Opinion
1174 C.D. 2021
05-19-2023
CHR Corp., d/b/a Rutter's, Appellant v. Upper Leacock TownshipZoning Hearing Board and Upper Leacock Township
OPINION NOT REPORTED
Submitted: February 3, 2023
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE STACY WALLACE, Judge
MEMORANDUM OPINION
STACY WALLACE, Judge
CHR Corp., d/b/a Rutter's (CHR), appeals from the decision of the Court of Common Pleas of Lancaster County (Common Pleas) dismissing as moot its appeal of the June 5, 2019 decision of the Upper Leacock Township (Township) Zoning Hearing Board (Board). On appeal, CHR argues Common Pleas erred in determining its appeal was moot and that even if its appeal was moot, Common Pleas should have considered the merits of its arguments under an exception to the mootness doctrine. Upon review, we affirm.
CHR operates a convenience store and gas station on an approximately 12-acre parcel of land in the Township. Board Dec., 6/5/19, at 2. On January 28, 2019, CHR submitted a Zoning Application to the Township, pursuant to the provisions of the Pennsylvania Race Horse Development and Gaming Act (Gaming Act), requesting permission to add five video gaming terminals (VGTs) as an accessory use to its convenience store. Id.
Under the Gaming Act, a truck stop establishment may obtain a license to permit VGTs as an accessory use.
The Township's zoning officer denied CHR's application, because (a) VGTs are not an accessory use to a convenience store since they "are not a use customarily incidental and subordinate to a convenience store," and (b) VGTs are permitted under the Gaming Act only at truck stops, and CHR's property does not qualify as a truck stop under the Township's Zoning Ordinance (Ordinance) or the Gaming Act. Board Dec., 6/5/19, at 3.
Upper Leacock Township, Pa. Zoning Ordinance (2015), as amended.
CHR appealed the zoning officer's decision to the Board. By written decision dated June 5, 2019, the Board denied CHR's appeal and upheld the zoning officer's denial of CHR's application. Id. at 15-16. On July 2, 2019, the General Assembly amended Title 53 of the Pennsylvania Consolidated Statutes to provide municipalities with a 60-day period within which they could enact a resolution prohibiting VGTs within their boundaries. See 53 Pa.C.S. § 502. CHR appealed the Board's decision to Common Pleas on July 3, 2019. Reproduced Record (R.R.) at 77a.
53 Pa.C.S. § 502 gave municipalities the ability to prohibit all VGTs within their boundaries, even if the VGTs had been existing and lawful before the municipality enacted its resolution. See 53 Pa.C.S. § 502(a)(1)(i), 502 (a)(1)(ii) ("A municipality may, by delivering a resolution of the municipality's governing body to the board no later than 60 days after the effective date of this subsection, prohibit the location of an establishment licensee within the municipality as follows: (i) Prior to the board approving an application and issuing an establishment license within the municipality. (ii) After an establishment license has been issued within the municipality."); 53 Pa.C.S. § 502(a)(2) ("An establishment licensee may not be located in a municipality which has exercised its option under this subsection."); 53 Pa.C.S. § 502(c) ("if a truck stop establishment has been approved for an establishment license or submits an application and the fees for an establishment license . . . and the municipality within which the truck stop establishment is located elects to prohibit establishment licenses under subsection (a), the board shall refund the fees to the applicant.").
On July 18, 2019, the Township adopted a resolution prohibiting VGTs within the Township. Common Pleas' Op., 9/17/21, at 3. Common Pleas then declined to address CHR's substantive issues on appeal and determined the Township's adoption of a resolution prohibiting VGTs pursuant to the recently enacted provisions of 53 Pa.C.S. § 502 meant CHR could not install VGTs at its facility even if Common Pleas granted CHR's appeal. Common Pleas' Op., 9/17/21, at 3-8. Thus, Common Pleas dismissed CHR's appeal as moot. Id. at 4-8.
CHR appealed to this Court and argues its appeal is not moot because its property rights under the Ordinance to install VGTs have not been resolved and the Township could unilaterally rescind its prohibition of VGTs at any time. See Appellant's Br., at 7-9. Even if its appeal is technically moot, CHR argues this Court should consider the issues because CHR will suffer detriment without a court's decision on its rights under the Ordinance. Id. at 10-12.
Since "Common Pleas did not take additional evidence in this zoning appeal," this Court's role "is limited to reviewing the [Board]'s decision, not that of Common Pleas." Dowds v. Zoning Bd. of Adjustment, 242 A.3d 683, 695 (Pa. Cmwlth. 2020) (citation omitted). Thus, we evaluate whether the Board committed an error of law or abused its discretion. Id. With regard to whether the Board committed an error of law, we conduct a de novo review and "are not bound by the legal conclusions of the governing body or lower court[]." EQT Prod. Co. v. Borough of Jefferson Hills, 208 A.3d 1010, 1025 (Pa. 2019) (citation omitted).
Although we review the Board's decision, not Common Pleas' decision, we note Common Pleas reviewed the Board's decision using the same standard of review we must use to review the Board's decision. In addition, Common Pleas considered the mootness issue in the first instance, because the General Assembly enacted 53 Pa.C.S. § 502 after the Board issued its decision. Having reviewed this matter, we conclude the Honorable Margaret C. Miller appropriately reviewed the Board's decision and correctly applied the mootness doctrine in dismissing CHR's appeal. Accordingly, we affirm Common Pleas' dismissal of CHR's appeal as moot on the basis of Common Pleas' well-reasoned opinion and order in CHR Corp., d/b/a Rutter's v. Upper Leacock Township Zoning Hearing Board (C.P. Lancaster, Case No. CI-19-06292, filed September 17, 2021).
ORDER
AND NOW, this 19th day of May 2023, the order of the Court of Common Pleas of Lancaster County, dated September 17, 2021, is AFFIRMED.
Appendix Omitted.