Loading...
HomeMy WebLinkAbout00-8863 CivilEDWARD E. STATHAS and MARILYN A. STATHAS, Petitioners VS. ZONING HEAR1NG BOARD OF UPPER ALLEN TOWNSHIP, GREGORY E. BLACK and CHRISTY A. BLACK, Respondents IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-8863 CIVIL CIVIL ACTION - LAW IN RE: ZONING APPEAL BEFORE HOFFER, P.J., AND HESS, J. OPINION AND ORDER This matter involves an appeal from the denial of a special exception by the Zoning Hearing Board of Upper Allen Township, Cumberland County, Pennsylvania. On or about December 21, 1999, Gregory A. Black and Christy A. Black (hereinafter the "Blacks") applied for a special exception under the provisions of Chapter 245, Zoning, Section 127, of the Code of the Township of Upper Allen Township to obtain approval for a contractor's office for their landscaping business. The Blacks requested that this special exception be granted for the property owned by them on East Lisburn Road, Upper Allen Township, Mechanicsburg, Pennsylvania. The property at issue is located in an Agricultural Zoning District. On January 13, 2000, a public hearing was held to discuss the Blacks' request for a special exception. On February 10, 2000 the Zoning Hearing Board of Upper Allen Township (hereinafter the "Board") granted the Blacks' special exception. Subsequent to that approval by the Board, on or about December 29, 2001, Edward E. Stathas and Marilyn A. Stathas (hereinafter the "Stathases"), owners of adjoining property to the Blacks' property on East 00-8863 CIVIL Lisburn Road, filed with this Court a Petition for Leave to Appeal the Board's decision nunc pro tunc. They alleged that they had never received the required notice of the previous proceeding. The Stathases' petition was granted by order dated April 9, 2001. On or about May 9, 2001, the Stathases filed an appeal of the February 10, 2000 decision of the Board, along with a Motion to Remand. On August 1, 2001, this Court entered the following Order: AND NOW, this first day of August, 2001, the within matter is remanded to the Upper Allen Township Zoning Hearing Board for the purpose of allowing the appellants the opportunity to present evidence on and to seek reconsideration of the grant of the special exception which is the subject of this case. Cumberland Court of Common Pleas, Motion to Remand Order, August 1,2001. Subsequent to the hearings on remand, the Board reversed itself in the Reconsideration Decision, dated March 13, 2002, denying the Blacks' special exception. The Blacks appealed the Reconsideration Decision on April 12, 2002, and on April 17, 2002, the Stathases intervened. On August 20, 2002, the Honorable Edward E. Guido, by Interim Order, remanded the matter to the Board for a succinct statement of the law and facts upon which the Board denied the Blacks' special exception. The Board filed its Supplemental Opinion on October 22, 2002. The Blacks then filed a Supplemental Land Use Appeal in response to the facts and findings presented to the Court as the basis for the Board's Supplemental Decision. This appeal is now before the Court. The property at issue for this special exception is approximately 5 acres of land located on East Lisburn Road, Mechanicsburg, Upper Allen Township. The property is located in an 2 00-8863 CIVIL Agricultural District, and exceeds the minimum lot size permitted in the District. The surrounding area houses three separate landscaping companies, not including the proposed business of the Blacks. Such other businesses are Gutshall's Landscaping, H&N Nurseries and Diller Landscaping. All three of the above landscaping businesses are located within the immediate proximity of the Blacks' proposed business. As in the case sub judice, where the trial court does not take any additional evidence, the court's review is limited to determining whether the zoning hearing board or board of supervisors committed a manifest abuse of discretion or error of law. Equilibrium Equities, Inc. v. Board of Supervisors of Middlesex Township, 696 A.2d 260 (Pa. Cmwlth. 1997). A conclusion that the zoning hearing board abused its discretion may be reached only if the zoning hearing board's findings are not supported by substantial evidence. Baker v. Chartiers Township Zoning Hearing Board, 677 A.2d 1274 (Pa. Commw. 1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Bailey v. Upper Southampton Township, 690 A.2d 1324 (Pa. Commw. 1997). When determining whether a zoning hearing board abused its discretion, it is also important to note the right of a person to enjoy one's own land. "A use permitted under the Ordinance must be afforded its broadest interpretation so that a landowner may have the benefit of the least restrictive use and enjoyment of his land." Equilibrium Equities, Inc., at 262. "It is well established that a zoning board's interpretation of its zoning ordinance is to be given great weight." In re Appeal of Brickstone Realty Corp., 789 A.2d 333,339. The Court in Brickstone further stated that the "Board, as fact finder, is the ultimate judge of credibility and resolves all conflicts of evidence." Id. 3 00-8863 CIVIL The property at issue is within the Agricultural District of Upper Allen Township. It must therefore be determined whether the Blacks' proposed landscaping office would be a permitted special exception use in an Agricultural District in Upper Allen Township. Chapter 245, Zoning, Section 19 states: A use permitted by special exception shall be a use listed under the various zoning districts or otherwise identified in this chapter as a special exception, provided that the Zoning Hearing Board authorizes the issuance of a zoning permit for such use by the Zoning Officer, subject to the specific requirements contained in the Table of Use Regulations and in Section 245-127, as well as all other applicable requirements of this chapter and such further restrictions that said Board may establish. Chapter 245, Zoning, Section 19. The Blacks want to build a landscaping office in an Agricultural District. The Blacks assert that such an office falls under the definition of a contractor's office. The Stathases apparently have not disputed this assertion. A Contractor's Office and Storage is defined as "a building and lot used for the office operation and storage of materials, equipment, machinery and tools commonly associated with the various construction trades." Chapter 245, Zoning, Section 13. It appears that a landscaping office does fall under the definition of a Contractor's Office and Storage as defined in Chapter 245, Zoning, Section 13 of the Code from the Township of Upper Allen. Further, from the Table of Use Regulations, Schedule B, Agricultural District, it is apparent that a Contractor's Office and Storage is considered a use permitted by special exception in an Agricultural District. Chapter 245, Zoning, Table of Use Regulations, Schedule 4 00-8863 CIVIL B. Therefore, the Blacks' proposed landscaping office would be covered under a special exception to the Upper Allen Township Agricultural District. In order to be granted a special exception, the applicant must satisfy certain requirements under the Code of Upper Allen Township. Such requirements are set forth in Section 245-121 of the Code of Upper Allen Township which states that "for any use permitted by special exception, a special exception must be authorized by the Zoning Hearing Board." Chapter 245, Zoning, Section 121. In determining whether there was an error of law or the Board abused its discretion in denying the Blacks' request for special exception, we are guided by Section 245-127 of the Code of Upper Allen Township. This section provides in pertinent part: A(1) The Board's decision to grant a permit for special exception use shall be made only after public notice and hearing. Such permit shall apply specifically to the application and plans submitted and presented at said public hearing. Any subsequent amendments or additions shall be subject to review and public hearing by the Zoning Hearing Board as a special exception use. The Zoning Hearing Board shall thereafter direct the Zoning Officer to issue such permit if, in its judgment, the use meets all general and specific standards contained in this chapter for the grant of the special exception sought. (2) General Standards. A special exception shall not be granted if: (a) The requested use would adversely affect the public health, safety, morals or general welfare of the residents of Upper Allen Township; or (b) The requested use would not be in harmony with the spirit, intent or purpose of this chapter and other applicable township ordinances. (3) Specific standards. In addition to the general standards identified above, a special exception use 00-8863 CIVIL Chapter 245, Zoning, shall not be permitted unless it meets the following additional specific criteria: (a) The specific use fits within the use type included in the special exception and meets any and all specific standards for the special exception identified in the Table of Use Regulations. (b) All procedural requirements have been satisfied by the applicant for the special exception. (c) Favorable action on the special exception would not: [1] Substantially increase traffic congestion in the streets. [2] Increase the danger of fire or panic or otherwise endanger the public safety. [3] Overcrowd land or create an undue concentration of population. [4] Impair an adequate supply of light or air to adjacent property. [5] Adversely affect transportation or unduly burden or disrupt the orderly expansion of water, sewer, school, park or other public facilities. [6] Adversely affect the Comprehensive Plan of the township or the subject zoning district as described in the Table of Use Regulations. [7] Endanger the safety of persons or property by improper location or design of facilities for ingress or egress. [8] Adversely affect the property values and/or the character of the surrounding neighborhood [9] Conflict with sound standards of subdivision practice. (d) The proposed use will be in compliance with all other applicable provisions of this chapter. The applicant for the special exception shall have the duty to produce evidence and shall bear the burden of persuasion to demonstrate satisfaction of the specific criteria identified above and/or any additional criteria identified in the Table of Use Regulations for the particular district(s). Section 127(A). 6 00-8863 CIVIL Vital to the disposition of any challenge to a proposed special exception is the proper assignment of the burden of proof. Section 245-127(B) states: If an objection is made to the granting of such special exception use permit on the grounds of Subsection A(3)(a) or (b) above, it shall be the burden of the objecting party or parties to produce evidence to show that the granting of such special exception would adversely affect the public health, safety, morals or general welfare of the residents of Upper Allen Township or that such requested use would not be in harmony with the spirit, intent or purpose of this chapter or other applicable township ordinances, as the case may be. In the event that such evidence is produced by the objecting party or parties with respect to the grounds enumerated in A(1) above, the burden of persuasion shall then be upon the applicant for special exception use permit to establish that the special exception use requested will not adversely affect the public health, safety, morals or general welfare of the residents of Upper Allen Township. The burden of persuasion with regard to the grounds for denial enumerated in A(2) above remains with the objecting party. Chapter 245, Zoning, Section 127(B). "A special exception is a conditionally permitted use, allowed by the legislature if specifically listed standards are met." In re Appeal of Brickstone Realty Corp., 789 A.2d 333, 340. A special exception is not an "exception" to the zoning ordinance, but a use permitted conditionally. Id. The application for such a special exception is to be granted or denied by the zoning hearing board pursuant to express standards and criteria. Id. The Court in Brickstone went on to state: Where a particular use is permitted in a zone by special exception, it is presumed that the local legislature has already considered that such use 7 00-8863 CIVIL satisfies local concerns for the general health, safety, and welfare and that such use comports with the intent of the zoning ordinance. Thus, once the applicant for a special exception shows compliance with the specific requirements of the ordinance, it is presumed that the use is consistent with the promotion of health, safety, and general welfare. The burden then shifts to objectors to prove that the proposed use is not, in fact, consistent with the promotion of health, safety, and general welfare. Id. at 34O. The Court in Greaton Properties, Inc. v. Lower Merion Township, 796 A.2d 1038, addressed the issue of the burden of proof in a circumstance that is similar to the case sub judice, and stated the following: The applicant for the proposed use has both the duty to present evidence and the burden of persuading the board that the proposed use satisfies the objective requirements of the ordinance for the grant of a special exception. Once the applicant meets these burdens, a presumption arises that the use is consistent with the health, safety and general welfare of the community. The burden then normally shifts to the objectors of the application to present evidence and persuade the Board that the proposed use will have a generally detrimental effect. Where, as here, however, the ordinance specifically places the burden on the applicant to show that the proposed use will not have a detrimental effect, the applicant only retains the burden of persuasion. Objectors still retain the initial presentation burden with respect to the general matter of the detriment to health safety, and general welfare. The evidence presented by objectors must show a high probability that the use will generate adverse impacts not normally generated by this type of use and that these impacts will pose a substantial threat to the health and safety of the community. 00-8863 CIVIL Id. at 1045-1046. In the present case, the Blacks have satisfied the objective requirements of the ordinance for the grant of special exception. The Blacks' landscaping office is within the definition of a Contractor's Office and Storage, and therefore permitted as a special exception in the Upper Allen Township Agricultural District by the local legislature. There is a presumption that the Blacks' landscaping office will be consistent with the health, safety and general welfare of Upper Allen Township because such a use is permitted by law. With that presumption, the burden then shifts to the Stathases to present evidence and persuade the Board that the proposed use will have a generally detrimental effect. Simply put, the Stathases have not presented sufficient evidence to prove that the proposed use will harm the health, safety and general welfare of Upper Allen Township. The Stathases have merely presented concerns of the residents of the area, and no specific evidence of any detrimental effect. The Stathases have provided testimony of an Appraiser, Mr. Woof, who suggests the possibility of an adverse effect on the value of surrounding properties. However, such testimony is not enough alone to defeat a request for a special exception. The Stathases must present evidence that shows a high probability that the use will generate adverse impacts not normally generated by this type of use. No such evidence has been presented. The Court in Brickstone discussed the issue of undue congestion of traffic which is also an issue in the present case. In Brickstone, the Court recognized that an anticipated increase in traffic for a proposed use would not on its own defeat a special exception request. Brickstone at 341. The objectors must show that there is a high degree of probability that the anticipated traffic increase would pose a substantial threat to the community. Id. Such an increase must 9 00-8863 CIVIL show that the substantial increase would, by a high degree of probability, pose a substantial threat to the health and safety of the community in order to defeat a special exception. Id. In Brickstone, the Court reasoned that because a use is permitted by special exception, the local legislature determined that the traffic generated by such a use would not be detrimental to the health and safety of the community. Id. The Court in Brickstone further reasoned that because of the presumption that there is no threat to the health and safety of the community, the objectors must produce more than lay expressions of concern for increased traffic. Id. "Proof of abnormal and hazardous traffic effects would usually require evidence in the form of traffic counts, accident records, and expert evidence." Id. In this case, there have been no traffic counts, accident reports or expert evidence regarding an increase in traffic as a result of the Blacks' landscaping business. There has only been testimony of lay expressions of concern for increased traffic. In permitting a contractor's office as a special exception, the local legislature determined that the traffic generated by such a use, in and of itself, would not be detrimental to the health and safety of the community. The Board, in the Conclusion of Law of the Reconsideration Decision, dated March 13, 2002, and in the Supplemental Opinion, dated August 20, 2002, stated that the Blacks did not meet the "general" standards for granting a special exception. Such a finding is an error of law because it is not the applicant's burden to prove the general standards. As previously noted, in requesting a special exception, the burden is on the applicant to show that the proposed use complies with the specific requirements set forth in the ordinance regarding the granting of a special exception. Subsequent to the applicant meeting such specific standards, it is the 10 00-8863 CIVIL objector's burden to provide evidence concerning the requirements of the general standards of a special exception. Any attempt to place this latter burden on the applicant is an error of law. ORDER AND NOW, this day of March, 2003, the decision of the Zoning Hearing Board of Upper Allen Township, dated March 13, 2002, denying the request of Gregory E. Black and Christy A. Black for a special exception is REVERSED and it is ordered and directed that the special exception be granted. BY THE COURT, Keith O. Brenneman, Esquire For the Petitioners Dusan Bratic, Esquire For Respondent Zoning Hearing Board Dennis J. Shatto, Esquire For Respondents Black :rlm Kevin A. Hess, J. 11 EDWARD E. STATHAS and MARILYN A. STATHAS, Petitioners VS. ZONING HEAR1NG BOARD OF UPPER ALLEN TOWNSHIP, GREGORY E. BLACK and CHRISTY A. BLACK, Respondents IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-8863 CIVIL CIVIL ACTION - LAW IN RE: ZONING APPEAL BEFORE HOFFER. P.J. AND HESS, J. ORDER AND NOW, this day of March, 2003, the decision of the Zoning Hearing Board of Upper Allen Township, dated March 13, 2002, denying the request of Gregory E. Black and Christy A. Black for a special exception is REVERSED and it is ordered and directed that the special exception be granted. BY THE COURT, Keith O. Brenneman, Esquire For the Petitioners Dusan Bratic, Esquire For Respondem Zoning Hearing Board Dennis J. Shatto, Esquire For Respondents Black :tim Kevin A. Hess, J.