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Home My WebLink About98-6110 civilDIEHL-WALTER PARTNERSHIP : IN THE COURT OF COMMON PLEAS OF Appellant · CUMBERLAND COUNTY, PENNSYLVANIA vs. : 98-6110 CIVIL : SILVER SPRING TOWNSHIP, : Appellee · CIVIL ACTION - LAW VS. ' · JOHN C. SULLIVAN and : HELEN E. SULLIVAN and : SSGC, INC., t/a SILVER SPRING : GOLF COURSE, : LAND USE APPEAL Intervenors : IN RE: INTERVENORS' MOTION TO AFFIRM DENIAL OF CONDITIONAL USE PERMIT AND IN SUPPORT OF LAND USE APPEAL BEFORE HOFFER, P.J., HESS AND OLER, JJ. ORDER AND NOW, this '2_ o" day of April, 2000, it is hereby ordered and decreed that the appeal filed in this matter is remanded to appellee, Silver Spring Township, for further proceedings consistent with the opinion filed of even date herewith. BY THE COURT, Hess, J. Bruce F. Bratton, Esquire For the Appellant 'Richard C. Snelbaker, Esquire For the Appellee Craig J. Staudenmaier, Esquire For the Intervenors DIEHL-WALTER PARTNERSHIP : 1N THE COURT OF COMMON PLEAS OF Appellant · CUMBERLAND COUNTY, PENNSYLVANIA vs. : 98-6110 CIVIL SILVER SPRING TOWNSHIP, : Appellee · CIVIL ACTION- LAW VS. : JOHN C. SULLIVAN and : HELEN E. SULLIVAN and : SSGC, INC., t/a SILVER SPRING : GOLF COURSE, : LAND USE APPEAL Intervenors : IN RE: INTERVENORS' MOTION TO AFFIRM DENIAL OF CONDITIONAL USE PERMIT AND IN SUPPORT OF LAND USE APPEAL BEFORE HOFFER, P.J., HESS AND OLER, JJ. OPINION AND ORDER This case arises out of the denial of the appellee, Silver Spring Township, of the application of appellant, Diehl-Walter Partnership, Application CU98-2, for a conditional use permit for a cluster development. DieM-Walter sought to construct 129 cluster housing units on a $8-acre tract. The tract is bounded on the west by the Conodoquinet Creek and on the east by Sample Bridge Road. In the spring of 1998, the appellant applied for a conditional use approval to permit the development of the property under a cluster development option provided in the township's new zoning ordinance. Hearings were held before the township's board of supervisors on May 20 and June 4, 1998. By letter dated September 25, 1998, the township denied the conditional use application. 98-6110 CIVIL The letter cited numerous reasons for the denial as well as "concerns" of the township. Initially, the board of supervisors opined that the proposed conditional use did not meet Section 414.2 of the Zoning Ordinance. That section simply states the purpose for cluster developments providing: 414.2 Purpose - This conditional use is intended to blend various residential development types-amid substantial areas of the Township that are characterized by severe development constraint, natural sensitivity and/or public park lands. It is the express purpose to offer a density bonus and flexible design standards as enabled in the Act for the preservation and protection of natural- cultural features and/or the provision of public accessible common open space... The Board went on then to express "concerns" regarding the setback distance between the proposed residences and an existing water plant, traffic safety relating to site distance on the Sample Bridge Road and storm mn-off. The letter disapproving the conditional use application also goes on to cite other deficiencies in the application which by law and by the township's own admission must await the submission of a subdivision plan. Core legal principles having to do with the issuance of conditional use permits were set out in Brentwood Borough v. Cooper, 60 Pa. Cmwlth. 462, 431 A.2d 1177 (1981). There the court held that, where an applicant had met all specific requirements for the issuance of a conditional use permit, it was entitled to issuance of such a permit notwithstanding the boroughs concern for traffic congestion, storm sewer problems and fire hazards. In this case, the requirements for cluster developments are set out in Section 414 of the ordinance. The procedures with respect to filing for condition uses are set out in Section 704. Under Brentwood, any denial of an application would normally require specific reference to a 98-6110 CIVIL provision of at least one of those sections. The Brentwood Borough case does countenance the denial of a conditional use permit (even though there is compliance with specific requirements set forth in the ordinance) where approval can be shown to be detrimental to public health, safety or welfare. [T]he borough grounded its denial of the conditional use and site plan upon public interest considerations of a general nature involved in all residential development planning. However, the existence of a conditional use provision in an ordinance indicates legislative acceptance that the use is consistent with the zoning plan, and should be denied only when the adverse impact upon the public interest exceeds that which might be expected in normal circumstances. See Pennypack Manor Nursing Home, Inc. v. Petrella, 35 Pa. Cmwlth. 367, 371,387 A.2d 139, 141 (1978) (holding that to be the role in cases involving special exceptions). Thus, because the applicant complied with the specific requirements, the burden then lies upon the objectors, Greensburg, supra, and the borough is required to grant the conditional use unless it can show to a high degree of probability that the use will adversely impact on the public interest; the mere possibility of adverse impact is not enough. Brentwood Borough v. Cooper, supra, 431 A.2d at 1179. The principles set down in Brentwood have been consistently followed by our appellate courts. In Bailey v. Upper Southhampton Township, 690 A.2d 1324 (Pa. Cmwlth. 1997), for example, the court made it clear that as long as an applicant "brings himself within the provision of the ordinance, he has made his prima facie case and the application must be granted unless the protestants present sufficient evidence that the use would present a substantial threat to the community." Id. at 1326. 98-6110 CIVIL We agree with the appellant that, in providing for conditional uses, the township has determined that the impact of such a use of property does not, of itself, adversely affect the public interest to any material extent so that a conditional use application should not be denied unless it is proved that the impact upon the public interest is greater than that which might be expected in normal circumstances. See Commonwealth, Bureau of Corrections v. City of Pittsburgh, 91 Pa. Cmwlth. 293,469 A.2d 1361, 1363 (1985).1 Where a municipality places general, nonspecific or nonobjective requirements into an ordinance dealing with conditional uses, such general provisions are not part of the persuasion burden and presentation duty of the applicant but, instead, the burden is upon the objectors to a conditional use to show by substantial, competent and relevant evidence that the conditional use would pose a substantial threat to the community. Id. As we have noted, the township denied the conditional use application in this case on the ground that it did not meet the requirements of at least one of the ordinance provisions governing conditional uses; namely, Section 414.2 dealing with the purpose of cluster developments. By citing this section' the township seems to imply the proposed conditional use would be at odds with the entire scheme of the local ordinance. This would, in turn, suggest some impact upon a public interest. Nowhere, in the township's disapproval letter, is there an explanation as to what that adverse impact might be. In addition, the township appears to have ignored the question of who bears the burden of proof on that issue. I The intervenors, in their brief, cite numerous public health and safety concerns. The fact, however, that the intervenors argue them does not mean that the township relied upon them. Nowhere in the denial letter of the township does the board cite public safety concerns which could not be addressed in a duly filed plan. 98-6110 CIVIL We have reflected, at length, upon the appropriate relief to grant in this case. The township has disapproved the appellant's conditional use application for reasons which are arguably insufficient. On the other hand, the township contends that the proposed conditional use is at odds with the very purpose of the ordinance goveming such development and should, no doubt, be given an opportunity to explain itself. When this appeal was argued, there was pending before the court a motion to remand the case. That motion, filed by the appellants, was joined in by the township. The intervenors, however, not only refused to join in the motion but oppose remand. The issue of remand was joined with the argument on this appeal by the order of the Honorable J. Wesley Oler, dated November 29, 1999. The motion for remand was withdrawn by praecipe some two days after the argument. Nonetheless, we are satisfied that the interest of all of the parties would best be met by a remand of this case. It would give the township the opportunity to address its specific reasons as to why 414.2 is violated or whether there is any extraordinary impact on the public welfare. A remand would also afford the applicant the opportunity to rebut those contentions. In addition, it would afford the township the opportunity to properly apply the burdens of proof of the parties with respect to their various contentions. In any event, whether it holds further hearing or not, unless it can point to overriding public interest concerns, the township must cite those specific provisions of the portions of the .ordinance dealing with cluster developments and conditional uses with which the application CU98-2 dOes not comply. Otherwise, it is obliged under the law to grant the conditional use permit. 98-6110 CIVIL ORDER AND NOW, this ~'o day of April, 2000, it is hereby ordered and decreed that the appeal filed in this matter is remanded to appellee, Silver Spring Township, for further proceedings consistent with the opinion filed of even date herewith. BY THE COURT, Ke~~.H' :ss,~~j. Bruce F. Bratton, Esquire For the Appellant Richard C. Snelbaker, Esquire For the Appellee Craig J. Staudenmaier, Esquire For the Intervenors :rlm