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HomeMy WebLinkAbout02-3093 CivilFREDERICK C. FRATTAROLI V. TOWNSHIP OF SILVER SPRING And THE BOARD OF TOWNSHIP SUPERVISORS OF THE TOWNSHIP OF SILVER SPRING IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-3093 CIVIL TERM IN RE: APPEAL FROM DECISION OF BOARD OF TOWNSHIP SUPERVISORS DENYING APPELLANT'S CONDITIONAL USE APPLICATION BEFORE HOFFER, P.J., OLER, GUIDO, JJ. OPINION AND ORDER OF COURT Before us is an appeal from the decision of the Board of Supervisors of Silver Spring Township denying the conditional use application of Frederick C. Frattaroli (hereafter "appellant"). Appellant raises two issues for our consideration. He first argues that no conditional use permit is required under the terms of the ordinance. In the alternative, he contends that since he met all of the requirements of the ordinance, the township erred in failing to grant his conditional use application. We will address each issue in the opinion that follows. Standard of Review. In reviewing a denial of a conditional use application, we are "limited to determining whether the Supervisors abused their discretion or an error of law has been committed." Marshall Township Board of Supervisors v. Marshall Township Zoning Hearing Board, 717 A.2d 1, 3 (Pa. Commwlth 1998)citing Fisionquest National Ltd. v. Board of Supervisors of Honey Brook Township, 524 Pa. 107, 569 A.2d 915 (1990). The NO. 2002-3093 CIVIL board abuses its discretion when it makes findings not supported by substantial evidence, which is such evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). "(A) court may not substitute its judgment for that of the board; and assuming the record demonstrates substantial evidence, the Court is bound by the board's findings which result from resolutions of credibility and the verifying of evidence rather than a capricious disregard for the evidence." Zoning Hearing Board of Sodsbury Township v. Board of Supervisors of Sodsbury Township, 804 A.2d 1274, 1278 (Pa. Commonwealth 2002). FACTUAL BACKGROUND Appellant owns two lots located side by side along the Carlisle Pike in Silver Spring Township, Cumberland County, Pennsylvania. Both parcels are zoned "highway commercial" (C-3). Neither abuts an "Interchange Zone" (1NT). The parcel which is the subject of this appeal is .92 acres and is undeveloped. The other parcel has a lube center and car wash located thereon. It is leased to a corporation doing business as Triangle Car Wash. It has two existing driveways, each providing access to the Carlisle Pike. One driveway is located along the border with the lot in question. Appellant wishes to operate a used car business on the undeveloped parcel. "Automobile sales" is a permitted use under § 212.2(6) of the Silver Spring Township Zoning ordinance. Appellant filed a conditional use application to gain access to the Carlisle Pike pursuant to Section 308.2 of the Zoning Ordinance, which provides in relevant part as follows: NO. 2002-3093 CIVIL 308.2. Requirements Imposed Upon Properties Frontin~ the Carlisle Pike or New Willow Mill Road Adioining Land Within the (1NT) Zone: 1. For properties fronting the Carlisle Pike or New Willow Mill Road adjoining land within the (tNT) Zone on the effective date of this Ordinance, direct vehicular access (via driveways, access drives, or streets) to the Carlisle Pike or New Willow Mill adjoining land within the (tNT) Zone shall be permitted (1) by right at Township-identified "vehicular control points," as defined herein, or (2) by conditional use, only upon finding that all of the following are true (E.) The site cannot share vehicular access with an adjoining use that already has existing vehicular access to the Carlisle Pike or New Willow Mill Road adjoining land within the (tNT) Zone. In alleging such claim, the applicant must describe those actions taken to attempt such shared access, and the specific reasons that such access is not possible or practical. Further, the applicant must also suggest what measure could be taken by the Township to facilitate such shared access; A public hearing on the conditional use application was held before the township board of supervisors. The board denied the application on the sole ground that "the Applicant has not met his burden of proof with regard to Section 3 0 8.2(1)(E)."l The board specifically found that: 1. The Subject Property does not contain a Township- identified vehicular control point. 2. The Applicant has failed to demonstrate that the Subject Property cannot share vehicular access with the adjoining property, which has two (2) existing direct access points onto the Carlisle Pike. 3. The Applicant has failed to state the specific reasons that shared access with the adjoining property is not possible or practical.2 "Decision by Board of Township Supervisors" p. 6. "Decision by Board of Township Supervisors" p. 5. NO. 2002-3093 CIVIL Applicability of Section 308.2.1. Appellant first contends that Section 308.2.1 does not apply to the lot in question. He bases his contention upon the following phrase which establishes the applicability of the section: For properties fronting along the Carlisle Pike or New Willow Mill Road adjoining land within the (INT) zone... (emphasis added). He would read the phrase "adjoining land within the (1NT) Zone" as applying to properties along both the Carlisle Pike and New Willow Mill Road. Since the lot in question does not adjoin land within the (1NT) Zone, he argues that no conditional use is needed for him to gain access to the Carlisle Pike. We disagree with his reading of the statute. We are satisfied that the phrase "adjoining land within the (1NT) Zone" clearly applies only to properties fronting on New Willow Mill Road and does not apply to properties located along the Carlisle Pike. Assuming, arguendo that the language was subject to a different interpretation, a careful reading of the entire ordinance satisfies us that our interpretation is correct. We start with the proposition that the "object of all interpretation and construction of statutes is to ascertain and effectuate (the) intention of (the) General Assembly". Bowser v. Blom, 569 Pa. 609, 807 A.2d 830, 835 (2002).3 In this instance, it is obvious that the board intended the phrase to apply only to property on New Willow Mill Road. Section 224 of the ordinance establishes the Interchange Zone (1NT). The purpose of the (1NT) Zone is set forth in Section 224.1 as follows: Purpose - The areas identified for this Zone have superior regional vehicular access adjoining the interchange of PA Route 114 and U.S. 3 Principles and roles of statutory construction apply equally to the interpretation of statutes and to local laws. Hamilton v. Unionville-Chadds Ford School District, 552 Pa. 245, 249, 714 A.2d 1012, 1014 (1998). NO. 2002-3093 CIVIL Route 81. This access affords the opportunity for a wide range of intensive land uses with minimized traffic impact. The New Willow Mill Road is Pa. Route 114 and it intersects with U.S. Route 81 in Silver Spring Township. The Carlisle Pike does not intersect with U.S. Route 81 anywhere in Silver Spring Township. In other words, there are no areas along the Carlisle Pike which "have superior regional vehicular access adjoining the interchange of Pa. Route 114 and U.S. Route 81." Therefore, by its terms, the (1NT) can only be located along New Willow Mill Road. Since no land along the Carlisle Pike can be "adjoining land within the (1NT) Zone," a conditional use permit is required to gain access to the Carlisle Pike from any property fronting thereon.4 Requirements of Ordinance. Appellant next contends that the board abused its discretion in finding that he did not meet his burden of showing that the subject property could not share access with the adjoining property.5 He points to the uncontradicted testimony that a shared access is not only impossible but impractical as well. He argues that it is impossible because the mortgage holder on the adjoining property would not consent to the shared access. He contends that it is impractical because of the volume of traffic at the car wash on busy days. We are satisfied that the board did not abuse its discretion in finding that appellant failed to demonstrate the impossibility of shared access. Stated another way, the record 4 We were forced to undertake this exercise in logic because the record does not contain a zoning map. This omission can be explained by the fact that appellant never raised the applicability of Section 308.2(1) before the board. s Failure to show compliance with all requirements of the ordinance is sufficient grounds to justify the denial of a conditional use permit. See Sheetz v. Phoenixville Borough Council, 804 A.2d 113 (Pa. Commonwealth 2002). NO. 2002-3093 CIVIL contained sufficient evidence to allow a reasonable mind to conclude that access could be shared with the adjoining lot which was also owned by appellant. While the adjoining lot is leased to a corporation, appellant signed the lease as both the lessor and as president of the corporate lessee. Of interest is the fact that appellant presented no evidence that the corporate lessee objected to sharing access with the lot in question. He raised only the mortgagee's objection. The purported objection was based upon the shared access being a "safety hazard".6 However, the mortgagee's objection was introduced through the hearsay testimony of the appellant himself and was based upon a "safety hazard" that was more imaginary then real. The board could certainly choose to disbelieve and/or disregard that testimony without being capricious. The safety hazard involved alleged traffic congestion and confusion that would supposedly be caused by the shared access. Appellant testified that on busy days the car wash has a substantial back log, with cars lining up on both driveways. Sometimes this leads to a back-up onto the Carlisle Pike. However, those busy days are limited to the "few days with salt on the road.''? Furthermore, the traffic to and from the used car lot would be minimal, no more than "ten trips a day". 8 The following exchange between a board member and appellant illustrates the point: MR. LATTA: The safety issue, I'm not sure ! understand completely why coming in there - - if you could go through why that is a safety issue. MR. FRATTAROLI: Well, what happens here is the safety issue becomes - - we're proposing this entrance. And there is talk that we could do this, because we are the property owners of both of these 6 Transcript of Proceedings, pp. 10, 12. The mortgage on the adjacent lot involved an assigmnent of leases and requires the mortgagee's approval for the conveyance of any interest in the mortgaged premises. See Transcript of Proceedings, Exhibit B. 7 Transcript of proceedings, p. 8. 8 Transcript of proceedings, p. 12. NO. 2002-3093 CIVIL properties. And this is Triangle Car Wash. And this is going to be leased to JPD, which is another corporation. But barring that, when this place is busy, if you are coming to access this lot this way - - first of all, it' you are busy, this person that would want to come in and look at a car isn't coming. They are not going to come in. And, number two, it' they would get in line and you get cars out into the street, you have a real traffic problem with the traffic we have up and down that street. So we try and keep this as uncongested as possible. MR. LATTA: How often does it get congested now? MR. FRATTAROLI: Not often enough, but I can't say. We get those - - it is an all at once or not at all type of situation.9 (emphasis added). In view of the above, a reasonable mind could certainly conclude that access could be shared and would be practical. Therefore, the board did not abuse its discretion in finding that appellant did not comply with Section 308.2. i(E) of the zoning ordinance. ORDER OF COURT AND NOW, this day of MARCH, 2003, for the reasons set forth in the accompanying opinion, the action of the Board of Supervisors of Silver Spring Township denying the appellant's conditional use application is AFFIRMED and the appeal is DISMISSED. By the Court, Harry W. Fenton, Esquire Steven Stine, Esquire :sld /s/Edward E. Guido Edward E. Guido, J. 9 Transcript of proceedings, p. 14. NO. 2002-3093 CIVIL