Opinion
No. 1158 C.D. 2014
07-07-2015
Deborah A. Ames, George G. Stewart and Joanne C. Stewart, David Moore and Carl J. Bish, and Borough of Indiana v. The Planning Commission of Indiana Borough, Indiana County, and B & L Properties II, L.P. Appeal of: B & L Properties II, L.P.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
B & L Properties II, L.P., (B&L) appeals from the June 5, 2014 order of the Court of Common Pleas of Indiana County (trial court) granting the land use appeal filed by Deborah A. Ames, George G. Stewart, Joanne C. Stewart, David Moore, and Carl J. Nish, and Intervenor, the Borough of Indiana, (collectively, Appellees) and vacating the approval by the Planning Commission of Indiana Borough (Commission) of B&L's final land development plan for a student housing project at 931 Oakland Avenue.
In the fall of 2006, Indiana Borough amended its zoning ordinance to implement a Traditional Neighborhood Development (TND) Overlay Zoning District. The TND overlay district was established: to provide for high-density, pedestrian-friendly development options in the immediate vicinity of the Indiana University of Pennsylvania (IUP) campus; to provide for concentrated areas of high quality student housing; and to create a transitional area between residential districts and university or commercial development areas. (Ordinance section 460-64; Trial ct. op. at 4.)
Section 405-6 of the Borough's code and section 460-7 of the Borough's zoning ordinance delegate full authority to the Commission to examine proposed subdivisions and land developments and approve or deny them, with or without conditions. Approval for all TND projects is subject to the process set forth in the borough's subdivision and land development ordinance (SALDO). (Borough Code chapter 405). The Commission also is authorized by ordinance section 405-32 to grant modifications from the SALDO's requirements. See section 512.1 of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10512.1 (Modifications).
Section 501 of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10501, states that the governing body of each municipality may regulate subdivision and land development within the municipality by enacting a subdivision and land development ordinance (SALDO).
Section 405-32 sets forth the following procedure that must be followed when a modification is requested, considered, and granted:
A. The Planning Commission may grant a modification of the requirements of one or more provisions of this chapter 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 chapter is observed.(Reproduced Record (R.R.) at 172a-74a.)
B. All requests for modification shall be in writing and shall be included in the application for development. The request shall state in full the grounds and facts of unreasonableness or hardship on which the request is based, the provision or provisions of the ordinance involved, and the minimum modification necessary.
C. The modification, if authorized, will represent the minimum deviation that will afford relief and will represent the least modification possible of the regulation in issue.
D. The condition leading to the request for modification shall not have been created by the applicant.
E. The Planning Commission shall keep a written record of all action on requests for modification.
F. The specific wording of the modification shall be written in ink upon the recording tracing and signed and dated by the Chairman of the Planning Commission, if the modification is granted. If the modification is denied, the owner and/or developer may not again submit the same application for modification for at least one year after such rejection.
In March 2012, B&L submitted a land development plan to the Commission proposing to raze an existing bed and breakfast and construct in its place two attached units, each approximately 40' x 70' in area, including ten four-bedroom apartments. Ames and Smith, owners of neighboring properties, expressed concern regarding access to the property and the property line dividing their properties. The Commission requested additional information from B&L to determine whether the proposed project satisfied the TND requirements. (R.R. at 54a-55a.)
On April 17, 2013, the Commission granted preliminary approval for the plan subject to 9 conditions, including clarification by the borough solicitor and planning consultant regarding front yard setback requirements. (R.R. at 62a-63a.)
By letter dated May 24, 2013, the Commission informed B&L that it had granted final approval of the project. (R.R. at 73a.) On June 17, 2013, the above-named individual appellees filed a land use appeal, alleging that the Commission has no authority to grant zoning variances and should have required B&L to seek variances from the borough's zoning hearing board. More specifically, the appellees alleged that the Commission disregarded section 460.69D of the ordinance, which states that no front yard area shall exceed 12 feet from an existing street right-of-way or the edge of a sidewalk, as well as applicable design standards for the TND district. (R.R. at 3a-21a.)
After the Commission's grant of final plan approval in May 2013, the TND ordinance was repealed in July 2013, and members of both the Commission and the Borough Council have been replaced.
On August 30, 2013, the Borough filed a petition to intervene in the land use appeal. The petition alleged that: the Borough's solicitor had entered an appearance on behalf of the Commission without the Borough's approval; the Borough's position is contrary to that of the Commission; the Borough had instructed the solicitor to withdraw his appearance; and the Borough seeks to intervene in support of the parties appealing from the Commission's decision. The petition further alleged that the Commission was not authorized to appeal land use decisions, hire legal counsel, or appear in court as a party to any land use matter. (R.R. at 22a-25a.)
B&L filed an answer and new matter, asserting that the Borough and the Commission were the same party; that the Borough's delay would prejudice B&L's rights, and that the Borough's rights were adequately represented. See Pa.R.C.P. No. 2329. B&L also noted that the Borough was sharing legal counsel with the appealing parties, who are competitors of B&L. (R.R. at 26a-33a.) The trial court held a hearing on the petition and granted the Borough permission to intervene by order dated September 10, 2013.
As an example, Moore owns a property adjacent to the proposed development that consists of 7 units and houses 25 students. (R.R. at 158a.)
B&L also filed an answer and new matter to the land use appeal, essentially asserting that the Commission had authority and properly approved the proposed development.
The trial court held a hearing on the land use appeal on March 11, 2014, to "supplement" the record. (R.R. at 113a.) For the record, the trial court stated that it wished clarification with respect to three issues: (1) the location of ingress and egress "with regard to the second building"; (2) the status of the adjacent private alley; and (3) side lot buffers. (R.R. at 115a.) The trial court acknowledged that the record before the Commission did not include any testimony given under oath, but consisted only of minutes of Commission meetings. The trial court observed that it could have remanded the matter in order to develop a record but "wanted the parties to have some closure." (R.R. at 117a.)
During the brief hearing, Tina Moore, a neighboring property owner, and Brent Young, B&L's Professional Engineer, testified. Young testified that there was only one building, separated into two parts that, as initially planned, did not have interior access to each other. He also explained to the trial court that a fire wall is not required as he initially believed, and he said that the building code defines the unit as one building. (R.R. at 132a-35a.) Drawings of the proposed project show one large structure. (R.R. at 58a-59a, 68a-69a.)
The trial court granted Appellees' appeal. In its opinion, the trial court first stated that it took evidence not to supplement the record but to aid the trial court's understanding of the record filed. Citing Rouse/Chamberlain, Inc. v. Board of Supervisors of Charlestown Township, 504 A.2d 375 (Pa. Cmwlth. 1986), the trial court then stated that it could only review the record to determine if the Commission committed an abuse of discretion or error of law.
After setting forth the relevant law, the trial court stated that it had reached two conclusions: 1) the plans submitted by B&L contain elements that do not comply with the TND ordinance provisions; and 2) neither B&L nor the Commission followed mandatory procedures to request reasonable modifications. The trial court based these conclusions on specific facts. First, the trial court found that the project consists of two distinct buildings. Next, quoting section 460-70B of the zoning ordinance (providing that buildings "shall be located to front toward and relate to public streets, both functionally and visually, to the greatest extent possible"), the trial court found that the eastern building does not front toward the public street either functionally or visually. The trial court also observed that while section 460-69D of the ordinance requires that no front yard area shall exceed 12 feet from an existing right of way or sidewalk, the southern corner of the proposed western building is approximately 32 feet from the existing right-of-way. Both ordinance provisions are requirements in the TND overlay district.
Accordingly, the trial court granted Appellees' land use appeal. On appeal to this Court, B&L argues that the trial court erred because ordinance section 460-70B is not mandatory but merely advisory and strict compliance with section 460-69D [460-69A(3)] of the ordinance would conflict with other applicable ordinance provisions.
As a threshold matter, we must determine the applicable scope of our appellate review. In zoning cases, the decision we review depends on whether or not the trial court took new evidence. Coal Gas Recovery, L.P. v. Franklin Township Zoning Hearing Board, 944 A.2d 832, 837 (Pa. Cmwlth. 2008). Where the trial court does not take additional evidence, we are limited to determining whether a planning commission committed an error of law or abused its discretion. Ruf v. Buckingham Township, 765 A.2d 1166, 1168 n.2 (Pa. Cmwlth. 2001). If the trial court accepts additional evidence on the merits, it must review the case de novo, and we then review the trial court's decision for an error of law or abuse of discretion. Coal Gas Recovery, 944 A.2d at 838.
B&L states our scope of review as that where the trial court does not take additional evidence, i.e., this Court must determine whether the Commission committed an error of law or abused its discretion. Ruf. Appellees assert that the trial court did take additional evidence, and, therefore, this Court must determine whether, in issuing findings of fact and conclusions of law, the trial court committed an error of law or abused its discretion. Coal Gas Recovery.
The record supports Appellees' contention. Indeed, the trial court's order states that the court, "having engaged in an extensive review of the record, as well as having held a limited evidentiary hearing, it is hereby ORDERED . . . ." (Trial court order June 5, 2014) (emphasis added). Although the trial court made no reference to their testimony, two witnesses testified before the trial court on direct and cross-examination. And while the trial court does not identify its statements as "findings," those statements reflect the trial court's resolution of disputed facts. Accordingly, we must review the trial court's decision and determine whether the trial court committed an error of law or abused its discretion. Coal Gas Recovery.
Our review of the trial court's decision reflects that the trial court accepted additional evidence on the merits yet characterized its review as a strictly appellate proceeding. However, the trial court weighed the evidence of record, resolved incompatible interpretations of the evidence urged by the parties, and relied on those determinations to reach legal conclusions. Most important, because the trial court limited the evidence presented at the hearing, the parties were denied the opportunity for a full and fair hearing, and this Court is not presented with a record sufficient for meaningful appellate review.
In doing so, the trial court did not credit or reject the witnesses' testimony. --------
Accordingly, due to this error, we vacate the trial court's order and remand this matter to the trial court for the purpose of conducting a new hearing on Appellees' appeal from the Commission's approval of B&L's final land development plan.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 7th day of July, 2015, the June 5, 2014 order of the Court of Common Pleas of Indiana County (trial court) is vacated, and the matter is remanded to the trial court for further proceedings.
Jurisdiction relinquished.
/s/_________
PATRICIA A. McCULLOUGH, Judge