Opinion
No. 2361 C.D. 2011
10-16-2012
Greenhill Homeowners Association, Appellant v. Board of Supervisors of West Goshen Township and Traditions Development Corp.
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Greenhill Homeowners Association (Association) appeals from an order of the Court of Common Pleas of Chester County (trial court), which affirmed a decision of the West Goshen Township Board of Supervisors (Board). The Board granted conditional use approval, with thirty-six conditions, to Traditions Development Corporation (Developer), to construct an independent living facility consisting of a 114-unit senior apartment complex. The Association also appeals the trial court's order denying the Association's motion for consideration of additional evidence. We affirm both of the trial court's orders.
BACKGROUND
Developer is the equitable owner of an undeveloped 6.6-acre tract of land in the Township (the Property). The Property is located on Boot Road near the intersection of Boot Road and Greenhill Road. The Property is located in an R-3 Residential District, which permits independent living facilities as a conditional use. The Property adjoins a 1.5-acre tract of land owned by the Goshen Fire Company and a residential community, Greenhill. The rear property lines of some Greenhill homes abut the easterly border of the Property. As indicated in the site plan, access to the Property is obtained through (1) a shared access easement enjoyed by the Property and the Fire Company from Boot Road, which runs parallel to the rears of the Greenhill homes; and (2) a thirty-foot-wide access and utility easement across the Fire Company's property from Greenhill Road.
In response to an April 2008 request by Developer, the Township amended its zoning ordinance in December 2008 in order to permit independent living facilities as a conditional use in R-3 Districts. No party sought to challenge that zoning amendment.
On or about June 24, 2009, Developer filed an application for conditional use approval, seeking to develop the Property as an independent living facility consisting of a 114-unit senior apartment complex. During the initial hearing before the Board, the Fire Company, the Association, the Township, and several individuals requested party status, which the Board granted. Developer, in response to public comments and the Township's Planning Commission's comments, amended its initial plan. Thereafter, the Board conducted several hearings. At the conclusion of the presentation of its evidence, Developer offered a list of twenty-seven (27) conditions, reflecting suggestions by the Fire Company and the Township. During the course of the final hearing, the Association called the Township's zoning officer as a witness and offered various documents in support of its opposition to Developer's request for conditional use approval. The Association also submitted a list of proposed conditions, which it requested to be imposed if the Board were to approve the application. The Board sustained Developer's objections to the admission of five of the documents the Association sought to submit.
The Board issued a decision on May 12, 2010, approving Developer's application, with conditions. The Board concluded that Developer's proposal complied with the standards for independent living facilities and applicable conditional use standards contained in the Township's zoning ordinance. The Board also concluded that the Association failed to demonstrate that the proposed independent living facility would be detrimental to the health, safety, or welfare of the community. The Association appealed the Board's decision to the trial court, and Developer intervened in the appeal. Thereafter, the Association filed a motion with the trial court for consideration of additional evidence, which the trial court denied. Following the submission of briefs on the merits and oral argument, the trial court issued an order affirming the Board's decision and dismissing the Association's appeal.
DISCUSSION
In its appeal to this Court, the Association raises the following issues: (1) whether the evidence supports the Association's claim that the Board improperly granted Developer's conditional use application based upon Developer's ability and/or agreement to construct improvements to Greenhill and Boot Roads, thereby violating Section 603 of the Pennsylvania Municipalities Planning Code (MPC) and the Association's due process rights; (2) whether the trial court erred in rejecting the Association's claim that Dr. Robert White, a member of the Board, should have recused himself from participation in the application proceedings and voting upon the application; (3) whether the trial court erred in rejecting the Association's claim that the Board's legal representation by an attorney whose law firm also represented the legal owner of the Property (which conveyed an equitable interest in the Property to Developer) resulted in a violation of the Association's due process rights; (4) whether the trial court erred in affirming the Board's determination that a landscaping buffer is not necessary between the Property and the Fire Company's property; and (5) whether the trial court erred in denying the Association's motion for consideration of additional evidence.
In a land use appeal where a trial court takes no additional evidence, our review is limited to errors of law and abuses of discretion. In re Thompson, 896 A.2d 659, 667 (Pa. Cmwlth. 2005), appeal denied, 591 Pa. 669, 916 A.2d 636 (2007). A governing body commits an abuse of discretion when necessary factual findings are not supported by substantial evidence. Id. When a trial court hearing an appeal from a governing body denies a party's request to accept additional evidence, we review the trial court's order for error of law or abuse of discretion. See Borough Council of Churchill Borough v. Pagal, Inc., 460 A.2d 1214, 1218 (Pa. Cmwlth. 1983) (holding that trial court did not err in denying request for de novo review of governing body's decision because party failed to demonstrate that record was incomplete because governing body denied full and fair opportunity to be heard).
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10603.
1. Payment for Road Improvements
We begin with the Association's argument regarding the alleged violation of its due process rights based upon the Board-imposed condition relating to roadway improvements. The Association essentially claims that the Board improperly considered and ultimately granted the conditional use application as a quid pro quo for road improvements in the Township. The Association points to two specific details that it suggests support its position: (1) a statement of the Township's manager in an e-mail to the Township's Engineer that the Township "could get the company to build the Boot Road improvement;" and (2) Condition 13 of the Board's decision, which provides that "[p]rior to the release of the final plans for recording, [Developer] shall contribute to the Township . . . $200,000 . . . which shall be used for Township road improvements."
The Association also relies upon Section 603(c)(2) of the MPC which provides, with regard to conditional use provisions of zoning ordinances, that a "governing body may attach such reasonable conditions and safeguards, other than those related to off-site transportation or road improvements, in addition to those expressed in the ordinance." 53 P.S. § 10603(c)(2) (emphasis added). The Association did not raise this issue in its notice of appeal of the Board's decision to the trial court. Rather, the Association, after mentioning the $200,000 condition (Notice of Appeal ¶ 19), simply stated that "[t]he Board erroneously failed to consider whether the Township's predisposition to solicit funds from [Developer] was improper or created the appearance of bias or impropriety, denying [the Association] due process of law." (Notice of Appeal ¶ 24 (emphasis added).) Thus, the Association never raised the question of whether Condition 13 violates the MPC, and we view that issue as waived. See Lewistown Hospital v. Workers' Comp. Appeal Bd. (Kuhns), 683 A.2d 702, 709 (Pa. Cmwlth. 1996) (holding failure to raise issue before adjudicator and review board constitutes waiver of issue).
The e-mail from the Township's Manager to the Township's Engineer provides: "We have the possible construction of a 100+ unit assisted living complex behind the Goshen Fire [C]ompany on Boot Road and we could get the company to build the Boot Road improvements." (R.R. at 455a.) In response, the Township's Engineer stated:
Based on our schematic layout, the cost to replace the right turn lane bay tapers with PennDot approved transitions (eastbound at Wilson Drive and westbound at
Greenhill Road) would be in the $215,000 to $250,000 range (approximately 500 sy of new paving, 800 if curb total over two locations is complete overlay). I understand this is a big range, but if it's taken as work at two separate locations contractors might charge premium.(R.R. at 455a.) These emails pre-date the 2008 amendment to the zoning ordinance that permitted independent living facilities as conditional uses. The Association argues that the timing of the emails demonstrates that the entire process involved in Developer's plan to improve the Property for an independent living facility was tainted and suggests that the Township approved both the zoning amendment and the conditional use application solely for the purpose of having Developer perform road work as described in the Township's Engineer's email.
We emphasize that the Association had the opportunity during the hearings to flesh out the meaning of the Engineer's email in order to demonstrate that the road improvements to which Condition 13 refer relate to off-site improvements. If the Association had pursued such an inquiry in the hearings, it may have been able to demonstrate that the payment of $200,000 was for road improvements unrelated to road improvements appurtenant to the proposed development. The Association, however, failed to take advantage of that opportunity during the course of the hearings, and the e-mail evidence alone is insufficient to demonstrate that the condition of payment to the Township constituted an improper quid pro quo. Consequently, we conclude that the trial court did not err in rejecting the Association's argument that its due process rights were violated by the requirement that Developer pay the Township for road improvements as a condition of approval.
2. The Association's Request for the Recusal of Board Member Dr. White
The Association next argues that the trial court erred in concluding that Dr. White's refusal to recuse himself does not warrant reversal of the Board's decision. The Association asserts that Dr. White expressed two opinions that suggest his bias toward granting the conditional use application: (1) Dr. White made a comment regarding Developer's application during a planning commission meeting on July 21, 2009, suggesting that developers would not be interested in developing the property for single-family homes because of density and expense issues; and (2) during the Board's August 19, 2009 hearing, Dr. White commented (a) that Developer had approached him regarding the possibility of developing the Property (possibly because of his role as the Board's liaison with the planning commission), (b) that he suggested to the Board during an executive session that the Board consider changing the zoning, and (c) that he informed his Board co-members that Developer's proposed use was a good use for the Property and suggested to them that other possible uses, such as a convenience store or gas station would be more intense than Developer's proposed use. (R.R. at 388a, 86a.)
We begin our discussion by noting that the Association never challenged the legality of the zoning change. Rather, the Association is arguing only that Dr. White's previous involvement in discussions with Developer prior to the zoning change and his communication with the Board regarding the proposal created an impermissible bias or appearance of bias, warranting his recusal from participating in the consideration by the Board of Developer's application.
As the Association reminds us, although Section 603 of the MPC specifically provides that expressions of opinion by a member of a governing body on an issue, in either an official or unofficial capacity, will not generally disqualify the member from voting on an issue, a different rule of law applies when a member of a governing body is acting in a quasi-judicial capacity.
As this Court recently explained:
[T]he Board functions in both legislative and adjudicative capacities. The standards requiring recusal for officials acting in their legislative capacities are different from those applicable to officials acting in adjudicative capacities. When functioning in a legislative role, public officials who have direct personal interest or a pecuniary interest in a matter must disqualify themselves, whereas, administrative or adjudicative tribunals must be unbiased and must avoid even the appearance of bias to be in accordance with the principles of due process.Springwood Dev. Partners v. Bd. of Supervisors of North Cornwall Twp., 985 A.2d 298, 305 (Pa. Cmwlth. 2009) (citations omitted), appeal denied, 606 Pa. 652, 992 A.2d 890 (2010). In this case, however, there is no evidence indicating that Dr. White had bias in favor of Developer. The record does not indicate that Dr. White ever sought to persuade other Board members to vote in favor of granting Developer's conditional use application.
Before discussing the merits of the Association's argument, we will quote the specific statements Dr. White made during the course of the hearings, regarding his involvement in the process of zoning amendment and following Developer's submission of its conditional use application. During the August 19, 2009 hearing, Dr. White stated:
Can I get a word in, please? [Developer] did not approach the Board, they approached me. I'm the liaison to the Planning Commission. The Board only got involved when I as the liaison of the Planning Commission, looking at the possible uses of the property, knowing what else it could be used for, suggested to my colleagues in executive session that they might consider a
zoning change because I thought the use could work on this property.
. . . .
In the [MPC] this is the way it works, I informed my colleagues that this was a good use for the property. Other uses could be a WaWa, a gas station. A WaWa did show some interest to me. 24-hour opening of 16 pumps. A Taco Bell talked to me, they had some interest. How about a Taco Bell and a bank. All very intense uses. I thought this was a good use for the property and I still do.
. . . .
The comment was that what happened—you're saying what came first, the chicken or the egg. I did what Supervisors do in Pennsylvania. Applicants come in and we review things . . . If it doesn't fit the zoning, but I feel it's good for the community and the Township . . . then I present it to my colleagues and we decide at that point whether we are going to vote to change the zoning.(R.R. at 85a, 44a.) Dr. White also commented during the April 14, 2010 hearing, in response to the Association's request that he recuse himself:
I'm not going to recuse myself. And I will state on the record that I do not feel that I have a conflict. Yes, I was in favor of this project before the Planning Commission but the applicant had to prove that this would work. People who don't want this to happen have to prove that it won't work. We have to start some place. Yes, I met with the applicant by myself, not with my colleagues, would this project work on this property. As it turned out the original project would not work. It was 45 feet high. It was 128 units. And I objected to that. They have revised their plans. I'm still waiting to hear why your testimony proves that we shouldn't do this. I'm willing to listen. I have never said that I wasn't. I have heard [Developer]. Now I'm hearing you. So no, I'm not going to recuse myself.(R.R. at 395a.)
As indicated above, no party ever challenged the zoning amendment, although the Township provided required notice and hearings indicating that it was considering amending the zoning ordinance to permit independent living facilities in R-3 zoning districts. As Dr. White noted, it is not unusual for developers to approach governing bodies and/or their members regarding available land and development possibilities. The Association offers no specific support for a contrary proposition. Thus, we cannot agree with the Association's reliance upon Dr. White's involvement in his capacity as a Board member and the Board's liaison with the Planning Commission to suggest that he should recuse himself on that basis.
With regard to the other comment Dr. White made concerning his position following the submission by Developer of its conditional use application, Dr. White, again in his capacity as the Board's liaison with the Planning Commission, expressed his view to the Commission that he was in favor of the project, but qualified his view, noting that Developer "had to prove that this would work." As Dr. White also noted, he disapproved Developer's initial plan.
These comments do not support the Association's claims that Dr. White was predisposed to approve the specific plan that the Board ultimately considered. Further, Dr. White's opinion, boiled down to its essence, was that an independent living facility would be a good use for the Property. Neither Dr. White's pre-zoning-amendment opinion nor his post-application comments suggest that Dr. White could not apply the objective criteria set forth in the amended ordinance in considering the application. Consequently, we conclude that the trial court did not err in rejecting the Association's claim that Dr. White should have recused himself from participation in the matter.
3. Alleged Conflict of Interest of the Board's Solicitor
The Association next argues that the participation in the Board's hearings by its solicitor, Kristin Camp, Esquire, violated the Association's due process rights because of an alleged conflict of interest arising from her law firm's relationship with the legal owns of the Property, the Janiec family, and Ms. Camp's role in transferring the deed for the Property in an estate planning matter for the legal owners. The Association bases its due process claim on the fact that Ms. Camp revealed during the final Board hearing that her firm had participated in the counseling and representation of the Janiec family when the initial legal owners, Carol and Anthony Janiec, transferred the Property to themselves and their children, and that Ms. Camp signed an affidavit of value regarding the Property for the purpose of transferring the deed.
We conclude that the Association has waived this issue. The Association, after requesting Ms. Camp to reveal her firm's and her previous representation of the legal owners, failed to request that Ms. Camp excuse herself from further participation in the hearing or request that the Board provide other relief such as a new hearing opportunity. In order to preserve an issue for consideration by a higher tribunal, a party must raise an issue at the earliest opportunity. D.Z. v. Bethlehem Area Sch. Dist., 2 A.3d 712, 725 (Pa. Cmwlth. 2010) (failure to raise issue before adjudicator precludes adjudicator from correcting alleged problems at the time of hearing and results in waiver). The Association failed to do so, and, consequently, we conclude that the Association waived this issue.
4. The Satisfaction of the Zoning Ordinance Buffer Requirement
The next issue the Association raises is whether the Board erred in concluding that the zoning ordinance does not require Developer to place a buffer between the adjoining side yards of the Property and the Fire Company's property. Section 84-55A, which relates to "design standards," provides, in pertinent part:
Screening. A completely planted visual barrier, consisting of a double row of evergreen plantings having a minimum height of eight feet (after planting) and placed no more than 16 feet apart on center, shall be provided and continually maintained within a planting area reserved for that purpose, having a minimum width of 16 feet, between any industrial, commercial or multi-district and a contiguous residential district or residential use, and in a residential district, between an apartment use and a contiguous single or multifamily residential use. The required plantings shall be staggered so as to provide as complete a visual barrier as is possible. A stockade-type fence having a minimum height of six feet and constructed without gaps or breaks shall be substituted for one of the two required rows of plantings when determined necessary by the Zoning Officer to adequately shield the residential district or use from artificial light, glare, noise, odors, intrusion or any other cause detrimental to the health, safety and general welfare of such residential use or district.Thus, the design standards contained in the ordinance appear to require screening in residential districts only between commercial and/or multi-use districts and residential district and/or uses, and between apartment uses and residential districts and/or uses. The Association notes, however, that Section 84-75 of the zoning ordinance, relating to "general standards for conditional use approval," includes a specific buffering provision that mandates a buffer, and provides, in pertinent part:
The following standards shall apply in every conditional use application, and the burden of proof by a fair preponderance of the credible evidence to demonstrate
compliance with these standards shall be upon the applicant. In reviewing and acting upon a conditional use application, the [Board] shall, in addition to requiring compliance with the express standards and criteria established in the applicable zoning district for the use proposed, require the applicant's compliance with the following standards:
No conditional use shall be approved unless the [Board] find[s] as a fact from the evidence the following:
(Emphasis added.) The trial court relied upon Section 84-74.A of the zoning ordinance, which relates to "Conditional uses . . . Statement of intent," and provides:That buffer areas are provided within the applicant's property to effectively screen the proposed conditional use from adjoining uses and properties whether similar or dissimilar in type or character.
[Where] there is a conflict between the standards set forth in the this section and the other applicable criteria and standards elsewhere established in this chapter or other applicable Township ordinances, it is the legislative intent of the [Board] that the more stringent standards shall always apply. It is not the intent of this section to abrogate or impair any other such standards or requirements.
In our view, however, the specific design standards set forth in Section 84-14C(3) of the zoning ordinance, which are applicable to independent living facilities such as the one Developer proposes, resolve this issue. Section 84-14C(3) provides: "Side and rear yard buffers. The screening requirements in § 84-55A shall apply to the side yard areas." The rules of statutory construction apply to the interpretation of ordinances as well as to statutes. In re Appeal of Holtz, 8 A.3d 374, 378 (Pa. Cmwlth. 2010). Under the rules of statutory construction, when a specific provision conflicts with a general provision in an ordinance, the specific provision shall prevail. 1 Pa. C.S. § 1933; Holtz, 8 A.3d at 378. Further, a governing body's interpretation of its own ordinances is entitled to considerable deference. Aldridge v. Jackson Twp., 983 A.2d 247, 254 (Pa. Cmwlth. 2009). As a matter of ordinance interpretation, the Board rendered a reasonable interpretation of the various zoning provisions because Section 85-75 of the zoning ordinance applies generally to all conditional use, but Section 84-14C(3) provides a more specific standard for independent living facilities. Consequently, we conclude that the trial court did not err in affirming the Board's decision not to require screening and/or buffering between the adjoining side yards of the proposed independent living facility and the Fire Company.
5. The Association's Motion for Consideration of Additional Evidence
The last issue the Association raises is whether the trial court erred as a matter of law or abused its discretion in denying the Association's motion for consideration of additional evidence. We note at the outset that the motion relates primarily to evidentiary rulings that occurred during the last hearing the Board conducted, during which the Association sought unsuccessfully to have certain documents admitted into the record. We begin by observing that the Association's June 10, 2010 Notice of Appeal to the trial court raises the following issue: "The Board of Supervisors erroneously excluded evidence which [the Association] would have used to establish that the development would jeopardize the public health, safety and welfare." This statement of the issue does not specifically raise a constitutional due process issue, but it does fairly encompass such a claim. Consequently, we shall proceed to address the two primary issues the Association raises in its brief, which again involve its claims regarding Ms. Camp's actions in her capacity as the Board's counsel.
The Association's first primary claim relates to an email communication between Ms. Camp and counsel for the Association in which Ms. Camp, in response to a question, informed the Association's counsel that if it intended to seek the admission of any document into the record, the "evidence must be authenticated. It may be that no one questions what the document is if it came from the T[ownship] files." (Motion ¶ 22.)
During the final hearing, the Association sought to introduce records it believed were relevant to the issue of whether the proposed development of the Property would be detrimental to the health, safety, and welfare of the community. The Association averred in its Motion that Ms. Camp recommended to the Board that it exclude certain documents on various grounds, including hearsay, relevancy, and also because other objecting parties elected not to seek to have them admitted when they presented their cases. The Association contended that, based upon the combination of reasons given for excluding the documents, one cannot identify the basis for the Board's decision to exclude the documents, and that Ms. Camp "impermissibly commingled her adjudicatory and adversarial functions in recommending that they be excluded." (Motion ¶ 26.)
The Association suggested in its Motion that some of the grounds upon which Ms. Camp recommended rejection were irrelevant and that "[i]n the absence of Ms. Camp's email . . . regarding the requirement to authenticate documents obtained from Township files, [the Association] would have called the witnesses with respect to [the documents that were excluded]." (Motion ¶ 28.) Based upon these alleged facts and assertions, the Association claimed in its Motion that "[i]n order to address any concern that the witnesses were not available for cross examination at the conditional use hearing and to remedy [the Association]'s reliance on [Ms. Camp's email], and improper exclusion of the exhibits, the court should allow [the Association] an opportunity to present such testimony now." (Motion ¶ 30.)
We note that Ms. Camp appears only to have suggested that unauthenticated documents might not be admissible. She did not discuss other legal grounds upon which such evidence would be considered for admission into the record. It certainly was not Ms. Camp's responsibility to advise the Association regarding the framework and foundation necessary for the admission of such documents. With regard to the Association's attempt to blame Ms. Camp for its failure to lay such groundwork, we must reject this argument, and we reject the Association's other argument that its reliance upon Ms. Camp's email raises issues relating to its right to a full and fair opportunity to litigate the health and safety component of the conditional use application.
In its brief to the trial court on the merits, the Association argued not only that the excluded documents should have been admitted on relevancy grounds, but also that the Board placed an erroneous burden of proof upon the Association. The question of whether the Board applied the proper burden of proof is in no way subsumed within the question of whether an adjudicatory body erred in its evaluation of the admissibility of offered evidence. Thus, while the Association continues in its appeal to this Court to address that issue, we conclude the Association failed to timely raise the burden-of-proof issue, and we need not address that issue any further. We note also that, in its appeal to this Court, the Association does not present argument or discussion regarding the legal basis for the exclusion of the documents. Thus, we need not address the question the Association raised below of whether the Board erred as a matter of law in excluding the documents on relevancy or hearsay grounds. --------
Next, we consider the Association's claim that Ms. Camp improperly acted in both an adversarial and advisory role which constitutes a violation of the Association's constitutional rights. The Association argues that Ms. Camp crossed the adversarial/adjudicatory line by offering to the Board additional reasons to those that Developer offered for excluding the documents. The Association refers us to our decision in Newtown Township Board of Supervisors v. Greater Media Radio Company, 587 A.2d 841 (Pa. Cmwlth. 1991) (Newtown Township), for the proposition that, in conditional use hearings, a solicitor is precluded from acting as a legal advisor to a governing body and in an adversarial capacity on behalf of the municipality.
In Newtown Township, a township's solicitor presented testimony of the township's witnesses in a conditional use application hearing. The township's governing body relied upon the testimony of those witnesses in denying the application. In its appeal, the applicant argued that the township could not act as both adjudicator and objector in the matter. We agreed with the trial court's appraisal, observing that the solicitor's roles in the matter—serving as legal counsel to the governing body in ruling on the application and acting in an adversarial capacity—created an appearance of impropriety. We stated that "[i]t is true that the solicitor was not literally representing any objector or party opposed to [the applicant]'s proposal; however, a review of the hearing transcripts leaves us with the distinct impression that the solicitor played the role of opposing counsel in this proceeding." Newtown Twp., 587 A.2d at 843.
We disagree with the Association's characterization of Ms. Camp's participation in the hearing. During the course of the hearing, Ms. Camp responded to the Association's request that Dr. White recuse himself by indicating her opinion that she did not believe that recusal was warranted. As counsel advising the Board, this suggestion was within her role in that capacity. As the evidentiary phase of the hearing began, counsel for the Association first called Raymond McKeeman, apparently the Township's zoning officer. After Developer requested an offer of proof, which suggested that the Association was offering the zoning officer's testimony for the purpose of opinion regarding the application of the zoning ordinance to the conditional use application, a Board member and Developer indicated that they did not believe Mr. McKeeman's testimony should be permitted. In response to that objection, counsel for the Association suggested that it was seeking Mr. McKeeman's testimony for the purpose of demonstrating that the proposed use would be detrimental to the health and safety of the community. Ms. Camp offered a comment indicating that Developer bore the burden to demonstrate compliance with the ordinance, but that the Association bore the burden to prove detrimental impact on the community through the submission of expert testimony. Thereafter, although Mr. McKeeman testified, Ms. Camp noted that his testimony would not be in an expert capacity.
During Mr. McKeeman's testimony, Ms. Camp provided comments regarding the provisions of the zoning ordinance, discussed above, that relate to buffering. Ms. Camp, however, in no way interfered with the Association's line of questioning. Further, Ms. Camp recommended that the Board reject some of Developer's objections to the Association's evidence. Ms. Camp proceeded to make recommendations regarding the admission of the Association's documentary evidence. Ms. Camp's assessments of the legal grounds for recommending that the Board accept or reject documents may or may not have been correct, but her comments, observations, and opinions do not reflect any active participation as an advocate. As she commented with regard to the question of admission of the Association's Exhibit HOA-10, "I have given my advice to the Board whether [it] should be admitted. It's up to the Board." (R.R. at 424a.) We offer as an example of Ms. Camp's lack of partiality or the appearance of bias, her recommendation to the Board regarding an objection of Developer to Exhibit HOA-12. Ms. Camp simply suggested that the Board admit the exhibit, but decide upon the evidentiary weight afforded the exhibit based upon the fact that the originator of the particular document was not an expert. (R.R. at 427a.) Ms. Camp offered comments regarding meetings of the East Goshen Board of Supervisors concerning traffic issues (which the Association sought to introduce on the issue of detrimental impact), noting that the best evidence of such concerns would be through the testimony of an expert. (R.R. at 433a.) We note further that, unlike the counsel at issue in Newtown Township, Ms. Camp never engaged in any examination of Mr. McKeeman. Our review of the hearing transcripts offers no support for the Association's claims that Ms. Camp crossed the line from adviser to advocate. Her advice to the Board reflects nothing more than what any advisor to an adjudicator would be entitled to do, and did not cross the line into advocacy, or demonstrate any partiality or prejudice. The Association had a full and fair opportunity to be heard.
Given our review of the record, our conclusion that Ms. Camp did not wander from the role of adviser, and the trial court's discretion in such matters, we conclude that the trial court did not err in denying the Association's request for supplementation of the record.
Accordingly, we affirm the orders of the trial court.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 16th day of October, 2012, the orders of the Court of Common Pleas of Chester County (1) affirming the order of the Board of Supervisors of West Goshen Township granting conditional use approval to Traditions Development Corporation and (2) denying the motion of Greenhill Homeowners Association, Inc. to consider additional evidence are AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge