Opinion
No. 2156 C.D. 2011
07-11-2012
Crossing Vineyards and Winery, Inc. and Thomas F. Carroll and Christine N. Carroll, Appellants v. Zoning Hearing Board of Upper Makefield Township
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this zoning appeal, Crossing Vineyards and Winery, Inc., Thomas F. Carroll and Christine M. Carroll (collectively, the Winery) ask whether the Zoning Hearing Board of Upper Makefield Township (ZHB) erred in upholding an enforcement notice that found the Winery violated Section 803 H-17 of the Newtown Area Joint Municipal Zoning Ordinance (JMZO) by exceeding the permissible number of outdoor events in a calendar year (24) and violating a restriction that indoor and outdoor events conclude by 10:00 p.m. The Winery asks whether the "promotional" events it conducts were entitled to protection as nonconforming uses, and, therefore exempt from the frequency and duration restrictions imposed by this section. Because we agree with the ZHB that the Winery did not prove it conducted these events lawfully prior to the enactment of Section 803 H-17, and, therefore, did not prove these activities constitute valid nonconforming uses, we affirm.
I. Factual and Procedural History
Landowners Thomas F. and Christine M. Carroll operate Crossing Vineyards and Winery, Inc., located in Washington Crossing, Upper Makefield Township, Bucks County. The Winery is comprised of approximately 20 acres on four separate tax parcels in a CM Conservation Management zoning district (subject property). The subject property is improved with a single-family detached dwelling occupied by the Carrolls, a winery building with a tasting room, a barrel room, a retail sales area and events room, agricultural barns, a wine storage building, a detached garage, a two-story residential cottage, a patio area and a tent for outdoor events.
Approximately 13 acres of the subject property are devoted to the vineyards for wine grape production. The Winery operates pursuant to a Pennsylvania Limited Winery License issued to it by the Pennsylvania Liquor Control Board. In addition to the growing and harvesting of wine grapes and the production, aging, bottling and sale of wine, the Winery extends its operations to many other activities and events in order to generate revenue.
In December 2000, approximately three years prior to the Winery opening, David Kuhns, the Upper Makefield Township Code Enforcement Officer, issued the Winery a zoning permit for A-1 (Agriculture and Horticulture) and A-6 (Agricultural Sales of Food Products) uses under the JMZO. The Winery's zoning permit application stated the proposed use of the subject property was agricultural and agricultural sales, vineyard and winery. The application did not include any information regarding special events such as concerts, weddings, parties or other commercial events open to the public.
In August 2004, in response to an inquiry from the Township regarding events held at the Winery, the Winery's counsel sent a letter to the Township's Code Enforcement Officer, which stated, in part: "[i]n conjunction with some of the smaller private parties, there have been, on occasion, very limited entertainment provided and this year there has been an event where one tenor sang, there is scheduled to be an event where there will be a three-piece harp trio, and there will be an event later in the year in which a jazz trio appears." Reproduced Record (R.R.) at 865a. However, the record depicts an event schedule at the Winery substantially larger in scope than that depicted in the letter, and the facts reveal an evolution from about 38 events in 2004, to 152 events in 2005, 146 events in 2006, 144 events in 2007, and 153 events in 2008.
Beginning in 2006, the Newtown Jointure, consisting of Upper Makefield, Wrightstown and Newtown Townships, began considering the adoption of an amendment to the JMZO to create a new, specific accessory use known as "Public and Retail Use Accessory to a Vineyard or Winery."
In September 2006, the Winery's counsel wrote a letter to the Township's Code Enforcement Officer, asserting the existence of a number of potential nonconformities on the subject property that could result from the enactment of the amendment relating to public and retail use accessory to a vineyard or winery. R.R. at 867a-68a. These nonconformities included the permissible number of outdoor events on the subject property. R.R. at 867a. The Winery's counsel requested the Township's Code Enforcement Officer appropriately register these alleged nonconformities. Id.
Thereafter, the Newtown Jointure enacted the amendment relating to public and retail use accessory to a vineyard or winery, as codified in Section 803 H-17 of the JMZO, with an effective date of July 18, 2007. Landowner Thomas Carroll was aware of the discussions concerning the so-called "winery amendment," and participated in the meetings that helped develop it. ZHB Op., 11/29/10, Finding of Fact (F.F.) No. 58.
In November 2008, the Township's Code Enforcement Officer responded to the Winery's counsel's September 2006 letter, addressing the Winery's degree of compliance with Section 803 H-17 of the JMZO. Among other things, he stated his opinions that the Winery was not in compliance with Section 803 H-17's restriction on the maximum number of outdoor events per year (24). He further noted the Winery was required to comply with Section 803 H-17's requirement that all events end by 10:00 p.m.
In response, the Winery's counsel issued a letter detailing the nature, frequency and timing of events that occurred on the subject property from 2004 through 2008. The Winery's counsel explained the purpose of this information was to establish a nonconformity for more than 24 outdoor events and to establish a nonconformity for hours of operation because a number of the Winery's events exceeded the 10:00 p.m. time limitation. However, the Winery did not formally appeal the Township Code Enforcement Officer's determinations in his November 2008 letter, despite the fact that the letter included an instruction that an appeal to the ZHB should be filed within 30 days from the date of the letter if an appeal were sought.
In August 2009, in response to complaints from neighboring landowners, the Township's Code Enforcement Officer issued the Winery an enforcement notice after finding, among other things, the Winery exceeded 24 outdoor events in a calendar year, and the Winery exceeded the limitation that all events end by 10:00 p.m. in violation of Sections 803 H-17(d)(4)(c), (d) of the JMZO.
The Winery appealed the enforcement notice to the ZHB, asserting the enforcement notice did not recognize the existence of the Winery's lawful, nonconforming activities. A series of six hearings ensued before the ZHB.
The Winery also argued the enforcement notice violated the Right to Farm Law, Act of June 10, 1982, P.L. 454, as amended, 3 P.S. §§951-957, and certain provisions of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§1-101-10-1001, that govern limited wineries, on the grounds these statutes preempted the enforcement action. However, the Winery subsequently abandoned these theories.
Before the ZHB, the Code Enforcement Officer testified that commercial entertainment events at the Winery included events such as cabaret night, "summer under the stars" concerts, and Caribbean jam nights. F.F. No. 32. Additionally, the Winery's website described the availability of various onsite venues available for weddings, receptions, rehearsal dinners and parties, including: (1) "The Barrel Room" - accommodating up to 50 guests; (2) "Jonathan's Garden" - accommodating up to 75 guests for a banquet or 100 guests for cocktails; (3) "The Vineyard Room" - available year round to accommodate 70 guests for a sit-down meal or up to 100 guests for a cocktail party; (4) "Vistas" - available to accommodate up to 250 guests for dinner or 300 guests for cocktails; and, (5) "The Ceremony Site at Crossing Cottage" - available to accommodate up to 250 guests. F.F. No. 33.
The Code Enforcement Officer opined the events occurring at the Winery constituted "entertainment uses," which were a separately defined category of uses (E-9), at the time the Winery received its zoning permit for its A-1 and A-6 uses in December 2000. F.F. No. 30. He testified the Winery did not apply for or receive any zoning or building permits that would permit entertainment uses.
Ultimately, the ZHB issued a decision in which it upheld the enforcement notice. The ZHB determined the number of outdoor events and the character and intensity of the events were not permitted uses based on the zoning permit issued to the Winery in 2000. The ZHB further stated the Winery did not seek permission to conduct these events.
In addition, the ZHB rejected the Winery's assertions that the special events that occurred on the subject property constituted valid nonconforming uses. It stated: "Conducting a use that is not permitted on the property for a period of time does not create a nonconformity." ZHB Op., Concl. of Law. No. 11. The ZHB also stated that, because the so-called "winery amendment" includes the words "parties or receptions," as permitted special events, it, for the first time, created the right or ability of the Winery to employ the subject property for these uses. Concl. of Law No. 13. Because the special events conducted on the subject property were not nonconforming uses, the ZHB determined the Winery was subject to the JMZO amendment that restricted the frequency and duration of events. The ZHB also imposed eight additional conditions on the Winery's operations. The Winery appealed to the Court of Common Pleas of Bucks County (trial court). Drs. Michael Kochman and Mary Melton, who own property adjacent to the Winery and who testified before the ZHB, intervened in opposition to the Winery's appeal.
Without taking additional evidence, the trial court issued an opinion and order that affirmed the ZHB's decision upholding the enforcement notice. However, the trial court determined, in the context of an appeal from an enforcement notice, the ZHB lacked authority to impose additional conditions on the Winery's operations.
The trial court's determination that the ZHB exceeded its authority by imposing additional conditions on the Winery's operations in the context of an appeal from an enforcement notice is not challenged here.
In rejecting the Winery's assertions that the frequency and duration of its special events were entitled to nonconforming use status, the trial court, in its Pa. R.A.P. 1925(a) opinion, explained (with emphasis added):
Many commercial entertainment events that were occurring at the Winery were not specifically permitted under the prior ordinance. Additionally, although prior to and in anticipation of the enactment of §H-17, the Winery did seek to register certain aspects it deemed as nonconforming uses by way of correspondence to the Township dated September 19, 2006, the magnitude of the commercial entertainment events was still not revealed. Exhibit T-4, N.T. 11/24/2009, pp. 52-53. Although §H-17 now legitimizes certain commercial activities that had been occurring at the Winery prior to enactment of the ordinance, the fact that they were occurring previously does not automatically render them nonconforming, and therefore grandfathered, despite the Winery's misplaced reliance on that premise.
Upon review of the record, it is readily apparent that the ZHB relied on substantial credible evidence in finding the Winery was functioning as a commercial event venue far beyond the uses the A-1 and A-6 permits had originally granted. The Winery repeatedly states on appeal that this Court erred in determining events to be 'commercial events' that are impermissible, as opposed to allowable promotional events allegedly defined as agricultural accessory activities under §H-17. That is a misstatement of this Court's determination. While we have reflected upon the vast business enterprise that the Winery has become over the years, our determination rested solely on a review of the ZHB's conduct in reaching the decision that the frequency and duration of events did, in fact, exceed the pertinent ordinance. Our determination was not based on the type of event, be it commercial, entertainment, promotional, or some combination thereof. Although the ZHB determined that wedding receptions, private meetings, concerts and fundraisers were permitted accessory uses, they were permitted as a result of the adoption of the §H-17 Use regulations, not because of a finding that they were pre-existing nonconforming uses.
Likewise, the record amply supports the ZHB's determination that the number of outdoor events in a year and the ending time of indoor and outdoor events were not previously lawful, and that therefore those aspects of events occurring at the Winery were not entitled to the protection of nonconforming status. Rather, the number and time limitations
on events are lawfully subject to the limitations of §H-17 enacted as of July 18, 2007.Tr. Ct., Slip Op., 12/30/11, at 9-10. The Winery's appeal is now before us for disposition.
II. Discussion
A. Contentions
On appeal, the Winery asserts that the promotional events it conducts, which were lawful prior to the enactment of Section 803 H-17 of the JMZO, were entitled to protection as nonconforming uses, and, therefore exempt from the restrictions imposed by this section. Thus, the Winery argues the ZHB erred in determining the Winery violated Sections 803 H-17(d)(4)(c) and (d) of the JMZO relating to the permissible number of outdoor events in a calendar year, and the limitation as to hours of operation.
Because the parties presented no additional evidence after the ZHB's decision, our review is limited to determining whether the ZHB committed an abuse of discretion or an error of law. Good v. Zoning Hearing Bd. of Heidelberg Twp., 967 A.2d 421 (Pa. Cmwlth. 2009).
The Winery asserts it is a lawfully existing A-1 Agricultural Use, which is permitted in the CM district. It contends its sale of wine and associated promotional events are lawful accessory activities pursuant to Section 803 H-17 of the JMZO, and were lawful activities pursuant to numerous permits issued under Sections 803 A-1 and 803 A-6 of the JMZO, uses that existed prior to the enactment of Section 803 H-17. The Winery maintains it lawfully conducted more than 24 outdoor events in a calendar year prior to 2007, and it lawfully conducted indoor events after 10:00 p.m. prior to 2007, when the enactment of Section 803 H-17 rendered these activities unlawful.
The Winery maintains the Township clearly recognized the importance of special events to a winery through the adoption of Section 803 H-17, which defines these activities as "accessory." Id. The Winery asserts Section 803 H-17(d)(4)(a) is permissive in its language as to the types of functions or events permitted because it utilizes the open-ended term "other events." Id. Moreover, the Winery argues, Section 803 H-17 is only restrictive as to its prohibition on restaurant use. See Section 803 H-17(d) of the JMZO.
The Winery contends Section 803 H-17 allows outdoor events, amplified music, and the use of tents. It asserts a complete review of Section 803 H-17's provisions logically leads to the conclusion that the Township intended to codify the normal and customary event activities conducted by wineries in the operation of their agricultural business as lawful accessory uses. The Winery contends these provisions are in accord with the stated intention of the CM district, which states, in relevant part: "[U]ses are permitted in both type and intensity which provide the maximum opportunities for open space in order to protect the natural resources and encourage the continuation of farming activities." Appellants' Br. at 13 (quoting (with emphasis added) Section 305(B) of the JMZO).
Further, the Winery argues the conduct of more than 24 outdoor events in a calendar year and indoor events concluding past 10:00 p.m. are legally protected as nonconforming uses as such activities were not prohibited by the JMZO until 2007 and were lawfully conducted before the enactment of Section 803 H-17. See 2 Robert S. Ryan, Pennsylvania Zoning Law and Practice §7.1.1 (discussing nonconforming uses generally). The Winery asserts it is uncontested that it originally received permits for A-1 and A-6 uses in 2000 as a "vin[e]yard and winery." R.R. at 835a. The Winery maintains it is also uncontested that prior to the July 2007 enactment of Section 803 H-17, the JMZO did not prohibit uses that are customary, incidental and subordinate to such principal uses, nor did the JMZO contain any limitations on hours of operation or number of outdoor events.
Also, prior to the July 2007 enactment of Section 803 H-17, the Winery asserts, the Township issued numerous permits for improvements clearly related to the holding of events at the Winery. R.R. at 825a-63a. The Winery argues it relied on these permits in the construction of improvements on the subject property. The Winery concedes the resolution of credibility issues is for the ZHB; however, it argues, the documentary evidence, consisting of numerous permits it received, undercuts the ZHB's decision. The Winery asserts the validity of the Township's position is also undermined by the unrefuted fact that the Township conducted its own event at the Winery before the enactment of Section 803 H-17.
The Winery further argues zoning ordinances should be liberally construed to afford a landowner the broadest possible use of his land. Here, it asserts, the term "other events" as stated in Section 803 H-17(d)(4)(a) of the JMZO, as well as the language that allows outdoor events without limitation as to the type of event and allows tents and amplified music, must be interpreted to allow the types of accessory events conducted by the Winery as permitted uses.
The Winery also takes issue with the Township's position that the events conducted at the Winery are properly classified as E-9 Entertainment Uses. It asserts the JMZO defines an E-9 Use as follows: "an entertainment facility shall include a bowling alley, skating rink, pool hall, movie theatre, video game/pinball arcade, or other similar use ...." Appellants' Br. at 17 (quoting (with emphasis added) Section 803 E-9 of the JMZO). The Winery argues the types of accessory events it conducts do not fall within this definition.
B. Analysis
As fact-finder, the ZHB is the sole judge of the credibility and weight of the evidence presented. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005). As a result, the ZHB is free to reject even uncontradicted evidence it finds lacking in credibility. Id. Our review of a ZHB's factual findings is limited to determining whether those findings are supported by substantial evidence. Id.
In addition, the ZHB is the entity responsible for the interpretation and application of its zoning ordinance, and its interpretation of its own ordinance is entitled to great deference from a reviewing court. Adams Outdoor Adver., LP. v. Zoning Hearing Bd. of Smithfield Twp., 909 A.2d 469 (Pa. Cmwlth. 2006). The basis for this judicial deference is the knowledge and expertise a ZHB possesses to interpret the ordinance it is charged with administering. Id.
A lawful, nonconforming use of a property is a use predating a subsequent prohibitory zoning restriction. Lamar Advantage GP Co. v. Zoning Hearing Bd. of Adjustment of City of Pittsburgh, 997 A.2d 423 (Pa. Cmwlth. 2010); Hafner v. Zoning Hearing Bd. of Allen Twp., 974 A.2d 1204 (Pa. Cmwlth. 2009). "It is axiomatic that the right to maintain a pre-existing non-conformity extends only to uses that were legal when they came into existence. The enactment of a new ordinance cannot have the effect of protecting a pre-existing illegality." Scalise v. Zoning Hearing Bd. of Borough of W. Mifflin, 756 A.2d 163, 166 (Pa. Cmwlth. 2000) (emphasis added).
It is the burden of the party proposing the existence of a nonconforming use to establish both its existence and legality before the enactment of the ordinance at issue. Hafner. "This burden includes the requirement of conclusive proof by way of objective evidence of the precise extent, nature, time of creation and continuation of the alleged nonconforming use." Lamar Advantage, 997 A.2d at 438 (emphasis and citation omitted).
"The manner of use and the dates of its existence are questions of fact on which a reviewing court defers to the fact-finder; however, the legality of a use is a question of law over which our review is plenary." Hafner, 974 A.2d at 1211.
Here, the parties do not dispute that the Winery is operating in excess of the frequency and duration restrictions set forth in Section 803 H-17 of the JMZO as it relates to the Winery's conduct of special events. Additionally, the parties do not dispute that the Winery conducted special events such as concerts and weddings on the subject property prior to the enactment of Section 803 H-17. The issue is whether the Winery conducted those activities lawfully prior to the enactment of Section 803 H-17 so as to render them valid nonconforming uses, free from the frequency and duration restrictions set forth in that section.
In rejecting the Winery's assertions that its special events uses constituted valid nonconforming uses, ZHB made the following determinations (with emphasis added):
7. The Applicant's principal business is the growing and harvesting of wine grapes and the production, aging, bottling and sale of wine.
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10. On December 14, 2000, the Applicant received a use permit from [the] Township for operation of a vineyard and winery on the subject property, permitting an A-1 Agricultural Use pursuant to JMZO §803.A-1 and an A-6 Agricultural Sales Use pursuant to JMZO §803.A-6.
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12. At that time, the A-1 use was defined as '...Agriculture and Horticulture...' to '... include uses such as tilling of soil; raising of livestock, horses, or poultry; growing trees, shrubs, flowers or vegetables; and related farm houses and usual farm buildings. Single family detached dwellings for use by individuals and their immediate families engaged in agricultural employment on the same site or for the immediate family of the land owner are permitted ....'
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16. [T]he A-6 use is entitled 'Agricultural Sales of Food Products, Landscape Contracting and Nursery'. This use
permits the sales of farm products provided that such sales '... shall be conducted from a portable or permanent structure not exceeding four hundred (400) square feet in area ... [provided that] at least fifty [percent] (50%) of the products sold must have been grown or raised on the property. [...'] It permitted the sale of associated incidental items provided that such sales do not constitute more than twenty-five [percent] (25%) of annual dollar sales volume.
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18. The application for the use permits received in 2000 stated that the proposed use was to be agricultural and agricultural sales, vineyard and winery. The application did not request permits for special events such as concerts, weddings, parties, or other events open to the general public.
19. The Board finds that those types of uses, i.e. the special events, were not enumerated as permitted uses under either the A-1 or A-6 category.
20. The evidence indicates that beginning in approximately 2002, events such as parties, receptions, and concerts were conducted on the subject property to a limited extent and that the Township Zoning Officer became aware of that at that time.[] In fact, the Zoning Officer attended an event at the [W]inery in 2004 which honored a township official for his years of volunteer service to [the] Township.
21. On July 26, 2004, the Township requested the Applicant notify it of the number and types of events being conducted at the [W]inery (Exhibit T-2).
22. In response, Applicant's counsel issued a letter, dated August 5, 2004, ... which described the entertainment uses on
the [subject] property as occurring: '...on occasion, very limited entertainment [has been] provided and this year there has been an event where one tenor sang, there is scheduled to be an event where there will be a three piece harp trio, and there will be an event later in the year in which a three piece [jazz] trio appears. The small concerts and other entertainment are not the main thrust of the business, but serve only to promote the vineyard and its products'.
23. Beginning in 2006, the Newtown Jointure, consisting of the Townships of Upper Makefield, Wrightstown and Newtown, began consideration of the adoption of an amendment to the JMZO to create a new specific use entitled 'Public and Retail Use [A]ccessory to a Vineyard or Winery' (Use H-17). This amendment was duly enacted by the participating municipalities of the jointure with an effective date of July 18, 2007. (The 'Winery Ordinance')
24. On September 19, 2006, Applicant's counsel authored a letter to the Township asserting the existence of a number of potential nonconformities on the subject property that could result from the enactment of the vineyard and winery use ordinance amendment. (Exhibit T-4)
25. At the outset of the hearing, the Township called Mr. Kuhns, its Zoning Officer, as the first witness. Kuhns testified that, beginning in late 2006 or early 2007, he began to receive complaints, either directly or through the police department, that the number and intensity of events were increasing to a point where it was becoming bothersome to some surrounding property owners, including some of the intervening parties to this application.
26. On November 25, 2008, Kuhns issued a 'Zoning Officer Determination' pursuant to §909.1(a)(3) of the Pennsylvania
Municipalities Planning Code,[] regarding the subject property. ...
27. That determination, which was in response to [Applicant's counsel's letter], recognized compliance with certain provisions of the Winery Ordinance, and determined noncompliance with the frequency of outdoor events and a requirement that those events must conclude at 10:00 p.m., as required by the Winery Ordinance.
28. In response, Applicant's counsel issued ... a letter of December 10, 2008, which enumerated the nature, frequency, and timing of events occurring on the subject property from 2004 through 2008. In [that letter], Applicant disclosed, for the first time, the nature and number of events. The Applicant admits that there were thirty-eight (38) events in 2004; one hundred fifty-two (152) events in 2005; one hundred forty-six (146) events in 2006; one hundred forty-four (144) events in 2007; and one hundred fifty-three (153) events in 2008.
29. Importantly, the Applicant did not appeal the Zoning Officer's determination of November 25, 2008.
30. Mr. Kuhns opined that the events described in [Applicant's counsel's December 2008 letter] were 'entertainment uses' defined at §803.E-9 of the JMZO. 'Entertainment use' was separately defined at the time that the [W]inery received its A-1 and A-6 use permits.
31. The Applicant never applied for, nor received, any zoning or building permits that would have permitted E-9 uses on the subject property.
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41. Clearly, uses A-1 and A-6 did not contemplate the types of events that are being held on the subject property based upon the parking requirements imposed for those uses by the legislative body that enacted the JMZO.
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51. According to [Applicant's counsel's December 2008 letter], of the thirty-eight (38) events held on the property in 2004, none of them extended past 10:00 p.m. In 2005, twenty-eight (28) of the one hundred fifty-two (152) events extended past 10:00 p.m. In 2006, twenty two (22) of the one hundred forty-six (146) events extended past 10:00 p.m. In 2007 twelve (12) of the one hundred forty-four (144) events extended past 10:00 p.m. and in 2008, twenty-five (25) of the one hundred fifty-three (153) events extended past that time.
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55. After the Township presented its zoning officer and some intervening neighbors as witnesses, it rested. The Board determined, at that time, that Mr. Kuhns had correctly issued the zoning enforcement notice of August 17, 2009, based upon the knowledge he had at the time of its issuance, namely, the complaints of the neighbors, [Applicant's counsel's December 2008 letter], and his investigation.
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3. The Winery Ordinance, enacted in 2006, clarified uses that are accessory to a vineyard or winery use. It resulted from the input of professionals and staff of the three (3) participating municipalities as well as input from the public and winery 'experts', including Carroll. It permits wine related uses and activities that will encourage visitors to the winery and purchase of the products produced there.
4. The Winery Ordinance strikes a balance between competing permitted uses in the Conservation Management district. It recognizes the need for wine related activities in order to
enhance the competitive viability of the vineyard or winery, and at the same time protects what could, colorably, be called a commercial use from an increase in intensity to the detriment of the residential neighborhood.
5. The limitation on the number of the outdoor events and the required time for conclusion of these events represents responsible planning and zoning and necessary consideration of competing uses.
6. The Board concludes, based upon the totality of the evidence submitted in all of these hearings, that the number of outdoor events and their character and intensity were not permitted uses on the subject property pursuant to the zoning permits that the Applicant had received.
7. As activities in excess of [JMZO] restrictions require variance[s], the Board notes that the Applicant never applied for permission to conduct outdoor concerts, parties, or events of the type and character that have been held there.
8. The Board rejects the Applicant's argument that it obtains some sort of vested interest or right to conduct special events on the property because the Township or some officials knew of the occurrence of some of them.
9. Events such as weddings and wedding receptions are accessory to such structures and uses such as churches, community centers, catering halls and the like. A wedding is not an accessory use to a vineyard or winery. Accordingly, it was the Applicant's burden to obtain appropriate permitting from the Township at the time it determined to conduct such events on the subject property.
10. The Applicant was aware of zoning hearing procedures, having obtained a variance from this Board in order to construct appropriate deer fencing around the [subject] property. The Applicant did not, however, apply to the Township to appear before the Board to conduct the entertainment events that were being held on the [subject] property.
11. Conducting a use that is not permitted on the property for a period of time does not create nonconformity.
12. The Board notes that there is no restriction on the number of indoor events that can be held on the subject property.
13. The Board concludes, that since the [Winery] Ordinance language includes the words 'parties or receptions', as permitted special events, it, for the first time, created the right or ability of the Applicant to employ the property for these uses.
14. Since residential neighbors are entitled to expect that an agricultural facility located in their neighborhood will not become an entertainment facility, the restrictions imposed by the Winery Ordinance, to the number of outdoor events and to the time limit by which such events must conclude, are entirely reasonable.
15. Since the special events held on the property are not non-conforming uses, the restrictions that permit their occurrence now, must be applied.
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17. The parking requirements for the uses permitted on the subject property in 2000, indicate that the special event uses on the [subject] property which could generate up to three hundred (300) attendees for any one event are not uses accessory to the A-1 or A-6 uses permitted.
18. [The Code Enforcement Officer's letter of November 25, 2008] determined a violation of JMZO §803.H-17.d.4.c indicating that the outdoor events were not in compliance with the [Winery] Ordinance requirements as to their frequency and the limitation of twenty-four (24) outdoor events in any calendar year. It also determined that the time limits imposed by §803.H-17.d.4.d were applicable to the subject property.
19. These determinations, made on November 25, 2008, became binding upon the Applicant since no appeal from them was filed within thirty (30) days thereof.F.F. Nos. 7, 10, 12, 16, 18-31, 41, 51, 55; Concls. of Law Nos. 3-15, 17-20, 24-25. We discern no error in the ZHB's determination that the Winery did not meet its burden of proving that it lawfully conducted special events on the subject property prior to the enactment of Section 803 H-17 of the JMZO.
20. [The Code Enforcement Officer's letter of November 25, 2008] also determined, since it was [in] response to [Applicant's counsel's letter of September 2006], that the types of uses enumerated in [Applicant's counsel's letter of September 2006] are permitted on the [subject] property as accessory to the winery use pursuant to the Winery Ordinance, including the sale of wine related products, wine education, wedding ceremonies, wedding receptions, corporate events, wine dinners, fundraisers, concerts, community meeting[s], private parties, tours, wine tasting[s] and food and wine parings.
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24. The special events that occurred on the [subject] property, until the enactment of the Winery Ordinance, were separate uses that were not permitted by the zoning permits the Applicant had received in 2000. The Board concludes that these special events were entertainment uses for which zoning relief should have been sought.
25. The evidence does not indicate that the Applicant has established a vested right to exceed the Winery Ordinance limitations, or that the Township is equitably estopped from enforcing those limitations, as those terms are defined by the case law of the Commonwealth of Pennsylvania.
While the ZHB's Finding of Fact No. 20 indicates that the Winery began conducting special events around 2002, the record reveals these events actually began in late-2003 or 2004. Reproduced Record at 103a, 307a-08a, 875a.
Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §10909.1(a)(3) (vesting ZHB with exclusive jurisdiction to hear and render final adjudications in appeals from the determination of a zoning officer, including, but not limited to, the grant or denial of any permit, the issuance of any cease and desist order or the registration or refusal to register any nonconforming use, structure or lot.)
Specifically, when the Winery applied for a zoning permit in December 2000, it indicated its proposed use was "agricultural and agricultural sales vinyard [sic] and winery." R.R. at 835a. The Winery did not indicate it intended to use the subject property for special events such as concerts, weddings, parties or other commercial activities open to the public. Id. The Township's Code Enforcement Officer approved the zoning permit application as "Use A-1, Agriculture and Horticulture, and UseA-6 [sic], Agricultural Sales of Food Products as per the [JMZO]." Id. As determined by the ZHB, and as excerpted at length above, the provisions of the JMZO governing A-1 and A-6 uses that were in effect in 2000, when the Winery received its zoning permit, did not contemplate accessory entertainment or special event use. R.R. at 893a, 894a-95a.
As for the regulations applicable to the CM district, Section 401.A.1. of the JMZO currently provides (with emphasis added):
§401. CM Conservation Management Districts.
In CM Conservation Management Districts, the following regulations shall apply:
A. Use Regulations. A building may be erected or altered, to be used either in whole or in part, and a lot may be used or occupied for any of the following uses, and no other ....
1. Uses by Right. Any of the following uses shall be permitted, provided the Use Regulations, Article VIII, of this Ordinance have been met:
a. Agriculture and Horticulture, use A-1
b. Intensive Agriculture, use A-2
c. Forestry, use A-3
d. Kennel, use A-5Section 401.A.1 of the JMZO.
e. Commercial Nursery and Greenhouse, use A-6
f. Single-Family Detached Dwelling, use B-1
g. Intentionally left blank.
h. Intentionally left blank.
i. Recreational Facility, use C-5
j. Home Occupation or Accessory Office, use H-1
k. No-Impact Home Based Business, use H-2
l. Residential Accessory Structure, use H-3
m. Boarding, use H-4
n. Temporary Structure, use H-7
o. Swimming Pool, use H-8
p. Microwave Antenna for Television Receiving only Satellite Earth Stations, use H-12
q. Roadside Stands for Sale of Agricultural Products Grown on Site, use H-15.A
r. Agricultural Sale of Farm Products, use H-15.B
s. Low-Impact Home Landscape Contractor, use H-16
t. Public and Retail Use Accessory to a Vineyard or Winery, use H-17
Unfortunately, the record does not contain a copy of the use regulations for the CM district in effect when the Winery began conducting its special events use in late-2003 or 2004. As noted, the Winery bore the burden of proving its special events or entertainment use constituted a valid nonconforming use. See Hafner. The Winery's failure to produce a copy of the use regulations for the CM district in effect when it began conducting its special events in late-2003 or 2004, in order to support its assertion that these events are lawful, nonconforming accessory uses, significantly hinders the Winery's position. More importantly, despite asserting it conducted its special events as a lawful accessory use prior to the enactment of Section 803 H-17, the Winery cites no provision of the JMZO to support this bald assertion.
To that end, based on the CM district's use regulations excerpted above, prior to the enactment of Section 803 H-17, none of the permitted principal or accessory uses in the CM district encompassed the entertainment or special events use conducted by the Winery.
Significantly, contrary to the Winery's suggestion, the CM district's use regulations do not permit accessory uses generally; instead, the regulations carefully set forth that 11 of the JMZO's 21 separately defined accessory use categories are permitted by right in the CM district. Compare, e.g., Aldridge v. Jackson Twp., 983 A.2d 247, 257 (Pa. Cmwlth. 2009) (applicable zoning ordinance's use regulations for particular district broadly permitted "... [o]ther accessory uses customarily incidental to a permitted principal use. ...") Further, although the Winery emphasizes that no provision of the JMZO prohibited special events as accessory uses, the Winery does not indicate which of the specifically enumerated accessory uses its entertainment or special events uses fell within prior to the enactment of Section 803 H-17.
In addition, based on our review of the JMZO's "Table of the Disposition of Amendments," which lists amendments to the JMZO since November 2001, it does not appear the CM district's use regulations previously permitted the type of special events use conducted by the Winery when it began conducting these events in late-2003 or 2004. See JMZO at K-1-K-3.
Thus, we agree with the ZHB that the Winery did not establish it lawfully conducted special events such as concerts, weddings, parties or other commercial activities open to the public on the subject property prior to the enactment of Section 803 H-17, and, therefore, did not establish a valid nonconforming use.
Illustrative is our decision in Lincoln v. Zoning Board of Adjustment of City of Pittsburgh, 529 A.2d 1228 (Pa. Cmwlth. 1987). There, around 1977, the landowners began operating a personal care residence on the first floor of their three-floor property, which was located in an R-2 district. The landowners later received an occupancy permit for a five unit multi-family dwelling, but not a personal care residence. Five years later, the ordinance was amended to provide for personal care residences by special exception in R-2 districts, if certain conditions were met. Prior to the effective date of the amendment, the ordinance did not provide for personal care residences. The landowners sought a special exception for their preexisting personal care residence pursuant to the amended ordinance. The zoning board denied the request because the landowners' personal care residence did not comply with the restrictions set forth in the amended ordinance. The common pleas court reversed, finding the landowners' use of their property as a personal care residence prior to the amendatory ordinance resulted in a valid nonconforming use.
On further appeal, however, this Court disagreed. We explained:
Here, there is no question that the owners actually used their property as a personal care residence prior to 1982. The critical question is whether that was a lawful use. This Court has held that an existing illegal use cannot form the basis of a valid nonconforming use. Hauser v. Catasauqua Borough Zoning Hearing Board, 341 A.2d 566 (Pa. Cmwlth. 1975). The trial court here held that inasmuch as the [ordinance] prior to 1982 did not control small personal care residences, the [landowners] by obtaining [a] use occupancy permit for a five unit multi-family dwelling complied with the local zoning regulations 'as they understood them.' We do not believe that this is sufficient to satisfy the requirement that the nonconforming use to be valid must be lawful.Lincoln, 529 A.2d at 1230-31 (underlined emphasis added).
[The applicable ordinance provision] provides in pertinent part that "no structure ... shall ... be used or designed to be used for any use other than is permitted in the district in which such structure ... is located...." [S]mall personal care residences were not a permitted use in R-2 districts until 1982. We must conclude, therefore, that the [landowners'] use was unlawful and that as such, it does not entitle the owners to a special exception.
Similar to Lincoln, the ZHB here determined the Winery did not receive permission to conduct special events or entertainment uses on the subject property prior to the enactment of Section 803 H-17. Indeed, there is no indication that when the Winery began conducting these special events, the CM district permitted such uses, and the Winery did not present evidence to persuade the ZHB otherwise. As in Lincoln, the Winery's actions in conducting an unauthorized use before the enactment of an amendment that permits such use subject to certain restrictions, does not provide the Winery with a valid nonconforming use free from those restrictions. Thus, as in Lincoln, the Winery is not entitled to the relief it seeks.
Of further note, the purpose and intent of the CM district, which is categorized as a residential zoning district under the JMZO, is as follows:
The Conservation Management District consists of valuable natural resources such as woodlands, agricultural soils, floodplains, wetlands, aquifer recharge areas, and areas of steep slopes. The Conservation Management District is dependent on groundwater as the primary water source. Agriculture is a significant and an important use of land in the Conservation Management District. For these reasons, uses are permitted in both type and intensity which provide the maximum opportunities for open space in order to protect the natural resources and encourage the continuation of farming activities. Single-family detached, single-family detached cluster, and performance subdivisions are permitted, provided sewage disposal methods shall replenish the water table in accordance with the wastewater policies of the Joint Municipal Comprehensive Plan and the Sewage Facilities Plan (Act 537) of the participating municipality where building or development is proposed. The use and ownership of open space within residential developments shall be designed to achieve the purposes noted above and to be compatible with other uses in the Conservation Management District.Section 305.B of the JMZO. Clearly, the purpose and intent of the CM district does not contemplate entertainment or special events uses, which are open to the general public.
Moreover, contrary to the Winery's assertions, a review of the numerous building, sign, sewage, grading, occupancy, electrical and zoning permits the Winery obtained does not lead to the conclusion that these permits authorized the Winery to use the subject property for special events of unrestricted frequency and duration. See R.R. at 825a-863a. Indeed, despite pointing to the existence of these numerous permits, some of which relate to improvements on the subject property, the Winery does not specify where in any of the permits it received approval to conduct the special events it now claims are entitled to nonconforming use status. Further, although the Winery points to Owner Thomas Carroll's testimony that special events are customary and incidental to the operation and viability of a winery, this testimony is not at odds with the ZHB's determination that the Winery did not conduct these activities lawfully prior to the enactment of Section 803 H-17.
The Winery does not seek relief pursuant to the doctrines of vested rights or variance by estoppel based on the issuance of any of the permits.
In sum, we agree with the ZHB that the Winery did not establish it lawfully conducted special events such as concerts, weddings, parties or other commercial activities open to the public on the subject property prior to the enactment of Section 803 H-17 of the JMZO, and, therefore did not establish a valid nonconforming use. As a result, the ZHB properly determined the Winery must comply with Section 803 H-17(d)(4)(c) (limiting outdoor events to 24 per calendar year) and (d) (requiring all events conclude by 10:00 p.m.). Thus, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 11th day of July, 2012, the order of the Court of Common Pleas of Bucks County is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge