Opinion
No. 2067 C.D. 2012 No. 2068 C.D. 2012
08-01-2013
Borough of Hummelstown, Appellant v. Borough of Hummelstown Zoning Hearing Board and Hummelstown Swim Club Hummelstown Swim Club v. Zoning Hearing Board of the Borough of Hummelstown and Borough of Hummelstown Appeal of: Borough of Hummelstown
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT BY JUDGE PELLEGRINI
The Borough of Hummelstown (Borough) appeals from an order of the Court of Common Pleas of Dauphin County (trial court) affirming the decision of the Borough Zoning Hearing Board (Board) granting Hummelstown Swim Club's (Club) application for a special exception and striking conditions to the approval imposed by the Board. For the reasons set forth below, we affirm in part and reverse in part.
In addition to the parcel which contains the Club's swimming facility with several pools, pavilions, and related structures, the Club owns 1.68 acres of property at the eastern end of Kokomo Avenue, Hummelstown (Property), which is zoned as a Residential District, Single-Family (R-SF). It acquired 0.274 acres at the southern end of the Property from Hershey Entertainment and Resorts Company (Hershey), to be combined with the Property, on which it planned to construct a 7,800-foot building which would house a social and banquet hall, administrative offices, conference room, children's room, rest rooms, and kitchen, for use by its members and their guests. The Club filed an application for special exception with the Board to permit the facility in an R-SF district.
The agreement by which the Club acquired additional land also included the Club swapping 0.039 acres of the southeast corner of the Property with Hershey. (Reproduced Record [R.R.], at 108a-112a.)
Before the Board, Ruth Goepfert (Goepfert), President of the Club Board, testified that the Club is a non-profit organization with over 1,500 members and was founded in 1952. She said that as the membership has grown, the facility has as well, as the Club has added to its complex and even bought the adjacent Property in 2005 with the intention of adding some sort of building. The Club ultimately decided that an administration building was necessary because it had been operating out of Goepfert's home for some time. Goepfert further testified that the Club also decided on a social hall for small parties, such as birthday parties and showers, so that members would be able to use the facilities all year. She said the kitchen would be a catering kitchen, not a restaurant, and use of the facilities would be limited to members and other individuals "sponsored" by members. (R.R., at 17a.) Goepfert also said that members are currently permitted to use the existing pavilions at the Club for events such as those which would be permitted in the new social hall, and building the hall merely facilitates the ability to move those events indoors and to hold them during colder months. She further testified that the building, as planned, would have a maximum capacity of 199, but the Club intended to cap capacity at 170 and expected most events to be closer to 15-20 people. Goepfert also said that alcohol would be permitted at events in the hall, but the Board would place restrictions on its use, much as it does with the pavilions now. Finally, she said that a member of the Club's administration would be on duty at every event.
Keith Heigel (Heigel), president of Light, Heigel & Associates and a licensed professional land surveyor, testified that while the parcel where development was proposed was zoned as an R-SF district, the property on which the pool complex is located is zoned "institutional," (R.R., at 36a), and the Property was also adjacent to a commercial warehouse zoning area and a multi-family residential area. He said that after the Club acquired the additional land from Hershey, the Property covered 1.916 acres. Heigel further testified that in addition to the building, the Club intended to add 89 parking spaces. While the Borough Zoning Ordinance (Ordinance) requires that a buffer yard of screen planting no less than five feet deep be maintained on property lines abutting a residential use, Heigel said the Club intended to install a 15-foot-wide buffer. He also testified that the proposed development would comply with all setback, front yard, and side yard requirements in an R-SF district, as well as impervious coverage requirements. He said that in his opinion, the Club met the requirements for a special exception for the new building and pointed out that a special exception was granted for the swim club itself when that was established.
Eric Mountz (Mountz), a project manager and professional engineer with Traffic Planning and Design, Inc., testified that traffic information provided by the Borough indicated that the average weekday volume was 1,179 vehicles and the average weekend volume was 861 vehicles for a 24-hour period during the Club's peak season, and peak traffic was between 10:00 a.m. and 6:00 p.m. Mountz reviewed crash data provided by the Borough police and noted that there were five crashes on Kokomo Road over a 20-year period, and only one occurred during the Club's operating hours, which involved one vehicle backing into another parked vehicle in the Club's parking lot. Mountz further testified that he did a trip generation study to determine the traffic impact of land development; he said that while there was no trip generation data available in the industry manual generally used in these studies for a social hall, he considered the anticipated maximum volume of traffic for the facility, which was 89 vehicles in and out, based on the size of the parking lot. He said that "given the fact that the events are anticipated to be infrequent and during the off[-]peak time periods ... and coupled with the fact that the swim club does have the ability to regulate the events ... the proposed building will have a minimal impact on Kokomo Avenue." (R.R., at 95a-96a.)
Based on the testimony and evidence presented at the hearing, the Board found that the Club would not obtain a liquor license and would not have a dining room or bar, but would be used for events and gatherings with a maximum of 170 people in attendance. It further found that the Club will not allow an event to be held at the facility on the same day that an event is being held at the pool, and the Club will ensure that every event at the facility has Club staff present. Based on its findings, the Board determined that the Club's application met the Ordinance requirements for a special exception. Specifically, the Board concluded that the "facility will be used for the benefit of the members and will not be conducted primarily for gain ... will not have a dining room or advertise the sale of food or beverages ... [and] would comply with all applicable regulations" for the R-SF district. (R.R., at 155a.) It further concluded that objectors to the application failed to demonstrate that the use will have a detrimental effect on the health, safety, and welfare of the area. The Board therefore approved the special exception, subject to a number of conditions.
Section 603 of the Ordinance provides that the Board may grant special exceptions to "Clubs, lodges and fraternal organizations." Section 1401(8) of the Ordinance states, in relevant part:
In districts where permitted or permitted as a special exception, [clubs, lodges, and fraternal organizations] and similar uses are restricted to those not conducted primarily for gain, although a dining room may be operated for the benefit of club members; provided that no permanent sign advertising the sale of food or beverages will be permitted. Buildings or structures hereafter converted or erected for such use are subject to all applicable regulations for the district in which the facility is to be located. A buffer yard/screen planting of no less than five (5') feet in depth shall be maintained along all property lines abutting a residential use.
The conditions imposed by the Board were:
1. No events or gatherings shall be held in the banquet facility on the same day that an event (including, but not limited to a swim meet, party or other event above and beyond the normal day to day pool operation) is being held at the Swim Club swimming pool.(R.R., at 156a-157a.)
2. There shall be no alcoholic beverages permitted on the Subject Property.
3. The banquet facility shall only have catering kitchen facilities and no dining room, and food for an event or gathering shall not be prepared on site.
4. There shall be no more than 165 people at any event or gathering at the banquet facility.
5. There shall be no sign or other advertising promoting the banquet facility, other than a sign identifying the facility as the Hummelstown Swim Club.
6. The hours of operation for the banquet facility shall be from not earlier than 9:00 a.m. on any day and not later than 9:00 p.m., Sunday through Thursday, and 10:00 p.m. Friday and Saturday.
7. The banquet facility shall have a minimum of 89 parking spaces, all located on the Subject Property.
8. The Swim Club shall ensure that any person attending an event or gathering at the banquet facility shall be required to park on the Subject Property and shall not park in a street or grass area.
9. Only a member of the Hummelstown Swim Club shall be able to host an event or gathering at the banquet facility, and the member shall be present for the duration of the event or gathering.
10. Each event or gathering at the banquet facility shall be staffed by a minimum of a Board member, officer or employee of the Hummelstown Swim Club.
11. The Subject Property shall have fifteen (15) foot buffers with screen plantings and a front yard setback in accordance with the Alternate Zoning Exhibit Plat for Hummelstown Swim Club ...
12. The Hummelstown Swim Club shall construct a turnaround to the specifications of the Borough of Hummelstown at the end of Kokomo Avenue.
13. The banquet facility shall comply with all applicable provisions of the Zoning Ordinance and the Subdivision and Land Development Ordinance.
The Club appealed to the trial court, challenging 12 of the 13 conditions imposed on the approval on the basis that those conditions were not necessary pursuant to the Pennsylvania Municipalities Planning Code (MPC). The Club argued that because the Board concluded that the application met the requirements of the Ordinance, no conditions should have been imposed, with the exception of the requirement that the facility have 89 parking spaces. The Borough cross-appealed, seeking reversal of the Board's decision to approve the application on the basis that the proposed facility is not a club, lodge, or fraternal organization, as provided in the Ordinance, and was therefore not permitted in the R-SF district by special exception. The Borough further argued that the facility is merely an extension of the Club and is accessory to the principal use to the Club, and therefore cannot be permitted on a separate parcel. The Borough finally contended that the use was not in the best interests of the health, safety, and welfare of Borough residents.
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
The Club noted in its brief to the trial court that while it had not challenged the condition relating to the parking space requirement because it proposed 89 spaces in the first place, it maintained that the condition was "unnecessary and superfluous." (R.R., at 164a.)
The trial court issued two orders affirming the Board's decision to grant the special exception and striking all 13 conditions imposed by the Board. In its opinions supporting the orders, the trial court noted that Section 912.1 of the MPC, provides that a zoning hearing board may impose reasonable conditions it deems necessary to implement the purposes of the MPC and applicable zoning ordinance, and conditions should only be imposed where evidence indicates that a proposed use will have an adverse effect which would otherwise justify a denial. Based on these relevant legal principles, the trial court opined that "the challenged conditions are not necessary to implement the purposes of the [MPC] or the [Ordinance.]" (R.R., at 202a.) In reaching this determination, the court opined that by determining that the application fulfilled the applicable zoning requirements, the Board created a presumption that the facility was consistent with public health, safety, and welfare, and the Board itself noted that any testimony to the contrary was merely speculation or opinion. This appeal followed.
Added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10912.1.
Where a trial court takes no additional evidence, our scope of review is limited to determining whether the board abused its discretion or committed an error of law. North Chestnut Hill Neighbors v. Zoning Board of Adjustment of the City of Philadelphia, 928 A.2d 418, 423 n.6 (Pa. Cmwlth. 2007). The Board abuses its discretion only where its findings are not supported by substantial evidence. Id.; see also Section 754(b) of the Administrative Agency Law, 2 Pa. C.S. §754(b). Substantial evidence is such relevant evidence as a reasonable person might consider sufficient to support a conclusion. Chestnut Hill Neighbors. An error of law is committed if a board erroneously interpreted or misapplied the law to the facts in a case. Board of Supervisors of Upper Southampton Township v. Zoning Hearing Board of Upper Southampton Township, 555 A.2d 256 (Pa. Cmwlth. 1989).
I.
A.
The Borough first argues that the Board's decision to grant the special exception as a banquet hall does not fall within the ambit of what can be considered a club, lodge, or fraternal organization as provided in Section 1401.8 of the Ordinance. The only reason that this argument can be made is that the swim club portion of the Club is located on another adjacent lot, and a subdivision plan was not filed to merge the lots. In any event, as discussed by the trial court, the Borough's consideration of the facility only as a banquet hall, and not a club use, is erroneous because the facility will include a banquet area for members to host relatively small social events but will also house administrative offices, a conference room, a children's room, a kitchen, and storage areas; thus, the scope of the building's use extends beyond solely being a banquet facility.
The Borough also suggests that these additional uses are purely administrative and not traditionally associated with the function of a club, lodge, or fraternal organization. However, the Club established that it is, as its name suggests, a private, non-profit club, and that the facility will be operated for the use and benefit of its members. See Jones v. Zoning Hearing Board, 298 A.2d 664, 666 n.4 (Pa. Cmwlth. 1972) ("Since the word "club" is not defined in the zoning ordinance the Zoning Board properly assigned a common-sense definition to the word.") For these reasons, the Borough's argument fails.
B.
The Borough also contends that the trial court erred in granting the special exception on the basis that the proposed use is accessory to the principal use of the swim club on a neighboring parcel, and the Club is therefore attempting to expand its operations onto property not zoned for the intended use, as the facility will be used in conjunction with the Club's other facility.
Section 202 of the Ordinance defines an accessory use as "[a] use customarily incidental and subordinate to the principal use of the main building and located on the same lot with such principal use or main building," and a principal use as "[t]he primary or predominant use of any lot" (emphasis added). As emphasized by the court below, zoning law focuses on the use of the land, and not the ownership; the Ordinance, with its definitions of principal and accessory uses as being within a single lot, further confirm this proposition. Thus, as the Property is a parcel separate and apart from the one on which the Club's existing pool and ancillary facilities are located, the proposed facility is not an accessory use, but a principle use of the Property for the use and benefit of the members of this private Club. Accordingly, the Borough's argument fails on this point, as well.
"The use and ownership of property are distinct and separate." Goldstein v. Upper Merion Township, 403 A.2d 211, 213 (Pa. Cmwlth. 1979) (quoting Wanamaker v. Philadelphia School District, 441 Pa. 567, 572, 274 A.2d 524, 526 (1971)). "Where a use is permitted, a municipality may not regulate the manner of ownership of the legal estate." Id. (quoting Dublin Properties v. Board of Commissioners of Upper Dublin Township, 342 A.2d 821, 822 n.3 (Pa. Cmwlth. 1975)).
C.
The Borough next argues that the Club failed to establish the required criteria for a special exception and, again, the Board's approval of the application was therefore in error. "A special exception is not an exception to a zoning ordinance but rather a use which is expressly permitted absent a showing of a detrimental effect on the community." Freedom Healthcare Services v. Zoning Hearing Board of the City of New Castle, 983 A.2d 1286, 1291 (Pa. Cmwlth. 2009) (citing Manor Healthcare Corp. v. Lower Moreland Township Zoning Hearing Board, 590 A.2d 65 (Pa. Cmwlth. 1991)). An applicant for a special exception carries both a duty to present evidence and the burden of persuading the zoning hearing board that the proposed use satisfies an ordinance's requirements for the grant of a special exception. Id. Once the burden is met, "a presumption arises that the use is consistent with the health, safety and general welfare of the community," id., and the burden shifts to the objectors to show that the proposed use will have a generally detrimental effect. Id.; see also Greaton Properties, Inc. v. Lower Merion Township, 796 A.2d 1038, 1045-46 (Pa. Cmwlth. 2002) ("[T]he evidence presented by objectors must show a high probability that the use will generate adverse impacts not normally generated by this type of use and that these impacts will pose a substantial threat to the health and safety of the community.") The board has the duty of reviewing an application to ensure that the facts, circumstances, and conditions exist and comply with the standards of the zoning ordinance and warrant approval of the application. Broussard v. Zoning Board of Adjustment of City of Pittsburgh, 589 Pa. 71, 907 A.2d 494 (2006).
Section 1401(8) of the Ordinance sets forth the requirements for a special exception to be granted for a club, lodge, or fraternal organization: (1) the use must not be "conducted primarily for gain, although a dining room may be operated for the benefit of club members," (Borough of Hummelstown Zoning Ordinance, §1401(8)); (2) no signs advertising the sale of food or beverages is permitted; (3) the buildings or structures are subject to the applicable regulations for the zoning district in which it is located; (4) a buffer yard or screen planting no less than five feet deep must be maintained along all property lines adjoining residential use parcels.
In its decision, the Board made the following findings of fact based upon the testimony and evidence presented at the hearing:
8. The first floor will be used for a small social hall, administrative office, conference room, children's room, restrooms and a catering kitchen.(R.R., at 152a-153a.) The Board also noted in its conclusions of law that the "facility would comply with all applicable regulations for the R-SF, Residential District, Single-Family." Id., at 155a.
...
13. The banquet facility activity will not be conducted primarily for gain.
...
17. The Swim Club will not have a permanent sign advertising the sale of food or beverages.
18. The banquet facility is going to have a buffer yard of not less than fifteen (15) feet in depth along the west, north and east sides of the subject property.
Because those findings and conclusions were based upon uncontroverted testimony of record and its decision went into great detail to address the evidence and to apply it to the applicable Ordinance provisions, there is no merit to the Borough's contention that the Club failed to meet the objective criteria for the grant of a special exception set forth in the Ordinance.
The Borough also argues that the Board prematurely shifted the burden to objectors to show why the special exception should not be granted. However, this Court held in Greaton Properties, Inc. v. Lower Merion Township, 796 A.2d 1038 (Pa. Cmwlth. 2002), that once an applicant for a special exception meets its burden of demonstrating that the proposed use satisfies the requirements of the ordinance, "a presumption arises that the use is consistent with the health, safety and general welfare of the community," 796 A.2d at 1045-46, and the burden shifts to objectors to present evidence and persuade the board otherwise. The Board noted that no specific evidence to show that the proposed use would have a detrimental effect was presented, but rather, objections were limited to personal opinions and speculation. Thus, the Board did not improperly or prematurely shift the burden.
II.
Finally, the Borough argues that even if the application was properly approved, the trial court erred in striking the conditions the Board imposed when it approved the Club's special exception application.
Section 912.1 of the MPC provides that a zoning board "may attach such reasonable conditions and safeguards, in addition to those expressed in the ordinance, as it may deem necessary to implement the purposes of this act and the zoning ordinance" when it grants a special exception. 53 P.S. §10912.1. Conditions imposed on a special exception must be reasonable and have support in the record, or they will be stricken as an abuse of discretion. Coal Gas Recovery, L.P. v. Franklin Township Zoning Hearing Board, 944 A.2d 832 (Pa. Cmwlth. 2008). Conditions are reasonable if they advance a valid zoning interest, are supported by the record, and relate to the specific ordinance at issue. In re Appeal of Maibach, LLC, 26 A.3d 1213 (Pa. Cmwlth. 2011). "[T]he Board is not required to support the imposition of conditions; rather, the opposite is true—property owners are required to show that the imposition of conditions was an abuse of discretion." Leckey v. Lower Southampton Township Zoning Hearing Board, 864 A.2d 593, 596 (Pa. Cmwlth. 2004).
A number of the conditions imposed merely adopt what Goepfert said before the Board as to how the Club intended to use the facility and memorialize these statements. Thus, the following conditions were properly imposed:
4. There shall be no more than 165 people at any event or gathering at the banquet facility.
5. There shall be no sign or other advertising promoting the banquet facility, other than a sign identifying the facility as the Hummelstown Swim Club.[] ...
7. The banquet facility shall have a minimum of 89 parking spaces, all located on the Subject Property. ...
11. The Subject Property shall have fifteen (15) foot buffers with screen plantings and a front yard setback in accordance with the Alternate Zoning Exhibit Plat for Hummelstown Swim Club. ...(R.R., at 156a-157a.)
13. The banquet facility shall comply with all applicable provisions of the Zoning Ordinance and the Subdivision and Land Development Ordinance.
Nothing in this provision prevents the Club from informing its members concerning use of the banquet facility.
Condition Nine provides that "[o]nly a member of the Hummelstown Swim Club shall be able to host an event or gathering at the banquet facility, and the member shall be present for the duration of the event or gathering." (R.R., at 157a.) While Goepfert testified that use of the facility will be limited to members and other individuals sponsored by members, nothing in the record indicates that there was any concern with a member being present for the duration of the event being held. Accordingly, we strike the portion of the Condition 9 that states that a member must be present for the duration of the event that the member sponsors.
Since the Club had already proposed or agreed to a number of these restrictions which would make the facility more compatible with the R-SF district, it was not an abuse of discretion for the Board to impose those conditions. Otherwise, representations made by a property owner concerning steps being taken so as not to harm the health, safety, and welfare of the community could be ignored once it has received the special exception—a classic "bait and switch."
With regard to Condition 12, which requires the Club to construct a turnaround to the specifications of the Borough at the end of Kokomo Avenue, the Club agreed that a solution was needed but that the Borough should construct it. Keith Heigel, the Club's traffic engineer, testified regarding traffic problems caused by the dead end on Kokomo Avenue. He said that there were three solutions that could be used for the traffic - a cul-de-sac turnaround (circle turnaround), a hammerhead turnaround (allows a vehicle to enter and back out onto a right-of-way), and to end Kokomo Avenue at the parking lot, which would require that traffic either turn around on the street or use the parking lot to turn around, assuming that it is not gated. In short, the Club acknowledged that there is some need to rectify the dead-ending of Kokomo Avenue. (See R.R. 55a -82a, 138a.)
However, while the Club acknowledges that the dead end on Kokomo Avenue was a traffic problem, it offered into evidence a 1984 deed of dedication to the Borough for a turnaround seeming to suggest that the Township should solve that problem by building the turnaround. However, that presumes that the Borough is under an obligation to construct it to solve the traffic problem caused by the Club's new construction when, in actuality, the Borough is under no such obligation to do so any more than it is required to do the first paving on any public street. See City of Philadelphia v. O'Brien, 107 A.2d 587 (Pa. Super. 1954).
The Club also contends that Section 503-A(b) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, added by Act of December 19, 1990, P.L. 1343, as amended, 53 P.S. §10503-A(b), precludes the Borough from ordering the building of the turnaround. That section states as follows:
(b) No municipality shall have the power to require as a condition for approval of a land development or subdivision application the construction, dedication or payment of any offsite improvements or capital expenditures of any nature whatsoever or impose any contribution in lieu thereof, exaction fee, or any connection, tapping or similar fee except as may be specifically authorized under this act. (emphasis added).
First, this provision is inapplicable. What is involved here is not a "land development or subdivision application," but a request for a special exception to which appropriate conditions can be attached. Even counsel for the Club stated that "the planning commission went much beyond use and indicated that [it] would recommend denial for the reason that there is no turnaround at the end of the street, which we thought was irrelevant because it is a subdivision issue." R.R., at 74. Because the Club acknowledged that there is a need for a solution for traffic flow, as Kokomo Avenue comes to a dead end, the Board did not abuse its discretion in ordering the Club to build the turnaround.
Second, the construction of the turnaround is not an off-site improvement as the Club contends, because the road is adjacent to the Property and, as admitted, is needed for proper ingress and egress from the Club's property and for proper traffic control. See 53 P.S. §10503(4). Thus, Condition 12 was properly imposed.
53 P.S. §10502-defines "offsite improvements" as "those public capital improvements which are not onsite improvements and that serve the needs of more than one development." Onsite improvements, however, are defined as:
all improvements constructed on the applicant's property, or the improvements constructed on the property abutting the applicant's property necessary for the ingress or egress to the applicant's property, and required to be constructed by the applicant pursuant to any municipal ordinance, including, but not limited to, the municipal building code, subdivision and land development ordinance, PRD regulations and zoning ordinance.
With regard to the other conditions, we agree with the trial court that the Board's imposition of the conditions upon the special exception was an abuse of discretion. Condition One's prohibition on use of the banquet facility when the pool is operating ignores that the banquet facility use and the pool use are two separate uses on separate lots. Next, there is no evidence in the record that the requirements imposed in Conditions Two, Three, Six, or Ten have support in the record to suggest that they are necessary to insure the health and safety of the community by ameliorating any detrimental effects caused by the use of the Property. Condition Eight, which requires that those attending an event or gathering park on the subject property, is a condition that the Club cannot enforce and it would be contrary to the law that everyone can park on a public street where per. Because conditions must be supported by the record and advance a valid interest and these conditions do not meet this standard, the trial court properly struck them.
Accordingly, we affirm the Board's decision in part and reverse the imposition of Conditions One, Two, Three, Six, and Eight, and Ten, as well as the portion of Condition Nine that requires a member be present for the duration of an event, which are stricken as an abuse of discretion.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 1st day of August, 2013, the orders of the Court of Common Pleas of Dauphin County, dated October 9, 2012, are affirmed in part and reversed in part, in accordance with the attached Opinion.
/s/_________
DAN PELLEGRINI, President Judge BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
DISSENTING OPINION BY JUDGE LEAVITT
Respectfully, I dissent to one part of the panel's decision. Specifically, I believe that there is insufficient evidence to support a finding that Condition 12 advances a reasonable zoning interest.
Condition 12 states that "[t]he Hummelstown Swim Club shall construct a turnaround to the specifications of the Borough of Hummelstown at the end of Kokomo Avenue." Reproduced Record at 157a (R.R. ___). A solution to the Borough's need for a turnaround already exists. In 1984, the Borough accepted the Swim Club's grant of a right of way to its parking lot for the public to use in order to turn their vehicles around. The Borough continues to enjoy this easement for turnaround purposes, and the Borough put on no evidence that the current turnaround easement is inadequate.
There must be a relationship between the special exception that is sought and the condition imposed by the Board. Here, there is no evidence in the record that the Swim Club's construction of its social hall addition requires construction of a new turnaround. Presumably, any new traffic generated by the facility will enter the parking lot to park, not to turn around.
Unlike the other conditions that the majority upholds, the Swim Club did not propose to construct a turnaround. The Swim Club's mention of the potential construction of a turnaround was merely to illustrate that should the Borough elect to construct one, the Swim Club's plan would still be in compliance with setback requirements.
Condition 12 is also unclear as to location. To the extent the Borough wants the Swim Club to construct a turnaround on "Kokomo Avenue," it lacks this power. The Board cannot condition its approval of a permitted use on the Swim Club making improvements to public property. Section 503-A(b) of the Pennsylvania Municipalities Planning Code states as follows:
Act of July 31, 1968, P.L. 805, added by the Act of December 19, 1990, P.L. 1343, as amended, 53 P.S. §10503-A(b). --------
(b) No municipality shall have the power to require as a condition for approval of a land development or subdivision application the construction, dedication or payment of any offsite improvements or capital expenditures of any nature whatsoever or impose any contribution in lieu thereof, exaction
fee, or any connection, tapping or similar fee except as may be specifically authorized under this act.53 P.S. §10503-A(b) (emphasis added). Although Section 503-A(b) applies to land development applications, a fortiori, its principle applies to the issuance of a building permit under a zoning ordinance. Further, nothing in the Borough's Zoning Ordinance conditions a building permit upon improvements to a public street.
In Municipality of Monroeville v. Prin, 680 A.2d 9 (Pa. Cmwlth. 1996), this Court addressed Section 503-A(b). In Monroeville, the municipality approved applicant's application to construct a shopping center, which is a permitted use, on the condition that applicant make improvements to nearby roadways to alleviate traffic flow problems. This Court held that the municipality could not impose such off-site improvements as conditions because they violated Section 503-A(b). Monroeville, 680 A.2d at 13-14. Here, as in Monroeville, the proposed Swim Club facility is a use permitted by special exception and Kokomo Avenue is not part of the Swim Club's property. Therefore, the Swim Club cannot be required to make an "offsite improvement" to a public roadway.
I would reverse the Board's imposition of Condition 12, but I agree with the remainder of the majority's decision.
/s/_________
MARY HANNAH LEAVITT, Judge
Id.