Opinion
No. 2019 C.D. 2008.
Argued: June 8, 2009.
Filed: July 17, 2009.
BEFORE: JUBELIRER, Judge; FLAHERTY, Senior Judge; McCLOSKEY, Senior Judge.
OPINION NOT REPORTED
The Board of Supervisors of Exeter Township (the Board) appeals from an order of the Court of Common Pleas of Berks County (trial court), reversing its denial of the conditional use application of Commonwealth Land Investments LLC (CLI). We now reverse.
CLI is the equitable owner of a tract of land located at the corner of Rugby and Stonetown Road in Exeter Township (the Township), Berks County, Pennsylvania. The tract is zoned as suburban residential (SR-1) and is comprised of approximately twenty acres. On June 20, 2006, CLI submitted a preliminary development plan to the Township seeking to construct thirty single-family homes on the tract. On July 18, 2006, CLI submitted a conditional use application to the Board pursuant to the Township's Zoning Ordinance (the Ordinance).
The Board conducted a public hearing on October 30, 2006, regarding CLI's conditional use application. Philip Barba, a managing member of CLI, and David Rentschler, a licensed engineer and project manager for Commonwealth Engineers, Inc., testified on CLI's behalf. Scott Rissel and Charles Williams, nearby residents to CLI's planned development, testified in opposition.
Following the hearing, the Board agreed to several extensions of time and granted CLI's request to re-open its conditional use application to allow it to present additional evidence and testimony. A second hearing was held on March 26, 2007, at which time Guido DiMartino, a registered professional engineer and a project manager for Traffic Planning and Design, Inc., testified on CLI's behalf. Mr. Williams also testified in opposition at the second hearing.
On May 9, 2007, the Board issued its decision and order denying CLI's conditional use application. The Board found that CLI's preliminary plan did not meet the requirements established by Sections 808.1 and 808.3 of the Ordinance because its "Title Plan" failed to depict the required forty-foot cartway width for its proposed access street. The Board also found that CLI's plan did not meet the minimum sight distance requirement for a speed limit of thirty-five miles per hour. Additionally, the Board found that CLI's plan did not demonstrate how the requirement for three off-street parking places per lot would be met and that the majority of lots exceeded the twenty-five percent maximum allowed for woodland removal. Finally, the Board noted that several reports and studies had not been submitted as required, including an environmental assessment report and hazard report, a historic and archeological resources study, a water resources study and an aerial photo of the site and surrounding areas.
The "Definitions" section of the Ordinance provides that a "street" is defined as the entire right-of-way, i.e., not limited to the cartway. (R.R. at 151a). A "right-of-way" is defined as the total width of any land reserved or dedicated as a street, road, lane, alley, crosswalk or for other public or semipublic uses. (R.R. at 150a). A "cartway" is the portion of a street right-of-way, whether paved or unpaved, intended for vehicular traffic. (R.R. at 140a).
Sight distance is the distance at which a motorist can see an oncoming vehicle in a particular direction. See Kern v. Zoning Hearing Board of Tredyffrin Township, 449 A.2d 781, 782 (Pa.Cmwlth. 1982).
In response to the Board's denial, CLI filed a land use appeal with the trial court on June 7, 2007. In its appeal, CLI alleged that the Board's denial of its application was an abuse of discretion, an error of law and a capricious disregard of competent evidence. CLI asserted that it was in compliance with the cartway width requirements as provided by the Exeter Township Subdivision and Land Development Ordinance (SALDO) and had only offered a narrower cartway width, twenty four feet instead of forty feet, in order minimize the encroachment of the street into the nearby environmentally sensitive wetlands. CLI asserted that its plan met the sight distance requirements and that the Board had ignored its supplemental engineering testimony and supporting documentation offered at the second hearing. Also, CLI argued that its plan included the availability of four off-street parking spaces and, because the term woodlands was not further defined, it was impossible to determine the percentage of woodlands that would be affected by its plan. Finally, CLI alleged that the Board erred in denying its application based on a number of missing requirements because those items were required by the SALDO and, as such, did not create a permissible basis for rejecting its request for conditional use approval.
By order dated September 19, 2008, after oral argument and without taking additional evidence, the trial court reversed the Board's decision and order and granted CLI's conditional use approval. The trial court noted that CLI offered the alternative narrower cartway width only after the Township Planning Commission had recommended that a second access road be added to the development. The trial court noted that the required cartway width of forty feet and the resulting right-of-way width of sixty feet would cause a greater disturbance to the wetland area. Therefore, the trial court concluded that CLI only proposed a narrowing of the roadway to twenty four feet in order to minimize the impact on the wetland area as an alternative. The trial court noted that Mr. Rentschler testified that CLI would comply with the wider forty-foot cartway width if the Board required it do so.
With regard to the sight distance issue, the trial court noted that Mr. DiMartino had opined that the sight distance was adequate and it rejected the lay witnesses' testimony that drivers travelled at a higher speed than the speed relied upon by Mr. DiMartino. Further, the trial court noted that such lay witness testimony by one of the witnesses was not given under oath and no foundation was laid as to his ability to render such an opinion.
Next, the trial court concluded that CLI had presented adequate evidence, through its engineer's testimony, that all lots could provide a minimum of three off-street parking spaces and that there was adequate space for either the stacking of three parked cars or the side by side parking of four cars. Finally, the trial court noted that the term "woodlands" was not defined in the ordinance; thus, CLI's assertion that the amount of woodlands that would be disturbed could not be calculated correctly was proper. The Board subsequently filed a notice of appeal with the trial court on October 17, 2008.
On appeal, the Board argues that the trial court erred in finding that CLI's plan met the cartway width requirement and the criteria for the proper sight distance. Additionally, the Board argues that the trial court improperly shifted the burden to the Board to show that CLI's application for a conditional use was adverse to the public interest. Finally, the Board argues that the trial court acted improperly by not remanding the matter to the Board for the imposition of conditions and safeguards after granting CLI's conditional use approval.
In a land use appeal, where the trial court has not taken additional evidence, this Court is limited to determining whether the local governing body committed an error of law or the necessary findings of fact were not supported by substantial evidence. Herr v. Lancaster County Planning Commission, 625 A.2d 164 (Pa.Cmwlth. 1993), petition for allowance of appeal denied, 538 Pa. 677, 649 A.2d 677 (1994). A conclusion that the Board abused its discretion may be reached only if its findings are not supported by substantial evidence. Centre Lime and Stone Company, Inc. v. Spring Township Board of Supervisors, 787 A.2d 1105 (Pa.Cmwlth. 2001), petition for allowance of appeal denied, 568 Pa. 740, 798 A.2d 1291 (2002). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
At oral argument before this Court, the parties agreed that the sight distance issue was no longer an issue as the Township's Engineer agreed with Mr. DiMartino, CLI's engineer and expert witness, that the proposed sight distance was in accordance with the applicable standards set forth by the Pennsylvania Department of Transportation in its Publication 201. See R.R at 496a.
Generally, conditional use ordinances are evidence that a municipality has determined that a particular use is not adverse to the public interest per se. Glendon Energy Company v. Borough of Glendon, 656 A.2d 150 (Pa.Cmwlth.), petition for allowance of appeal denied, 543 Pa. 705, 670 A.2d 644 (1995). A conditional use is nothing more than a special exception that falls within the jurisdiction of the municipal legislative body rather than the zoning hearing board. Bailey v. Upper Southampton Township, 690 A.2d 1324 (Pa.Cmwlth. 1997). A conditional use is not an exception to a zoning ordinance, but rather, is a use to which an applicant is entitled unless objectors demonstrate, according to standards set forth in the zoning ordinance, that the proposed use would adversely affect the community. Rapaport v. Zoning Hearing Board of the City of Allentown, 687 A.2d 29 (Pa.Cmwlth. 1996). The applicant for conditional use approval has the burden of proving that the proposed plan complies with all of the objective requirements of the zoning ordinance.In re Thompson, 896 A.2d 659 (Pa.Cmwlth. 2006), petition for allowance of appeal denied, 591 Pa. 669, 916 A.2d 636 (2007). To meet this burden, the applicant is generally not required to demonstrate compliance with all provisions of the zoning ordinance which ultimately would become pertinent at the final stages of subdivision, rather, the applicant must show that he complies with those provisions of the zoning ordinance that "relate specifically to the conditional use." In re Thompson, 896 A.2d at 670. Thus, the extent of the burden of production at the conditional use approval stage may be conditioned upon a showing of compliance with all applicable zoning requirements. Id.
Section 808 of the Ordinance provides the requirements for a conditional use application. Specifically, Section 808.3 of the Ordinance provides that a conditional use applicant shall demonstrate that the proposed conditional use meets "the specific standards established for each use by [the] Ordinance," "all other applicable Zoning District requirements," and the general regulations of the Ordinance. (R.R. at 273a). Therefore, Section 808 requires that the plan, as submitted, complies with all applicable zoning ordinance requirements.
With regard to the first issue concerning cartway width, the Board argues that the trial court erred in finding that CLI submitted a plan which met the requirements of a sixty-foot right-of-way width for the entire length of the proposed street. The Board argues that the "Title Plan" submitted by CLI depicted a "Proposed 50' Wide Right-of-Way" which included a forty-foot cartway and a narrower than required sixty-foot right-of-way, and, thus, CLI's plan did not meet the requirements for the street in question. The Board asserts that CLI never submitted a Title Plan depicting the required widths for both the cartway and the right-of-way. We agree.
It is undisputed that a forty-foot cartway width and a sixty-foot right-of-way width are required for the type of street at issue in the present matter, and thus, the resolution of this issue is based upon whether or not the Board's conclusion that CLI's plan did not meet those requirements was supported by substantial evidence. We conclude that there is such substantial evidence in the record to support the Board's finding. A document entitled "Title Plan," which was submitted by CLI and marked as an exhibit at the hearing before the Board on October 30, 2006, depicts the street in question as one having a fifty-foot right-of-way. (Board's Brief at Appendix C) (emphasis added). A second document entitled "Construction Improvements Plan" which was also submitted by CLI and marked as an exhibit at the hearing before the Board on October 30, 2006, depicts the same street as one having a fifty-foot right-of-way. (Board's Brief at Appendix D) (emphasis added). Thus, the aforementioned documents, submitted to the Board by CLI in support of its conditional use application, do not meet the requirements for cartway and right-of-way widths.
Thus, those two documents do not support CLI's argument that it only offered such a proposal for a narrower width as an alternative to the required widths. CLI did submit a document entitled "Conditional Use Exhibit" at the hearing before the Board on October 30, 2006, which depicted a "PROPOSED 24 FOOT WIDE CARTWAY WITH SIDEWALK ON ONE SIDE" as well as a "REQUIRED 40 FOOT CARTWAY WITH SIDEWALKS ON BOTH SIDES." (R.R. at 450a). Nevertheless, the fact remains that CLI never submitted a Title Plan depicting a forty-foot cartway and a sixty-foot right-of-way width. Therefore, the Board correctly concluded that CLI's Title Plan did not comply with either of the the width requirements.
Accordingly, we reverse the trial court's order.
Based upon our determination above, we need not address the remaining issues raised by the Board.
ORDER
AND NOW, this 17th day of July, 2009, the order of the Court of Common Pleas of Berks County is hereby reversed and the decision and order of the Board of Supervisors of Exeter Township is reinstated.