Container” and “Official Seal” shall mean the same as those words and phrases are defined in the “Liquor Code” of the Commonwealth of Pennsylvania. “Open” when used in connection with a container shall mean any container which has been perforated in the case of a can or similar container or a container on which the cap has been loosened or the cork displaced and the official seal torn or mutilated. Section 11. It shall be unlawful to hold, manage or conduct any public gatherings, entertainment or party within Hopewell Township without providing for adequate sanitary facilities. There must be separate facilities or units for males and females. All facilities, except where public water and public sewer service is available, shall be of the chemical type. All facilities during the operation of the public gathering, entertainment or party, must be serviced once a day, at least. Section 12. Any person, corporation or firm desiring to hold, manage or conduct a public gathering of a type covered by this Ordinance must make application to the Township Secretary for a permit at least ten days in advance of the gathering or event and pay to the Township at that time any fee for issuance of said permit which the Township, by resolution, may impose. Application forms shall be provided by the Township and require such information as the Township, by resolution, deems necessary and pertinent for the effective enforcement of the provisions of this Ordinance. Upon compliance with this section and with the provisions of this Ordinance, the Township Secretary shall issue the appropriate permit. Section 13. The Township may require the posting of cash bond, or surety bond with two or more sureties satisfactory to the Township, or with a corporate surety, in an amount which will reimburse the Township for its costs of clean-up, maintenance, and repair following the conduct of any public gathering within the Township contrary to the provisions of this Ordinance, prior to the issuance of the appropriate permit. -3- 07-3721 CIVIL TERM This Ordinance is not intended Section 14. to apply to any public gathering of less than 750 individuals , and is not intended to apply to any public gathering where all the persons in attendance are related by blood or marriage. Section 15. Any person, firm or corporation violating any provision of this Ordinance shall, upon summary conviction thereof, be sentenced to pay a fine of not more than three hundred ($300.00) Dollars, and costs of prosecution, and, in default of payment of such fine and costs, to imprisonment for not more than ninety (90) days. Section 16. If any sentence, clause, paragraph, section or portion of this Ordinance is declared by any Court of competent jurisdiction to be illegal, invalid or unconstitutional, such declaration shall not affect the remaining provisions of this Ordinance. (Emphasis added.) In 2007, the Township amended the Ordinance after a public hearing as follows: AN ORDINANCE OF THE TOWNSHIP OF HOPEWELL, CUMBERLAND COUNTY, PENNSYLVANIA, PROVIDING FOR AMENDING HOPEWELL TOWNSHIP ORDINANCE NO. 79-2 WHEREAS, there exists an Ordinance regulating certain public gatherings in Hopewell Township, Cumberland County, Pennsylvania which is Ordinance 79-2; and WHEREAS, said Ordinance 79-2 was duly enacted August 6, 1979 and WHEREAS, the Board of Supervisors of the Township of Hopewell deems it in the best interests of the citizens of the Township of Hopewell for their general health, welfare and safety to amend Ordinance 79-2, and WHEREAS, the Board of Supervisors of the Township of Hopewell acknowledges that the impact on the community of large gatherings affects the surrounding community including the general welfare of those using roads and highways located within the Township, increases the need for emergency -4- 07-3721 CIVIL TERM services, impinges the quiet enjoyment of residents of their property; and WHEREAS, large gatherings of persons tends to create additional trash, noise and air pollution, and adversely effect the natural environment, waterways, and open spaces of the Township unless properly regulated. NOW THEREFORE, BE IT ENACTED AND ORDAINED by the Board of Supervisors of the Township of Hopewell, Cumberland County, Pennsylvania, and it is hereby enacted and ordained as follows: SECTION I. Section 14 of Ordinance 79-2 is amended to read as follows: This ordinance is intended to apply to any public gathering of 450 individuals or more , and it shall not apply to gatherings of fewer than 450 people. This Ordinance is not intended to apply to any public gathering within the Township where all persons in attendance are related by blood or marriage. SECTION II. This Ordinance shall become effective five days after enactment. SECTION III. SEVERANCE CLAUSE- Should any section, paragraph, clause or phrase of this Ordinance be declared unconstitutional or invalid by a Court of competent jurisdiction, the remainder of said Ordinance shall not be affected thereby, and shall remain in full force and effect. SECTION IV. REPEALER CLAUSE All Ordinances or parts of Ordinances or Resolutions conflicting with the provisions of this Ordinance are hereby repealed to the extent of such conflict. (Emphasis added.) Plaintiffs operate Doublin Gap Motocross, Inc. in Hopewell Township and are subject to compliance with the Ordinance. After the 2007 amendment, Plaintiffs filed a Complaint challenging the validity of the amended Ordinance. Defendant filed an Answer and Plaintiffs filed a Motion for Judgment on the Pleadings challenging the validity of the Ordinance on several bases. Specifically, Plaintiffs argued the Ordinance was void for vagueness, exceeded -5- 07-3721 CIVIL TERM Defendant’s authority, was preempted by existing Pennsylvania law, constituted impermissible de facto zoning, and created an unconstitutional protected class of persons. Following briefing and argument, the Honorable Edgar Bayley denied the Motion in all respects by an opinion and order dated May 13, 2008. Plaintiffs sought an interlocutory appeal that the court certified. However, the Commonwealth Court denied the petition to appeal and the matter moved forward in the Court of Common Pleas. After the completion of discovery, the parties listed the matter for a nonjury trial before the undersigned. At trial, Plaintiffs reasserted their arguments challenging the validity of the Ordinance. Although an array of arguments have been raised by Plaintiffs, we will focus our opinion on those that are legally relevant and salient, beginning with coordinate jurisdiction. II. Coordinate Jurisdiction For Plaintiffs to prevail, the court would necessarily be required to revisit and reverse Judge Bayley’s pretrial decision. “Generally, the coordinate jurisdiction rule commands that upon transfer of a matter between trial judges of coordinate jurisdiction, a transferee trial judge may not alter resolution of a legal question previously decided by a transferor trial judge.” Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003). The rule fosters the policy of finality of pretrial decisions in the interest of maintaining judicial economy and efficiency. Id. However, departure from the rule is permitted in certain extraordinary -6- 07-3721 CIVIL TERM circumstances such as when “the prior holding was clearly erroneous and would create a manifest injustice if followed.” Id. Here, the coordinate jurisdiction rule clearly applies as this matter was transferred to the undersigned for trial following Judge Bayley’s retirement. For several reasons, the court will not alter Judge Bayley’s pretrial legal conclusions. First, his prior holdings were not clearly erroneous. In another context, our courts have stated such a holding must be “a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.” Betz v. Pneumo Abex, LLC, 44 A.3d 27, 45 (Pa. 2012). A careful review of Judge Bayley’s opinion reveals that it is comprehensive and well-reasoned. This conclusion is buttressed by the Commonwealth Court’s denial of Plaintiffs’ petition for permission to appeal. For these reasons, Judge Bayley’s holdings supporting the validity of the Ordinance are not clearly erroneous. Second, Plaintiffs failed to prove that following the previous holdings would result in a manifest injustice. The Ordinance does not completely prevent Plaintiffs from engaging in the business of their motocross facility. It does, however, subject them to permitting requirements and possible citations for Ordinance violations. After lengthy testimony on the impact of this ordinance on Plaintiffs and their patrons, this court is comfortable concluding that requiring Plaintiffs’ continued compliance with the Ordinance will not result in a manifest injustice. -7- 07-3721 CIVIL TERM The only potentially compelling reason to revisit the pretrial decision upholding the validity of the Ordinance is to reexamine the Ordinance in the light of the testimony provided during the nonjury trial. Judge Bayley’s decision was on a Motion for Judgment on the Pleadings and therefore he did not have the benefit of a developed factual record. For the purposes of the motion for judgment on the pleadings, Judge Bayley limited his consideration to the pleadings and relevant documents attached thereto, accepting as true all well- pleaded facts. Wachovia v. Ferretti, 935 A.2d 565, 570 (Pa. Super. 2007). Now, in light of the fully developed factual record, Plaintiffs would have the court reverse Judge Bayley’s pretrial decision. For the reasons set forth in the following section, we decline to reverse Judge Bayley based on the application of the ordinance to Plaintiffs’ business. III. Application of the Ordinance Plaintiffs argue that the Ordinance was enacted not in the “best interests of the citizens of the Township of Hopewell for their general health, welfare and safety to protect the public interest,” but specifically to interfere with their private business. “The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual or unnecessary restrictions upon lawful occupations.” Denmark v. Miller, 30 Pa. D. & C.3d 653, 656, (Pa. Com. Pl. 1983). However, the scope of judicial inquiry into a regulation or ordinance “is not to determine if the enactment is wise or unwise or whether it -8- 07-3721 CIVIL TERM is based on sound economic theory but rather if the legislative discretion was properly exercised and if so within reason.” Id. At trial, Plaintiffs argued that the Ordinance’s permitting requirements have no rational relationship to the public interest the Ordinance claims to protect. In support of that position, Plaintiffs represent the following in their fourth proposed conclusion of law: It is clear from the testimony given by the supervisors that there is no response which the township is able to make with regard to fire, police or medical emergencies which may occur on the Plaintiff’s premises. Nor was there any testimony regarding traffic control other than vague comments regarding increased traffic in the township over the years. The only tasks which could be demonstrated by the township were the inspection of the premises for adequate septic facilities and provision for emergency vehicles. Whether or not a permit is issued, there will be a certain amount of traffic, dust and noise at the events conducted by Plaintiff. The Ordinance prevents patrons from staying overnight if a permit has been issued. The patrons needing fire police or emergency services can expect no assistance from the township. The health, safety and welfare of [sic] argument advanced by the township is therefore hollow and flawed. Plaintiffs’ Proposed Findings of Fact and Conclusions of Law at IV. The court finds this argument unavailing for several reasons. First, whether the Township supplies the personnel or services for law enforcement, emergency medical care or firefighting, it has an undeniable interest in health, safety and welfare and has the authority, indeed the obligation, to adopt -9- 07-3721 CIVIL TERM 1 appropriate ordinances pursuant to its general powers as well as its interest in 2 securing public safety. In short, evidence produced at trial did not serve to erode Judge Bayley’s finding that the ordinance was lawfully enacted for a 3 legitimate purpose. Plaintiffs seem to view the public interest as the interest of their patrons exclusively. Clearly, Plaintiffs view the Ordinance’s permitting requirements as a nuisance from which they gain little. That may be, but their remedy is political rather than judicial. After reviewing the nonjury trial testimony, the court, as finder of fact, determines that the Ordinance is rationally related to the legitimate public safety interest in regulating the activities of a large motocross racing facility. Accordingly, the Ordinance is a valid exercise of Defendants’ legitimate police powers. In closing, we note that much of Plaintiffs’ testimony and arguments appeal to the alleged equities of the case. Just as it is not for this court to determine the wisdom of the ordinance, it is not for us to tinker with it by suggesting guidelines for the counting of attendees, the timing of the inspections, or the measurement of noise. To be sure, such details could augment or clarify the Ordinance, but their absence is not fatal to its legitimacy. An arms-length discussion between reputable businesses and municipalities is always recommended to avoid conflict. Perhaps, future disputes 1 53 P.S. § 66506. 2 53 P.S. § 66527. 3 Plaintiffs argue that despite the aforesaid powers, under 53 P.S. § 66532 the Township may only license and regulate transient merchants, cable television companies, restaurants and junk licenseregulate dealers. The specific authorization to and certain activities cannot reasonably be interpreted to emasculate the Township’s interest in the health, safety and welfare of its citizens with respect to all other activities, be they commercial or not. -10- 07-3721 CIVIL TERM will be resolved through mediation. The parties may wish to consider not only the “ethereal dust” of motocross, but also their long-term and, potentially, permanent relationship in addressing their mutual interests and needs. Until such time and for the foregoing reason we issue the following order. ORDER OF COURT AND NOW, this day of July, 2012, following a nonjury trial, and after thorough consideration of the proposed findings of fact and conclusions of law offered by the parties, Hopewell Township Ordinance 79-2, as amended by Ordinance 2007-02, is declared to be valid and enforceable. By the Court, Albert H. Masland, J. William A. Duncan, Esquire For Yentzers t/d/b/a Doublin Gap Motocross, Inc. Sally J. Winder, Esquire For Hopewell Township :saa -11- RODNEY L. YENTZER, CAROL M. : IN THE COURT OF COMMON YENTZER, JEFFREY A. YENTZER: PLEAS OFCUMBERLAND COUNTY, AND RODNEY L. YENTZER, II, t/d/b/a : PENNSYLVANIA DOUBLIN GAP MOTOCROSS, INC., : PLAINTIFFS : : V. : : HOPEWELL TOWNSHIP, : DEFENDANT : 07-3721 CIVIL TERM ORDER OF COURT AND NOW, this day of July, 2012, following a nonjury trial, and after thorough consideration of the proposed findings of fact and conclusions of law offered by the parties, Hopewell Township Ordinance 79-2, as amended by Ordinance 2007-02, is declared to be valid and enforceable. By the Court, Albert H. Masland, J. William A. Duncan, Esquire For Yentzers t/d/b/a Doublin Gap Motocross, Inc. Sally J. Winder, Esquire For Hopewell Township :saa