IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bucks Cove Rod & Gun Club, Inc.
Appellant
v.
Texas Township Zoning Hearing
Board and Texas Township Board
of Supervisors
BEFORE:
:
:
:
:
:
:
:
:
No. 2666 C.D. 2010
Submitted: May 13, 2011
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT
FILED: September 14, 2011
Bucks Cove Rod & Gun Club appeals an order of the Court of
Common Pleas of Wayne County affirming a decision of the Texas Township
Zoning Hearing Board.
Bucks Cove challenged a temporary use permit fee
imposed by the Township’s Zoning Enforcement Officer, but the fee was upheld
by the Zoning Board. Concluding the Board erred in determining the permit fee
was reasonable, we reverse.
Bucks Cove is a private club that owns approximately 1,100 acres of
property in the Township.1 For a fee, its members are able to use the property for
recreational, shooting, hunting, and fishing activities. For more than 30 years the
1
Bucks Cove was initially incorporated in 1946 as a non-profit corporation, but amended its
articles of incorporation in 1994 to become a for-profit corporation.
club has hosted an annual fundraiser known as the “Steak Bake,” which is open to
the general public. The Steak Bake traditionally includes food, games of chance
and other activities, such as the opportunity to use the club’s trap shoot range.
Approximately one month before the 2009 Steak Bake, Lee S. Krause,
the Township’s Zoning Enforcement Officer, informed Bucks Cove that it had to
obtain a temporary use permit for the event because the club would be changing
the use of its land for a period of four days or less. Krause visited the property and
measured the space to be used for the Steak Bake to calculate the amount of the
permit fee. Krause calculated that 69,715 square feet of space would be used,
which he multiplied by $.04 pursuant to the Township’s fee schedule for a total fee
of $2,788.60.
Bucks Cove paid the fee under protest and received a temporary use
permit on September 15, 2009. After the Steak Bake, Bucks Cove appealed the fee
assessment to the Board. Bucks Cove alleged that (1) the fee assessment was
arbitrary and capricious and lacked a reasonable basis under the law;2 (2) the
calculation of the temporary use itemizations were incorrect; and (3) it was
“grandfathered” from obtaining a permit since it had never before been required to
obtain one. A hearing was held on January 5, 2010.
At the hearing, Krause testified that he calculated the permit fee
according to the Township’s fee schedule. He noted that while the fee is only $.04
per square foot, there is no cap on the total. When asked if he thought the permit
fee charged to Bucks Cove was reasonable, Krause stated that he thought it was
“somewhat excessive . . . [but] reasonable.” Reproduced Record at 9a (R.R. ___).
2
Specifically, Bucks Cove argued that the permit fee had to reasonably relate to the cost of
administering the zoning ordinance and, if it did not, it was an illegal revenue generating tax.
2
Given the amount of the permit fee in this case, Krause waived his use inspection
and administrative fees, which are also authorized in the Township’s fee schedule.
Krause testified that, as Zoning Enforcement Officer, he retains 50 percent of each
permit fee he issues as his compensation. For issuing Bucks Cove’s permit, he
received $1,394.30 in compensation.
Krause also testified regarding the operative provision of the
Township’s Zoning Ordinance (Ordinance).3 He stated that Section 602.1 of the
Ordinance requires a property owner to obtain a permit prior to changing the use of
a building or land. See R.R. 92a.4 Krause believed that the Steak Bake constituted
just such a change of use since Bucks Cove, a private club, was allowing the public
to use its grounds and was offering games of chance and other activities. Krause
admitted that the term “temporary use” is not expressly defined in the Ordinance.
He relied on the definition of “temporary use” in the 2006 International Zoning
Code, which the Township adopted in 2008.
According to that definition, a
“temporary use” is an activity conducted for a fixed period of time such as “the
sale of agricultural products, contractors’ offices and equipment sheds, fireworks,
carnivals, flea markets, and garage sales.” R.R. 41a. Because Bucks Cove offers
games of chance and raffles at the Steak Bake, Krause likened it to a carnival.
Bucks Cove offered the testimony of two of its members.
Bob
Romich testified that the activities conducted at the Steak Bake are, generally, no
3
TEXAS TOWNSHIP ZONING ORDINANCE (March 21, 1994), as amended (ORDINANCE).
Section 602.1 of the Ordinance provides, in relevant part:
A building and/or zoning permit shall be required prior to the erection, addition,
or alteration of any building or portion thereof . . . ; prior to the use or change in
use of a building or land . . . .
ORDINANCE §602.1; R.R. 92a (emphasis added).
4
3
different than those that club members participate in year round. Jerry Korb, a
member of the club’s Steak Bake committee, testified that although members pay
to use Bucks Cove’s property year round, non-member guests are also allowed to
use the property. Korb also stated that both members and non-members purchase
tickets to attend the Steak Bake. Korb disputed Krause’s classification of the Steak
Bake as a “carnival” because there are no “carnival activities,” such as amusement
rides. He disagreed that the gambling wheel and small games of chance make the
event a carnival. He also disagreed with Krause’s statement that Bucks Cove sells
raffle tickets at the event; rather, certain attendees sell raffle tickets.
Korb then testified that Krause’s calculation of the area used for the
Steak Bake was incorrect. He noted that Krause calculated 12,075 square feet as
belonging to the “Pavilion/Wheel/X-Shoot” areas. R.R. 40a. Korb explained that
the pavilion, wheel, and X-shoot are three separate areas, and the X-shoot area is
not used for the Steak Bake. Korb did not provide the exact size of the X-shoot
area.
Based upon the evidence presented, the Board found that the Steak
Bake was a “temporary use,” different from Bucks Cove’s normal use of its
property. Accordingly, the Board held that Bucks Cove was required to obtain a
temporary use permit under the Township’s zoning ordinance.
Regarding Bucks Cove’s challenge to the amount of the permit fee,
the Board found that Bucks Cove did not demonstrate that the fee was arbitrary or
unrelated to the administrative costs incurred by the Township in issuing the
temporary use permit. Thus, the Board concluded the fee was reasonable.
The Board next considered Bucks Cove’s challenge to the calculation
of the fee. Although the Board found that Krause’s square footage calculations
4
may have been exaggerated, it did not find them improper. Bucks Cove did not
present evidence on what the proper calculations should have been or the exact size
of the X-shoot area.
Nevertheless, the Board found that Krause erroneously
included 14,850 square feet in the parking lot calculation and reduced the permit
fee by $594.
Finally, the Board considered, and rejected, Bucks Cove’s argument
that it was “grandfathered” out of the permit requirement. The Board agreed that
Bucks Cove’s activities were legal and predated the enactment of the Township’s
zoning ordinance. Nevertheless, it was required to comply with subsequently
enacted legislation.
Bucks Cove appealed to the trial court.5 The trial court directed the
parties to submit briefs and decided the case without taking additional evidence. 6
Relying on the factual findings of the Board, the trial court determined that Bucks
Cove did not offer any evidence showing the temporary use permit fee was
unreasonable, or in violation of the Pennsylvania Municipalities Planning Code
(MPC).7 Bucks Cove now appeals to this Court.8
5
After filing its appeal with the trial court, Bucks Cove sought to compel discovery of
information regarding the Township’s distribution of the permit funds and its costs associated
with the permitting process. The Township objected, noting that Bucks Cove had ample time to
request this information prior to the hearing before the Board. The trial court agreed and denied
Bucks Cove’s motion to compel discovery.
6
On appeal to the trial court, Bucks Cove initially advanced the same three arguments that it
advanced before the Board. However, in its brief to the trial court, Bucks Cove did not address
its arguments regarding the calculation of the square footage of property used for the Steak Bake
and that it was “grandfathered” out of the permit requirement. Accordingly, the trial court
deemed those issues to be waived and reviewed only whether the temporary use permit fee was
arbitrary and capricious.
7
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
5
On appeal, Bucks Cove argues that the Board erred in finding the
Township’s temporary use permit fee was valid and reasonable. Specifically,
Bucks Cove posits that the permit fee is not commensurate with the administration
and enforcement costs incurred by the Township, since the Township does not
provide any special services to permittees. Accordingly, Bucks Cove contends the
permit fee was arbitrary, capricious and unreasonable, and constitutes an
unauthorized tax.
The Board counters that Bucks Cove failed to rebut the presumption
that the permit fee is valid. The Board contends that it was Bucks Cove’s burden
to present evidence of the Township’s costs to issue temporary use permits, and it
did not. Thus, the evidence did not prove the permit fee to be unreasonable.
Section 617.3(e) of the MPC provides that a municipality “may
prescribe reasonable fees with respect to the administration of a zoning ordinance.”
53 P.S. §10617.3(e).9 A license fee, such as the permit fee at issue here, has been
defined by our Supreme Court as
(continued . . .)
8
In a zoning appeal, our scope of review when, as here, the trial court has not taken additional
evidence is limited to determining whether the Board committed an error of law or abuse of
discretion. Catholic Social Services Housing Corporation v. Zoning Hearing Board of
Edwardsville Borough, 18 A.3d 404, 407 n.2 (Pa. Cmwlth. 2011). An abuse of discretion occurs
when the findings of the Board are not supported by substantial evidence. Id. Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Id. (quoting Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa.
550, 554-555, 462 A.2d 637, 639-640 (1983)). Furthermore, while this Court is bound by the
credibility determinations of the Board, we conduct an independent review of the evidence and
determine, as a matter of law, whether the findings of fact are supported by the evidence. Martin
Media v. Hempfield Township Zoning Hearing Board, 671 A.2d 1211, 1216 (Pa. Cmwlth. 1996).
9
Section 617.3(e) of the MPC states:
(e) The governing body may prescribe reasonable fees with respect to the
administration of a zoning ordinance and with respect to hearings before the
(Footnote continued on the next page . . .)
6
a sum assessed for the granting of a privilege. In most
instances, where a license is granted the [municipality]
invariably incurs expense such as the cost of registration and
inspection; it is only proper that the one who seeks and receives
a license should bear this expense. To defray the cost of a
license a fee is charged to the licensee; however, this fee must
be commensurate with the expense incurred by the
[municipality] in connection with the issuance and supervision
of the license or privilege.
Mastrangelo v. Buckley, 433 Pa. 352, 385-86, 250 A.2d 447, 464 (1969) (footnote
omitted) (emphasis added).
However, as this Court noted in Talley v.
Commonwealth, 553 A.2d 518, 519 (Pa. Cmwlth. 1989),
[a] license fee is distinguishable from a tax which is a revenue
producing measure characterized by the production of a high
proportion of income relative to the costs of collection and
supervision. Thus, if a license fee collects more than an amount
commensurate with the expense of administering the license, it
would become a tax revenue and cease to be a valid license fee.
Id. (citations omitted) (emphasis added). Thus, a zoning permit fee must be based
upon the municipality’s costs in providing the services needed to grant the permit;
otherwise it will be considered an improper tax. See also Golla v. Hopewell
Township Board of Supervisors, 452 A.2d 273, 274 (Pa. Cmwlth. 1982); Borough
of Brookhaven v. BP Oil Co., 409 A.2d 494 (Pa. Cmwlth. 1979).
(continued . . .)
zoning hearing board. Fees for these hearings may include compensation for the
secretary and members of the zoning hearing board, notice and advertising costs
and necessary administrative overhead connected with the hearing. The costs,
however, shall not include legal expenses of the zoning hearing board, expenses
for engineering, architectural or other technical consultants or expert witness
costs.
53 P.S. §10617.3(e). Section 617.3 was added by the Act of December 21, 1988, P.L. 1329.
7
A party challenging the validity of a license or permit fee has the
burden of proving it is unreasonable. Talley, 553 A.2d at 520. This is because an
ordinance enacted by a municipality is presumed to be valid. In re Apgar¸ 661
A.2d 445, 447 (Pa. Cmwlth. 1995). Thus, all doubt regarding the validity of a fee
will be resolved in favor of the reasonableness of the fee. Talley, 553 A.2d at 520.
Accordingly, when reviewing the validity of a fee we give municipalities
reasonable latitude in anticipating the expense of enforcing the ordinance. Id.
Here, the Board is correct when it asserts Bucks Cove did not offer
specific evidence regarding the Township’s costs to administer its permitting
program. However, there was evidence to support Bucks Cove’s assertion that the
permit fee was unreasonable.
Krause testified that he received half of the
$2,788.60 permit fee; the other half, he said, went to the Township.
This
contradicts the Board’s finding that “[t]he distribution of the remainder of the fee
monies was unexplained.” Board Adjudication, February 9, 2010, at 4; Finding of
Fact No. 13.10 More importantly, Krause’s testimony showed, and the Board
specifically found as fact, that the Township did not provide any services to Bucks
Cove, or to any entity requesting a permit for a temporary change in use. Board
Decision, February 9, 2010, at 4, Finding of Fact No. 14.
The Board argues that there must be evidence that a permit fee
exceeds the municipality’s costs in order for that fee to be held unreasonable. This
is not a correct recital of the law. Our decision in Talley, which reviewed an annual
$100 license fee on any motor-vehicle related business, is instructive.
10
The only thing that went unexplained was the exact breakdown of where the funds went within
the Township’s coffers.
8
In Talley, this Court stated that, historically, when the validity of a
license fee is challenged, the fee is upheld only when it is commensurate with the
cost of administration and enforcement. Talley, 553 A.2d at 521. However, we
specifically noted that
in those cases evidence was presented as to the “special”
services provided or as to the cost incurred by the municipality
in providing these “special” services.
Id. (listing prior cases and identifying the special services provided in each). Thus,
a party challenging the validity of a license or permit fee can prevail if it shows
that the municipality provides no additional services to permittees, even if it does
not produce evidence on the overall costs of administering and enforcing the
ordinance. See id. See also, e.g., Olan Mills, Inc. v. City of Sharon, 371 Pa. 609,
92 A.2d 222 (1952)(holding a $200 license fee, imposed on transient retailers, to
be unreasonable because the cost of enforcement was not reasonably related to the
fee amount, nor did the licensure requirement impose any unusual costs on the
city).
Here, it is undisputed that the Township did not provide any
additional services to Bucks Cove, aside from Krause’s inspection to calculate the
fee. The Board itself found, as fact, that no special services were provided by the
Township with respect to granting the permit.11 Therefore, we must conclude that
the Township’s temporary use permit fee, which included separate charges for
11
The Board now tries to reverse course and argues that it provides a service to Bucks Cove by
maintaining the Township road that leads to the club. The maintenance of that road, however, is
totally unrelated to Bucks Cove’s change in use permit for the Steak Bake. Township roads are
maintained year round regardless of how any individual parcel of property along the road is
being used. It is absurd to suggest that the Township only maintains the road because Bucks
Cove purchases a permit for a change in use once a year.
9
inspection and administration expenses and $.04 for each square foot of changed
use, but did not cover any “special” services, was unreasonable and invalid as an
improper revenue generating tax.12
For all of the foregoing reasons, we reverse the trial court’s order.
______________________________
MARY HANNAH LEAVITT, Judge
12
Had the permit fee only included Krause’s inspection and administrative charges, or the
Township provided some additional service to Bucks Cove based upon the square footage of the
change in use, e.g., police coverage or EMS personnel, we may have reached a different
decision.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bucks Cove Rod & Gun Club, Inc.
Appellant
v.
Texas Township Zoning Hearing
Board and Texas Township Board
of Supervisors
:
:
:
:
:
:
:
:
No. 2666 C.D. 2010
ORDER
AND NOW, this 14th day of September, 2011, the order of the Court
of Common Pleas of Wayne County, dated November 24, 2010, in the abovecaptioned matter is hereby REVERSED.
______________________________
MARY HANNAH LEAVITT, Judge
