Both sides sum up in Whitewing Farm case
07/31/2013 11:36AM ● Published by ACL
By John Chambless
After almost a year of legal wrangling over the fate of The Inn at Whitewing Farm, summations were made by both sides of the issue on Monday night at the East Marlborough Township Building.
The Zoning Board hearing lasted only an hour, as lawyers for the township and the owners of Whitewing Farm made their cases to the board members.
Lance Shortt, owner of The Inn at Whitewing Farm, hired West Chester attorney Ronald Agulnick to argue that the township's zoning ordinance is invalid because it prohibits operating what Agulnick is calling "a place of private assembly." Specifically, Shortt is trying to host weddings, meetings and private parties at the Whitewing Farm property, which had operated as a bed-and-breakfast for years.
Dozens of neighbors have aligned against him because of what they say is excessive noise and traffic resulting from events that are held in tents on the 12-acre property, which is in a residential area near Longwood Gardens.
The application filed by Shortt and his wife, Sandra, in June 2012 reads that they want to run “a place to accommodate meetings, events and other private group assemblies, including without limitation, private parties, business conferences, weddings, seminars and similar activities on the subject property.”
The application contends that, since the township zoning ordinance doesn't specifically allow such a use in any district in the township, the Shortts are being unfairly excluded. The application challenges the validity of the ordinance. Shortt – who says he borrowed heavily to buy the Whitewing property – has testified that he cannot make a living by running the farm strictly as a B&B for a few people a night.
About 20 members of the public were at the summation for the case, which began in September 2012. Agulnick opened his summation by sidestepping the issue of noise coming from the Whitewing property.
“I'm going to start out with what this case is not about,” Agulnick told the board. “The issue is really quite narrow. This case is not about whether there's too much noise, it's not about whether there is traffic congestion. … Basically what it's about is whether or not the township has excluded the use entirely from the township. The law is clear that, if the use is not a nuisance per se – and it is not – the exclusion uniformly throughout the township renders the ordinance invalid.”
Much of the testimony at the hearings over the past 10 months has been focused on interpretations of the wording of the township's zoning ordinance. Much of the testimony has centered on whether the word “herein” applies to the township as a whole, or the ordinance itself, and there has been considerable testimony on the issue of accessory or primary uses for hotel facilities.
Agulnick pointed out that he sees no area in the township in which a “place of private assembly” could logically be placed, seeking to invalidate the zoning ordinance and allow the Shortts to operate Whitewing as a facility for large group gatherings.
Township solicitor Frone Crawford, in his summation, said that the classification of “place of private assembly” had been “made up” by Agulnick and Shortt. “There is not a single zoning ordinance in southeastern Pennsylvania that has the term 'place of private assembly,'” Crawford said. “Why is that? Because it's a summation of functions that are part and parcel of other permitted uses.
“Does East Marlborough provide for these functions? The answer is yes,” he said. “It does so in several places, not just hotels. Hotels have meeting rooms for weddings and other social functions on a customary basis.”
Crawford then directed the board's attention back to the issue of neighbors being inconvenienced by Whitewing Farm's events.
“There's all this talk about accessory use versus principal use,” he said. “Whitewing Farm already has a principal use. It is a single-family residence. … Whitewing Farm also has an accessory use. It's a bed-and-breakfast function.
“There's one more issue I want to discuss,” Crawford said. “And that is the utter incompatibility of this use with the residential community in which it is situated. I will have to differ with Mr. Agulnick's characterization of this use as not constituting a nuisance. The board has heard the testimony of residents in proximity – some that are as far as a quarter of a mile away. … You heard testimony that the music was loud, and the sound of the disc jockey carried all the way into the hinterlands around this property. The noise went on past the 9:00 time when, by court order, it was supposed to have been stopped.
“This applicant cannot make this use in a way that doesn't constitute a nuisance to this community,” Crawford said. “The law is that when a proposed use could constitute a nuisance to a residential community, then it should not be permitted.”
A decision on the case will be made by the zoning board on or before Oct. 15. The decision will be announced in a meeting that will be open to the public.