In this case out of Berks County the Commonwealth Court weighed in on whether erecting a fence around a high school’s athletic fields constituted a new “stadium use” or was an expansion of a preexisting nonconforming use. In concluding that the fence did not create a new stadium use or expand the preexisting nonconforming use the court reversed the ZHB’s decision and ordered the requested permits be issued.
The Wyomissing Area School District applied to the ZHB for permits to erect a fence around some athletic fields for its junior/senior high school. The school was a preexisting nonconforming use in a residential zoning district and the athletic facilities were an accessory use to that school use. The ZHB denied the permits, concluding the fence would either expand the preexisting, nonconforming school use or create a new stadium use and therefore require a special exception. It further found the fence would: (1) create safety hazards; (2) cause traffic congestion; (3) create a “haven for crime”; and (4) change the “open” aesthetic of the neighborhood and lower property values. Finally, it denied the permits because the fence would be “noxious, injurious, or offensive.” The District appealed to the Court of Common Pleas of Berks County. The trial court affirmed the ZHB decision and the District further appealed.
On appeal the Commonwealth Court reversed. It found that no special exception was required because the fence itself would neither relate specifically to either a school or an athletic purpose or facilitate school or athletic activities beyond those already existing on the Property. Moreover, simply building a fence around existing sports fields would not create a “stadium use.” The court found that the safety risks cited by the ZHB— impaired emergency access, traffic congestion, crime, aesthetics, and property devaluation—were not supported by substantial evidence and thus could not be a basis for the denial. The court further dismissed the claims regarding the alteration of the “open character” of the surrounding neighborhood and the lowering of local property values because the protection of neighborhood aesthetics and property values were insufficient independent bases for a denial. Finally, the court dismissed the “noxious, injurious, or offensive” justification, saying that it did not apply here. This section was meant to prohibit structures and uses that were noxious due to substances and conditions that were elemental or environmental in nature (i.e. smoke, noise, odor, and illumination). Here the issues were logistical or social in nature.
Zachary A. Sivertsen, Esq.