Opinion
No. 1024 C.D. 2011
01-05-2012
Lake Adventure Community Association, Inc. Appellant v. Dingman Township, and The Dingman Township Board of Supervisors
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE PELLEGRINI
Lake Adventure Community Association, Inc. (Landowner) appeals from an order of the Court of Common Pleas of Pike County (trial court) sustaining the preliminary objections filed by Dingman Township (Township) and the Dingman Township Board of Supervisors (Board) in which they alleged that the trial court lacked subject matter jurisdiction to hear Landowner's challenge to the Township's amendment of its zoning ordinance. For the reasons that follow, we affirm the trial court's decision.
Landowner is a non-profit corporation in Pennsylvania and the owner of numerous properties in the Lake Adventure Development in the Township. Within that development is the Lake Adventure Community, which is a non-residential campsite community, meaning no one may live there full-time. Landowner has approximately 1,800 lots on its property, and hundreds of those lots are occupied by recreational vehicles as allowed for by its Restrictive Covenants. (See Reproduced Record at 26a-34a.) In addition to more commonly known camping vehicles, Landowner has also allowed recreational vehicles referred to as full-slide-outs or "twelve-wides" on its property. As explained by Landowner in its brief, "[t]hese trailers travel over the roadway as eight-feet wide, but once parked, the entire side of the vehicle would slide out, making it twelve feet wide. Over the years the camping industry changed these vehicles to one-piece vehicles that travelled as twelve-feet wide, because of various issues with the slide-outs. These newer models are commonly called "twelve-wides." (Landowner's brief at 8.) According to Landowner, prior to September 21, 2010, the Township did not require permits for any of the recreational vehicles on Landowner's property.
The Restrictive Covenants define "recreational vehicle" as follows:
1.17 "Recreational Vehicle" means a vehicular type unit initially designed and factory-manufactured as temporary living quarters for recreational, camping, or travel use (and licensed or permitted to travel on state highways by the Commonwealth of Pennsylvania), which either has its own motive power or its mounted on or drawn by another motor vehicle. Recreational Vehicles shall include:
(a) Travel Trailer: a vehicular unit, mounted on wheels, of such size or weight as not to require special highway permits when drawn by a motor vehicle, initially designed and constructed to provide temporary living quarters for recreational, camping, or travel use;
(b) Park Model: such other vehicular unit conforming to federal, state, and local regulations and in accordance with [Landowner] rules and regulations;
(c) Truck Camper: a portable unit initially designed to be loaded onto, or affixed to, the bed or chassis of a truck, constructed to provide temporary living quarters for recreational, camping, or travel use;
(d) Motor Home: vehicular unit built on a self-propelled motor vehicle chassis, initially designed to provide temporary living quarters for recreational, camping, or travel use; and
(e) Camping Trailer: a vehicular unit mounted on wheels and constructed with collapsible partial side walls which fold for towing by another vehicle and unfold at the campsite and designed to provide temporary living quarters for recreational, camping, or travel use; or
(f) Other: such temporary living unit, vehicular or otherwise, as shall be approved by the Board.
Landowner relies on a letter it received from the Township's Zoning Officer, Chris Wood (Wood), dated June 9, 2009, in which Wood stated the following: "With regards to your past letter concerning the need for permits to site R.V.s in Lake Adventure I contacted our solicitor to ask what he said to Attorney Clause. He stated that the requirement for such a permit was only discussed in the context of a possible future ordinance. Therefore, no permits will be required at this time and we will proceed as previously discussed." (Reproduced Record at 41a.)
On September 21, 2010, however, the Township amended Article II of its zoning ordinance to define a "recreational vehicle" as follows (italics within paragraph indicate additions made to the previous ordinance):
A transportable or vehicular type of unit initially designed as temporary living quarters for recreational camping or
travel use that does not require a special highway moving permit when transported which either has its own motive of power or is mounted on or drawn by another vehicle. The types of recreation vehicles or units are:
a. Travel Trailers - A vehicular unit, mounted on wheels, of such size or weight as not to require special highway moving permits when drawn by motorized vehicles (8.5 feet wide maximum) designated and constructed to provide temporary living quarters for recreational, camping, or travel use, and not larger than four hundred (400) square feet when used for camping (in set up mode). [The previous Ordinance only allowed for 300 square feet.]
b. Truck Camper - A portable unit, designed to be loaded onto, or affixed to, the bed or chassis of a truck and constructed to provide temporary living quarters for recreational, camping or travel use and not larger than 400 square feet. [The previous Ordinance did not provide for any limit on square footage.]
c. Motor Homes - A vehicular unit built on a self-propelled motor vehicle chassis, designed to provide temporary living quarters for recreation, camping or travel use and not larger than 400 square feet. All such vehicles in use for camping shall have a current state license, inspection sticker and registration and be titled in the name of the current owner. [The previous Ordinance did not provide for any limit on square footage.]
d. Camper Trailer - A vehicular unit mounted on wheels and constructed with collapsible partial side walls which fold for towing by another vehicle and unfold on the campsite and designed to provide temporary living quarters for recreational, camping or travel use and not larger than 400 square feet. [The previous Ordinance did not provide for any limit on square footage.]
e. Tent - A movable shelter made of canvas or other similar material and supported by a pole or poles and designed and manufactured to provide temporary living quarters for recreational and camping use.
f. Self-Contained Unit - A unit that can operate independent of connections to external sewer, water and electrical systems; has a toilet and holding tank for liquid waste; contains water storage facilities; and may contain a lavatory, kitchen sink and/or both bath facilities connected to the holding tank and of a size not greater than 400 square feet. [The previous Ordinance did not provide for any limit on square footage.](Landowner's brief at 10-11.)
As a result of this amendment, the definition of "recreational vehicle" only limited the size of the recreational vehicles and, in the case of motor homes, required that the license, inspection sticker and registration be titled in the name of the current owner.
Nonetheless, believing that it was the only community affected by the amended ordinance because the ordinance was specifically designed to suppress the new "twelve-wide" recreational vehicles, Landowner filed a complaint for a declaratory judgment against the Township and the Board challenging the validity of the amended zoning ordinance. Landowner alleged that the Township's adoption of a definition for "recreational vehicle" was contrary to the Municipalities Planning Code (MPC), federal law and state law, and was preempted by those same laws. Specifically, Landowner alleged that the Township's definition of "recreational vehicle" was invalid because, under Section 603 of the MPC, 53 P.S. §10603(b)(2), the Township and the Board were preempted by federal and state law from enacting this amendment which affected activities which were permitted, prohibited, regulated, restricted and/or determined by "size, height, bulk, location, erection, construction, repair, maintenance, alteration, raising, removing and use of structures." 53 P.S. §10603(b)(2). By failing or refusing to recognize federal and state definitions of recreational vehicle park trailers, the Township and the Board were preempted by federal and state law from enacting contrary definitions. Landowner also argued that the Township and the Board had no legal authority to enforce private restrictive covenants, and zoning could not restrict the definition of a recreational vehicle or a recreational vehicle park trailer.
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
Landowner argues that the Township and the Board failed to recognize the exemptions of recreational vehicles from the "State Definition of a recreational vehicle and a recreational vehicle park trailer" found at Section 2 of the Act of December 22, 1983, P.L. 306, 63 P.S. §812.2; the definitions under "The Federal National Manufactured Home Standard and Regulations enforced by the Department of House and Urban Development Act 27 of 1996" which defines a recreational park trailer and a recreational vehicle;" the definitions under "The ANSI [American National Standards Institute] A119.5;" and the definitions under "The Pennsylvania Uniform Construction Code" which exempts the placement of recreational vehicle park trailers from any type of placement permits and allows for individuals to make application for a "recreational cabin" exclusion under Section 103 of the Act of November 10, 1999, P.L. 491, 35 P.S. §7210.103 defines "recreational cabin" as "a structure which is: (1) utilized principally for recreational activity; (2) not utilized as a domicile or residence for any individual for any time period; (3) not utilized for commercial purposes; (4) not greater than two stories in height, excluding basement; (5) not utilized by the owner or any other person as a place of employment; (6) not a mailing address for bills and correspondence; and (7) not listed as an individual's place of residence on a tax return, driver's license, car registration or voter registration. (See Landowner's action for declaratory judgment at 10-12.) We have reviewed those provisions and do not see how they in anyway pre-empt local zoning.
In response, the Township and the Board filed preliminary objections alleging that the MPC vested exclusive jurisdiction to hear and render a final adjudication pertaining to substantive validity challenges to land use ordinances in a zoning hearing board organized by the Township which had enacted the ordinance. Because the averments indicated that the proceeding involved a challenge to the substantive validity as opposed to the procedural validity of a zoning regulation, Landowner had to submit its challenge to the validity of the amended zoning ordinance by filing an appeal with the Board.
The trial court agreed with the Township and the Board and sustained the preliminary objections stating that:
[Landowner's] 'preemption' challenge does in fact go to the substantive validity of the land use ordinance. As such, it falls under the jurisdiction of the ZHB according to the MPC. [Landowner's] challenge has nothing to do with the "operational regulations" of the zoning ordinance, which would fall under this Court's purview. [Landowner] further asserts in its response to Defendants' Preliminary Objection that it has no other remedy to test the legality and constitutionality of Defendants' actions. This is not accurate. Following a hearing by the Dingman Township ZHB, [Landowner] may appeal the decision, if necessary, to this Court. It is at that time that this Court would have jurisdiction to hear a challenge regarding the substantive validity of the zoning ordinance. [Landowner's] response to Defendants' Preliminary Objection contains several other arguments that relate solely to the merits of its Action for Declaratory Judgment, not to the issue of whether this Court has jurisdiction over the matter without it first being heard by a ZHB. This court will not address the merits of [Landowners'] case against Defendants at this time since it does not have jurisdiction over the matter."(Trial court's May 20, 2011 opinion at 3-4.) This appeal by Landowner followed.
Our scope of review of the trial court's order sustaining preliminary objections is limited to determining whether that court committed an error of law or abused its discretion. Peerless Publications, Inc. v. County of Montgomery, 656 A.2d 547 (Pa. Cmwlth. 1995.) "In order for a court to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and where any doubt exists as to whether the preliminary objections should be sustained, that doubt should be resolved by a refusal to sustain them. Preliminary objections admit as true all facts which are well pleaded as well as all inferences which are reasonably deducible therefrom. Factual inquiries are improper on preliminary objections." Id., 656 A.2d at 550.
The issue on appeal is whether a landowner who alleges that other statutes preempt a newly amended zoning ordinance is required to bring that challenge before the zoning hearing board or the trial court. In this case, Landowner contends that the trial court had subject matter jurisdiction over its declaratory judgment action because the zoning ordinance went beyond regulating where an activity could be located and, instead, acted to dictate how or when the activity could be performed. Further, zoning administration procedures did not provide an adequate remedy.
Landowner argues that while a zoning hearing board has exclusive jurisdiction to render final adjudications in matters raising substantive challenges to the validity of any land use ordinance pursuant to Section 909.1 of the MPC, as added by the act of December 21, 1988, P.L. 1329, 53 P.S. §10909.1(a)(1), Pennsylvania law recognizes an exception to this general rule when the subject ordinance contains regulations that fall outside the category of land use controls accomplished by zoning. In support of that contention, Landowner directs our attention to our decision in Arbor Resources Limited Liability Company v. Nockamixon Township, 973 A.2d 1036 (Pa. Cmwlth. 2009).
Section 909.1 of the MPC provides:
The Zoning hearing board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(i) Substantive challenges to the validity of any land use ordinance, except those brought before the governing body pursuant to sections 609.1 and 916.1(a)(2).
In Arbor Resources, objectors alleged that the township's ordinance was unlawful because it was preempted by Section 602 of the Pennsylvania Oil and Gas Act (Act), which expressly preempted local regulation of development of oil and natural gas. As in the case before us, objectors also argued to this Court that the trial court had equity jurisdiction over their declaratory judgment action because "the Ordinances operationally regulate oil and natural gas activities, which exceeds the scope of traditional land use controls." Id., 973 A.2d at 1042. In analyzing which tribunal had jurisdiction and citing Plymouth Township v. Montgomery County, 531 A.2d 49, 53 (Pa. Cmwlth. 1987), we looked at a recognized exception which provided that when an ordinance containing "operational regulations" was challenged, the challenge did not fall within the category of land use controls accomplished by zoning and a need to exhaust zoning remedies under the MPC was not clearly present. In determining whether the challenged provisions involved "operational regulations" in addition to, and distinct from, zoning ordinance provisions, "this Court must recognize statutory and judicial distinctions between ordinance provisions governing where the location of the facility may be (zoning provisions) and, on the other hand, how it may be technically designed and operated (Operational regulations.)" Plymouth Township, 531 A.2d at 50. We held that in cases where there were challenged ordinances that contained operational provisions, the trial court had jurisdiction. Because the challenged ordinance involving the oil and gas matter contained no operational provisions and the ordinance did not preempt any state or federal regulations, the trial court properly determined that the objectors had an adequate remedy with the zoning hearing board and it lacked jurisdiction in Arbor Resources. See also Huntley & Huntley v. Borough Council of the Borough of Oakmont, 600 Pa. 207, 964 A.2d 855 (2009) (local ordinance not preempted by Section 602 of the Oil and Gas Act because ordinance served different purposes from those in the Act and core interest in governmental functions were distinct); Klein v. Shadyside Health, Education and Research Corporation, 643 A.2d 1120 (Pa. Cmwlth. 1994) (township ordinance focused on location of helicopter landing areas and size, i.e., spacing and dimensional requirements or zoning requirements and was matter for zoning hearing board). But see Plymouth Township (ordinance involving disposal of waste was operational and preempted by Solid Waste Management Act and was to be heard by trial court).
Act of December 19, 1984, P.L. 1140, as amended, 58 P.S. §601.602.
Act of December 19, 1984, P.L. 1140, as amended, 58 P.S. §601.602.
Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§6018.101-6018.1003.
Similarly, in this case, there are no operational provisions in the amended ordinance that preempt state or federal law because the ordinance does not dictate how the recreational vehicles are to be operated or when they may be operated on Landowner's property. The language in the amended ordinance only defines what a recreational vehicle is, and the definition is almost identical to that in the previous ordinance with the exception of the size of the recreational vehicles that may enter Landowner's property.
In fact, the pertinent language of the ordinance that Landowner is contesting did not change at all. Landowner's major contention with the amended ordinance has to do with the new stated limitation of the travel trailer to "8.5 feet wide maximum" because the industry now makes "twelve-wides." However, even prior to the amendment, the ordinance did not allow "twelve-wides" because the language in the ordinance stated that a travel trailer was "[a] vehicular unit, mounted on wheels, of such size or weight as not to require special highway moving permits when drawn by motorized vehicles." That language has remained the same since the amendment. What Landowner has failed to mention in its argument is that "twelve-wides" require special highway moving permits based on their size. See Pennsylvania Oversize Load/Pilot Car Requirements which may be found at that website. Article IV, Section 437(b) of the Supplemental Regulations of the ordinance does not allow recreational vehicles to enter a recreational vehicle park that require a special highway moving permit due to their size. Therefore, even if Landowner allowed "twelve-wides" onto its property prior to the amended ordinance, it was doing so in violation of the ordinance because no permits were granted. Interestingly, neither does Landowner's Restrictive Covenants. Section 1.17 of the Restrictive Covenants defines a "travel trailer" as "a vehicular unit, mounted on wheels, of such size or weight as not to require special highway permits when drawn by a motor vehicle, initially designed and constructed to provide temporary living quarters for recreational, camping, or travel use." That definition applies to a "twelve-wide" and such recreational vehicles would be prohibited on Landowner's property. See Exhibit A of Original Record.
Consequently, because the amendment changing the language in the ordinance does not dictate how or when recreational vehicles can be allowed onto Landowner's property, and the zoning administration procedures provide an adequate remedy, this case does not involve an operational change but merely a traditional land use control. Therefore, Landowner was required to exhaust its administrative remedies first by filing an appeal with the Board before seeking redress with the trial court. Accordingly, the order of the trial court is affirmed.
Based on how we have decided this issue, we need not address Landowner's other issues. --------
/s/_________
DAN PELLEGRINI, JUDGE ORDER
AND NOW, this 5th day of January, 2012, the order of the Court of Common Pleas of Pike County dated May 20, 2011, is affirmed.
/s/_________
DAN PELLEGRINI, JUDGE
(Reproduced Record at 29a.)