Opinion
No. 358 C.D. 2012
07-19-2012
Wayne Bradley, Appellant v. New Milford Borough Council
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Wayne Bradley (Objector) appeals the order of the Court of Common Pleas of Susquehanna County (trial court) dismissing as frivolous, under Section 1003-A(d) of the Pennsylvania Municipalities Planning Code (MPC), his appeal of New Milford Borough Council's enactment of Resolution No. 050511 amending New Milford Borough's (Borough) zoning ordinance and zoning map by changing the I-1 (Industrial) zoning district to a D-1 (Redevelopment) zoning district. We reverse and remand.
Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §11003-A(d). Section 1003-A(d) of the MPC states, in pertinent part:
(d) [I]f the appellants are persons who are seeking to prevent a use or development of the land of another, ... the landowner whose use or development is in question may petition the court to order the appellants to post bond as a condition to proceeding with the appeal. After the petition for posting a bond is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous. At the hearing, evidence may be presented on the merits of the case. It shall be the burden of the landowners to prove the appeal is frivolous. After consideration of all evidence presented, if the court determines that the appeal is frivolous, it shall grant the petition for posting a bond. ... The question of the amount of the bond shall be within the sound discretion of the court. ... An order directing the respondent to the petition for posting a bond to post a bond shall be interlocutory. If an appeal is taken by a respondent to the petition for posting a bond from an order of the court dismissing a land use appeal for refusal to post a bond, such responding party, upon motion of petitioner and, after hearing in the court having jurisdiction of land use appeals, shall be liable for all reasonable costs, expenses and attorney fees incurred by petitioner.
The Susquehanna County Housing Development Corporation (Landowner) purchased the dilapidated Southern Tier Plastics plant on a 2.77-acre parcel in the Borough's I-1 zoning district after being contacted by the Borough about the property. Landowner intends to remove the industrial building and replace it with a mid-rise apartment building for senior citizens. To that end, on February 8, 2011, Landowner filed an application with the Borough to amend the Borough's zoning ordinance and zoning map to change the zoning of the I-1 (Industrial) zoning district to a D-1 (Redevelopment) zoning district.
The projected overall cost is $5,600,000 for the redevelopment of the site including the construction of the senior housing facility. The Pennsylvania Housing Finance Agency (PHFA) awarded Landowner tax credits totaling $4,700,000 for the project, and Landowner received $747,000 from the Pennsylvania Department of Community and Economic Development and $100,000 from the County Commissioners to complete the project. The PHFA's tax credit reservation letter set a proposed commencement date of April 1, 2012, and a proposed completion date of September 2013. Landowner will be required to swap the 2012 tax credits for 2013 tax credits if the project is not completed by September 2013, and Landowner will have to pay PHFA a $33,250 fee and lose an additional $520,000 in tax dollars. It was projected that a one-year delay could lead to increased construction costs of $380,000 and increased development costs of $125,000.
A public hearing was held on March 10, 2011. Objector had notice of the first hearing from the newspaper and appeared with counsel. Although Objector did not testify at the hearing, his counsel gave an opening statement and other objectors spoke. It was announced at the hearing that a second hearing would occur on May 9, 2011. Objector's counsel could not attend on that date, but his request to reschedule the second hearing was denied.
On April 14, 2011, the Borough gave notice of the proposed zoning change of the redevelopment site to adjoining landowners. Letter notice was sent to Eleanor Bradley, Objector's mother, care of Objector, P.O. Box 291, New Milford, PA 18834. At that time, Objector's mother, while the record owner of a parcel across the street from Landowner's parcel, was deceased.
The Borough also posted notices at or near the proposed site that the hearing would be conducted on Landowner's application on May 5, 2011. Objector noticed and read the signs, but did not attend the second hearing. Following the May 5, 2011 hearing, Borough Council enacted Resolution No. 050511 purporting to amend the Borough's zoning ordinance and zoning map by changing the zoning district from I-1 (Industrial) to D-1 (Redevelopment).
Two other parcels that were affected by the change in zoning districts were a .79-acre tract owned by Jeffrey Herbert and a 1-acre tract owned by Scott Young.
On June 3, 2011, Objector filed a notice of appeal in the trial court of Borough Council's enactment of Resolution No. 050511, alleging a number of procedural defects in the adoption of the zoning change. The notice of appeal stated that Objector "[i]s an adult and competent individual, as well as the owner and occupant of the premises" located across the street from Landowner's parcel. (Reproduced Record (R.R.) at 5a.) In fact, Objector's son lives on the premises. Objector's mother and father previously owned the property, his father had passed away years ago, and it was devised to him by his mother when she died on September 17, 2010. By deed dated July 12, 2011, the parcel was conveyed by his mother's estate to H.L. Bradley Farms, Inc. Objector is the sole shareholder of H.L. Bradley Farms, Inc.
Section 1002-A(b) of the MPC states, in pertinent part:
(b) Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption shall be raised by appeal taken directly to the court of common pleas of the judicial district in which the municipality adopting the ordinance is located in accordance with 42 Pa. C.S. § 5571.1 (relating to appeals from ordinances, resolutions, maps, etc.).
Objector filed another appeal of an order of the Borough's Zoning Hearing Board, and the trial court consolidated the cases for hearing.
On December 16, 2011, the trial court held a hearing on Objector's appeal at which Objector testified and presented documentary evidence and the testimony of Borough Council's president. At the hearing, Landowner's counsel interposed an oral motion for leave to intervene in the appeal. Landowner's oral motion was denied. Subsequently, on December 20, 2011, Landowner filed a petition for allowance of intervention nunc pro tunc. On January 3, 2012, Landowner filed a petition for leave to intervene that was granted by the court.
Section 1004-A of the MPC states:
Within the 30 days first following the filing of a land use appeal, if the appeal is from a board or agency of a municipality, the municipality and any owner or tenant of property directly involved in the action appealed from may intervene as of course by filing a notice of intervention.... All other intervention shall be governed by the Pennsylvania Rules of Civil Procedure.
Pa. R.C.P. No. 2327(4) states:
At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if
* * *
(4) the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action.
Landowner then filed a petition to compel Objector to file bond, alleging that Objector's appeal jeopardized not only the $5,700,000 in federal and state funding, but also $78,700 in costs for pre-development of the parcel. On January 26, 2011, the trial court conducted a hearing on Landowner's petition to compel the posting of bond. On that same date, the Borough filed a motion to dismiss the appeal because Objector lacked standing to appeal as an individual because he was not a "person aggrieved" because he did not own any property in the Borough. The trial court did not rule on that motion but instead issued a rule returnable on February 19, 2012, upon Objector, Borough Council and Landowner to show cause why Objector's appeal should not be dismissed for Objector's lack of standing.
The next day, January 27, 2012, the trial court issued an order finding that Objector's appeal was frivolous, directing Objector to post bond of $1,000,000 within ten days, and noting that the failure to post the requested bond may result in dismissal of Objector's appeal. On February 9, 2012, the trial court issued an order dismissing Objector's appeal based on his failure to post the required bond. In its Pa. R.A.P. 1925(a) opinion, the trial court addressed each of the issues raised by Objector and gave detailed reasons as to why each was frivolous. Additionally, the trial court found that Objector's appeal was frivolous because Objector lacked standing to appeal as an individual because he was not the owner of any property in the Borough, including the property across the street from the property being rezoned which was owned by a corporation he controlled and which had not filed an appeal. Objector then filed the instant appeal of the trial court's order.
This Court's scope of review of the trial court's determination of whether a land use appeal is frivolous and for the purpose of delay, and, therefore, whether the appellant may be required to post bond, is limited to determination of whether the court abused its discretion. C.A.N.D.L.E. v. Board of Commissioners of Fayette County, 502 A.2d 742, 745-46 (Pa. Cmwlth. 1985).
In this appeal, Objector claims that the trial court erred in granting Landowner's petition requiring Objector to post bond on the basis that his appeal was frivolous and for the purpose of delay, and in determining in the Pa. R.A.P. 1925(a) opinion filed in support of its order that Objector lacked standing to take the appeal.
We consolidate and reorder the claims raised by Objector in this appeal in the interest of clarity.
Objector also appeals the trial court's grant of intervenor status to Landowner in his appeal. We will not address this issue because it does not go to the issue of whether his appeal to the trial court was frivolous. Additionally, Objector asserts a number of collateral claims relating to the intervention issue. Objector contends that the trial court's ruling in this regard evinces a bias against Objector in violation of his procedural and due process rights as guaranteed by the United States and Pennsylvania Constitutions. However, an appellate court presumes judges are fair and competent. In re Lokuta, 608 Pa. 223, 238, 11 A.3d 427, 435, cert. denied, ___ U.S. ___, 132 S.Ct. 242 (2011). Thus, a party's claims of bias against a trial judge should not be made without clear support for the same in the record. Zdrok v. Main Line National Mortgage Company, 921 A.2d 1226, 1229 (Pa. Super. 2007). In order to preserve the claim of judicial bias for appeal, Objector was first required to raise it in the trial court. Dennis v. Southeastern Pennsylvania Transportation Authority, 833 A.2d 348, 352 (Pa. Cmwlth. 2003) Moreover, Objector's failure to develop any argument regarding his constitutional claims results in a waiver of such claims as well. See In re Estate of Ryerss, 987 A.2d 1231, 1236 n.7 (Pa. Cmwlth. 2009) (holding that arguments not properly developed in an appellate brief will be deemed waived by this Court under Pa. R.A.P. 2119(a)); Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (holding that the failure to cite pertinent authority results in waiver under Pa. R.A.P. 2119). Finally, Objector raises even more claims in this regard that are not fairly suggested by the statement of questions presented portion of his brief. Accordingly, these additional claims have also been waived. See In re Estate of Ryerss, 987 A.2d at 1236 n.7 (holding that issues not stated in the statement of questions presented or fairly suggested thereby will be deemed waived by this Court under Pa. R.A.P. 2116(a)).
Section 1003-A of the MPC permits Landowner to petition the trial court to compel Objector to post bond as a condition to proceeding with a land use appeal. 53 P.S. §11003-A. It was Landowner's burden to demonstrate that Objector's appeal is frivolous at the hearing on its petition. Id.
In determining whether a land use appeal is frivolous for purposes of requiring a bond, the trial court must consider the general merits of the underlying case. In re Kuzmiak, 845 A.2d 961, 967 n.9 (Pa. Cmwlth. 2004). A frivolous appeal is "'one in which no justiciable question has been presented and the appeal is readily recognizable as devoid of merit in that there is little prospect that it can ever succeed.' Black's Law Dictionary 601 (5th ed. 1979)." Abbey v. Zoning Hearing Board of Borough of East Stroudsburg, 559 A.2d 107, 112 (Pa. Cmwlth. 1989) (quoting Collis v. Zoning Hearing Board of City of Wilkes-Barre, 465 A.2d 53, 57 (Pa. Cmwlth. 1983)).
In determining that the appeal was frivolous, the trial court found that Objector lacked standing to maintain the appeal because he took the appeal as an individual based on his ownership of property across the street from the property being rezoned. Objector claims that his purported lack of standing could not be used to find that his appeal was frivolous because it was not considered at the hearing on whether his was appeal was frivolous. We agree.
A person who wishes to contest a zoning approval can initiate an appeal or challenge if he is a "person aggrieved." Section 913.3 of the MPC, 53 P.S. §10913.3. To establish "aggrieved" status for purposes of standing, a party must have a substantial, direct and immediate interest in the claim sought to be litigated. Laughman v. Zoning Hearing Board of Newberry Township, 964 A.2d 19, 22 (Pa. Cmwlth. 2009). In order to have a substantial interest, there must be some discernible adverse affect to some interest other than the abstract interest of all citizens in having others comply with the law. Pilchesky v. Doherty, 941 A.2d 95, 99 (Pa. Cmwlth. 2008).
The Borough filed its motion to dismiss Objector's appeal due to his lack of standing on January 26, 2012. (R.R. at 113a-118a.) That same day, by order, the trial court issued a rule returnable on February 19, 2012, upon Objector, Borough Council and Landowner to show cause why Objector's appeal should not be dismissed for his lack of standing. (Id. at 120a.) However, the trial court dismissed Objector's appeal on February 9, 2012, due to Objector's failure to post the required bond. That is the only order underlying the instant appeal. Thus, the trial court dismissed Objector's appeal on other grounds prior to ruling on the motion to dismiss due to his lack of standing. The trial court's passing reference to Objector's standing as further support for its order dismissing Objector's appeal cannot be construed as a ruling on the outstanding motion. Moreover, while the net effect is the same in that the appeal is dismissed, a party's lack of standing does not go to whether the appeal is frivolous because it may well not be, but only to the ability of that party to maintain the appeal. Because it was not before the trial court, and because it is not a factor in determining whether a zoning appeal is so frivolous as to require posting of a bond, Objector's lack of purported standing cannot be used to find the appeal frivolous.
As to the merits of whether the trial court erred in granting Landowner's petition requiring Objector to post bond on the basis that his appeal was frivolous, while we agree with the trial court that Objector's claims regarding the other procedural issues regarding notice are frivolous, we disagree with its conclusion that Objector's claim that "[t]he action taken by the Borough Council on May 5, 2011 was not done in accordance with [sic] Ordinance, but rather by Resolution [No. 050511] and is not in compliance with the Section 7.700 of the [Borough] Zoning Ordinance and/or the [MPC]..." is frivolous. (R.R. at 7a.)
A governing body such as Borough Council is required to enact an ordinance and not a resolution in order to amend the zoning ordinance and the zoning map to rezone the affected properties from the I-1 (Industrial) zoning district to a D-1 (Redevelopment) zoning district. Section 402 of MPC, 53 P.S. §10402; Zoning Hearing Board of Wyoming Borough v. Marchesini, 572 A.2d 824, 826 (Pa. Cmwlth. 1990) ("[O]nly the governing body—here the borough council—has the exclusive power to change zoning districts by ordinance amendments, under MPC § 601, 53 P.S. § 10601."); County Builders, Inc. v. Lower Providence Township, 287 A.2d 849, 851 (Pa. Cmwlth. 1972) ("[T]his raises the question of whether an ordinance may be effectively amended by a resolution. It has been held that it may not.") (citation omitted); Penn Wynne v. Township of Lower Merion, 124 A.2d 487, 491 (Pa. Super. 1956) ("[G]enerally, the amendment can be effected only by an ordinance enacted by the municipal legislative body and not by a mere resolution or order....") (citation omitted).
Section 402 of the MPC states, in relevant part:
(a) Prior to the adoption of the official map or part thereof, or any amendments to the official map, the governing body shall refer the proposed official map, or part thereof or amendment thereto, with an accompanying ordinance describing the proposed map, to the planning agency for review....
(b) [B]efore voting on the enactment of the proposed ordinance and official map, or part thereof or amendment thereto, the governing body shall hold a public hearing pursuant to public notice.
(c) Following adoption of the ordinance and official map, or part thereof or amendment thereto, a copy of same, verified by the governing body, shall be submitted to the recorder of deeds of the county in which the municipality is located and shall be recorded within 60 days of the effective date....
Section 601 of the MPC provides:
The governing body of each municipality, in accordance with the conditions and procedures set forth in this act, may enact, amend and repeal zoning ordinances to implement comprehensive plans and to accomplish any of the purposes of this act.
See also Section 1006(a) of the Borough Code, §46006(a) ("It shall be the duty of the borough council ... [t]o enact, revise, repeal and amend ordinances and resolutions pursuant to Article XXXIII ... as it deems beneficial to the borough and to provide for the enforcement of the same...."); Section 3301.1(b) of the Borough Code, 53 P.S. §48301.1(b) ("[E]very legislative act of council shall be by ordinance and these legislative acts shall include, but not be limited to, ... all legislation ... regulating land use, development and subdivision...."); Section 3301.1(c) of the Borough Code, 53 P.S. §48301.1(c) ("[T]he purposes for which resolutions may be adopted shall include, but not be limited to, ceremonial or congratulatory expressions of the good will of the council, statements of public policy of the council, approval of formal agreements of the borough, other than agreements arising under an established purchasing system of the borough, the approval, when required, of administrative rules, regulations and bylaws arising under State statutes or borough ordinances and the filling of borough-appointed positions and of vacancies of elected officials unless otherwise provided.").
This Court has recently noted:
As a general rule, a resolution does not have the effect of a law or an ordinance. It is usually viewed merely as "a formal expression of the opinion or will of
an official body or a public assembly, adopted by vote." McGinley v. Scott, 401 Pa. 310, 321, 164 A.2d 424 (1960); Sutherland Statutory Construction, § 29.01. However, the name given to a particular enactment is not important to determine whether it has the legal effect of an ordinance but rather whether the requirements which are essential to the validity of an ordinance were observed in the passage, approval, recording and publication of resolutions where the action of councils is legislative. Gallagher v. Borough of Olyphant, 181 Pa. 191, 198, 37 A. 258 (1897)....Middletown Township v. County of Delaware Uniform Construction Code Board of Appeal, 42 A.3d 1196, 1201-02 n.8 (Pa. Cmwlth. 2012). See also Blackwell v. City of Philadelphia, 546 Pa. 358, 367, 684 A.2d 1068, 1072-73 (1996) ("[A]s this Court has stated, a resolution is: an informal enactment of a temporary nature, providing for the disposition of a particular piece of the administrative business of a municipal corporation. It is not a law, and there is no difference between a resolution and a motion.") (citation omitted).
The resolution enacted by Borough Council in this case reads as follows:
AMENDMENT TO THE
ZONING ORDINANCE FOR
NEW MILFORD BOROUGH
SUSQUEHANNA COUNTY, PENNSYLVANIA
Resolution No. 050511
Pursuant to the authority vested in the Borough Council of New Milford Borough, as the governing body of the Borough of New Milford, by 53 P.S. ss 7.700 of the Zoning Ordinance for the Borough of New Milford, a
public hearing will be held on the 5th day of May, 2011 at 7:00 p.m. at the borough building to consider and act on the following amendment to the Zoning Ordinance:
To modify the zoning district and zoning map from I-1 (Industrial) to D-1 (Redevelopment) as to the following properties: a 2.77 acre tract, more or less, currently owned by the Susquehanna County Housing Development Corporation, bounded on the east by Scott Young and Jeffrey Herbert, bounded on the west by Church Street, bounded on the south by Maple Street and bounded on the north by Susquehanna Street, recorded and more particularly described in Susquehanna County Instrument number 201102328, a .79 acre tract, more or less, currently owned by Jeffrey Herbert, bounded on the east by I-81, bounded on the west by the Susquehanna County Housing Development Corporation, bounded on the south by Maple Street and bounded on the north by Scott Young, recorded and more particularly described in Susquehanna County Deed Book 577, page 818, a 1.0 acre tract, more or less, currently owned by Scott Young, bounded on the east by I-81, bounded on the west by the Susquehanna County Housing Development Corporation, bounded on the south by Jeffrey Herbert and bounded on the north by Susquehanna Street, recorded and more particularly described in Susquehanna County Deed Book 544, page 150.
Enacted and ordained this 5th day of May, 2011.
By /s/ James Carr
James Carr, Council President
New Milford Borough
ATTEST:
/s/ Amy Hine
Amy Hine, Secretary
New Milford Borough
Read and approved by me this 5th day of May, 2011.
(R.R. at 64a.)/s/ Joe Taylor
Joe Taylor, Mayor
New Milford Borough
By its terms, Resolution No. 050511 does not amend the Borough's zoning ordinance and the zoning map by rezoning the three affected properties from the I-1 (Industrial) zoning district to a D-1 (Redevelopment) zoning district. Rather, Resolution No. 050511 merely expresses Borough Council's intention to hold a hearing and to consider and act on an amendment to the zoning ordinance that would modify the zoning district and zoning map. Although the adoption of Resolution No. 050511 may have followed the formalities required for the enactment of an ordinance, its contents demonstrate that it is, in fact, merely a resolution.
In interpreting the provisions of Resolution No. 050511, "'words ... shall be construed ... according to their common and approved usages [and] technical words ... [which] have acquired a peculiar and appropriate meaning ... shall be construed according to such peculiar and appropriate meaning or definition.' See 1 Pa. C.S. §1903...." Hernley Family Trust v. Fayette County Zoning Hearing Board, 722 A.2d 1115, 1117 (Pa. Cmwlth. 1998), appeal denied, 560 Pa. 712, 743 A.2d 924 (1999).
As explained long ago:
[I]t is well settled, however, that if councils have received the power to perform a legislative act, it makes no difference which name is applied to the process by which the act is performed. A so-called 'resolution' may be also, and as truthfully, described as an 'ordinance,' if it was intended to be an ordinance, and if the forms needed to pass an ordinance have been properly observed. If councils have put forth their law-making power, and with the proper formalities have made a law in the true sense of that word, it is of little consequence whether the result of their labor is described as an ordinance or as a resolution. The name is of no importance; the substance of the matter is this: Under either name a law has been made which the citizens must obey. In like manner, a mere resolution—such for example as might welcome a distinguished visitor, or express an opinion about some proposed change in taxation, or censure a delinquent official—would not become a law even if it passed through every form prescribed for a true ordinance. The reason is plain; In the cases supposed, certain sentiments are expressed but no law is enacted; there is no purpose to reach the citizen and demand his obedience: Sower v. Phila., 35 Pa. 231 [(1860)]; Kepner v. Com., 40 Pa. 124 [(1861)]; Waln v. Phila, 99 Pa. 330 [(1882)]....
In sum, Objector's claim that Resolution No. 050511 is a resolution and not an ordinance that amended the zoning ordinance and zoning map thereby rezoning Landowner's parcel has merit. As a result, we are constrained to conclude that the trial court erred in determining that Objector's appeal was frivolous and for the purpose of delay in imposing an appeal bond on that basis, and in dismissing the appeal due to Objector's failure to post the required bond.
Accordingly, the trial court's order is reversed, and the case is remanded for consideration of Objector's appeal on the merits.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 19th day of July, 2012, the order of the Court of Common Pleas of Susquehanna County, dated February 9, 2012, at No. 2011-815-CP, is reversed, and the case is remanded for proceedings consistent with this opinion.
Jurisdiction is relinquished.
/s/_________
DAN PELLEGRINI, President Judge
53 P.S. §11002-A(b). In turn, Section 5571.1(a) of the Judicial Code provides that "[a]ny appeal raising questions relating to an alleged defect in the process or procedure for enactment or adoption of any ordinance, resolution, map, or similar action of a political subdivision ... shall be to the court of common pleas". 42 Pa. C.S. §5571.1(a). See also Section 3301.6 of the Borough Code, Act of February 1, 1966, P.L. (1965) 1656, added by Act of May 17, 2012, P.L. ___, 53 P.S. §48301.6 ("Complaint as to the legality of any ordinance or resolution may be made to the court of common pleas....").
In re Seventh Street, City of Lebanon, 5 Pa. D. 591 (1893) (emphasis in original).