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HomeMy WebLinkAbout01-4514 CIVIL STANLEY W. HOYNITSKI and TODD W. HOYNITSKI, Petitioners- Appellants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-4514 CIVIL vs. BOARD OF SUPERVISORS, SILVER SPRING TOWNSHIP, Respondent-Appellee CIVIL ACTION - LAW IN RE: LAND USE APPEAL BEFORE BAYLEY, HESS AND GUIDO, 1.1. OPINION AND ORDER Before the court is an appeal with respect to certain unfavorable action by the Board of Supervisors of Silver Spring Township regarding a land development plan of the petitioners. The appeal involved action with regard to the township denying certain requested waivers of storm water management requirements, the township's attempt to require a revised traffic study, and a prohibition against phased construction. At the oral argument of this matter, counsel indicated that the matters of a traffic study and phased construction are no longer significant. The crux of this appeal, therefore, has to do with the requested waivers of storm water management requirements. The brief of the respondent/appellee aptly summarizes the background of this case as follows. On or about April 12, 2000, Stanley W. Hoynitski ("Hoynitski") applied for a conditional use to operate a dealers-only auto auction on a parcel ofland located on the north side of Texaco Road in the 1-1, Light Industrial zoning district in Silver Spring Township (the "Township"). After hearings, the Township Board of Supervisors (the "Board") issued a decision on July 29, 2000, approving the conditional use subject to certain conditions. Hoynitski appealed the 01-4514 CIVIL Board's decision to the Cumberland County Court of Common Pleas. Prior to briefing and oral argument on the appeal, Hoynitski and the Township entered into a Settlement Agreement resolving the dispute between the parties. The Settlement Agreement revised the conditions as originally set forth in the Board's decision. Thereafter, in January 2001, Hoynitski submitted a Preliminary Land Development Plan for the Harrisburg Auto Auction (the "Plan"). Shortly after submission of the Plan, Hoynitski in February 2001, constructed an access driveway into the subject property without obtaining the required Storm Water Management Permit, pursuant to the Township Storm Water Management Ordinance. A Notice of Violation was issued to Hoynitski by the Township Zoning Officer advising him of the violation of the Storm Water Management Ordinance. Hoynitski did not appeal the Notice of Violation and the Zoning Officer issued a citation to Hoynitski. In addition, the Township Zoning Officer issued a determination that in removing part of a forested area and constructing the access driveway in a location which was not in accordance with the plan submitted with the conditional use application, Hoynitski would be required to apply for a new conditional use reflecting a change in the access to the subject property. Hoynitski appealed the determination to the Township Zoning Hearing Board, which found that the driveway constructed by Hoynitski was temporary and ifHoynitski removed the driveway and replaced the trees that were removed within thirty (30) days of the date of its decision, the Zoning Officer's determination would be overruled. If, however, Hoynitski did not complete the required work within thirty (30) days, the Zoning Officer's decision would be upheld and Hoynitski would be required to submit a new conditional use application. 2 01-4514 CIVIL After the decision of the Zoning Hearing Board and prior to a hearing before the district justice on the citation, the parties entered into a Settlement Agreement whereby Hoynitski agreed to pay a fine for the violation of the Storm Water Management Ordinance and remove the access driveway and re-forest the area where the access driveway had been located. During the pendency of the Zoning Hearing Board appeal and the adjudication of the violation of the Storm Water Management Ordinance, Hoynitski filed a revised Plan with the Township, which included eight (8) requests for waivers from the Subdivision and Land Development Ordinance. After consideration of the Plan and waiver requests, the Board on June 28, 2001, issued a decision approving the Plan subject to certain conditions, and approved five (5) of the eight (8) waiver requests, but denied the following waiver requests: Storm water basins located in known sinkhole prone areas are required to be lined to prevent infiltration into ground (S.W.M.O. 402.06); a low flow channel must be paved if basin bottom is less than 2% slope (402.06); and minimum pipe size permitted is 15" (402.13). On July 27,2001, Hoyniski filed an appeal of the Township's conditional approval of the Plan. Section 503(8) of the MPC, 53 P.S. 910503(8) authorizes municipalities to adopt as a part of the subdivision and land development ordinances: Provisions for administering waivers or modifications to the minimum standards of the ordinance in accordance with section 512.1 when the literal compliance with mandatory provisions is shown to the satisfaction of the governing body or planning agency, where applicable, to be unreasonable, to cause undue hardship, or when an alternative standard can be demonstrated to provide equal or better results. Section 512.1 of the MPC, 53 P.S. 910512.1, provides, in pertinent part: 3 01-4514 CIVIL The governing body or the planning agency, if authorized to approve applications within the subdivision and land development ordinance, may grant a modification of the requirements of one or more provisions if the literal enforcement will exact undue hardship because of peculiar conditions pertaining to the land in question, provided that such modification will not be contrary to the public interest and that the purpose and intent of the ordinance is observed. (Emphasis added). Pursuant to Sections 503(8) and 512.1 of the MPC, the Township enacted Section 305 of the Township Subdivision and Land Development Ordinance, which governs waiver requests. Section 305 provides, in pertinent part: The Board of Supervisors may waive any mandatory provision of these regulations to the benefit of the applicant provided a majority of a quorum of the Board of Supervisors present at a scheduled public meeting, determines that the Waiver: (a) Is inconsistent with the purpose of the Ordinance as described in Section 102, (b) Will remove or reduce an unreasonable standard, or undue hardship as it applies to the particular property, which is grossly disproportionate to any benefit derived from the standard, or when an alternative standard provides equal or better results, and, ( c) Provides for reasonable utilization of the property while securing the public interest. It shall be the burden of the applicant to demonstrate compliance with the above conditions. 305.04 Ruling on the Waiver. The Board of Supervisors shall have the authority to approve 4 01-4514 CIVIL or disapprove the waiver. In granting any waiver, the Board of Supervisors may impose such conditions as will, in its judgment, secure substantially the objectives of the standards and requirements of this Ordinance. Action on the waiver shall be entered into the minutes of the Board of Supervisors and forwarded to the applicant. Failure of the Board of Supervisors to render a decision and communicate it to the applicant as described herein, shall not be deemed approval of the waiver. (Emphasis added). It is clear from a reading of these foregoing sections that granting a waiver to the requirements of the Subdivision and Land Development Ordinance is discretionary with the Board of Supervisors. Notwithstanding, the appellant contends that the Board is required to cite findings and reasons for the disposition of a waiver. In support of that position, the appellant cites to Section 306.01.3 of the Silver Spring Township Storm Water Management Ordinance of 1999. That section provides that, following the consideration of a waiver request, the Board shall : . .. take such public action as it shall deem advisable and notify all involved parties within twenty (20) days of the action. Such notice shall cite the findings and reasons for the deposition [sic] of the waiver or appeal. The Township, however, contends that Section 306.01.3 of the Silver Spring Township Storm Water Management Ordinance of 1999 has no application to this case, citing Section 302 of the same Ordinance: 5 01-4514 CIVIL APPLICATION PROCEDURE All applications for a Storm Water Management Permit, the activity for which also constitutes a subdivision or land development, shall be submitted concurrently with all Silver Spring Township Subdivision and Land Development Ordinance applications. Applications for Storm Water Management Permits will be submitted in conjunction with preliminary plans (when preliminary plans are required). Action on the Storm Water Management Permit will be made in conjunction with the preliminary plan under the subdivision and Land Development Ordinance. All applications for a Storm Water Management Permit, the activity for which does not constitute a subdivision or land development, shall conform with the below procedures. 1 An application for a Storm Water Management Permit shall be submitted to the Township-designated representative who has been authorized to receive applications at the Silver Spring Township Building, on any business day. (Emphasis added.) The Township's literal reading of the provisions of the Subdivision and Land Development Ordinance together with the provisions of the Storm Water Management Ordinance, create something of an anomaly; namely, when waivers are denied in connection with an application for a Storm Water Management Permit, reasons must be given, whereas, if the same application is denied in connection with a Land Development Plan, no reasons need be given. Such a construction is not logical. We are satisfied that the action on a Storm Water Management Permit is the same regardless of the context (though the timing of the action may be 1 i.e. Section 306.01.3. 6 01-4514 CIVIL different). Simply put, the applicant must be heard on the matter of any waiver and reasons must be given for any denial. The record of this case is devoid of any analysis by the Township of the appellants' requests for waivers under the Land Development Ordinance. Where this court neither expands nor recreates a record in a zoning appeal, our scope of review is limited to a determination of whether the Board abused its discretion or committed an error oflaw. Board ofCom'rs. of Ross Twp. v. Harsch, 63 Pa.Cmmwlth. 400, 437 A.2d 1338, 1339 (1981) citing Horst v. Derry Twp. Bard of Supervisors, 21 Pa.Cmmwlth. 556, 347 A.2d 507 (1975). We are unable to conduct a review in this instance inasmuch as the Board made no factual findings nor did it issue any sort of opinion. ORDER AND NOW, this day of November, 2001, this matter is remanded to the Board of Supervisors of Silver Spring Township to give the appellant the opportunity to be heard on the matter of waivers and for the Township to make findings and give reasons for the disposition of same. BY THE COURT, Kevin A. Hess, 1. Charles W. Rubendall, II, Esquire F or the Appellants Steven A. Stine, Esquire For the Township 7 STANLEY W. HOYNITSKI and TODD W. HOYNITSKI, Petitioners- Appellants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-4514 CIVIL vs. BOARD OF SUPERVISORS, SILVER SPRING TOWNSHIP, Respondent-Appellee CIVIL ACTION - LAW IN RE: LAND USE APPEAL BEFORE BAYLEY, HESS AND GUIDO, 1.1. ORDER AND NOW, this day of November, 2001, this matter is remanded to the Board of Supervisors of Silver Spring Township to give the appellant the opportunity to be heard on the matter of waivers and for the Township to make findings and give reasons for the disposition of same. BY THE COURT, Kevin A. Hess, 1. Charles W. Rubendall, II, Esquire F or the Appellants Steven A. Stine, Esquire For the Township :rlm