Opinion
No. 54 C.D. 2013 No. 83 C.D. 2013
11-18-2013
Steven and Deb Boyer, husband and wife, Appellants v. Board of Supervisors Franklin Township, and Ronald Gingrich and Kathleen Gingrich, and Ted Grove and Linda Grove Steven and Deb Boyer v. The Board of Supervisors of, Franklin Township, and Ronald Gingrich and Kathleen Gingrich, and Ted Grove and Linda Grove Appeal of: Ted and Linda Grove
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
This consolidated appeal involves challenges to two orders of the Court of Common Pleas of York County, relating to the Steep Slope Conservation Overlay (SSCO) provisions of the Franklin Township Zoning Ordinance. The first challenged order, dated June 28, 2012 and entered on July 6, 2012, denied a motion for evidentiary hearing filed by Appellants Ted and Linda Grove (the Groves). The second order, dated December 19, 2012 and entered on December 20, 2012, denied the land use appeal of Appellants Steven and Deb Boyer (the Boyers). For the reasons set forth below, we now affirm.
On July 25, 2011, the Boyers filed an application with the Board of Supervisors of Franklin Township (Board) pursuant to Sections 609.1 and 916.1 of the Pennsylvania Municipalities Planning Code (MPC), substantively challenging the validity of the Steep Slope Conservation Overlay (SSCO) provisions of the Franklin Township (Township) zoning ordinance. (Reproduced Record (R.R.) at 1353a-54a.) The SSCO provisions "apply to all land within [Franklin Township] which contains areas of fifteen (15%) percent or greater slope," including "any plateaus that are surrounded by the steep slopes." (Id. at 1481a.) In particular, the Boyers alleged in the application that the SSCO provisions of the zoning ordinance: (1) "fail[ed] to bear a reasonable relationship to the police powers and [were] thus invalid[;]" (2) "[were] not reasonable, [were] discriminatory and fail[ed] to have a rational basis[;]" (3) "[were] irrational[;]" and (4) "[are] a taking without justification or compensation." (Id. at 1353a-54a.) By letter dated August 1, 2011, the Board, through its solicitor, advised the Boyers that their substantive validity challenge did not meet the requirements of Section 916.1(c)(1) of the MPC, because it lacked a proposed curative amendment. (Id. at 1355a.)
Act of July 31, 1968, P.L. 805, added by Section 89 of the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. § 10609.1, § 10916.1.
Section 916.1(c)(1) of the MPC provides in pertinent part:
Where the landowner desires to challenge the validity of such ordinance and elects to proceed by curative amendment under section 609.1, his application to the governing body shall contain, in addition to the requirements of the written request hereof, the plans and explanatory materials describing the use or development proposed by the landowner in lieu of the use or development permitted by the challenged ordinance or map.(Emphasis added.)
On August 2, 2011, the Boyers filed with the Board a supplement to their application. (Id. at 1357a.) In the supplement, they proposed to the Board that the SSCO provisions of the ordinance should apply to all lands within the township that contain areas of twenty-five percent or greater slopes, excluding plateaus surrounded by such slopes. (Id. at 1357a-59a.) The Board held a hearing on the application. The Groves participated as an aggrieved party. (Id. at 118a-19a.)
Following the hearing, on March 14, 2012, the Board rendered its decision, rejecting the Boyers' substantive validity challenge and curative amendment. (Id. at 1610a.) In rendering its decision, the Board made relevant findings of fact and conclusions of law. In particular, the Board found:
22. Franklin Township's SSCO area is subject to landslides due to its unique and peculiar geography.
23. The SSCO regulations are supported by the York County Comprehensive Plan and the Northern York County Regional Comprehensive Plan.
24. The soil in the SSCO is described as sandy gravels, silt and fine sand and is highly erosive and lacks cohesion.(Id. at 1606a-07a.) Based on the factual findings, the Board concluded that the Boyers failed to demonstrate that the zoning ordinance was irrational, unreasonable, or arbitrary. (Id. at 1609a.) Specifically, relying on expert testimony, the Board reasoned that the SSCO was rational and not arbitrary, because (1) construction in the SSCO resulted in severe erosion and sediment issues and (2) mitigating measures and stormwater management were ineffective in the SSCO. (Id.)
25. Construction in areas of the SSCO in the Township has previously resulted in dangerous incidents of severe erosion, washouts of roads and culverts, and the degradation of access roads.
26. Best practices for erosion and sediment control and stormwater management do not work on slopes of greater than fifteen percent (15%) in the Township.
27. The Township's Emergency Management Coordinator has serious concerns for the life, property, and safety of residents in the SSCO due to the inability of emergency vehicles to navigate the steep access roads and the inability to provide sufficient water supply.
28. All of the above concerns and issues were discussed during the drafting of the Ordinance, and the Township enacted the Ordinance to specifically address these concerns.
On April 16, 2012, the Boyers appealed the Board's decision to the trial court. (Id. at 1592a.) On May 16, 2012, the Groves and Appellees Ronald and Kathleen Gingrich intervened in the appeal before the trial court as landowners within the SSCO. (Id. at 1612a.)
On June 5, 2012, the Groves filed a motion for evidentiary hearing pursuant to Section 1005-A of the MPC. (Id. at 1619a.) They sought an evidentiary hearing on the grounds that
Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. § 11005-A.
a. Proper consideration of the Appellants' Land Use Appeal requires the presentation of additional evidence;(Id. at 1622a-23a.) The trial court denied the Groves' request. In his June 28, 2012, order denying the request for evidentiary hearing, the Honorable Stephen Linebaugh concluded that the record was complete in this matter and that "[t]he moving party has not specifically stated why the record is incomplete or why they were not given an opportunity to fully develop the record at the time of the hearing before the [B]oard." (6/28/2012 Trial Court Opinion at 2-3.)
b. [T]he forum [below] was inherently biased to the extent various members of Appellee [Board] had an interest in the outcome;
. . . .
d. Certain members of Appellee [Board], including Chairman of the [Board] Donald Lerew, were parties to previous litigation against Appellants involving the private right-of-way accessing [Boyers'] parcel;
f. Evidence of steep slope conservation ordinances in neighboring townships, with virtually identical soil and geological conditions to Franklin Township, was not fully and fairly considered by [the Board];
g. Evidence that appropriate management and engineering techniques can effectively mitigate water runoff, erosion, and sedimentation was not fully and fairly considered by [the Board];
h. . . . [D]esire to present additional testimony from certain experts, not previously offered because of scheduling constraints and the one-sided nature of the Hearings;
i. . . . [D]esire to present additional exhibits disallowed by [the Board] at the Hearing; and
j. . . . [D]esire to present additional evidence to show that [the Board] abused its discretion in denying [Boyers'] challenge and curative amendment.
On December 20, 2012, the trial court, in an opinion and order issued by Judge Maria Cook, denied the Boyers' land use appeal. (12/19/2012 Trial Court Opinion at 12.) In denying the appeal, the trial court concluded that the Boyers were barred by the doctrine of res judicata from bringing the substantive validity challenge. (Id. at 11-12.) The trial court observed that Boyers previously had lost an action contesting Franklin Township Zoning Hearing Board's (ZHB) refusal to grant them a validity variance involving the same property in the SSCO. The trial court also observed that the prior variance action "involved the same landowners, the Township's [ZHB] as Appellee, and two intervenors, the Township and [Ronald and Kathleen Gingrich]." (Id. at 10.) In applying the doctrine of res judicata, the trial court concluded that (1) "the identity in the thing sued upon is identical—the 42 acre property . . . [;]" (2) "the identity of the cause of action is essentially the same, although the form is slightly different[;]" (3) "the parties are identical[;]" and (4) "the identity of the quality or capacity of the parties suing or sued are identical." (Id. at 11-12.)
In Hunt v. Zoning Hearing Board of Conewago Township, 61 A.3d 380, 383-84 (Pa. Cmwlth. 2013), we explained the difference between a validity variance and a "normal" variance, as follows:
A validity variance "differs from the 'normal variance' in that the 'normal variance' is granted to adjust the zoning regulation to the particular property; a validity variance holds that the zoning regulation is restrictive to the point of confiscation and requires the issuance of a variance permitting a reasonable use of the land." Hersh v. Zoning Hearing Bd. of Marlborough Twp., 493 A.2d 807, 811 (Pa. Cmwlth. 1985) (emphasis added). When a validity variance is warranted, its issuance prevents an unconstitutional taking. Laurel Point Assocs. v. Susquehanna Twp. Zoning Hearing Bd., 887 A.2d 796, 800-801 (Pa. Cmwlth. 2005). In other words, a validity variance request is asserted in circumstances that essentially merit a zoning amendment.
As we noted in Laurel Point, an applicant for a validity variance must satisfy numerous criteria. Where applicable, an applicant must establish that "(1) the effect of the regulations complained of is unique to the applicant's property and not merely a difficulty common to other land in the neighborhood; and (2) the regulation is confiscatory in that it deprives the owner of the use of the property." Id. at 801. As we explain in our discussion regarding the additional applicability of Section 910.2 of the MPC, the uniqueness criterion is not always in play.
An applicant for a validity variance also must comply with the requirements for a variance found in Section 910.2 of the MPC. Contrary to the ZHB's determination, however, an applicant need not meet each and every element necessary for the grant of a variance in order to establish grounds for a validity variance. Section 910.2(a) of the MPC requires a zoning hearing board to make findings regarding the variance criteria "where relevant," meaning that "not all criteria must be satisfied in every case and that the quantum of proof necessary to establish a particular criterion may vary depending on the type of variance sought." Laurel Point, 887 A.2d at 801 n. 9.
In an opinion authored by Senior Judge Friedman, this Court held that the ZHB did not abuse its discretion or commit legal errors in denying the Boyers' validity variance request, because they failed to demonstrate that their unnecessary hardship arose from the unique physical circumstances of their property as opposed to the circumstances generally created by the zoning ordinance. Boyer v. Zoning Hearing Bd. of Franklin Twp., 987 A.2d 219, 223 (Pa. Cmwlth. 2009). Specifically, this Court noted that if it were not for the fact that the Boyers' property was within the SSCO, there was no question that they could have erected their single-family residence on an eight-and-one-half-acre plateau. Id.
The Boyers and the Groves thereafter filed separate appeals to this Court, which we consolidated. Following the filing of statements of matters complained of on appeal, the trial court issued separate opinions in accordance with Pennsylvania Rule of Appellate Procedure 1925(a). The first 1925(a) opinion, supporting the trial court's decision to deny the request for an evidentiary hearing, included additional support for the trial court's reasoning, as set forth in its original opinion, to deny the request for an evidentiary hearing. The trial court's other 1925(a) opinion in support of its decision denying the land use appeal, in addition to setting forth its original ground for denying the appeal, offered an alternative basis for the decision. Instead of basing the decision solely on the doctrine of res judicata, the trial court ruled on the merits of the appeal. The trial court concluded that the Boyers failed to meet their burden of demonstrating that the ordinance's SSCO provision "was unreasonable and bore no rational relationship to any legitimate zoning interest." (Rule 1925(a) Opinion on Land Use Appeal at 3.)
On appeal, the Boyers and the Groves (collectively, Landowners) raise three issues for our review. First, the Groves argue that the trial court abused its discretion when it denied their request for an evidentiary hearing. Second, to the extent that the trial court relied on the doctrine of res judicata, Landowners argue that the trial court erred in dismissing the Boyers' land use appeal. Third, Landowners appear to argue that substantial evidence does not support the Board's findings of fact numbers 22, 23, 25, 26, and 27. Finally, Landowners argue that the trial court, concluding that SSCO of the zoning ordinance comported with the police powers delineated in the MPC, erred in denying Boyers' land use appeal.
When the trial court accepts no additional evidence in a zoning appeal, our review is limited to considering whether the Board committed an abuse of discretion or an error of law. Atherton Dev. Co. v. Twp. of Ferguson, 29 A.3d 1197, 1202 (Pa. Cmwlth. 2011). The Board abuses its discretion only where its findings are not supported by substantial evidence. North Chestnut Hill Neighbors v. Zoning Bd. of Adjustment of the City of Philadelphia, 928 A.2d 418, 423 n.6 (Pa. Cmwlth.2007); 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, 928 A.2d at 423 n.6. An error of law is committed if a board erroneously interpreted or misapplied the law to the facts in a case. Bd. of Supervisors of Upper Southampton Twp. v. Zoning Hearing Bd. of Upper Southampton Twp., 555 A.2d 256 (Pa. Cmwlth.1989).
The doctrine of res judicata "subsumes the more modern doctrine of issue preclusion [(or collateral estoppel)] which forecloses re-litigation in a later action, of an issue of fact or law which was actually litigated and which was necessary to the original judgment." City of Pittsburgh v. Zoning Bd. of Adjustment of City of Pittsburgh, 522 Pa. 44, 55-56, 559 A.2d 896, 901 (1986). As Landowners, however, correctly note in their briefs, the trial court, despite listing the elements of collateral estoppel, did not base its opinion on the doctrine of issue preclusion, but rather on claim preclusion. Landowners consequently focused their arguments solely on claim preclusion. As such, we need not address whether collateral estoppel would be appropriate here.
We first address the Groves' contention that the trial court abused its discretion when it denied their request for an evidentiary hearing. This Court consistently has interpreted Section 1005-A of the MPC as conferring upon trial courts discretion in whether to grant or deny a petitioner's request for presentation of additional evidence. Crystal Forest Assocs, LP v. Buckingham Twp. Supervisors, 872 A.2d 206, 213 (Pa. Cmwlth. 2005), appeal denied, 586 Pa. 760, 895 A.2d 551 (2006). Indeed, Section 1005-A of the MPC provides, in relevant part:
If, upon motion, it is shown that proper consideration of the land use appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive additional evidence, may remand the case to the body, agency or officer whose decision or order has been brought up for review, or may refer the case to a referee to receive additional evidence, provided that appeals brought before the court pursuant to section 916.1 shall not be remanded for further hearings before any body, agency or officer of the municipality.(Emphasis added.) In zoning cases, trial courts are compelled to accept additional evidence only where the moving party demonstrates that the record is incomplete "because the party was denied an opportunity to be fully heard, or because relevant testimony was offered and excluded." Crystal Forest, 872 A.2d at 213.
Here, we agree with the trial court that the Groves have not demonstrated the need for an evidentiary hearing. The record amply supports the conclusion that they were offered a complete and meaningful opportunity to participate in the proceedings before the Board and to offer evidence. Indeed, at the multiple hearing dates before the Board, the Groves not only offered testimony, but also cross-examined witnesses. As a result of the Groves' participation before the Board, the record was fully developed for the reviewing court's proper consideration of the Boyers' land use appeal. We, therefore, cannot agree with the Groves' contention that the trial court abused its discretion in denying their request for an evidentiary hearing.
We next address Landowners' contention that the trial court erred in applying the doctrine of res judicata. The doctrine of res judicata is applied sparingly in zoning matters, in which arena the need for flexibility outweighs the risk of repetitive litigation. City of Pittsburgh, 522 Pa. at 55, 559 A.2d at 901. Nevertheless, the doctrine of res judicata may bar a zoning application, on the basis of prior legal proceedings thereon, if the concurrence of four elements exists: (1) the identity of the thing sued for; (2) the identity of the cause of action; (3) the identity of the persons and parties to the action; and (4) the identity of the quality in the persons for or against whom the claim is made. Id. In applying the doctrine to zoning matters, the ultimate and controlling issues must have been decided in a prior proceeding in which the present parties had an opportunity to appeal and assert their rights. Rudolph v. Zoning Hearing Bd. of College Twp., 470 A.2d 1104, 1107 (Pa. Cmwlth. 1984).
Here, we agree with Landowners that the trial court's application of the doctrine is misplaced. The Boyers' previous action before the ZHB involved a claim for validity variance, which is different than their claim for substantive validity challenge in the matter now before the Court. As noted above, a claim for validity variance includes proof elements that are different from the proof elements needed to prevail on a substantive validity challenge. Specifically, a claim for a validity variance requires an applicant to establish that "(1) the effect of the regulations complained of is unique to the applicant's property and not merely a difficulty common to other land in the neighborhood; and (2) the regulation is confiscatory in that it deprives the owner of the use of the property." Hunt, 61 A.3d at 384 (internal citations omitted). Accordingly, because the Boyers' previous claim was distinct from their substantive validity challenge in this case, we must conclude that the trial court erred in applying the doctrine of res judicata.
Next, to the extent that Landowners may be attempting to argue that substantial evidence does not exist to support the Board's findings of fact, we note that Landowners, in their respective statement of errors complained of on appeal and briefs, do not identify with particularity any findings of fact that they contend are not supported by substantial evidence. Rather, they take the general stance that there was sufficient evidence of record to show the ordinance was not enacted to advance public health, safety, and welfare. To support this position, Landowners generally argue that evidence of record indicates that the Township did not need to prohibit structures on slopes exceeding fifteen percent and could have adopted a less stringent measure to combat erosion and sediment issues. (Boyers' br. at 16.) Although findings of fact made by the Board that are not specifically challenged generally are conclusive upon review, Landowners' statement of errors complained of on appeal and briefs may be construed as challenging whether substantial evidence exists to support findings of fact numbers 22, 23, 25, 26, and 27. See Salamak v. Unemployment Compensation Board of Review, 497 A.2d 951, 954 (Pa. Cmwlth. 1985).
Substantial evidence means such relevant evidence as a reasonable person might consider sufficient to support a conclusion. Catholic Soc. Servs. Hous. Corp. v. Zoning Hearing Bd. of Edwardsville Borough, 18 A.3d 404, 407 n.2 (Pa. Cmwlth. 2011) (citation and quotation marks omitted). This Court may not substitute its interpretation of the evidence for that of the township board of supervisors. See Vanguard Cellular Sys., Inc. v. Zoning Hearing Bd. of Smithfield Twp., 568 A.2d 703, 707 (Pa. Cmwlth. 1989), appeal denied, 527 Pa. 620, 590 A.2d 760 (1990). It is the function of a board of supervisors to weigh the evidence before it. See Lake Adventure, Inc. v. Zoning Hearing Bd. of Dingman Twp., 440 A.2d 1284, 1288 (Pa. Cmwlth. 1982). The Board in this case is the sole judge of the credibility of witnesses and the weight afforded to their testimony. Manayunk Neighborhood Council v. Zoning Bd. of Adjustment of the City of Phila., 815 A.2d 652, 658 (Pa. Cmwlth. 2002), appeal denied, 574 Pa. 777, 833 A.2d 145 (2003). Assuming the record contains substantial evidence, we are bound by the Board's findings that result from resolutions of credibility and conflicting testimony rather than a capricious disregard of evidence. See Vanguard Cellular Sys., Inc., 568 A.2d at 707. Also, the Board is free to reject even uncontradicted testimony it finds lacking in credibility, including testimony offered by an expert witness. See Nettleton v. Zoning Bd. of Adjustment of the City of Pittsburgh, 574 Pa. 45, 58, 828 A.2d 1033, 1041 (2003). It does not abuse its discretion by choosing to believe the opinion of one expert over that offered by another. Berman v. Manchester Township Zoning Hearing Bd., 540 A.2d 8, 10 (Pa. Cmwlth. 1988), appeal denied, 520 Pa. 619, 554 A.2d 511 (1989).
Finding of fact number 22 provides that the "SSCO area is subject to landslides due to its unique and peculiar geography." We disagree with Landowners' contention that this finding is unsupported by substantial evidence. Here, the Township's licensed professional engineer, Edward Balsavage, testified before the Board about the soil and geographic characteristics of the SSCO area:
The geologic setting of that area is rather unique. It's part of what's termed the Blue Ridge Physiographic Province; part of the Appalachian Range, of course. But what makes it unique is, it was created from an uplift, or thrust, during the formation of the Appalachian Mountains. But it is comprised primarily of quartzite . . . .(R.R. at 621a.)
The other unique feature of the [SSCO] district is, the quartzite has been folded and faulted. So, the best way I can describe these very technical terms: if you can picture that mountain, that ridge, as a big block of glass that's been hit by a giant sledge hammer. It is fractured.
Further, discussing Special Counsel's Hearing Exhibit 1, Map 8—Geologic Hazards in York County, Pennsylvania, Mr. Balsavage testified that Map 8 illustrated geologic hazards. (Id. at 628a, 1394a.) Specifically, he testified that hazard "is referenced as areas susceptible to landslides that [are] located in the [SSCO]." (Id. at 628a-29a (emphasis added).) Based on Mr. Balsavage's testimony, which the Board found credible, we conclude that the Board's finding of fact number 22 relating to landslides is supported by substantial evidence.
Landowners also contend that there is no substantial evidence of record to support the Board's finding of fact number 23 to the extent it provides that "[t]he SSCO regulations are supported by the York County Comprehensive Plan." (Id. at 1607a.) We agree. We observe that the record before this Court is devoid of any document entitled "York County Comprehensive Plan." Indeed, none of the parties cite to any place in the record where this document could be found. Rather, the Boyers in their brief suggest that the Board relied on a document entitled "York County Hazard Mitigation Plan" to render this challenged finding of fact. (Boyers' br. at 15.) York County Hazard Mitigation Plan provides, in relevant part, "[a]ccording to the PA [Department of Conservation and Natural Resources], the susceptibility to landslides in York County is considered generally low, but this does not imply that given the right combination of factors a landslide could not occur." (R.R. at 1352a.) This general statement is not substantial evidence of record which demonstrates that the SSCO provisions were supported by the York County Hazard Mitigation Plan. Nonetheless, whether the SSCO provisions of the ordinance were supported by any county plans is not a necessary fact, and as a result, is not a basis to reverse the trial court.
As to finding of fact number 25, Landowners argue that substantial evidence does not exist to support the Board's finding that "[c]onstruction in areas of the SSCO in the Township has previously resulted in dangerous incidents of severe erosion, washouts of roads and culverts, and the degradation of access roads." (R.R. at 1607a.) We disagree. In this case, the Township's engineer, Timothy Knoebel, testified that the prior to the adoption of the SSCO provisions, the Township experienced erosion and sediment issues along the slopes, including severe washouts, and washouts of culverts and roads. (Id. at 730a, 736a.) Specifically, Mr. Knoebel testified that the washout of travelled roadways "can happen within a very short period of time with an intense thunderstorm." (Id. at 730a-31a.) He further testified that "we have erosion that causes the blockage of culvert pipes and driveway pipes." (Id. at 732a.) As a result, Mr. Knoebel testified that "when sediment gets in those ditches and fills them up and blocks those culvert pipes, the water will then come out onto the road, either wash sediment onto the road, flood the road over top, and then go down to down-slope properties and cause problems for them as well." (Id.) Based on Mr. Knoebel's testimony, which the Board found credible, we conclude that the Board's finding regarding previous incidents of severe erosion and washouts is supported by substantial evidence of record.
Landowners further dispute finding of fact number 26, which provides that "[b]est practices for erosion and sediment control and stormwater management do not work on slopes greater than fifteen percent (15%)." (Id. at 1607a.) Here, Mr. Knoebel testified that, on slopes between fifteen and twenty-five percent that feature driveways, it is challenging to manage soil erosion and stormwater. (Id. at 738a.) Indeed, he testified that infiltration or seepage beds and detention basins on such slopes are difficult to construct and very expensive to maintain. (Id. at 739a-40a.) Also, their construction would "require disturbance of an excessive amount of ground . . . because of the way that they need to be built." (Id. at 739a.) Mr. Knoebel testified that infiltration beds and detention basins are "subject to being clogged, especially if you have dirt and sediment in the water that goes into them." (Id.) Because of the likelihood of clogging that is caused by dirt and leaves on the steep slopes, Mr. Knoebel opined, "it's a pretty short period of time before [clogging] can render a device like that pretty much useless." (Id. at 739a-40a.) Opining about detention basins, he testified:
[F]rom my experience, after a good couple of thunderstorms, there is enough dirt in these things that they need to be dug back out. And again, now we are relying on homeowners to do that. That's very maintenance intensive to do that. And many times, they just may not get to it. There could be another thunderstorm that happens, and there is no capacity left in the trap, and the water just goes over the top of it and erodes the embankment and goes down onto the down-slope property.(Id. at 741a-42a.) He also testified that none of the best stormwater management practices could be used on slopes of more than fifteen percent. (Id. at 746a.) As Mr. Knoebel's testimony indicates, the Board's finding of fact number 26 is supported by substantial evidence.
Addressing the complexity of normal erosion controls on steep slopes, Mr. Knoebel testified:
And riprap . . . anywhere from, say, 3- to 8-inches, typically 6-inch size. Large pieces of rock, or ballast, is used as well, And that will be put alongside of the roads in, say, like a ditch that the water will be directed into. Any of these roads that are dirt, that material and that type of soil is going to wash into that ditch. It's going to fill the voids in the riprap. And once they are full, their ability to slow the velocity is reduced. The other thing that happens is, just imagine trying to dig that sediment out from between those rocks? It's very difficult to do. And in fact, most of the time, people just don't do it. They'll come in and just take all of the rock and put new rock in. So, again, it can be very expensive. And that process, in and of itself, disturbs the ground when you talk about doing that. Because many times when that sediment get dug out of there, the homeowners don't have any place to take it; so, they will just pile it up alongside of the road, like upon the bank, and then it rains again and that will, in fact, start washing as well.(R.R. at 743a-44a.)
The final finding of fact that Landowners challenge for lack of substantial evidence is finding of fact number 27, which provides that "[t]he Township's Emergency Management Coordinator has serious concerns for the life, property, and safety of residents in the SSCO due to the inability of emergency vehicles to navigate the steep access roads and the inability to provide sufficient water supply." (Id. at 1607a-08a.) Here, the Township's emergency management coordinator, Laurin Fleming, testified that permitting structures on slopes of greater than fifteen percent "raises concerns for me primarily in the aspects of access to them during times of emergency." (Id. at 585a-86a.) Addressing a question about navigation, Mr. Fleming testified that it was difficult for emergency vehicles to navigate steep roadways in the SSCO. (Id. at 588a.) He also testified that he was concerned for the "life and property and safety," especially during inclement weather. (R.R. at 586a.) Further, Mr. Fleming testified that he was concerned about emergency responders' ability to provide sufficient water during a fire on steep slopes. (Id. at 587a.) Specifically, he testified that "[w]ater doesn't go uphill very well, which pretty much limits us to a tanker shuttle. And if the roadway is a one-way roadway, it makes it very, very difficult to coordinate water supply." (Id.) Finally, given these water-supply issues, he was concerned about a fire spreading uphill at an increased speed. (Id. at 588a.) We, therefore, conclude that our review of the record demonstrates that there is substantial evidence to support the Board's finding relating to the emergency management coordinator's concerns.
The Boyers argue in their brief that emergency management concerns are unconvincing because "regulations on the roadways themselves can be enacted to provide better access to the residences." (Boyers' br. at 16.) We, however, note that the Boyers currently are prohibited from making improvements to the road leading to their property in the SSCO because of a private right-of-way easement. (R.R. at 942a.)
Lastly, we address Landowners' argument that the trial court erred in denying the Boyers' land use appeal on the merits. Zoning ordinances enjoy a presumption of constitutionality and validity, and the party challenging one carries a heavy burden of proving otherwise. Interstate Outdoor Adver., L.P. v. Zoning Hearing Bd. of Washington Twp., 39 A.3d 1019, 1024 (Pa. Cmwlth. 2012). To overcome this presumption of constitutionality, a challenger must show that the ordinance totally excludes an otherwise legitimate use or is unduly restrictive. Christ United Methodist Church v. Municipality of Bethel Park, 428 A.2d 745, 748 (Pa. Cmwlth. 1981). Unless the challenger proves the ordinance in question completely or effectively excludes a legitimate use, the challenger cannot bear its burden. Interstate Outdoor Adver. L.P., 39 A.3d at 1024. To prove total or effective exclusion of a permitted use, the challenger can show that the ordinance is either de jure or de facto exclusionary. Id. A de jure exclusion exists where an ordinance, on its face, totally bars a legitimate use. Thomson v. Zoning Hearing Bd. of Twp. of Radnor, 26 A.3d 562, 566 (Pa. Cmwlth. 2011). A de facto exclusion exists where an ordinance permits a use on its face, but when applied, acts to bar the use throughout a municipality. Id. If a challenger can establish the ordinance excludes the use in question, the burden shifts to the municipality to demonstrate that the zoning ordinance bears a substantial relationship to public health, safety and welfare. Thomson, 26 A.3d at 566. In fact, a property owner's right to enjoy his property may be reasonably limited by legitimate zoning ordinances that municipalities enact in accordance with their "police power—i.e., governmental action taken to protect or preserve the public health, safety, morality and welfare." C & M Developers, Inc. v. Bedminster Twp. Zoning Hearing Bd., 573 Pa. 2, 14, 820 A.2d 143, 150 (2002). "Where a zoning provision's validity is debatable, the legislature's judgment must control." Boundary Drive Assocs. v. Shrewsbury Twp. Bd. of Supervisors, 507 Pa. 481, 490-91, 491 A.2d 86, 91 (1985).
Here, the undisputed facts of record indicate that the SSCO provisions of the ordinance are not exclusionary to the extent that they bar construction within the SSCO. Specifically, the prohibition against single-family homes within the SSCO does not render the zoning ordinance exclusionary, because single-family homes are permitted in other zoning districts within the township. Thus, the only issue is whether the zoning ordinance is unduly restrictive without a substantial relationship to public health, safety, and welfare.
Although we agree with Landowners that the ordinance is restrictive because it prohibits construction within the SSCO, we cannot agree with them that the ordinance does not serve the Township's police powers. Indeed, the evidence of record supports the Board's conclusion that the ordinance is substantially related to the township's police powers—i.e., to protect or preserve the public health, safety, and welfare. In this regard, the Board found that the SSCO area was subject to landslides because of its unique and peculiar geography. (R.R. at 1607a.) Particularly, the Board found that the soil in the SSCO was highly erosive and lacked cohesion. (Id.) Further, the Board found that "construction in areas of the SSCO in the Township has previously resulted in dangerous incidents of severe erosion, washouts of roads and culverts, and the degradation of access roads." (Id.) The Board also found that, within the township, best practices for erosion and sediment control and stormwater management do not work on slopes of greater than fifteen percent. (Id.) Finally, the Board found that "[t]he Township's Emergency Management Coordinator has serious concerns for the life, property, and safety of residents in the SSCO due to the inability of emergency vehicles to navigate the steep access roads and the inability to provide sufficient water supply." (Id. (emphasis added).) Given the evidence of record, the trial court did not err in concluding that the ordinance is substantially related to public health, safety, and welfare. Consequently, the trial court did not err in denying the Boyers' land use appeal.
"The Board as the factfinder is the sole judge of credibility with the power to resolve conflicts in the testimony and to reject even uncontradicted testimony if it should find said testimony lacking in credibility." Petition of Dolington Land Group, 576 Pa. 519, 527, 839 A.2d 1012, 1026 (2003). --------
Accordingly, we affirm the trial court's orders.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 18th day of November, 2013, the orders of the Court of Common Pleas of York, dated June 28, 2012 and December 19, 2012, are hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge
Hunt, 61 A.2d at 383-84 (footnote omitted).