HomeMy WebLinkAbout99-3838 Civilt
MARLIN FIKE,
THOMAS FIORENZA,
NANCY K. GRIFFIE,
PATRICIA A. KUHN,
DAVID HUDSON AND
KENNETH P. SECREST,
Appellants
Vo
ZONING HEARING
BOARD OF SILVER
SPRING TOWNSHIP,
Appellee
Vo
KONHAUS FARMS,
INC.,
Intevenor
and
SILVER SPRING
TOWNSHIP,
Intevenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 99-3838 CIVIL TERM
IN RE: LAND USE APPEAL
BEFORE HESS and OLER, JJ.
ORDER OF COURT
AND NOW, this22, Jday of June, 2000, upon consideration of Appellants'
land use appeal, and for the reasons stated in the accompanying opinion, the
decision of the Silver Spring Township Zoning Hearing Board is AFFIRMED.
BY THE COURT,
Andrew C Sheely, Esq.
127 S. Market Street
P.O. Box 95
Mechanicsburg, PA 17055
Attorney for Appellants
J.0t~Vesley 61er, ~, J.' TM //'
Steven J. Weingarten, Esg.
McNees, Wallace & Nurrick
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Attorney for Appellee
Richard C. Snelbaker, Esq.
Snelbaker, Brenneman, and Spare, P.C.
44 West Main Street
P.O. Box 318
Mechanicsburg, PA 17055
Attorney for Intervenor Silver Spring Township
Marlin R. MCCaleb, Esq.
219 East Main Street
P.O. Box 230
Mechanicsburg, PA 17055
Attorney for Intervenor Konhaus Farms, Inc.
irc
MARLIN FIKE, :
THOMAS FIORENZA, :
NANCY K. GRIFFIE, :
PATRICIA A. KUHN, :
DAVID HUDSON AND :
KENNETH P. SECREST, :
Appellants :
Vo
ZONING HEARING
BOARD OF SILVER
SPRING TOWNSHIP,
Appellee
Vo
KONHAUS FARMS,
INC.,
Intevenor
and
SILVER SPRING
TOWNSHIP,
Intevenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 99-3838 CIVIL TERM
IN RE: LAND USE APPEAL
BEFORE HESS and OLER, JJ.
OPINION and ORDER OF COURT
Oler, J., Junea~ 2000.
In this zoning case, six landowners have appealed from a decision of the
Silver Spring Township Zoning Hearing Board denying procedural and
substantive challenges to the enactment of an ordinance that rezoned six properties
from an agricultural to a residential designation. Konhaus Farms, Inc., an owner
of one of the properties that was rezoned, and Silver Spring Township have
intervened in support of the Zoning Hearing Board's decision.
No additional testimony or other evidence has been received by the court.
Argument on the appeal was held on August 11, 1999. For the reasons stated in
this opinion, the decision of the Zoning Hearing Board will be affirmed.
PROCEDURAL HISTORY AND STATEMENT OF FACTS
There is a relatively long history of litigation involving the use of one of the
properties that was rezoned, and it is this litigation that ultimately resulted in the
zoning ordinance in question. LHO Farms, Inc. is the owner of the parcel that was
the subject of this litigation.
In November of 1991, Wellington Farms! applied for a site plan waiver
from Silver Spring Township (hereinafter "the Township") for the operation of a
poultry slaughterhouse on the LHO Farms property. When Wellington Farms
obtained the waiver in February of 1992, it represented to the Township that it
would slaughter only poultry that it raised on the property. However, Wellington
Farms subsequently used the property as a slaughterhouse for imported poultry.
On February 18, 1993, the Township sent Wellington Farms a notice of
zoning violation due to its operation of the poultry slaughterhouse and ordered
Wellington Farms to cease and desist. Wellington Farms appealed to the Silver
~ Entities known as "Wellington Farms" and "Phoenix Poulty" were involved in
the operation of a slaughterhouse on the LHO Farms property and the subsequent
litigation. For purposes of simplicity, these entities will only be referred to as
"Wellington Farms."
2
Spring Township Zoning Hearing Board and a hearing was held. On May 25,
1993, the Zoning Hearing Board unanimously denied the appeal. Wellington
Farms then appealed the Board's decision to this court. The court issued a
preliminary injunction enjoining Wellington Farms from the slaughter of "poultry
not raised upon the premises.''2 Wellington Farms appealed to the Commonwealth
Court, which affirmed the preliminary injunction.3 In the meantime, this court
upheld the Zoning Hearing Board's decision denying the appeal.4 This court's
decision was thereafter upheld by the Commonwealth Court.5
Wellington Farms, in direct violation of the preliminary injunction,
continued its operation of the poultry slaughterhouse using imported poultry and
was adjudicated in civil contempt.6 Nonetheless, Wellington Farms failed to cease
its operation of the slaughterhouse in violation of the preliminary injunction and
2 Decree, September 27, 1993.
3 Order of Court, Township of Silver Spring v. Wellington Farms, Inc., No. 2501
C.D. 1993 (July 21, 1994) (Smith, J.).
4 Wellington Farms, Inc. v. The Zoning Hearing Bd. of Silver Spring Township,
No. 1996 Civil 1993 (March 18, 1994) (Oler, J.).
5 Wellington Farms, Inc. v. Zoning Hearing Bd. of Silver Spring Township, No.
890 C.D. 1994 (March 31, 1995) (Doyle, J.).
6 Order of Court, April 21, 1995.
was again adjudicated in contempt, resulting in the imposition of monetary
sanctions.?
On April 20, 1995, LHO Farms filed a challenge to the Township zoning
ordinance on the ground that it was exclusionary.8 In the challenge, LHO Farms
requested that the Township cure the alleged defect in the zoning ordinance.9 The
challenge included a proposed curative
"slaughtering, processing and packaging
animals.''~°
amendment that would permit the
of poultry and other agricultural
During the above-mentioned litigation, Konhaus Farms, which is adjacent
to the LHO Farms property, filed a petition to rezone its property consisting of
approximately 154 acres on June 27, 1996.Il A preliminary plan of Konhaus
Farms envisioned a cluster development on this property consisting of 213 units,
resulting in a density of 1.4 units per acre.12 The Township held a public hearing
7 Order of C0urt, May 17, 1995.
8 Applicants' Exhibit 28 (Challenge to the Validity of a Zoning Ordinance
Coupled with a Curative Amendment).
9 See id.
lo See id.
~ See Applicants' Exhibit 25 (Konhaus Farms' Application for Amendment to the
Zoning Map and/or Zoning Ordinance No. 96-1).
~2 See id. (letter from Konhaus Farms to Board of Supervisors dated October 23,
1996).
on the petition to rezone on October 23, 1996.~3 Following a public meeting held
on November 20, 1996, the Board of Supervisors adopted Resolution 96-14, which
directed the Township staff to "explore how a possible rezoning of Konhaus
Farms would affect adjacent property owners?4
The Township entered into a settlement agreement with LHO Farms to
resolve the curative amendment request as well as the civil contempt matter on
January 24, 1997.15 Under the settlement agreement, the Township permitted
LHO Farms to continue using the property for the "importing, slaughtering,
processing and packaging of chickens and/or turkeys" until September 30, 1998, at
which time the slaughterhouse was to cease all operations and vacate the
premises.~6 The settlement agreement included a clause that provided that the
Township would change the zoning classification of the LHO Farms property no
later than September 30, 1998, from its present agricultural zoning.~7 This
provision did not specify a particular designation for the rezoning of the
~3 See Township Exhibit 10 (copy of transcript from public hearing held October
23, 1996).
~4 See Applicants' Exhibit 20 (memorandum from Township Manager William S.
Cook to Board of Supervisors, including reference to Resolution 96-14).
15 See Applicants' Exhibit 11 (copy of the settlement agreement).
16 Id., paragraph 3.
~7 Id., paragraph 11.
property,ts The settlement agreement further provided that LHO Farms "shall
accept the change in zoning classification as full and complete settlement of the
curative amendment application?9
In association with the settlement agreement, Cumberland County and the
Township entered into a stipulation whereby Cumberland County accepted
$25,000 in full and complete satisfaction of its entitlement to any portion of the
$90,000 fine previously levied and the Township accepted $21,750 in full and
complete satisfaction of any entitlement it would have for attorney's fees.2° An
order of court was entered on January 24, 1997, that abated the $90,000 fine to
$46,750, which represented the $25,000 to be paid to Cumberland County and the
$21,750 to be paid to the Township.2~
On May 8, 1998, Township Manager William S. Cook sent a memorandum
to the Board of Supervisors reminding the Supervisors of the settlement agreement
that "obligate[d] the Township to rezone the [LHO Farms] property no later than
September 30, 1998."22 The memorandum noted that Konhaus Farms had
ts See id. at paragraph 11; see also Applicants' Exhibit 20 (memorandum from
Township Manager William S. Cook to Board of Supervisors).
~9 See Applicants' Exhibit 11, paragraph 11 (copy of the settlement agreement).
20 See Applicants' Exhibit 16 (copy of the Stipulation dated January 24, 1997).
21 See Applicants' Exhibit 16 (Order of Court, January 24, 1997).
22 See Applicants' Exhibit 20 (memorandum from William S. Cook to Board of
Supervisors).
previously requested a zoning change from Agricultural (A) to R-1 Residential.23
The memorandum also noted that the zoning of properties surrounding the
Konhaus Farms and LHO Farms properties were either R-1 Residential or
Agricultural (A) and that "[a]nticipated effects to adjacent property owners would
be consistent with the impacts experienced in other areas of the Township where
farmland is converted to housing ... includ[ing] increased traffic, stormwater,
...and ... student populations.''24
Subsequently, the Board of Supervisors proposed Ordinance 98-3, which
rezoned the property of six landowners, including Konhaus Farms and three of the
Appellants, from Agricultural (A) to R-1 Residential.25 The Township submitted
the proposed ordinance to both the Cumberland County Planning Commission and
the Silver Spring Township Planning Commission. On August 20, 1998, the
Cumberland County Planning Commission reviewed the proposed ordinance and
recommended against the proposed rezoning.26 The Silver Spring Township
Planning Commission reached the same result on September 10, 1998.27
23 See id.
24 See id.
25 See Applicants' Exhibit 18 (copy of Ordinance 98-3).
26 See Applicants' Exhibit 7 (letter from Cumberland County
Commission to Board of Supervisors).
27 See Applicants' Exhibit 10 (Minutes of Silver Spring Township
Commission Meeting, September 10, 1998).
Planning
Planning
Despite the recommendations of the planning commissions, the Township
decided to proceed with the proposed ordinance. On August 21, 1998, the relevant
property owners received letters that notified them of the proposed change in
zoning of their property and informed them that a hearing date would be
established at a meeting to be held on August 26, 1998.28 The hearing was
scheduled for September 23, 1998, and was advertised in the Patriot News on
September 8 and 15, 1998.29 In addition, the subject area of the proposed
ordinance was posted on September 10, 1998, at four locations.3°
After the hearing, the Board of Supervisors, by a vote of 2-1, approved
Ordinance 98-3.31 Thereafter, on October 21, 1998, Appellants filed both
procedural and substantive challenges to the validity of Ordinance 98-3 with the
Silver Spring Township Zoning Hearing Board.32
Public hearings on the challenges were held on the following dates:
November 9, 1998; December 14, 1998; January 11, 1999; February 8, 1999,
28 See Applicants' Exhibit 19 (letter from Township Manager William S. Cook to
property owners).
29 See Township's Exhibit 9 (Transcript, Hearing, September 23, 1998, at 3
[hereinafter transcript 9/23/98 at __]).
30 Transcript 9/23/98 at 4.
31 See Applicants' Exhibit 26 (Minutes from Board of Supervisors Meeting,
September 23, 1998).
32 See Documents A and B of the certified record (Silver Spring Township Zoning
Hearing Board applications for procedural and substantive challenges filed by
Appellants).
March 8, 1999; April 12, 1999; and May 10, 1999.33 The Zoning Hearing Board,
by a vote of 2-1, denied both the procedural and substantive challenges on May
26, 1999.34 Appellants filed an appeal from the decision of the Zoning Hearing
Board to this court on June 23, 1999.
STANDARD OF REVIEW
In an appeal from a decision of a zoning hearing board, "[w]hen a trial
court receives no additional testimony or evidence, its review will be limited to a
determination of whether the Zoning Board abused its discretion or committed an
error of law and whether its necessary findings are supported by substantial
evidence." Rushoford v. Zoning Bd. of Adjustment, 81 Pa. Cmwlth. 274, 278, 473
A.2d 719, 722 (1984). "Substantial evidence has been defined as such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion."
Lantos v. Zoning Hearing Bd., 153 Pa. Cmwlth. 591, 597, 621 A.2d 1208, 1211
(1993).
"Zoning is an exercise of the police power to serve the common good and
general welfare." Carlino v. Whitpain Investors, 499 Pa. 498, 504, 453 A.2d
1385, 1388 (1982) (citing V.F. Zahodiakin Engineering Corp. v. Zoning Bd. of
Adjustment, 8 N.J. 386, 394-395, 86 A.2d 127, 131 (1952)). "It is fundamental
that the court may not substitute its views for those of legislative bodies as to
33 Silver Spring Township Zoning Hearing Board Findings and Order, at 2.
34 Zoning Hearing Board Order, May 26, 1999.
whether the means employed by enactment of a zoning ordinance is likely to serve
the public health, safety, morals or general welfare." Appeal of Apgar from
Decision of Bd. of Comm'rs of Manheim Township, 661 A.2d 445, 448 (Pa.
Cmwlth. 1995).
"A zoning ordinance enacted by a governing body is presumed to be valid
and constitutional." Id. at 447 (citing Schubach v. Silver, 461 Pa. 366, 380, 336
A.2d 328, 335 (1975)). "[T]he party challenging the lawfulness of the ordinance
bears the heavy burden of proving its invalidity." Ficco v. Bd. of Supervisors of
Hempfield Township, 677 A.2d 897, 899 (Pa. Cmwlth. 1996). "IT]he challenging
party must clearly establish the provisions are arbitrary and unreasonable and have
no relation to the public health, safety, morals, and general welfare .... "Schubach
v. Silver, 461 Pa. 366, 381,336 A.2d 328, 335 (1975). "[I]fthe validity [of the
zoning ordinance] is debatable, the legislative judgment is allowed to control." Id.
at 381,336 A.2d at 335.
Appellants raise twelve errors of law and abuses of discretion on the part of
the Zoning Hearing Board.35 The first error of law and abuse of discretion raised
is that the Zoning Hearing Board failed to recognize a number of procedural
35 See Brief in Support of Appellants' Notice of Appeal from the May 26th, 1999
Written Decision of the Silver Spring Township Zoning Hearing Board, at 31-33.
10
defects in the enactment of Ordinance 98-3.36 The first of these alleged procedural
defects is that the Board erroneously concluded that Ordinance 98-3 was not the
result of contract zoning? Appellants assert that the Board's decision
"improperly condones the Township's surrendering of the legislative function of
rezoning to negotiations and considerations which enter into the law of contracts
as opposed [to] consideration intended to protect the public health, safety, and
welfare.''38
The Township admits that it entered
into a settlement agreement that
included a provision to rezone the LHO Farms property? In response to
Appellants' argument, the Township, on the other hand, points out that none of
Appellants' properties were subject to the settlement agreement.4° In addition, the
Township notes that the agreement did not include a designated rezoning
classification for the LHO Farms property at the time the parties entered into the
settlement agreement.4~
36 Id. at 41-43.
37 Id. at 34.
38 Id. at41.
39 Brief of Silver Spring Township (Intervenor), at 7.
4°Id. at8.
41 Id.
11
The Pennsylvania Supreme Court has indicated that "[t]he proposition has
long been recognized in this Commonwealth that individuals cannot, by contract,
abridge police powers which protect the general welfare and public interest."
Carlino v. Whitpain Investors, 499 Pa. 498, 504, 453 A.2d 1385, 1388 (1982).
Along these lines, one general discussion of contract zoning states as follows:
When zoning power is delegated to a municipality, it is not generally
contemplated that the municipality will bargain away any part of that
power to any private landowner. A municipality has no authority to
enter into a private contract with a property owner for amendment of
a zoning ordinance when such agreement results in the contracting
away of police powers. A contract made by the zoning authorities to
zone or rezone for the benefit of a private landowner is generally
illegal and is denounced as "contract zoning" and as an ultra vires
bargaining away of police power ....
83 Am. Jur. 2d Zoning and Planning § 46 (1992).
However, "the position has also been taken that 'contract zoning' is a
phrase having no legal significance but simply refers to a reclassification of land
in which the owner agrees to certain conditions not imposed on other land of the
same classification." Id. Such action is also referred to as "conditional zoning,"
which is "a device employed to bring some flexibility of use to an otherwise rigid
system of control." Id., § 218. The term conditional zoning is "generally used to
describe a zoning change granted to an owner subject to conditions generally not
applicable to land similarly zoned." Id.
Under Pennsylvania law, "[z]oning ordinances which permit a use of land
subject to restrictions other than those applicable to all land situated in the same or
a similar district ... [are] known as conditional or contract zoning [and] are not
12
permitted in Pennsylvania." 7 Summ. Pa. Jur. 2d Property § 24:65. Thus, it
appears that the Pennsylvania courts have adopted the second approach mentioned
above. In Carlino v. Whitpain Investors, 499 Pa. 498, 453 A.2d 1385 (1982),
which Appellants heavily rely upon, the Pennsylvania Supreme Court, in the
context of contractually conditioned zoning, held that "[t]he police power of
municipalities cannot be subjected to agreements which restrict or condition
zoning district classifications as to particular properties." Carlino v. Whitpain
Investors, 453 A.2d 1385, 1388, 499 Pa. 498, 504 (1982). "The basis for this
position is that zoning restrictions and permissions must be governed solely by the
public interest and not by benefit to an individual applicant." 83 Am. Jur. 2d
Zoning and Planning §46 (1992).
The Court in Carlino went on to say that "[c]ontracts thus have no place in
a zoning plan and a contract between a municipality and a property owner should
not enter into the enactment or enforcement of zoning regulations." Carlino v.
Whitpain Investors, 453 A.2d 1385, 1388, 499 Pa. 498, 504 (1982) (citing Houston
Petroleum Co. v. Automotive Products Credit Association, Inc., 87 A.2d 319, 322,
9 N.J. 122, __ (1952)). The Court adopted the language of a New Jersey Supreme
Court decision, V.F. Zahodiakin Engineering Corp. v. Zoning Bd. of Adjustment, 8
N.J. 386, 394-395, 86 A.2d 127, 131 (1952), which set forth the following
principle:
Zoning is the exercise of the police power to serve the common good
and general welfare. It is elementary that the legislative function
may not be surrendered or curtailed by bargain or its exercise
13
controlled by the considerations which enter into the law of
contracts .... The power may not be exerted to serve private interests
merely, nor may the principle be subverted to that end.
Carlino v. Whitpain Investors, 499 Pa. 498, 504-505,453 A.2d 1385, 1388 (1982).
The settlement agreement did not subject the LHO Farms property or any
other property to conditions or restrictions that were not applicable to land
similarly zoned. It merely declared that by a set date the property would be
rezoned. This court can see how Appellants may feel that the above-quoted
language applies specifically to the case sub judice, but it must be remembered
that the holding in Carlino was in the context of contractually conditioned zoning,
and is therefore not controlling. Moreover, this court has been unable to find, nor
have Appellants cited, any cases in which a court in this Commonwealth
overturned a zoning ordinance on the basis of an agreement between a
municipality and a property owner to rezone a certain tract of land. In fact, the
Pennsylvania Supreme Court has indicated that such agreements are not
necessarily improper. See Gladwyne Colony v. Township of Lower Merion, 409
Pa. 441, 187 A.2d 549 (1963) (plaintiffs, in asserting that rezoning was in
exchange for promise from landowner to convey land to municipality, were
questioning the motives of the municipality; a judicial tribunal cannot inquire into
the motives of a municipality in the absence of an abuse of discretion; rezoning of
land from R-1 Residential to R-7 Residential upheld).
The second procedural error asserted by Appellants is that the settlement
agreement created an arbitrary deadline for the rezoning of the LHO Farms
14
property, thus demonstrating the special interest of the municipality in the LHO
Farms property, which resulted in an expedited deliberation process to the
detriment of the public interest.42
"A municipal corporation enjoys ... those powers expressly granted, those
necessarily or fairly implied by or incident to such expressly granted powers, and
those essential to the declared objects and purposes of the corporation." Herbert
v. Commonwealth of Pennsylvania, 159 Pa. Cmwlth. 208, 212 n. 4, 632 A.2d
1051, 1053 n. 4 (1993). It is fundamental that zoning is a legislative power that is
expressly granted to municipalities.43 In the absence of any improper conduct, this
court cannot say that the municipality abused its discretion. The record
demonstrates that the municipality fulfilled its statutory requirements in the
exercise of its zoning power.
The next procedural error that Appellants assert is that the clause in the
settlement agreement requiring the municipality to rezone the LHO Farms
property amounted to a decision to rezone without seeking review by the Silver
Spring Township Planning Commission and the Cumberland County Planning
42 See Brief in Support of Appellants' Notice of Appeal from the May 26th, 1999
Written Decision of the Silver Spring Township Zoning Hearing Board, at 41.
43 See 53 P.S. {}10601.
15
Commission as required by §8 703.4 and [703.2] of the Silver Spring Township
Zoning Ordinance as well as 53 P.S. § 10609(c) and (e), and 53 P.S. § 10304.44
In response, the Township argues that "the enactment of Ordinance 98-3
was accomplished in full compliance with the provisions of the [Municipalities
Planning Code], including review by the various planning agencies and a public
hearing.''45
The relevant parts of the ordinances and statutes provide as follows:
§ 703.4 Amendment Initiated by the Board of Supervisors - When
an amendment, supplement, change, or repeal is initiated by the
Board of Supervisors, such amendment, supplement, change, or
repeal shall follow the procedure prescribed for a petition under
Section 703.2;
§ 703.2 Hearing and Enactment Procedures for Zoning
Amendments:
4. Township Planning Commission Referrals - For
amendments proposed by parties other than the Township Planning
Commission, the Board of Supervisors shall submit each amendment
at least thirty (30) days prior to public hearing to the Township
Planning Commission for review and comment .... The Board of
Supervisors cannot act upon the amendment until it has received a
recommendation from the Township Planning Commission ....
5. County Planning Commission Referrals - All proposed
amendments shall be submitted to the County Planning Commission
at least thirty (30) days prior to public hearing on such
amendments .... The Board of Supervisors cannot act upon the
amendment until it has received a recommendation from the County
Planning Commission ....
44 See Brief in Support of Appellants' Notice of Appeal from the May 26th, 1999
Written Decision of the Silver Spring Township Zoning Hearing Board, at 41-42.
Brief of Silver Spring Township (Intervenor), at 9.
16
§ 10304. Legal status of county comprehensive plans within
municipalities
(a) Following the adoption of a comprehensive plan or any part
.thereof by a county, pursuant to the procedures in section 302, any
proposed action of the governing body of a municipality, its
departments, agencies and appointed authorities within the county
shall be submitted to the county planning agency for its
recommendations if the proposed action relates to:
(3) the adoption, amendment or repeal of any comprehensive
plan, official map, subdivision or land ordinance, zoning
ordinance or provisions for planned residential
development ....
§ 10609. Enactment of zoning ordinance amendments
(c) In the case of an amendment other than that prepared by the
planning agency, the governing body shall submit each such
amendment to the planning agency at least 30 days prior to the
hearing on such proposed amendment to provide the planning
agency an opportunity to submit recommendations.
(e) If a county planning agency shall have been created for the
county in which the municipality proposing the amendment is
located, then at least 30 days prior to the public hearing on the
amendment by the local governing body, the municipality shall
submit the proposed amendment to the county planning agency for
recommendations.
While the municipality did enter into an agreement that provided for the.
rezoning of the LHO Farms property, this court is unable to agree with Appellants
that such an agreement constituted the actual decision to rezone. The act of
rezoning did not occur until the Supervisors approved Ordinance 98-3, and this
approval did not occur until after the Township sought review by both the Silver
Spring Planning Commission and the Cumberland County Planning Commission.
17
Thus the Township fulfilled the requirements of the statutes and there was no
procedural error.
Appellants' next allegation of procedural error is that the decision to change
the zoning classification of the LHO Farms property was made without any public
hearing or opportunity for public participation as required by section 703.2 of the
Silver Spring Township Zoning Ordinance.46
The relevant part of section 703.2 of the Silver Spring Township Zoning
Ordinance provides as follows:
§ 703.2 Hearing and Enactment Procedures for Zoning
Amendments:
1. Public Hearing - Before hearing and enacting Zoning Ordinance
... amendments, the Board of Supervisors shall conduct a public
hearing to inform the general public of the nature of the amendment,
and to obtain public comment. Such public hearing shall be
conducted after public notice ... has been given.
As already discussed above, the actual act of rezoning did not occur until
the Supervisors approved Ordinance 98-3, and this approval did not occur until
after the Township held a public hearing. The Township therefore complied with
the statute and there was no procedural error.
46 See Brief in Support of Appellants' Notice of Appeal from the May 26th, 1999
Written Decision of the Silver Spring Township Zoning Hearing Board, at 42.
18
The last allegation of procedural error is that there was no public hearing to
consider the agreement between the Township and LHO Farms in violation of
{}703.1 of Silver Spring Township Zoning Ordinance.47
Section 703.1 of the Silver Spring Township Zoning Ordinance provides as
follows:
§ 703.1 Power of Amendment - The Board of Supervisors may from
time to time, amend, supplement, change or repeal this Ordinance
including the Official Zoning Map. Any amendment, supplement,
change or repeal may be initiated by the Township Planning
Commission, the Board of Supervisors or by a petition to the Board
of Supervisors by an interested party.
Nothing in the above ordinance requires the Township to hold a public
hearing to consider the settlement agreement. It was within the Township's
discretion to enter into the settlement agreement. In addition, as already
discussed, entering into the agreement did not constitute the actual decision to
rezone.
The second error of law and abuse of discretion asserted by appellants is
that the Township could not fairly represent the interests of the Appellants while
performing the rezoning required by the settlement agreement.48 Appellants assert
that the Township's adherence to a contract entered into outside of the public
47 Id. at 42-43.
48/d. at 43-44.
19
hearing process and the performance of an empty legislative ritual of a public
hearing before rezoning is an inherent conflict of interests.49
The Township submits that "Appellants have failed to demonstrate any
such conflict.''5° The Township asserts that "the Board of Supervisors was
attempting to resolve problems in the best interests of all their citizens ....
Certainly a municipality has a duty to act in the interests of its residents?
It is to be presumed that the Township believed that, by entering into the
settlement agreement which prevented costly litigation as well as the possibility of
a curative amendment that would allow for slaughterhouses in Silver Spring
Township, it was acting within the best interests of the residents of Silver Spring
Township. Furthermore, it cannot be said that the Township had a duty to act in
the interests of these specific applicants. The Supervisors represent the interests of
all of the Township residents, and at times the interests of some residents will not
be consistent with the interests of other residents, at which point the Supervisors
must act in the interests of the community as a whole.
The third error of law and abuse of discretion asserted by Appellants is that
the Township committed ultra vires acts that abrogated the police powers intended
49Id. at46.
5o Brief of Silver Spring Township (Intervenor), at 11.
5~ Id'
52 See, e.g., 53 P.S. § 10603(a) ("Zoning ordinances should ... give consideration
to ... the needs of the citizens .... ").
20
to protect the public health, safety, and welfare? Appellants argue that there is no
authority under the Municipalities Planning Code or the Second Class Township
Code that would allow rezoning to occur as a result of a private contract?
It is not persuasive to say that the rezoning in this case occurred as the
result of a private contract. While the settlement agreement certainly played a role
in the plan to rezone, the actual rezoning was the result of a public hearing and a
vote by the Supervisors. In addition, the lack of authority under the Municipalities
Planning Code does not necessarily indicate that the Township committed an ultra
vires act. As already discussed, "[al municipal corporation enjoys those powers
expressly granted, those necessarily or fairly implied by or incident to such
expressly granted powers, and those essential to the declared objects and purposes
of the corporation." Herbert v. Commonwealth of Pennsylvania, 159 Pa. Cmwlth.
208, 212 n. 4, 632 A.2d 1051, 1053 n. 4 (1993). Furthermore, the essence of the
ultra vires acts asserted by Appellants is the alleged contract zoning? As
previously discussed, the actions of the Township did not amount to contract
zoning and therefore this court is unable to conclude that the Board committed an
error of law or abuse of discretion.
53 See Brief in Support of Appellants' Notice of Appeal from the May 26th, 1999
Written Decision of the Silver Spring Township Zoning Hearing Board, at 47.
54 Id.
55 See id. at 48.
21
The fourth error of law and abuse of discretion asserted by Appellants is
that the Township failed to conduct a full and fair review of the relationship
between the Silver Spring Township Comprehensive Plan and the impact of
Ordinance 98-3.56 Appellants assert that "the record is void of any determination,
comments or discussion by the Board of Supervisors as to whether the proposed
ordinance was consistent ... with the Comprehensive Plan.''57
The Township notes that Section 303(c) of the Municipalities Planning
Code "clearly says the comprehensive plan is not controlling" and that "no action
of a Board of Supervisors shall be held invalid because of inconsistency with or
disregard of the Comprehensive Plan.''58
Section 303(c) of the Municipalities Planning Code provides in relevant
part as follows:
§ 10303. Legal status of comprehensive plan within the jurisdiction
that adopted the plan
(c) Notwithstanding any other provision of this act, no action by the
governing body of a municipality shall be invalid nor shall the same
be subject to challenge or appeal on the basis that such action is
inconsistent with, or fails to comply with, the provision of the
comprehensive plan.
53 P.S. § 10303(c).
56 See Brief in Support of Appellants' Notice of Appeal from the May 26th, 1999
Written Decision of the Silver Spring Township Zoning Hearing Board, at 49.
57/d'
58 Brief of Silver Spring Township (Intervenor), at 13.'
22
While Appellants may be correct in their assertions, there is nothing in the
law that requires actual consideration of any inconsistency with the
Comprehensive Plan. The Municipalities Planning Code provides only that the
Township must submit any proposed zoning to the Silver Spring Township
Planning Commission before the rezoning can take place? "A zoning ordinance
which is rational in a planning sense is valid even though it violates the terms of
an existing comprehensive plan." Ryan, Pennsylvania Zoning Law and Practice, §
3.2.16 (1992); see Todrin v. Bd. of Supervisors of Charlestown Township, 27 Pa.
Cmwlth. 583, 367 A.2d 332 (1976). Thus, in regard to the above-quoted statute,
the Township has not acted improperly.
The fifth and sixth errors of law and abuses of discretion advanced by
Appellants is that the Township failed to consider the recommendations against
rezoning submitted by the Silver Spring Township Planning Commission6° and the
Cumberland County Planning Commission during the enactment of Ordinance 98-
3.61 Appellants assert that this lack of consideration demonstrates the failure of
the Supervisors to fully and fairly review the proposed zoning.62
59 See 53 P.S. 10609(e).
60 See Brief in Support of Appellants' Notice of Appeal from the May 26th, 1999
Written Decision of the Silver Spring Township Zoning Hearing Board, at 58-59.
61 Id. at 61.
62 ]d. at 59-60.
23
The Township notes that "Sections 609(c) and (e) of the Municipalities
Planning Code only require submission of rezoning issues to the local and county
planning agencies for 'recommendations'" and that "[t]he recommendations are
not mandates.''63 The Township also notes that the planning commissions are
merely advisory.64
Sections 609(c) and (e) of the Municipalities Planning Code, which are
quoted in their entirety in an earlier section of this opinion, require that the
Township submit any proposed zoning ordinance changes to both the Cumberland
County and Silver Spring Township Planning Commissions so that these planning
commissions can make recommendations? Nonetheless, as already discussed,
the Township is free to ignore the recommendations of the planning commissions.
Thus, while it may be true that a municipality has a responsibility to conduct a full
and fair review prior to enacting a zoning ordinance, nothing in the law requires a
municipality to follow the recommendations of a planning commission.
The seventh error of law and abuse of discretion asserted by Appellants is
that the Township failed to conduct a full and fair review of the relation between
the Cumberland County Comprehensive Plan and the impact of Ordinance 98-3.66
63 Brief of Silver Spring Township (Intervenor), at 14.
64 I'd.
65 See 53 P.S. §10609(c) and (e).
66 See Brief in Support of Appellants' Notice of Appeal from the May 26th, 1999
Written Decision of the Silver Spring Township Zoning Hearing Board, at 64.
24
Appellants point out that there was no comment, discussion, or consideration
made or given by the Supervisors to the Comprehensive Plan, thus demonstrating
the absence of a full and fair review of the impact of Ordinance 98-3.67
In response to this argument, the Township incorporates its above
arguments that the recommendations of the Cumberland County Planning
Commission is merely advisory and is not a mandate?
The Appellants' argument Would·ie~uire this court to speculate as to what
was in the minds of the Supervisors when they enacted Ordinance 98-3. The
record discloses no reason for this court to assume that the Supervisors did not
have the Cumberland County Comprehensive Plan in mind. Thus, in the absence
of an abuse of discretion or error of law, this court cannot accept Appellants'
argument.
The eighth error of law and abuse of discretion alleged by Appellants is that
the records, testimony, and exhibits demonstrate the efforts of the governing body
to spot zone the LHO Farms property.69
· The Township indicates that "[t]here can be no question that the total area
reclassified in Ordinance 98-3 from Agriculture to R-1 Residential is not 'spot
67 Id. at 65.
68 Brief of Silver Spring Township (Intervenor), at 15.
69 See Brief in Support of Appellants' Notice of Appeal from the May 26th, 1999
Written Decision of the Silver Spring Township Zoning Hearing Board, at 65.
25
zoning' within any definition of the law.''7° The Township notes that "perhaps the
rezoning of only the LHO [Farms property] would have constituted spot zoning,
but the area in Ordinance 98-3 ... does not.''?l Intervenor Konhaus Farms
supports this position, arguing that "rezoning the Konhaus Farms and [LHO Farms
properties] to R-1 Residential would leave the Griffie, Secrest and Fiorenza tracts
as isolated islands of Agricultural use in a sea of Residential use" and "would have
created illegal spot zoning.''72 Konhaus Farms submits that this is why the
Township included the properties of Appellants Secrest, Griffie, and Fiorenza in
the rezoning.73
"Spot zoning is a form of discriminatory zoning which has been defined as
a singling out of one lot or a small area for different treatment from that accorded
to similar surrounding land indistinguishable from it in character, for the economic
benefit of the owner of that lot or to his economic detriment." Knight v. Lynn
Township Zoning Hearing Bd., 130 Pa. Cmwlth. 617, 622, 568 A.2d 1372, 1375
(1990). For example, it has been held that the creation of an "island" or
"penninsula" of residential land within an area of commercial uses constituted spot
70 Brief of Silver Spring Township (Intervenor), at 15.
71Id'
72 Brief of Intervenor, Konhaus Farms, Inc., In Support of Zoning Hearing Board,
at 5-6.
73 Id. at 5.
26
zoning. See Montgomery Township Appeal, 51 Pa. Cmwlth. 627, 415 A.2d 134
(1980).
It is possible that rezoning only the LHO Farms property would have
resulted in illegal spot zoning, in that the LHO Farms property would have been
an "island" of residential use surrounded by properties zoned only for agricultural
use. In addition, Konhaus Farms is correct in asserting that rezoning only the
Konhaus Farms and LHO Farms properties would have resulted in the Griffie,
Secrest, and Fiorenza tracts as "islands" of properties zoned for agricultural use
surrounded by properties zoned for residential use. Nonetheless, it is clear that the
actual rezoning undertaken in this case did not constitute spot zoning.
It appears to the court that Appellants are suggesting that the underlying
motive of the Supervisors in rezoning the subject properties was to avoid spot
zoning. "The state of mind of the legislative body in enacting a zoning ordinance
is irrelevant to a determination of its validity. Rather, the legislation must stand
and fall on its own terms .... "Appeal of Apgarfrom Decision ofBd. of Comm'rs
of Manheim Township, 661 A.2d 445, 448 (Pa. Cmwlth. 1995). Thus, it is not
proper for the court to look at underlying motives when evaluating action of the
Township.
The ninth error of law and abuse of discretion advanced by Appellants is
that the Township intended "to meet the objectives of a single, large corporate
landowner in a manner which completely disregarded reasonable and objective
review standards adopted by the governing body itself to protect the public health,
27
safety, and welfare.''74 Appellants assert that the Township had a special interest
in rezoning the Konhaus Farms property (which was rezoned along with the LHO
Farms property) to R-1 Residential, as evidenced by the fact that the decision to
rezone specifically to R-1 Residential was made without a public hearing and
Konhaus Farms was the only property owner that requested the R-1 designation.75
The Township responds that there is "nothing which indicates a preference
for Konhaus Farms.''76 The Township acknowledges that Konhaus Farms was
seeking a change in zoning, but submits that it "was not in any way committed to
do so or to grant the classification requested.''77
It is true that the clause in the settlement agreement requiring rezoning of
the LHO Farms property did not specify a particular rezoning classification and it
was Konhaus Farms that had previously requested the R-1 classification for its
own property. Nonetheless, as already discussed, it is not proper to examine the
motives or the state of mind of the Township. In addition, nothing in the
Municipalities Planning Code requires a hearing before deciding which
designation to adopt in the rezoning. In this case, the Township did hold a hearing
74 See Brief in Support of Appellants' Notice of Appeal from the May 26th, 1999
Written Decision of the Silver Spring Township Zoning Hearing Board, at 69-70.
75 Id. at 70-71.
76 Brief of Silver Spring Township (Intervenor), at 16.
77Id'
28
prior to the enactment of Ordinance 98-3 and the statutory requirements were
fulfilled.
The tenth error of law and abuse of discretion asserted by Appellants is that
no authority exists that permits the Township to enter an agreement with LHO
Farms to change the zoning classification of that property?
The response of the Township to this argument is that the Township
complied "with all procedural requirements of the [Municipalities Planning Code],
including a public hearing.''79
As previously discussed, lack of specific authority does not necessarily
indicate improper action on the part of a municipality,so In light of the discretion
accorded to municipalities in the exercise of their powers, this court is unable to
say that such action was improper, particularly because the procedural
requirements were fulfilled.
The eleventh error of law and abuse of discretion asserted by Appellants is
that the decision of the Zoning Hearing Board was based upon tainted, wholly
irrelevant and self-serving testimony submitted by the Township, thus evidencing
78 See Brief in Support of Appellants' Notice of Appeal from the May 26th, 1999
Written Decision of the Silver Spring Township Zoning Hearing Board, at 70-71.
79 Brief of Silver Spring Township (Intervenor), at 17.
80 See discussion of Herbert v. Commonwealth of Pennsylvania, supra at 12.
29
the failure to fairly and fully examine the impact of Ordinance 98-3.8~ Appellants
submit that the Zoning Hearing Board erroneously concluded that sufficient
infrastructure exists to support the rezoning of the property.82
The Township responds that the Zoning Hearing Board "found the
Township witnesses to be credible" and that this was "clearly an appropriate
exercise of discretion.''83 The Township submits that the Zoning Hearing Board
committed no error of law or abuse of discretion in admitting and believing the
Township's evidence.84
The Zoning Hearing Board is
determine whether the infrastructure
in a better position than this court to
is sufficient to support the rezoning
classification. No error or abuse in this regard is discernible in the record.
The twelfth error of law and abuse of discretion alleged by Appellants is
that the Board failed to allow for the development of a full and fair record?
Appellants note that pursuant to 53 P.S. §10908(5)parties shall be afforded the
SI See Brief in Support of Appellants' Notice of Appeal from the May 26th, 1999
Written Decision of the Silver Spring Township Zoning Hearing Board, at 72-73.
82 Id. at 73. As previously mentioned, Konhaus Farms has submitted a
development plan that would construct 1.4 units per acre.
83 Brief of Silver Spring Township (Intervenor), at 17.
S4 Id. atl8.
85 Brief in Support of Appellants' Notice of Appeal from the May 26th, 1999
Written Decision of the Silver Spring Township Zoning Hearing Board, at 76.
30
opportunity to present evidence on all relevant issues? Appellants cite to a
number of instances where the Zoning Hearing Board limited or excluded
testimony? In connection with this argument, Appellants request the court to
provide Appellants with the opportunity to present additional evidence on the
procedural defects as well as the relationship between Ordinance 98-3 and the
included and adjacent properties,ss
The Township responds that "Appellants were given wide latitude in
presenting their case" and that "[m]ore than adequate colloquy and argument was
allowed.''s9
The relevant part of 53 P.S. § 10908 provides as follows:
§ 10908. Hearings
(5) The parties shall have the right to be represented by counsel and
shall be afforded the opportunity to respond and present evidence
and argument and cross-examine adverse witnesses on all relevant
issues.
The taking of evidence is generally within the province and discretion of
the Zoning Hearing Board. This court is unable to say that the Zoning Hearing
Board abused its discretion. Moreover, the record and hearings below are
86 Id.
87 Id. at 76-80.
sa/d. at 80.
s9 Brief of Silver Spring Township (Intervenor), at 18-19.
31
sufficient for determining the validity of Ordinance 98-3 and therefore the court
declines to offer an additional hearing to Appellants.
CONCLUSION
Despite the numerous assertions of Appellants, this court is unable to
discern any error of law or abuse of discretion on the part of the Silver Spring
Township Zoning Hearing Board. The Board of Supervisors fulfilled the statutory
requirements necessary to enact Ordinance 98-3. As such, this court cannot
second-guess the decision to rezone or inquire into the motives or state of mind of
the Supervisors.
For these reasons, the following order will be entered:
ORDER OF COURT
AND NOW, this 22nd day of June, 2000, upon consideration of Appellants'
land use appeal, and for the reasons stated in the accompanying opinion, the
decision of the Silver Spring Township Zoning Hearing Board is AFFIRMED.
BY THE COURT,
Andrew C Sheely, Esq.
127 S. Market Street
P.O. Box 95
Mechanicsburg, PA 17055
Attorney for Appellants
/s/J. Wesley Oler, Jr,
J. Wesley Oler, Jr. J.
32
Steven J. Weingarten, Esg.
McNees, Wallace & Nurrick
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Attorney for Appellee
Richard C. Snelbaker, Esq.
Snelbaker, Brenneman, and Spare, P.C.
44 West Main Street
P.O. Box 318
Mechanicsburg, PA 17055
Attorney for Intervenor Silver Spring Township
Marlin R. McCaleb, Esq.
219 East Main Street
P.O. Box 230
Mechanicsburg, PA 17055
Attorney for Intervenor Konhaus Farms, Inc.
:rc
33