Agenda - Planning Commission - 11/07/2013

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September 25, 2013 I Volume 7 I Issue 18 Zoning Bulletin term "commercial" as used in the Ordinance meant an activity which is car- ried on as a business. Applying that meaning, the court concluded that the Zoning Ordinance did not illegally restrict land "ownership" because anyone was free to operate a banquet facility on a noncommercial basis. Contrary to Keener's position, said the court, "commercial activity encompasses a much broader range of uses than only those conducted by profit -seeking entities." Nonprofit entities could engage in business or commercial activity and that such activity alone does not indicate that the organization has a for -profit purpose. Therefore, held the court, the Zoning Ordinance did not, as Keener contended, unlawfully regulate land "ownership" by discriminating between for -profit and nonprofit entities. However, the court also found that although the zoning restriction did not improperly regulate land ownership, it nevertheless purported to distinguish between two classes of the same use: a "commercial" banquet facility use and a "non-commercial" banquet facility use in the same zone. Such a restrictive zoning ordinance had to bear a rational relationship to public health, safety, morals, or general welfare of a community, said the court. Here, the court found "no evidence of record to indicate any logical basis for the commercial/ non-commercial distinction" in the "Zoning Ordinance." "A banquet facility operated by an owner who charges a fee is the same in all respects as a banquet facility operated by an owner who charges no fee. There is no perceivable dif- ference in the operations or the impacts on the community," found the court. The Township had also argued that notwithstanding the commercial/ noncommercial distinction, Keener's proposed use did not meet the definition( of "Parks and Playgrounds" because it would be available only to those whot., entered into a contract with Keener and paid a fee and not open to the "general public." The Township reasoned that the Zoning Ordinance created a valid use distinction between those facilities open to the "general public" and those open only to those who pay for the privilege of using it. The court found that a banquet facility that charges no fee is still not, in reality, open and accessible to the indefinite public. When in use, the "public" facility would, in actuality, be unavailable to other "uninvited" members of the "general public." Furthermore, regardless of whether a banquet facility is available to the "gen- eral public" or available only to those who enter into a contract with Keener and pay a fee, the underlying nature of the use is the same. Accordingly, the court concluded that it was not reasonable to find that Keener's proposed use did not meet the definition of "Parks and Playgrounds" under § 112 because it was not open to the "general public." In sum, the court declined to recognize a commercial/noncommercial distinction as a relevant difference between banquet facilities permitted in the Township's Agricultural Zoning District. Since the drafters of the Zoning Ordinance specifically permitted banquet facilities as a use in that Zone, the court concluded that the Zoning Ordinance must not be interpreted to exclude banquet facilities that are operated as a business, yet allow only those that are open to the "general public" free of charge, especially because there was no support in the record that such a distinction was reasonable and necessary to protect the health, safety, and welfare of the community. The court remanded the matter to the ZHB to reevaluate Keener's applica-. 4 © 2013 Thomson Reuters