Restrictive Zoning Ordinances Questioned

In Keener v. Rapho Tp. Zoning Hearing Bd., No. 2306 C.D. 2012, July 31, 2013, the Pennsylvania Commonwealth Court held that Rapho Township's Zoning Ordinance (the Ordinance) improperly restricted a permitted use in the Agricultural Zoning District without substantial relation to the health, safety and welfare of the community. Consequently, the Court remanded the case to the Rapho Township Zoning Hearing Board (the ZHB) to reconsider the appellant's application for special exception.

Factual Background

James C. Keener (Keener) owned a 130-acre parcel situated in the Agricultural Zoning District which was primarily used as an active farm. Keener submitted a special exception application (the Application), to use the existing structures on the property, including an 18th Century Bank Barn and a farmhouse, as a banquet hall, as well as to use the property as a whole for farm tours and guided walking and riding tours, among other things (the Proposed Use). In support of his Application, Keener argued that the Proposed Use was permitted by right in the Agricultural Zoning District under the Parks and Playgrounds uses set forth in Section 112 of the Ordinance.

Parks and Playgrounds uses, including the use of banquet halls, are permitted in the Agricultural District if they meet the following definition under Section 112: "[t]hose facilities designed and used for recreation purposes by the general public that are not operated on a commercial basis." In his first argument, Keener asserted that absent the prohibition of using the structures on the property "on a commercial basis," his Proposed Use would qualify as Parks and Playgrounds use. He argued that the Ordinance's distinction between commercial and non-commercial operations violated the uniformity requirement of the Municipalities Planning Code (MPC) section 605 by treating the same use differently based on the type of ownership.

Keener argued in the alternative that the Proposed Use met the definition of the Adaptive Reuse of Existing Agricultural Buildings under Section 401.1 of the Zoning Ordinance, as a "Commercial Recreational Facility" or a "Restaurant." Keener's second alternative was that the Proposed Use met the definition of a "Tourist Farm" which are permitted in the Agricultural Zone by Special Exception. Finally, as a last alternative, Keener argued that the Proposed Use should be permitted by special exception as a "Use Not Otherwise Provided For" under Section 107 of the...