Dingman Township, Pike County, Pennsylvania

 

The following is the Zoning Officer's determination on the issuance of a Certificate of Use to Har Haven LLC. for the use of the Mount Haven property as a Resort.

 

 

Determination of the Zoning Officer Regarding the Request to Issue a Certificate of Use to Har Haven LLC to Operate a Resort at the Property Known as Mount Haven 

 

The Question

There are two questions to consider in the determination of whether a Certificate of Use may be issued to Har Haven LLC for the use of the property known as Mount Haven.

  1. Is Har Haven’s proposed usage of the property consistent with the previous usage of the property?

  1. If yes, would Har Haven’s permitting of the School for Children with Hidden Intelligence use of the property be consistent with the previous use?

 

The information concerning the Har Haven use of the property was submitted to the Township by Nathan Birnhack, president of Har Haven LLC. In the event that the information provided is determined to be inaccurate or incomplete and the Township has based a determination on that information, the Township may take such action as may be permitted by law such as revoking the certificate, etc.

Information concerning the historic use of Mount Haven was gathered from several sources by the Dingman Township Zoning Officer.

Issuance or denial of a Certificate of Use will be based solely on the provisions of the Dingman Township Zoning Ordinance, the past use history, the proposed future use and applicable case law.  Other state and local laws will not be applicable in this process but may independently affect whether the property may be used for the proposed new use. 

Background:

In its earliest incarnation, Mount Haven consisted as an estate with rental cottages.

Circa 1966 the property was purchased by the Filone family which developed the property into a resort consisting primarily of a motel and restaurant. It provided various types of sleeping accommodations, a restaurant, gift shops, and other amenities such as a gazebo, basketball courts, pavilion, and swimming pools. There was also a large house referred to as “The Mansion” that was used for banquets, guest accommodations, administrative activities and as a residence. The restaurant served guests who stayed at the resort and the general public. It provided both on-site and off-site catering and specialized in banquets. Take out service was also available. The Filone family advertised the property as a “Country Resort and Restaurant”. 

The Dingman Township Zoning Ordinance as in effect in July 2016 places the Mount Haven property in the NC (Neighborhood Commercial) zoning district. Resorts are not listed as a use that may be issued a zoning permit in the NC district nor in any other zoning district within the township.  It should be noted that “Large Resorts”, are defined by the ordinance and refers to resorts with over 100 sleeping units (rooms, suites, etc).  Large Resorts are only permitted in the CP (Conservation and Parks) zoning district.

Breaking the Resort use into its constituent parts (restaurant and motel), restaurants are defined as “food establishments” in the zoning ordinance. The NC district permits food establishments but with a limitation of no more than 30 seats. The Mount Haven restaurant alone provided seating for up to 180 patrons. Should simultaneous events have taken place (restaurant, mansion, and pavilion), the facility could seat well over 350 people).  Restaurants of this nature may only be permitted in the RC Zoning District.

Motels are not listed as a use that may be issued a zoning permit in the NC zoning district. The motel portion of the use consisted of various rooming options described as “villas”, “suites”, “cottages”, etc. All totaled the property was billed as being able to house 96 guests when utilizing the sleeper couches. Motels are listed as a use that may be permitted in the RC (Resort Commercial) zoning District.

As the original Mount Haven Resort was an existing use prior to the 1974 enactment of the Dingman Township Zoning Ordinance and that such a use, if applied for today in either its current form or separately in its constituent parts, could not be permitted in the subject zoning district.  The use could only be permitted in the RC zoning district. The property’s use is therefore considered a non-conforming use with all the rights vested in such status by state and township law.

In 2016, the Mount Haven property was purchased by Har Haven LLC, a for profit entity. Har Haven, as legal owner of the Mount Haven property, has requested that the Dingman Township Zoning Officer issue a Certificate of Use to enable Har Haven to continue the use of the property as a resort in a manner similar to that of the previous owners but differing in some others. 

Concerns have been raised that a corporation known as The School for Children with Hidden Intelligence (SCHI) had been advertising that SCHI would be using Mount Haven as a “camp”.  SCHI is a New Jersey based private school that specializes in the needs of physically and mentally challenged children.  Complicating matters was the close connection between the directors of both Har Haven and SCHI.

The Dingman Township Zoning Ordinance does not define the word “camp’ and camps are not listed on the schedule of uses that may receive a zoning permit in any of the zoning districts throughout the township.

Because of the concern over whether Mount Haven would be used as Resort or a Camp, the Zoning Officer asked Har Haven to provide information concerning the property’s proposed use.  After some initial correspondences and discussions with representatives of Har Haven, the Zoning Officer prepared a list of over 40 questions with a request that Har Haven answer in detail.  The questions were personally delivered to Nathan Birnhack, president of Har Haven, on August 8, 2016. Mr. Birnhack’s response was officially received on August 17, 2016. 

Findings:

The Dingman Township Zoning Ordinance does not have a definition for “Resort”.  It does, however incorporate the term into the definition of “Large Hotels, Motels, and Resorts”.  The definition requires that Large Resort establishments have a minimum of 100 rooms.  Clearly Mount Haven is not a Large Resort as defined by the ordinance. 

The Merriam – Webster Dictionary defines Resort as “A place providing recreation and entertainment, especially to vacationers.”  The Filone’s use of the property would, by this definition, be considered a Resort.

Har Haven LLC is a “for profit” entity and the current owner of the Mount Haven property.

The School for Children with Hidden Intelligence is a separate corporation.

Har Haven has, through its written response, stated that it will operate the restaurant as an event venue and provide dining services for various large group functions.  This is consistent with the former Mount Haven’s use as a banquet venue. 

Har Haven has, through its written response, stated that the restaurant will not be open on a regular basis as a public accommodation, but that it may do so in the future should economic circumstances be amenable to such use.  This is a downgrade from the former Mount Haven’s use but acceptable none-the-less as it is not the purpose of the zoning ordinance to prohibit a business from determining its hours of operation.

Har Haven has, through its written response, stated that the various sleeping accommodations will remain guest sleeping accommodations with the occupancy of the rooms to be limited to no more than ten (10) days per guest visit. This is consistent with the former Mount Haven’s use of transient occupany.

Har Haven has, through its written response, stated that it intends to restrict the usage of the property including the dining facilities, sleeping accommodations, and other amenities for a period of four (4) to six (6) weeks annually for the exclusive use of the School for Children with Hidden Intelligence.  It is not the purpose of the zoning ordinance to limit or restrict a business in the nature of whom they may open their business to.  Therefore, this too is consistent with the former Mount Haven’s use – PROVIDED – that SCHI (and this also pertains to any other group that should stay at Mount Haven) utilizes the property in a fashion normally conducted at a rural resort.

The word “camp” is commonly used for many activities that no longer take place in a traditional children’s camp setting.  For example, sports camps and educational camps such as a math camp are frequently held on college campuses or school facilities. If SCHI chooses to call the time it utilizes Mount Haven a “camp”, it does not necessarily create a new use for the property provided SCHI restricts its use of the property to typical rural resort activities.

Conclusions:

Resort as a use is not defined the Zoning Ordinance.  As Har Haven has not taken official action to have the use defined, the proposed use must fall into the realm of the activities that were previously conducted at the Resort by the Filone family. 

Camp is not defined in the zoning ordinance. Mount Haven has traditionally been operated as a resort and has never, to the knowledge of the Township, been operated or advertised as a children’s camp.  However, modern usage of the term “camp” has opened the definition to a myriad of things beyond a typical children’s summer camp. The use of the term “camp” in itself would not disqualify Mount Haven from being considered a resort.

The determination of the classification of a use is based on how the use is conducted and not how the property owner or any other party may refer to it.  Therefore, in this particular case, the determination of whether Mount Haven is considered a “Resort” or a “Camp” is based on the operations that take place on the property and not what patrons choose to call it.

Furthermore, the classification of “Resort” does not automatically confer the use to be open to the general public and there are numerous resorts around the country that are restricted to a particular clientele.  Such a business decision is that of the property owner so long as it is consistent with state and federal law.

It is also expressly noted that any group that should stay at Mount Haven is responsible to ensure that their chaperones and staff meet all Pennsylvania child safety laws and bear the responsibility of supervision of their charges.  SCHI would not be an exception.

Determination:

With the above so noted, I hereby find that the proposed use of the Mount Haven property by Har Haven though different in some ways, to be basically similar to that conducted by the Filone family and do hereby issue a Temporary Certificate of Use to Har Haven LLC for a period of one (1) year subject to the following provisions:

Har Haven must operate the facility as described in the written comments that were provided to the Dingman Township Zoning Officer.  In the event that the information provided is determined to be inaccurate or incomplete, the Township may revoke or fail to renew the certificate or take other action as afforded by law.

Use of the property as a camp, school or similar use for more than 6 weeks (contiguous of otherwise) in one calendar year will require Har Haven to apply for zoning approval to operate a school, camp or other use as may be determined appropriate to the situation. There is no guarantee that such permit will be issued.

In the event that the restaurant portion of the premises is not used for six (6) weeks or more (42 days) total in a calendar year such use shall be considered incidental and the dominant use will be found to be the school, camp or other use. (However, the time period that the restaurant is used while the school, camp or other use is in operation shall not be considered.) In that event a new permit for such use shall be required. There is no guarantee that such a permit will be issued.

In order to ensure that the use remains a Resort, the motel portion must remain open to guests for a minimum of 183 days in a calendar year.

A temporary certificate is being issued rather than a permanent certificate of use because the use of the subject property as a resort in the traditional manner is not currently taking place. The only use in current operation is the camp use. Since the resort use is to take place in the future the Township must be assured that the property can and will be used in a manner consistent with its land use regulations before a permanent certificate can be issued.

Should Har Haven fail to operate the property as a resort, either immediately or in the future, or operate the property in a manner other than that in which it has been described to the Dingman Township Zoning Officer, or fail to abide by the terms specified above, the Certificate of Use may be revoked, not renewed and/or other legal actions taken by the Township.

Appeals:

Any party aggrieved by the issuance of the Certificate of Use may appeal the determination to the Dingman Township Zoning Hearing Board within 30 days of this announcement. 

[Editor's Note:  the announcement date is considered to be September 6, 2016.]

Chris Wood

Dingman Township Zoning Officer

August 31, 2016