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HomeMy WebLinkAbout2005-4362 and 05-4513 Civil SMART GROWTH FOR SILVER : IN THE COURT OF COMMON PLEAS OF SPRING AND STEVEN LONG, : CUMBERLAND COUNTY, PENNSYLVANIA BARRY WRIGHT, HARRIET MOLINAR, : SHIRLEY GORSUCH, CONNIE HECKENBRUNER AND SHERRY BOWIE, APPELLANTS V. BOARD OF SUPERVISORS OF SILVER: SPRING TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA, APPELLEE V. SILVER SPRING SQUARE II, LLC, INTERVENOR ADELE R. RITTER, APPELLANT V. BOARD OF SUPERVISORS OF SILVER: SPRING TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA, APPELLEE V. SILVER SPRING SQUARE II, LLC, INTERVENOR 05-4362 CIVIL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 05-4513 CIVIL TERM IN RE: MOTION OF APPELLANTS FOR REMAND OF CONDITIONAL USE APPROVAL TO THE BOARD OF SUPERVISORS OF 05-4362 CIVIL TERM 05-4513 CIVIL TERM SILVER SPRING TOWNSHIP TO TAKE ADDITIONAL EVIDENCE BEFORE BAYLEY. J. AND GUIDO. J. OPINION AND ORDER OF COURT Bayley, J., October 26, 2005:-- Intervenor, Silver Spring Square II, LLC, is the equitable owner of approximately sixty-four acres along the Carlisle Pike (U.S. Route 11), mostly in Silver Spring Township and partially in Hampden Township, Cumberland County. The land contains the Silver Spring Speedway, Silver Spring Flea Market, a mobile home park, some residences, and several businesses. It is located in a Highway Commercial (C-3), zoning district under the Silver Spring Township Zoning Ordinance. On May 18, 2005, Silver Spring Square, II, filed an application for conditional use approval to develop the land into a shopping center. On June 2, 2005, a public meeting was conducted by the Silver Spring Township Planning Commission, which reviewed the application and recommended it for approval with conditions. On June 7, 2005, the Board of Supervisors of Silver Spring Township provided required notice of a public hearing on the application for June 22,2005. A hearing was conducted on June 22, 2005, and concluded in approximately two hours. Adele R. Ritter, who owns property and lives across Route 11 from the proposed shopping center, who was not represented by counsel, spoke in opposition to the application. An attorney entered an appearance on behalf of several tenants of the mobile home park that is on the -2- 05-4362 CIVIL TERM 05-4513 CIVIL TERM property. That attorney cross-examined witnesses of the applicant, presented testimony of witnesses who objected to the grant of the application, and presented argument in opposition to the application. The attorney asked the Board to schedule a second hearing on the application so that an expert could present testimony concerning traffic conditions that will be generated by the shopping center.1 The attorney for Silver Spring Square, II objected to a continuation of the hearing. The Board closed the record. On July 27, 2005, at a regular public meeting of the Board, another attorney representing objectors further requested that the Board open the record for the presentation of the testimony of a traffic engineer. The Board denied the request and granted the application for a conditional use approval with conditions. On August 4, 2005, the Board issued a written decision in support of that approval. On August 24, 2005, the objectors and Adele Ritter filed Notices of Land Use Appeal. They raise one issue: whether the case should be remanded to the Board of Supervisors so they can present expert testimony in opposition to the application. The issue was briefed and argued on October 20, 2005. Appellants seek a remand to take additional evidence pursuant to 53 P.S. Section 11 005-A of the Pennsylvania Municipalities Planning Code (MPC), claiming 1 The traffic study presented by the applicants, which was filed with the application on May 18, 2005, is voluminous. Testimony concerning the study was presented on behalf of the applicants by a registered professional engineer. -3- 05-4362 CIVIL TERM 05-4513 CIVIL TERM that the appeal requires the presentation of the testimony of their traffic expert. Expert testimony in opposition to the grant of a conditional use is hardly necessary to resolve -4- 05-4362 CIVIL TERM 05-4513 CIVIL TERM the application. Alternatively, appellants maintain that the case should be remanded because they were denied a right to present the testimony of an expert. The parties agree that the applicable statute is set forth in the MPC at 53 P.S. 10908(1.2). It provides: The first hearing before the board or hearing officer shall be commenced within 60 days from the date of receipt of the applicant's application, unless the applicant has agreed in writing to an extension of time. Each subsequent hearing before the board or hearing officer shall be held within 45 days of the prior hearing, unless otherwise agreed to by the applicant in writing or on the record. An applicant shall complete the presentation of his case-in-chief within 100 days of the first hearing. Upon the request of the applicant, the board or hearing officer shall assure that the applicant receives at least seven hours of hearings within the 100 days, including the first hearing. Persons opposed to the application shall complete the presentation of their opposition to the application within 100 days of the first hearing held after the completion of the applicant's case-in-chief. An applicant may, upon request, be granted additional hearings to complete his case-in-chief provided the persons opposed to the application are granted an equal number of additional hearings. Persons opposed to the application may, upon the written consent or consent on the record by the applicant and municipality, be granted additional hearings to complete their opposition to the application provided the applicant is granted an equal number of additional hearings for rebuttal. (Emphasis added.) The scheme of this Section is: 1. The first hearing must be commenced within 60 days of filing. 2. Each subsequent hearing must be held within 45 days of the prior hearing. 3. The applicant is required to complete its case-in-chief within 100 days of the first hearing. -5- 05-4362 CIVIL TERM 05-4513 CIVIL TERM 4. The applicant is entitled to 7 hours of hearing time within the 100 days. 5. Objectors are required to complete their case within 100 days after the completion of the applicant's case. 6. The applicant may have additional hearings provided the objectors receive the same amount of hearings. 7. Objectors may receive additional hearings upon written consent of the applicant and municipality, provided the applicant receives the same amount of time for rebuttal. Intervenor argues that it is only when an applicant does not finish its case during an initial hearing, or when objectors start and, due to time constraints, are prevented from finishing their case, that a subsequent hearing is necessary. It cites Boran Oil Company v. City of Franklin, 2 Pa. Commw. 152 (1971), as controlling. In Boran, a zoning hearing board conducted a full-day hearing on an application for a building permit to construct a gasoline station. The applicant presented one witness, while objectors presented numerous witnesses. The Board denied the permit. On appeal, the applicant sought to present additional testimony to rebut the objector's evidence, claiming that proper consideration of the appeal required such evidence. Noting that the applicant was required to demonstrate that the record was incomplete either because it was refused an opportunity to be fully heard, or that relevant testimony offered by it was excluded, the Commonwealth Court, affirming the trial court's denial of -6- 05-4362 CIVIL TERM 05-4513 CIVIL TERM a remand, stated with respect to the applicant: That its adversary came prepared for trial before the Board furnished no basis for granting appellant a second hearing. Appellant's admitted failure to anticipate that its opponent would adduce evidence on an issue the appellant raised is no exceptional circumstance. Noting that the traffic study filed by applicant on May 18, 2005, was voluminous, objectors argue in their brief: An opportunity to be heard without an adequate opportunity to prepare a presentation is tantamount to a denial of any opportunity to be heard. . . . Appellants sought to present expert testimony and were not given an adequate opportunity to have an expert review the same information that took [applicant] over a year to generate, when they had merely two weeks of public notice. In order to have an adequate record, Appellee should have granted Appellants an opportunity to present testimony at an additional hearing. Referring to Section 10908(1.2) of the MPC, objectors argue: Persons opposed to the application shall complete the presentation of their opposition to the application within 100 days of the first hearing held after the completion of the applicant's case-in-chief. If the General Assembly had intended to limit the scope of the presentation permitted by opponents to an application, the statute would have significantly limited the time period for their case-in-chief. Applicants asked that this Court rule in accordance with the plain language of the statute which provides 100 days from the completion of the applicant's case-in-chief to present their opposition. We are not unsympathetic with objectors' position. Given the size of applicants' project, its effect on appellants' properties, the voluminous traffic study and the little time that objectors had for review and to prepare a response, it would have been appropriate if the Board of Supervisors had scheduled a separate hearing for objectors -7- 05-4362 CIVIL TERM 05-4513 CIVIL TERM to present their expert testimony. Notwithstanding, Section 10908(1.2) does not require an additional hearing for presentation of evidence by an objector who was not ready to proceed at a scheduled hearing. The record is not incomplete as objectors were not refused an opportunity to be fully heard, nor was relevant testimony offered and excluded. When objectors were not ready to proceed when granted an opportunity to do so, the Board closed the record and it subsequently granted the application of intervenor for conditional use approval of the shopping center. Being bound by Boran Oil Company, there is no legal basis for a remand to the Board to receive additional evidence from the objectors. ORDER OF COURT AND NOW, this day of October, 2005, at 05-4362 and 05-4513, the motion of appellants for a remand to the Board of Supervisors of Silver Spring Township to take additional evidence, IS DENIED. The land use appeals, ARE DISMISSED. By the Court, Edgar B. Bayley, J. Nathan C. Wolf, Esquire Smart Growth For Silver Spring and Steven Long Barry Wright, Harriet Molinar, Shirley Gorsuch, Connie Heckenbruner, and Sherry Bowie Steven A. Stine, Esquire For Board of Supervisors of Silver Spring Township -8- 05-4362 CIVIL TERM 05-4513 CIVIL TERM Ronald M. Lucas, Esquire P.O. Box 11670 Harrisburg, PA 17108 For Silver Spring Square, II, LLC -9- 05-4362 CIVIL TERM 05-4513 CIVIL TERM Byron L. McMasters, Esquire 1013 Mumma Road Suite 100 Lemoyne, PA 17041 For Adele K. Ritter :sal -10-