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HomeMy WebLinkAbout2003-4998, 5267 Civil (2)CARLISLE FIRST CHURCH OF GOD, V. BOROUGH OF CARLISLE ZONING HEARING BOARD V. RUSSELL BOVA and CANDACE BOVA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-4998 CIVIL LAND USE APPEAL CARLISLE FIRST CHURCH OF GOD, V. BOROUGH OF CARLISLE ZONING HEARING BOARD V. RUSSELL BOVA and CANDACE BOVA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-5267 CIVIL IN RE: LAND USE APPEAL BEFORE HESS, GUIDO, JJ. OPINION AND ORDER OF COURT Curremly before us are the consolidated appeals of the Carlisle First Church of God (hereinafter "Appellant") from two separate decisions of the Carlisle Zoning Hearing Board (hereinafter "ZHB"). The first appeal (No. 2003-4998) challenges the decision of the ZHB which required Appellant to file a special exception application in order to expand its current facility. The subsequent appeal (No. 2003-5267) asks us to NO. 2003-4998 CIVIL 2003-5267 CIVIL vacate the conditions imposed by the ZHB in connection with its grant of Appellant's special exception application. Both appeals were consolidated by order of the Honorable Kevin A. Hess dated March 9, 2004. The parties have briefed and argued their respective positions. FACTUAL BACKGROUND Appellant is a place of worship located on a five acre parcel in the Borough of Carlisle. The neighborhood in which it is located is an R-1 Low Density Residential District. At the time the church was constructed in 1973, a place of worship was a use permitted by right in the Borough's R-1 Low Density Residential District. Sometime thereafter the Borough changed its zoning ordinance. Under the amended ordinance, a place of worship is no longer a use permitted by right. It is now only permitted as a special exception use. On May 8, 2003, Appellant filed a Preliminary Final/Land Development Plan in connection with the proposed expansion of its facilities. ~ Appellant applied to the zoning officer for approval of its plan as well as a building permit to construct the proposed addition. Since no special exception had ever been issued, and since the officer felt that certain aspects of Appellants' plan could warrant the imposition of conditions, he determined that an application for special exception would have to be filed with the ZHB. Appellant asked the ZHB to review the zoning officer's determination regarding its need to file a special exception application. The ZHB held a public hearing on the matter on July 9, 2003. After the hearing, it upheld the zoning officer' s determination. Consequently, Appellant filed the timely appeal docketed in this Court at No. 4998 of Appellant plans to increase the size of its existing building from 11,965 square feet to 22,732 square feet. 2 NO. 2003-4998 CIVIL 2003-5267 CIVIL 2003. The only issue to be addressed on that appeal is whether Appellant was required to file an application for a special exception use. On July 17, 2003, Appellant filed an application for special exception as the ZHB had determined it should. A public hearing was held before the ZHB on August 7, 2003. Several residential neighbors appeared to request that the ZHB impose certain conditions in connection with the grant of the special exception use. After the hearing, the ZHB granted Appellant's special exception use subject to various conditions. Appellant has challenged the imposition of those conditions in the timely appeal filed at No. 5267 of 2003. Standard of Review. In reviewing a denial of a special exception we are "limited to determining whether the Supervisors abused their discretion of 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 FisionOuest National Ltd, v. Board of Supervisors of Honey Brook Township, 524 Pa. 107, 569 A.2d 915 (1990).2 The 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. l/alley l/iew 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 2 Some of the cases cited in this opinion involve a conditional use rather than a special exception. However, we note that "a conditional use is nothing more than a special exception which falls within the jurisdiction of the municipal legislative body." Bailey v. Upper Southampton Twp., 690 A.2d 1324, 1326 (Pa. Commwlth 1997) See also Sheetz v. Phoenixville Borough Council, 804 A.2d 113 (Pa. Commwlth. 2002): "The law regarding conditional uses and special exceptions is virtually identical." 804 A.2d at 115 (F.N.5). 3 NO. 2003-4998 CIVIL 2003-5267 CIVIL 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). DISCUSSION There are two issues for us to decide. The first is whether the ZHB made an error of law in holding that Appellant is required to file an application for a special exception in order to expand its building. The second is whether the ZHB abused its discretion or made an error of law in imposing the conditions in connection with its grant of the special exception. Was Appellant Required to File a Special Exception Application? Appellant's use of its premises as a place of worship was a use permitted by right under the ordinance in effect at the time its original facility was constructed. Subsequent amendments to the ordinance changed the use from one that is permitted by right to one that is permitted by special exception. Whether Appellant needs to file an application for a special exception under these facts appears to be a question of first impression. For the reasons hereinafter set forth, we hold that it does. The Commonwealth Court' s decision in Pennridge Development Enterprises, Inc. v. Folovnik, 154 Pa. Commwlth 609, 624 A.2d 674 (1993) provides guidance. In that case an airport which had been constructed in 1966 became a non-conforming use following the passage of a zoning ordinance in 1970. The zoning ordinance was later 4 NO. 2003-4998 CIVIL 2003-5267 CIVIL amended in 1987 such that a portion of the airport fell into a zone where it was classified as a conditional use. Thereafter, the landowners proposed to build hangers on the portion that had been rezoned to permit airports as a conditional use. The supervisors "denied Pennridge's plan on the ground that it failed to file a conditional use application as required by the 1987 zoning ordinance." 624 A.2d at 675. The trial court reversed the action of the supervisors, holding that "the property at issue in the plan remained a non- conforming use regardless of the fact that it was rezoned in 1987 to permit airports as a conditional use." 624 A.2d at 675. The Commonwealth Court reversed the trial court. Generally, a use is nonconforming when, among other things, it does not comply with present zoning regulations. ·.. Here, while Pennridge's airport did not comply with the Township's 1970 zoning ordinance, the portion of Pennridge's airport at issue in the plan is now in compliance with the present zoning provisions of the Township. In our view, it would be illogical to conclude that Pennridge retains a nonconforming use to operate an airport, when Pennridge is permitted to operate an airport on its land under the Township's 1987 zoning ordinance. Hence, we conclude that Pennridge's nonconforming use was converted by the Township's 1987 zoning ordinance into a permitted use .... Therefore, we hold that the trial court erred in determining that Pennridge retained a nonconforming use to operate an airport on the land at issue. Pennridge, 624 A.2d at 676 (emphasis added, citations and footnotes omitted.) As a result the landowner was required to file a conditional use application. The only distinction between Pennridge and the case at bar is that Appellant' s pre-amendment use was permitted by right rather than non-conforming· We view that as a distinction without a difference. Furthermore, as the ZHB noted: NO. 2003-4998 CIVIL 2003-5267 CIVIL Section 255-177.A. clearly states that the purpose of the special exception process is "to allow a careful review of uses that have some potential of conflicts with adjacent uses or areas."... Because of changes in the Zoning Ordinance over time, the Appellant's use, which is now permitted as a special exception, has never been reviewed by the Zoning Hearing Board. Therefore, any change in the Appellant's use of the property, whether that be to a different use or an expansion of the use through an expansion of the existing building requires special exception review by the Zoning Hearing Board pursuant to Section 255-177. To allow the Appellant to expand its building without the requirement for special exception approval, as suggested by the Appellant, is inconsistent with the Borough Ordinance for the reason that it would treat Appellant's use of the property as a use permitted by right rather than a use permitted by special exception. The Borough Ordinance clearly delineates those uses, which are permitted by right, and those uses, which are permitted subject to special exception approval by the Zoning Hearing Board. To ignore the difference in treatment would circumvent the 3 safeguards established in the special exception process. We agree with the reasoning of the ZHB and hold that it did not make an error of law when it determined that Appellant was required to submit a special exception application in connection with its request to expand its existing facilities.4 Did the ZHB err in the imposition of conditions? There are insufficient facts in the record for us to determine whether the ZHB abused its discretion or committed an error of law in the imposition of conditions· We question whether the imposition of the 50' set back amounted to a de facto denial of the 3 See ZHB decision dated July 9, 2003, p. 2. 4 If possible an ordinance must be construed to give effect to all of its provisions· Appeal of Neshaming Auto Villa, Ltd., 25 Pa. Commw. 129, 358 A.2d 433 (1976); 1 Pa. C.S.A. § 1921(a). Construing the statute to require special exception approval for an expansion of the church building is the only possible construction in accord with this principle of law. To hold otherwise would require us to completely ignore not only § 255-177(A) but also § 255-177(D) of the ordinance which dictates the standards each special exception use must meet in order to safeguard the character of the zoning district· 6 NO. 2003-4998 CIVIL 2003-5267 CIVIL proposed expansion. Appellant's council president testified that the project could not move forward if it had to be scaled back. The record is unclear as to whether the proposed addition can be built if Appellant is required to comply with the 50' set back requirement as opposed to the 30' to 35' set backs proposed by it. Further, we would like clarification of the facts found by the ZHB that led to the imposition of the 50' set back requirement. Finally, it appears that the ZHB may have committed an error of law. The briefs filed on behalf of the intervener and ZHB argue that the provisions of the zoning ordinance adopted on June 12, 2003, should have been applied under the "pending ordinance doctrine".5 See Department of Genera/Services v. Board of Supervisors of Cumber/and Township, 795 A.2d 440 (Pa. Commwlth. 2002). In its reply brief, Appellant argues that the doctrine does not apply.6 All parties refer to facts that are not in the record. In order for us to properly address the above issues, it is necessary to remand this matter so that the record may be supplemented. Consequently, we will enter the following order. s While the new ordinance requires a 50' set back, it appears that the ZHB applied the prior ordinance which would have required a setback of only 10 feet. 6 Appellant also argues that the issue was waived since the ZHB's decision to apply the prior ordinance was not appealed. However, we agree with intervenor that he had no reason to appeal since the ZHB granted his request to impose a 50' set back. 7 NO. 2003-4998 CIVIL 2003-5267 CIVIL ORDER OF COURT AND NOW, this day of APRIL, 2004, the action of the Zoning Hearing Board in requiring Appellant to file a special exception application in connection with the expansion of its facilities is AFFIRMED and the appeal filed at No. 2003-4998 (Civil) is DENIED. It is further ordered and directed that the matter filed at No. 2003-5267 is remanded to the Zoning Hearing Board to take additional evidence relating to the following three issues: 1 .) Can the proposed expansion be built in compliance with the conditions imposed by the ZHB? 2.) What is the basis for a 50' set back verses a 30' set back? 3.) Is the "pending ordinance doctrine" applicable? By the Court, James D. Hughes, Esquire Keith O. Brenneman, Esquire Robert L. O'Brien, Esquire :sld /s/Edward E. Guido Edward E. Guido, J.