The
zoning hearing board had tossed out a former officer's citations
against the Barren Acres Hunting Club.
WILKES-BARRE
- Luzerne County Judge Thomas Burke has sustained the decision
of the Foster Township Zoning Hearing Board to dismiss three
violation notices filed against the Barren
Acres Hunting Club.The
violation notices were among four issued by former Zoning
Officer Thomas Meyers, who owns land adjacent to the club's
184 acres located off Caplo's Road outside Weatherly.
Meyers
cited the club in December 1998, alleging Barren Acres was
operating a commercial recreational facility, with extremely
loud and constant shooting noise that disturbed the relative
tranquility of the valley for miles and prevented use of the
land for authorized purposes. He claimed the activity reduced
the value of the property. Meyers
also claimed Barren Acres was a nonconforming hunting club
and that commercial trapshooting was a violation of the zoning
code. He contended the zoning ordinance didn't permit commercial
trapshooting in an agricultural district.
The
zoning board replaced Meyers with Keith Wheeler at its reorganization
meeting on Jan. 4, 1999. The board ruled Wheeler would be
the prosecutor in the appeal of the violations by the club.
Next,
the board voted unanimously to grant the club's appeal and
dismiss the violation notices without the participation of
Meyers or Wheeler.
Meyers
and Kenneth Powley, another owner of property adjacent to
the club's lands, appealed the board's decision. Barren Acres
was allowed to intervene.
The
fourth violation notice, alleging disorderly conduct, was
withdrawn during the appeal because it doesn't appear in the
township's zoning ordinance. Burke
included approximately 157 acres owned by the club before
the end of 1985, when the zoning ordinance was adopted, in
his review. He ruled the specific allegations didn't relate
to approximately 25 acres purchased by the club in 1998.
Barren
Acres was incorporated as a nonprofit entity on Sept. 25,
1958. Membership has always been limited to 50.
The
purposes under the charter "are to promote, encourage and
foster activities in sports and outdoor life, especially hunting
and fishing; to encourage conservation of land and wildlife
and to stock the same in our woods and forests; to do all
things lawful for the purpose stated; including the ownership
of real estate for the conduct and benefit of the corporate
purposes."
Activities
on its premises include hunting, trapshooting, two annual
block shoots open to the public, sporting clay shooting, archery
and a rifle range. Members have engaged in night shooting
dating back as far as 1966.
|
Only
members and guests are allowed on the premises, which are posted
as private property. A caretaker lives in a house on the premises
and roads leading into the land are gated and locked.
The
judge said the credible evidence from members was that the club
has generated only a modest amount of revenue from activities
and has applied the money and members' dues to meet operating
expenses. He
said the club doesn't have any paid employees and has never
distributed revenues to members.
"BHAC
did not operate a business at any time from its inception through
Dec. 10, 1998," Burke wrote.
The
judge said one violation notice was an undated document that
made a broad reference to sections of the zoning ordinance and
failed to cite specific violations. He
said the record is empty of any evidence that Meyers took any
steps as zoning officer to document his review of the club's
nonconforming use status under the code, despite having claimed
to have made inspections of the property on Oct. 18 and 25,
1998.
In
not sustaining nonconforming use allegations, the judge said,
"it was apparently the neglect and misfeasance of Mr. Meyers
himself that laid the groundwork" for his determination.
As
an adjacent landowner, Burke said Meyers failed to present evidence
of the club's alleged prior nonconforming use of its premises.
Burke
said a landmark case held that "a pre-existing nonconforming
use arises when a lawful existing use is subsequently barred
by a change in the zoning ordinance." Also,
he said the Pennsylvania Supreme Court established the standard
for reviewing nonconforming uses "with emphasis on the proposition
that it is important to examine the use of the property existing
at the time the zoning ordinance was enacted, not the extent
of the use."
He
said all structures on the property were in place prior to enactment
of the ordinance in 1985. Structures include two trap houses,
picnic pavilion, two storage sheds, cement block "outhouse,"
clubhouse and chicken coop.
He
said the notices failed to reveal a single specific violation
relating to structures and ruled they were defective in "completely
lacking in specificity as to which, in any structures, are nonconforming."
|
