Opinion
No. 2425 C.D. 2010
01-09-2012
Hull Family Revocable Trust v. Walker Township Zoning Appeal Board John L. Hull and Deborah Hull, Trustees of the Hull Family Revocable Trust v. Walker Township Board of Supervisors Appeal of: Hull Family Revocable Trust and John L. Hull and Deborah Hull, Trustees of the Hull Family Revocable Trust
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge (P.)
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
In an October 27, 2010 Opinion and Order, the Court of Common Pleas of Centre County (trial court) affirmed separate, but related, decisions by the Walker Township (Township) Zoning Hearing Board (ZHB) and the Township Board of Supervisors (Board). In its decision, the ZHB affirmed a determination by the Township Zoning Officer (ZO) that the use to which Appellants Hull Family Revocable Trust and John Hull and Deborah Hull, trustees of the Hull Family Revocable Trust (collectively, HT) were putting their property was not in conformity with the Township's Zoning Ordinance. To the extent HT wished to continue with the unauthorized use, the ZHB held that HT must seek conditional use approval from the Board. The Board's decision followed thereafter, wherein the Board approved HT's conditional use application, as modified, to engage in what the ZO and ZHB had determined was an unauthorized use, but subject to ten (10) conditions. Though HT appreciated the approval, it objected to the conditions that the Board imposed.
HT now appeals to this Court, challenging the trial court's decision to affirm both the ZHB and the Board. For the reasons set forth below, we affirm in part and reverse in part the trial court's Opinion and Order, and remand the matter for further action.
I. BACKGROUND
We have reviewed HT's filings with the trial court and this Court and conclude that HT does not challenge any factual findings by the ZHB or the Board. Rather, HT's challenges to those decisions now before this Court raise only legal questions. When a party fails to challenge the sufficiency of the evidence supporting an adjudicator's factual findings, those factual findings are generally binding on a reviewing court. See Three-O-One Market, Inc. v. Dep't of Pub. Welfare, 439 A.2d 909, 910 (Pa. Cmwlth. 1982). Consequently, in addressing HT's legal challenges, we will rely on the factual findings by the ZHB and the Board.
A. Land Development Plan
The property in question is an 18.83 acre parcel of land in the Township (Property). Up until 2003, the Property was zoned Agricultural. In 2003, at HT's request, the Township rezoned the Property to Light Industrial. HT's request to rezone the Property was based on its desire to relocate to the Property its well-drilling operation, including the equipment associated with that operation.
1. County Planning Office
In 2007, HT submitted a land development plan to the Centre County Planning and Community Development Office (CPO), proposing to build a 50' x 80' building (Proposed Building), which HT represented that it would use for storage and truck maintenance associated with its well-drilling business. On May 30, 2007, the CPO notified HT in writing that, due to the inaction of the CPO on the plan within the prescribed time period, the plan was deemed conditionally approved. (Reproduced Record (R.R.) at 19a.)
On or about June 11, 2008, HT submitted to the CPO a request to modify its conditionally-approved plan. Specifically, HT wished to add a 20' x 60' addition to the northern end of the Proposed Building, increasing the size of the building by an additional 2800 sq. ft. "to allow for a second business to use the building." (R.R. at 23a.) HT also sought to modify the approved plan to add two 10' x 60' roof extensions along the western end of the Proposed Building to cover entrance doors. HT also sought approval to move the location of the Proposed Building. In its request to modify, HT continued to refer to the Proposed Building, however, as a storage and truck repair facility.
We note that the ZHB expressly found as fact that "[t]he building, as modified, continued to be referred to by Appellant as a 'storage and truck repair facility.'" (ZHB Finding of Fact (FF) ¶ 7.) And though we do not see such a representation in the actual modification request that HT filed with the CPO, a letter dated August 19, 2008, from HT's consultant to the Walker Township Water Association (ZHB Certified Record (C.R.) #5 at 125) provides that "[t]he structure will be used as a storage facility . . . and a truck repair facility for an outside company." We also note that the CPO, in its correspondence relating to the modification request, characterized the proposed changes as "non-substantive." (R.R. at 24a.) In subsequent correspondence, HT and the ZO also used the word "non-substantive" in reference to HT's modification request to the CPO.
The trial court certified separate records to this Court for the appeal from the ZHB decision and the appeal from the Board's decision. Accordingly, when referring to a certified record, we will specify the particular certified record by either a "ZHB" or "Board" designation.
By letter dated June 17, 2008, the CPO authorized HT to amend its previously approved plan as HT requested. (R.R. at 24a.) The approval, however, was conditioned on, inter alia, written concurrence from the Township Engineer and the ZO, "indicating that the changes meet all engineering and zoning criteria." The approval also included the following language:
Upon receipt of the above-referenced documentation, the requested plan revisions will be considered 'non-substantive changes'; therefore, the applicant will not be required to have the amended land development plan re-reviewed by the [CPO] to retain the Conditional Final Plan Approval status as was previously granted by letter of May 30, 2007.(Id. (emphasis added).)
In a letter dated August 13, 2008 to the CPO regarding HT's modification request, the ZO wrote, in relevant part:
As requested I have reviewed the above referenced non-substantive changes to the final plan for the Dietrick Road Land Development for the Hull Revocable Trust and have determined that the plan meets or exceeds all requirements of the current Walker Township Zoning Ordinance.(R.R. at 27a.) In its decision, the ZHB expressly found as fact that in issuing this letter, the ZO "considered the modified use to qualify as a 'Contractor's Shop and Yard,'" (ZHB FF ¶ 9), which is a permitted principal use in a Light Industrial District under Section 307(7) of the Zoning Ordinance.
Sometime in early 2009, the CPO informed HT that the CPO had received the authorizations it sought in its June 17, 2008 letter, and, therefore, HT could "commence with the construction of the required on-site engineering details." (R.R. at 43a (emphasis added).) The CPO's letter noted that construction of these required on-site improvements was "one of the remaining conditions pending final plan approval." (Id.)
The ZHB's finding of fact correctly identifies the date on the letter from the CPO to HT as June 17, 2008. (ZHB FF ¶ 8; R.R. 43a.) The year on the letter, however, is obviously a typographical error, as the body of the letter references approvals relative to the proposed land development that occurred between August 6, 2008 and January 21, 2009. There is also a receipt stamp in the upper right-hand corner of the letter, noting a receipt date of January 26, 2009. The letter, therefore, could not have been issued in 2008. Instead, it appears more likely that the CPO simply recycled the form of its earlier June 17, 2008 letter (R.R. 24a) without updating the date.
The ZHB made no finding relative to a final plan approval by the CPO. We note, however, that even as late as September 2, 2009, the CPO, considering yet another "non-substantive change request" to the land development plan by HT, referred to the status of the plan as a "conditionally approved final plan." (ZHB C.R. #5 at 175.)
2. Township Planning Commission
On September 17, 2008, HT's consultant, by Fred Henry, appeared before the Township Planning Commission (Commission). According to the minutes of that meeting, Mr. Henry presented to the Commission for its approval a Department of Environmental Protection (DEP) sewage facilities planning module for the proposed land development. In the course of his presentation, Mr. Henry represented to the Commission that the Proposed Building would contain two businesses, HT's well-drilling business and a proposed trucking business. (R.R. at 31a.)
It appears from the record that both the Commission and the Board approved the sewage facilities planning module for the proposed land development. (R.R. at 31a, 34a.)
In a letter dated September 24, 2008, the ZO notified HT's consultant that, inter alia, "[t]he Supervisors of Walker Township have no concerns about Mr. Hull's proposed use of the property as a warehouse and truck garage." (R.R. at 32a; ZHB FF ¶ 11.)
The impetus of this particular letter from the ZO to HT is not clear from the ZHB's or the Board's adjudications or the certified and reproduced records. The text of the letter suggests, however, that it was an effort by the ZO to clarify the zoning of the Property in light of an inconsistency with the Centre County Comprehensive Plan.
On November 19, 2008, the Commission preliminarily approved the HT land development plan. The ZHB found that the Commission, in so doing, expressly found that the Commission approved the plan modification approved by the CPO "for the purpose of housing a well-drilling business and a trucking business." (ZHB FF ¶ 12.) The ZHB also expressly found that "the approved use of the multi-tenant building continued to be as a storage and truck repair facility, with one office to be located within the facility." (Id.) Following approval by DEP of the sewage planning module for the proposed development, at a January 21, 2009 meeting, the Commission granted final approval to the HT land development plan.
3. Township Board of Supervisors
At the Board's Monthly meeting on February 4, 2009, HT, through its consultants, presented its land development plan to the Board for final approval. HT noted specifically that DEP had approved the sewage module for the plan, that the plan meets or exceeds the zoning requirements, and that the plan was approved by the Commission and the Township's engineer. The Board granted final plan approval at that meeting.
B. ZHB Proceeding
HT constructed the Proposed Building in the early part of 2009 and first occupied the building in April 2009. (ZHB F.F. ¶ 15.) Thereafter, the Township began to receive complaints from individuals living near the Property. Based on these complaints, the ZO investigated the manner in which HT was using the Property. In the course of the investigation, the ZO observed many tractor trailer trucks parked on the Property. He observed drivers entering onto the Property in their personal vehicles and then departing the Property in tractor trailer trucks. He also observed drivers returning trucks to the Property at the end of the day and leaving the trucks parked at the facility overnight. In addition to HT's business operations on the site, the ZHB found as fact that the other business occupying part of the Building on the Property is a trucking business owned by the Donmoyer family (Donmoyer). (ZHB FF ¶ 27.)
We acknowledge some inconsistency in the record, the ZHB's Opinion and Order, and the parties' brief as to the spelling of the other business at the Property—e.g., Donmeyer versus Donmoyer. The legal notice for the ZHB hearing on HT's appeal identifies the company as "J.P. Donmoyer, Inc." (ZHB C.R. #5 at 196.) As Donmoyer appears to be the prevalent spelling, we will use that spelling herein, unless quoting from a source that uses the alternative spelling.
Based on these observations, the ZO concluded that the Property was not being used as a "Contractor's Shop and Yard." He issued his October 2, 2009 determination (R.R. at 1a), which is at issue in this appeal, that the Property, instead, was being used as a truck terminal, which is not a permitted use in a Light Industrial District. The ZO suggested that if HT wished to continue to use the Property in this fashion, it should seek conditional use approval from the Board. Until HT obtains such approval, the ZO directed HT to cease and desist immediately from using the Property as a truck terminal.
Section 401 of the Zoning Ordinance provides the Board with the authority to grant or deny an application for approval of a lawful use neither specifically permitted nor prohibited by the Zoning Ordinance as a conditional use.
HT appealed the ZO's written determination to the ZHB, which conducted hearings on the matter on November 23 and December 3, 2009. During the proceedings before the ZHB, HT argued, in essence, that HT accurately described the use to which the Property would be put throughout the land development process, that the ZO's original determination that the use was a permitted use in the Light Industrial District was correct, and that the ZO only changed his interpretation after the Township received complaints about HT's use of the Property. (ZHB Op. at 7.)
On the actual use of the Property, the ZHB's factual findings focus on Donmoyer's, not HT's, business activities on the Property. In this regard, the ZHB found:
28. The Donmeyer (sic) operation involves approximately 160 trucks company-wide. Of those, approximately 10 visit the subject property on a daily [basis]. Seven to ten are "stored there" each day.
29. The Donmeyer (sic) operation provides transportation primarily for lime. Their primary customer is the Graymont Lime Plant in Pleasant Gap. The Donmeyer (sic) trucks haul lime from the plant directly to Graymont customers. Trucks parked at the subject property may be loaded (on their way from the plant to customers), or unloaded.
30. Currently, one of the Donmeyer (sic) dispatchers works out of the house on the subject property.
31. No loading or unloading occurs at the subject property. Trucks are either there as a layover on their way to or from customers or they are stopped there for actual repairs at the new facility.
32. Residents have observed vehicles coming and going at all hours of the day and night. They have further observed large trailers being uncoupled and left there, and other tractors later retrieving those trailers at a different time. Residents have observed drivers parking their personal vehicles on the facility and driving off in the large trucks.(ZHB Op. at 6-7.) Based on these factual findings, the ZHB concluded as a matter of law that the actual use of the Property by HT, through Donmoyer, did not fall within the permitted use of a "Contractor's Shop and Yard":
6. [HT's] use of the property does not qualify as a contractor's shop and yard because trucks come and go from the facility on a regular basis, being dispatched from the facility, and are not as a rule stored at the facility for more than 24 hours.(ZHB Op. at 10-11.) The ZHB, therefore, affirmed the ZO's determination.
7. Trucks are parked temporarily at the facility by drivers who stop to rest and see their family before continuing in route.
8. In order to continue to use the property for the Donmeyer (sic) Trucking business, Applicant must obtain permission to do so as a conditional use.
HT appealed the ZHB decision to the trial court. On appeal to the trial court, HT raised the following issues in its initiating appeal document:
12. The [ZHB] erred when they found it significant that the trucks were dispatched from the facility.(ZHB C.R. #5 at 3.)
13. The [ZHB's] Findings of Fact constitute a manifest abuse of discretion and an error of law, as this is not a freight terminal, rather that it is no different than a rental car parking lot.
14. The ZHB erred in requiring [HT] to file for a conditional use as the Supervisors had approved the plan.
C. Conditional Use Proceeding
As noted above, while HT continued to challenge the ZO's determination, it pursued the concurrent path of seeking conditional use approval from the Board. The Board conducted hearings on HT's application for conditional use approval on February 3, 2010 and March 16, 2010. In addition to the evidence adduced during those hearings, the Board incorporated into the record the testimony of the ZO from the November 23 and December 3, 2009 hearings before the ZHB on HT's challenge to the ZO's determination.
According to the Board's decision on the conditional use application, HT filed its conditional use application after the ZHB issued its determination and HT filed its appeal therefrom with the trial court.
(Mar. 16, 2010 Bd. Hr'g N.T. at 3-4.)
During the course of the hearings, HT asserted that, based upon the actions of the Township, specifically the ZO, during the land development approval process, HT had obtained a vested right to use the Property as it was. Essentially, then, HT sought to obtain approval from the Board in the form of a conditional use permit that would enable HT to continue to allow Donmoyer to operate its trucking business in the manner HT believed the Board approved in the land development proceedings. In other words, it sought conditional use approval without any conditions that would prohibit or impede any aspect of its use of the property up to the ZO's decision.
On or about April 28, 2010, the Board issued its decision, including findings of fact and conclusions of law. In its decision, the Board noted the ZHB's decision that, in light of Donmoyer's operations on the Property, the use of the Property can no longer be considered "a contractor's shop and yard but appear to be more of a truck terminal as used by Donmoyer." (Board Decision at 7.) The Board went on to note that truck terminals are neither expressly permitted nor prohibited in the Township's Zoning Ordinance. Accordingly, such use is appropriately considered by the Board as a conditional use under Section 401 of the Zoning Ordinance. Because, however, the Property borders on residential properties which the Board concluded could be adversely affected by the use, the Board approved the conditional use application subject to ten (10) conditions.
The conditions the Board imposed are: (1) paving of an additional area of the driveway to reduce dust and noise from vehicles entering and leaving the property; (2) limiting Donmoyer's hours of operation to between 6:00 a.m. and 9:00 p.m.; (3) limiting the hours and location of repair work on vehicles and imposing the condition that any repairs conducted between 7:00 p.m. and 7:00 a.m. must be performed with doors closed to avoid disturbances of neighbors; (4) limiting the businesses approved to operate on the property to Mr. Hull's well drilling business, Donmoyer's operation, and a business known as Sand Ridge Stone Designs; (5) limiting to two the number of unlicensed and/or unregistered/inspected vehicles on the property; (6) requiring documentation regarding the ability/suitability of right-turn entries onto the property by vehicles such that they do not need to cross the centerline of the public roadway; (7) requiring compliance with the Highway Occupancy Permit the Pennsylvania Department of Transportation issued; (8) limiting the daily truck traffic to the lesser of forty Average Daily Traffic units or the amount the Highway Occupancy Permit allows; (9) requiring improvements to comply with the land development plan that the Centre County Planning Commission approved, including provisions for buffering; and (10) requiring compliance with all applicable provisions of local, county, and federal regulations relating to the use of and activities occurring on the property.
HT appealed the Board's decision, challenging the conditions that the Board imposed in granting HT's request for conditional use approval. On appeal to the trial court, HT raised the following issues in its initiating appeal document:
a. [HT] has an invested right in the permit;(Board C.R. #1.)
b. [HT] detrimentally relied on the issuance of the permit and expended great sums of money;
c. Failure to follow the Municipalities Planning Code under 53 P.S. § 508(4)(ii)(iv) (sic).
D. Trial Court Proceeding
By order dated July 14, 2010, the trial court consolidated HT's appeal from the ZHB decision, affirming the ZO's determination, and HT's appeal from the Board's decision on its conditional use application. Each party filed proposed findings of fact and conclusions of law with the trial court. The trial court did not take any new evidence.
In its October 27, 2010 Opinion and Order, the trial court affirmed the ZHB decision. In so doing, the trial court first addressed an argument that HT raised in its proposed findings and conclusions, but did not include in its appeal document. HT claimed that Section 914.1(a) of the Municipalities Planning Code, which provides a thirty (30) day period to challenge approval of a land development plan, divested the ZO, the ZHB, and the Board from any authority to revoke the prior approvals given to the land development plan. The trial court rejected this argument, and HT does not challenge the trial court's ruling on this issue on appeal.
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10914.1(a), added by Act of December 21, 1988, P.L. 1329.
The trial court then refused to rule on HT's vested rights argument, noting that HT failed to raise this argument before the ZHB. In so ruling, the trial court relied on Section 753(a) of the Local Agency Law, which provides:
A party who proceeded before a local agency under the terms of a particular statute, home rule charter, or local ordinance or resolution shall not be precluded from questioning the validity of the statute, home rule charter or local ordinance or resolution in the appeal, but if a full and complete record of the proceedings before the agency was made such party may not raise upon appeal any other question not raised before the agency (notwithstanding the fact that the agency may not be
competent to resolve such question) unless allowed by the court upon due cause shown.2 Pa. C.S. § 753(a) (emphasis added). The trial court then ruled that substantial evidence supported the ZHB's decision that HT's use of the Property, by and through Donmoyer, did not qualify as a permitted use in the Light Industrial District because the use did not fall within the permitted use of a contractor's shop and yard. Thus, the trial court reasoned, the ZHB acted within its authority in affirming the ZO's determination and directing HT, if it wished to continue the Donmoyer use, to seek conditional use approval from the Board. As for the Board's decision, the trial court held that the Board acted within its lawful authority in imposing conditions on its conditional use approval.
E. Appeal to Commonwealth Court
HT filed a notice of appeal on November 12, 2010. On November 17, 2010, the trial court issued an order, directing HT to file a statement of matters complained of on appeal pursuant to Pa. R.A.P. 1925(b). HT filed its Rule 1925(b) statement on December 7, 2010. (Board C.R. #20.) The first thirty (30) paragraphs of HT's statement include a recitation of HT's version of the procedural history of this matter, from land development plan process through hearings before the ZHB on the ZO decision, and of the evidence adduced during the ZHB hearing. HT then sets forth the following:
31. In the appeal from the decision of the [Board] to the Court of Common Pleas, the appellant raised the issue that the plan was approved by the township, that the appellant relied on these approvals to construct a large steel building, spending significant sums of money.
32. The [ZHB] committed an abuse of discretion and error law (sic) when it denied the appellant's initial appeal to the [ZO]'s cease and desist letter, requiring the appellant to seek a conditional use permit.
33. The Court of Common Pleas committed an abuse of discretion and error of law when it concluded that the above referenced issues and questions were not raised during the administrative hearing, which established a right to use the property as approved.(Id.)
34. The Court of Common Pleas committed an abuse of discretion and error of law when it found that the appellant did not raise the issue or question of vested right before the [ZHB], and accordingly did not address the issue in it's (sic) order.
35. The Court of Common Pleas committed an abuse of discretion and an error of law when it found that the [ZHB] was within it's (sic) discretion to require appellant to seek a conditional use permit.
On January 27, 2011, the trial court filed an Opinion Regarding Matters Complained of on Appeal (Second Opinion). In its Second Opinion, with respect to the first assigned error directed to the trial court (paragraph 33 above), the trial court noted that the only issue/question that the trial court found HT had waived due to its failure to raise it before the local agency was HT's vested rights argument as to the ZHB decision. (Second Opinion (Board C.R. #22) at 2.) The trial court stood by its prior analysis of that waiver ruling, as set forth in the October 27, 2010 Opinion and Order.
The trial court then interpreted HT's assignments of error as directed only at the trial court's handling of the ZHB decision. Thus, the trial court reasoned that HT had not raised any challenge based on the vested rights issue as to the Board's decision. (Id.) Nonetheless, the trial court proceeded to analyze HT's vested rights argument and concluded that it was without merit. As to the final assignment of error, the trial court stood by its prior analysis of the ZHB's decision, as set forth in the October 27, 2010 Opinion and Order.
II. ANALYSIS
This Court's standard of review when a trial court takes no additional evidence in an appeal from a land use decision of a governing body or a zoning hearing board is limited to considering whether the governing body erred as a matter of law or abused its discretion. Warner Jenkinson Co., Inc. v. Zoning Hearing Bd. of Twp. of Robeson, 863 A.2d 139 (Pa. Cmwlth. 2004); Finnegan v. Bd. of Supervisors of Earl Twp., 826 A.2d 76 (Pa. Cmwlth. 2003).
A. Waiver
There are two waiver issues before the Court for our consideration. The first concerns HT's challenge to the trial court's ruling, as set forth in the October 27, 2010 Opinion and Order, that HT waived any vested rights argument as to the ZHB decision, because HT failed to raise and preserve that argument during the ZHB proceeding. See 2 Pa. C.S. § 753(a). The second concerns the trial court's statement in its Supplemental Opinion, which the Board adopts as an argument in its brief on appeal (Board Br. at 10), that HT did not include in its Rule 1925(b) statement any issue regarding a vested rights argument before the Board, and, therefore, is deemed to have waived that issue for appellate review. See Pa. R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.").
We begin with the question of whether the trial court correctly concluded that HT failed to raise the vested rights issue before the ZHB. As HT acknowledges, pursuant to Section 753(a) of the Local Agency Law, a party that has not raised an issue before a local agency adjudicating a dispute waives the issue. Korsunsky v. Housing Code Bd. of Appeals, 660 A.2d 180, 184 (Pa. Cmwlth. 1995). Under Section 753(a), courts may, however, entertain issues that would otherwise be considered waived upon a showing of "due cause." Lower Providence Twp. v. Nagle, 469 A.2d 338 (Pa. Cmwlth. 1984). For the reasons that follow, we conclude that HT did not raise and preserve its vested rights argument before the ZHB and, therefore, has waived that issue as to the ZHB decision. HT has not established due cause for its failure to raise and preserve this issue as to the ZHB decision.
First, though the hearings before the ZHB focused extensively on the land use plan approval process for the Property and correspondence between HT and various state, county, and local agencies related thereto, a review of the transcripts from the hearings before the ZHB convinces us that HT never argued that the ZHB was required to reverse the ZO's determination because HT had a vested right to use the Property in the fashion Donmoyer was using it at the time the ZO issued his determination. Indeed, the word vested appears only once in the transcripts. Toward the end of the November 23, 2009 hearing, counsel for the Board asked HT directly if he was making a vested rights argument on HT's behalf. The exchange between counsel was as follows:
MR. STOVER: . . . Mr. Bryant, my understanding is what you ask here -- you're appealing the determination that this does not comply with the Zoning Ordinance.
MR. BRYANT: Yeah, that's correct.
MR. STOVER: You're not asking for a vested right, you're saying given everything that's been presented, nothing has been hidden here and we believe we meet the terminology of the ordinance.
MR. BRYANT: The only reason it's here I believe is understandably some of the neighbors aren't happy with what's going on and what was zoned Light Industrial when it's not prohibited under the code under the ordinance. And that's -- all politics is local, but this was approved by the local politicians.
MR. BRYANT: . . . And the fact that it was called for whatever reason - they could have called it a hippopotamus, a hippopotamus isn't defined in the Zoning Ordinance. [The ZO] and Mr. Hull decided to call it something it's not, but the plans call it what it is, a truck storage facility, and clearly it doesn't meet Webster's definition of a trucking terminal and it doesn't meet the generally-accepted definition of a trucking terminal. So -(Nov. 23, 2009 ZHB Hr'g N.T. at 36-37.) Thus, when specifically asked whether HT was arguing that it had a vested right to use the Property for the Donmoyer business, HT did not respond in the affirmative. Instead, HT first agreed that it was challenging the determination that the use failed to comply with the Zoning Ordinance. It then noted that neighbors were upset about the change in zoning of the Property to Light Industrial. Then, it argued that the use was not a trucking terminal. HT never revisited that question or specifically raised the vested rights issue anywhere else in the transcript of the proceedings before the ZHB.
Second, HT has not demonstrated the type of cause that would have warranted the trial court's consideration of the issue notwithstanding HT's failure to raise it before the ZHB. In Lower Providence Township, the issue the party raised for the first time on appeal concerned alleged bias on the part of adjudicators. This Court concluded that the appellant could raise the issue because the appellant was not aware during the course of the earlier proceedings that two of the adjudicators maintained bias against him. In this case, however, HT asserts there is "due cause" to consider the vested rights issue because the record created before the ZHB was sufficient to enable the trial court to consider and resolve the issue. Although several of the ZHB's factual findings do relate to the process that occurred in the course of the land development plan review and approval process, we do not agree that the content of the evidentiary record excuses HT's failure to raise the specific legal challenge to the ZHB in the first instance. Consequently, we agree with the trial court's conclusion that HT waived this issue.
The next question is whether HT preserved for appellate review by this Court its vested rights argument with respect to its challenge to the Board's decision. To answer this question, we look to the assignments of error contained in HT's Rule 1925(b) statement. Paragraph 31 of the Rule 1925(b) statement specifically addresses a challenge to the Board's decision based on prior approval of its land development plan by the Township. Paragraph 33 specifically assigns error to the trial court for concluding that HT had waived "the above-references issues and questions . . . , which established the right to use the property as approved." (Board C.R. #20.) While we concede that HT's Rule 1925(b) statement is not a model of clarity, we are satisfied that read together, these paragraphs are sufficient to place the vested rights question at issue before us as an appellate matter.
The Board does not argue on appeal that HT failed to preserve this issue before the Board or in its appeal to the trial court. Nonetheless, having reviewed the transcript of the proceedings before the Board and HT's appeal from the Board's decision, we are satisfied that HT preserved its vested rights argument as to the conditional use application proceeding before the Board and on appeal to the trial court.
B. The ZHB Decision
Because we have determined that HT waived its vested rights argument as to the proceedings before the ZHB, HT's only remaining argument on appeal for reversal of the ZHB's decision is that the ZHB erred in concluding that the Donmoyer use on the Property was not a permitted use in the Light Industrial District. As noted above, if the use was not a permitted principal use in the Light Industrial District under Section 307 of the Ordinance, then HT would have to obtain conditional use approval if it wanted to continue to use the Property for the Donmoyer business.
We reject HT's characterization of the ZO's determination and the ZHB's decision as ordering HT to obtain conditional use approval. Rather, in light of the ZO's and ZHB's view that the Donmoyer business was not a permitted use in the Light Industrial District, we read both actions as merely informing HT of its ability to seek conditional use approval, if HT wished to continue to host Donmoyer's business operations on the Property. For this reason, we reject HT's argument that the ZHB abused its discretion in so informing HT.
We must resolve this issue through interpretation of the Zoning Ordinance. To reiterate the pertinent factual findings of the ZHB, we note that at the time of the ZO's determination, the Property was being used for parking numerous tractor trailer trucks that Donmoyer would dispatch for the purpose of picking up lime and delivering the lime to Donmoyer's customers. Donmoyer's drivers would return the trucks to the Property, leaving them at the Property until the next delivery. Also, Donmoyer's truck drivers would park their personal vehicles on the property while making deliveries on Donmoyer's behalf in Donmoyer's trucks.
With respect to the Light Industrial District, Section 201(f) of the Zoning Ordinance provides:
The purpose of this zone is to set aside segments of the Township where light industrial activities can be accommodated. The areas selected . . . were chosen in an attempt to consolidate the municipality's industrial operations, yet minimize potential negative effects caused by such uses. Regulations governing the zone prohibit industrial operations which could interfere with this purpose. Reasonable standards are included to address air pollution, noise, odors, glare, heat and potential fire and safety hazards. And, still other requirements insure that adequate buffer yards, planting strips and/or screenings are provided between the uses in
this zone and other adjoining zoning districts, particularly residential areas.Section 307 of the Zoning Ordinance provides for ten (10) permitted principal uses for which the ZO can grant approval, six (6) permitted accessory uses for which the ZO can grant approval, two (2) special exception uses for which the ZHB can provide approval, and four (4) conditional uses for which the Board can provide approval. In addition, as noted above, Section 401 of the Zoning Ordinance provides the Board with the authority to grant or deny an application for approval of a lawful use neither specifically permitted nor prohibited by the Zoning Ordinance as a conditional use.
The ZO determined that the Donmoyer trucking business operations at the Property did not fall within any of the permitted uses in a Light Industrial District set forth in Section 307 of the Zoning Ordinance:
As you will recall, in the fall of 2008 and again in the spring of 2009, I determined from several conversations with you that your plan modifications to the Deitrich Road Land Development Plan to include a Shop and Yard to be used by J.P. Donmoyer, Inc. for the storage of his lime hauling trucks would be a permitted use in the Light Industrial Zoning District. In a letter
to [CPO] I stated that the proposed Land Development Plan modification would 'meet or exceed' all zoning requirements in the Walker Township Zoning Ordinance. However, after observing the activity on your property for the last five months, I have concluded that Donmoyer, Inc. is not simply storing trucks on your property; but is indeed operating as a truck terminal.(R.R. at 1a (first emphasis added).) The ZO then noted that truck terminals are not provided for anywhere in the Zoning Ordinance and directed HT, if it wished to continue the Donmoyer use, to seek conditional use approval.
Employees park their personal vehicles at the site, start their tractor-trailers and either deliver the loaded lime to a predetermined destination or go to the lime plant where they are loaded and sent to a predetermined destination. These destination sites are predetermined by Donmoyer office personnel, who are also located on your site. Those tractor-trailers continue to their destinations, unload their cargo and return to your site (either empty or loaded again), park and leave the site in their personal vehicles. To me that meets the definition of a terminal, the "ending of a transportation line."
Section 1201 of the Zoning Ordinance requires property owners seeking to undertake new construction or contemplating a new use to apply to the ZO for a zoning permit. Section 1202 then sets forth detailed substantive and procedural provisions with respect to, inter alia, when a zoning permit is required, how to apply for a zoning permit, and when and how a permit may be revoked. Section 1203 of the Zoning Ordinance requires, prior to occupancy or use, the Zoning Officer to issue a Certificate of Compliance, "to certify that all work authorized by the Zoning Permit has been satisfactorily completed and that the building or proposed use thereof complies with the provisions of this Ordinance." (Emphasis added.) Although HT claims in its brief on appeal that it has a zoning permit for the Property and, particularly, for the use of the building, neither the permit nor the application for the permit is part of the record before us. These documents would certainly have aided this Court and the trial court in determining (a) the type of use the ZO had approved for the Property prior to his adverse determination and cease and desist letter, and (b) the representation made by HT to secure the zoning permit. Similarly, any certificate of compliance issued by the ZO after the land development plan had been completed would have been enlightening to the Court. Neither the Board nor the ZHB, however, appear to contest HT's claim that the ZO approved the proposed use of the Property during the land development process as a permitted use. The only evidence in the record of this approval is testimony of oral communications with the ZO and various correspondence, some from and to the ZO, in connection with the land development process for the Property. We note that while there is often much overlap in the requirements for satisfaction of a zoning ordinance and a subdivision and land development ordinance, an interested party seeking to develop and use land in a particular manner ordinarily must comply with both subdivision and land development and zoning ordinances. See Bor. of Jenkintown v. Bd. of Comm'rs of Abington Twp., 858 A.2d 136, 138 (Pa. Cmwlth. 2004). Nonetheless, as the question of whether HT and the Township complied with the Zoning Ordinance with respect to issuance of an actual zoning permit and a certificate of compliance for the Property is not before us, we will go no further in examining this question.
HT appealed this adverse decision to the ZHB. In affirming the ZO's determination, the ZHB relied on definitions in the Zoning Ordinance. Specifically, Section 1301 of the Zoning Ordinance defines "Contractor's Shop and Yard" as follows: "A building or buildings and space used for storage of construction equipment and/or building materials. Such uses may also include equipment repair facilities and office space." That same section defines "storage" as follows: "1) A place or space for storing goods, articles of personal property, materials, etc. for more than 24 hours; or 2) The accumulation or storing of items or personal property." Section 1301 of the Zoning Ordinance. Based on its factual findings, the ZHB reasoned that the Donmoyer use did not meet the definition of "Contractor's Shop and Yard" because the trucks used in the business were not "stored" on the Property. Because the ZHB found that the trucks are on the Property at best for only a temporary period of time and not, as a rule, in excess of 24 hours at a time, their presence on the Property cannot be equated with "storage," as that term is defined in the Zoning Ordinance.
We now turn to HT's arguments in its brief. Though we see this as a case of whether the ZHB's decision is in accord with the Zoning Ordinance and the applicable law, the argument section of HT's brief lacks any meaningful analysis of either the relevant text of the Zoning Ordinance or the stated grounds on which the ZHB reached its decision—i.e., that because the Donmoyer trucks are not, as a rule, on the Property for a period in excess of 24 hours, it cannot be said that they are "stored" on the Property. Instead, a large portion of the argument section of HT's brief is consumed by mere recitation of the relevant Zoning Ordinance provisions dealing with a Light Industrial District and general statements of law governing our interpretation of zoning ordinances. For example, at page 15 of its brief, HT argues that the phrase "construction equipment" in the Zoning Ordinance definition of "Contractor's Shop and Yard" is an "overbroad" term. HT then notes that when a term in a zoning ordinance is overbroad, zoning hearing boards should give a broad, rather than restrictive, interpretation of the term. HT is correct in observing that this Court has adopted this principle. In Board of Supervisors of Lower Providence Township v. Ford, 283 A.2d 731 (Pa. Cmwlth. 1971), this Court reversed a zoning hearing board's conclusion that a proposed trucking terminal was not permitted as of right under the single permitted use—"industrial manufacturing pursuit"—in the industrially zoned district in which the property was located. We opined:
For the [zoning hearing board] to conclude that a trucking terminal is not a common "Industrial Manufacturing Pursuit" it must have found that the above phrase in its broadest meaning does not include trucking. This Court seriously doubts whether the narrowest meaning of this phrase would preclude trucking . . . [and t]he refusal to include trucking as an "Industrial Manufacturing Pursuit" was a manifest abuse of discretion. "When [that] term defines uses which are permitted, it is both permissive and restrictive. Without further limiting definition, the permissive nature of the phrase must be taken in its 'broadest sense.' On the other hand, any restrictive nature ascribed to the phrase must be taken in its strictest sense. This accords the landowner the benefit of the least restrictive use and enjoyment of his land."Id. at 733 (internal citations omitted).
But while HT accurately restates this legal principle, it fails to connect the legal principle to the ZHB decision now under review, such that the principle provides HT a path to the relief it requests. Indeed, in affirming the ZO's determination, the ZHB did not find or conclude that the Donmoyer trucks were something other than "construction equipment." We see nothing in either the ZO's determination or the ZHB's decision where the definition of "construction equipment" is cited, let alone interpreted and applied in a manner adverse to HT. To the contrary, the only basis cited by the ZO and the ZHB for their actions is their application of the Zoning Ordinance definition of "storage" to the Donmoyer use on the Property.
The word storage, or stored, is encompassed within the definitions of two permitted uses within the Light Industrial District under Section 307 of the Zoning Ordinance. As noted above, it is encompassed within the definition of "Contractor's Shop and Yard." Section 307 of the Zoning Ordinance. The term is also encompassed within the permitted use of "Enclosed warehousing or storage facilities." (Id.; emphasis added.) In its brief, HT argues that the ZO and the Board had the discretion to interpret the Donmoyer use on the Property as fitting within either of these permitted uses. (HT Br. at 17.) But in the very next sentence, HT notes that "[s]aid uses contemplate the storage" of trucks similar to the Donmoyer trucks. (Id. (emphasis added).) This very well may be true. But, nowhere in HT's brief does HT directly refute the ZHB's legal conclusion that the period of time during which the Donmoyer trucks are present on the Property is not sufficient to meet the definition of "storage" in the Zoning Ordinance. We also can discern from HT's brief no legal challenge to that definition.
Under Section 1301 of the Zoning Ordinance, "warehouse facility" is defined as "[a] building used primarily for the storage of goods and materials." (Emphasis added.) We are, however, unpersuaded by HT's effort to point to this use as a possible alternative permitted use for the Donmoyer business operations on the Property for the additional reason that the record evidence shows that, with the exception of the possible truck in need of repair or in the process of being repaired, the Donmoyer trucks on the Property are outdoors, and not in an "enclosed" facility. See Section 1301 of the Zoning Ordinance (definitions of "enclosed use," enclosed storage facility," and "warehousing facility").
Accordingly, while HT devotes much of its argument to challenging the ZHB's decision on the ground that the Donmoyer trucks meet the definition of "construction equipment," our review of the record in this case leads us to the conclusion that the character of the Donmoyer trucks was never in dispute. Our review of HT's brief on appeal also compels us to conclude that HT does not address in its brief the actual factual and legal underpinnings of the ZHB's decision. Because HT does not address in its brief the stated bases for the ZHB's decision, and because the limited arguments that HT raises in its brief, even if correct, do not compel the conclusion that the ZHB's decision affirming the ZO's determination was erroneous, we conclude that HT has failed to preserve an argument in its brief upon which we could reverse the ZHB's decision, affirming the ZO's determination, that the Donmoyer use on the Property is not a permitted use under the Zoning Ordinance. See Pa. R.A.P. 2119 (relating to argument portion of brief on appeal); In re Condemnation of Land for the S.E. Cent. Bus. Dist. Redevelopment Area # 1: (405 Madison Street, City of Chester), 946 A.2d 1154 (Pa.Cmwlth.) (holding arguments not properly developed in brief will be deemed waived by this Court), appeal denied, 600 Pa. 772, 968 A.2d 233 (2008), cert. denied sub nom., Brown v. Redevelopment Auth. of City of Chester, Pa., ___ U.S. ___, 129 S. Ct. 2054 (2009). For this reason, we will affirm the portion of the trial Court's October 27, 2010 Opinion and Order, denying HT's appeal from the ZHB decision.
C. The Board Decision—Vested Rights
Vested rights "is one of three labels assigned in Pennsylvania land use/zoning law to the equitable remedy precluding municipal enforcement of a land use regulation. Our courts have generally labeled the theory under which a municipality is estopped . . . a 'vested right' where the municipality has taken some affirmative action such as the issuance of a permit." In re Appeal of Kreider, 808 A.2d 340, 343 (Pa. Cmwlth. 2002). In Kreider, the Court also observed that the particular label assigned one of the three estoppel principles (vested rights, variance by estoppel, and equitable estoppel) "[t]o a large extent . . . impose an analytical rigidity that is not helpful" because "[m]unicipal action that may underpin estoppel often embodies more than one category; for example, active acquiescence manifested by the issuance of a permit [or] issuance of a permit coupled with reliance on the zoning officer's interpretation of the ordinance." Id. (citations omitted).
A party's burden in seeking to establish an equitable right to continue to use property in a manner deemed to be inconsistent with land use and zoning ordinances necessarily must begin with a demonstration of some type of reliance upon municipal action. Id. In this case, HT asserts that actions on the part of the Board, in approving HT's land development plan, and the ZO, who provided necessary approvals in the context of the land development approval process, constitute the actions that support HT's asserted vested right to a condition-free conditional use permit.
The seminal decision setting forth a party's burden in asserting a vested right is Petrosky v. Zoning Hearing Board of Upper Chichester Township, 485 Pa. 501, 402 A.2d 1385 (1979), where our Supreme Court created a five-factor analysis to apply in considering whether a property owner had acquired a vested right in an erroneously issued permit. Those five factors are: the property owner's due diligence in attempting to comply with the law; (2) the property owner's good faith throughout the proceedings; (3) the expenditure of substantial unrecoverable funds; (4) the expiration of the period during which an appeal could have been taken from the issuance of the permit; and (5) the insufficiency of evidence to prove that individual property rights or public health, safety or welfare would be adversely affected by use of the permit." Kuszyk v. Zoning Hearing Bd. of Amity Twp. v. Amity Twp., 834 A.2d 661, 666 (Pa. Cmwlth. 2003).
We recognize here the fact that we are not considering the effect of a municipality's issuance of a permit or acquiescence, but rather a municipality's approval of a land development plan and the various pre-approval actions that led to the Board's approval of the land development plan.
In its decision, approving HT's conditional use application with conditions, the Board does not address HT's vested rights argument. Instead, it examines HT's application for relief strictly as a conditional use application. Consequently, the Board did not make essential factual findings relating to the five (5) Petrosky factors. The trial court, pursuant to Section 1005-A of the Municipalities Planning Code (MPC), could have made its own findings of fact in the absence of Board findings and could have taken additional evidence, if necessary, to reach those findings. See Koutrakos v. Zoning Hearing Bd. of Newtown Twp., 685 A.2d 639, 641-42 (Pa. Cmwlth. 1996). The trial court, however, did not take any additional evidence and did not issue factual findings relative to HT's vested rights argument in its October 27, 2010 Opinion and Order. To the contrary, the trial court ruled that HT waived the vested rights argument. Although the trial court analyzed the vested rights argument in its Second Opinion, it did so without the requisite fact finding.
Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 11005-A. --------
Under these circumstances, we believe the proper approach in this case is to remand the matter for additional fact finding and a decision, based on the additional fact finding, on HT's vested rights argument with respect to the Board's conditional use approval. We leave it to the trial court's discretion under Section 1005-A of the MPC as to what body, the trial court or the Board, should make the additional fact finding in the first instance and the record upon which those additional findings should be based.
III. CONCLUSION
For the reasons set forth above, we will affirm the portion of the trial court's October 27, 2010 Opinion and Order that denied HT's land use appeal from the ZHB decision. With regard to HT's appeal of the Board's decision, we will vacate the trial court's denial of HT's appeal and remand the matter for additional fact finding pursuant to Section 1005-A of the MPC and a decision on HT's vested rights argument.
/s/_________
P. KEVIN BROBSON, Judge Judge Cohn Jubelirer concurs in the result only.
ORDER
AND NOW, this 9th day of January, 2012, the order of the Court of Common Pleas of Centre County (trial court) is AFFIRMED in part, VACATED in part, and REMANDED to the trial court for further proceedings consistent with the accompanying Opinion. The portion of the trial court's order denying the appeal of the Zoning Hearing Board decision is AFFIRMED. The portion of the trial court's order denying the appeal of the Township Board of Supervisors is VACATED. This matter is REMANDED to the trial court for further proceedings consistent with the accompanying Opinion on the challenge to the Township Board of Supervisor's decision.
Jurisdiction relinquished.
/s/_________
P. KEVIN BROBSON, Judge