Opinion
No. 2331 C.D. 2011 No. 2332 C.D. 2011
11-05-2012
Appeal of William Peter R. Cross From the Decision of the Zoning Hearing Board of Solebury Township Dated November 15, 2010 Appeal of: William Peter R. Cross Appeal of Scannapieco Holding Company, LLC from the decision of the Zoning Hearing Board of Solebury Township Dated November 15, 2010 Appeal of: Scannapieco Holding Company, LLC
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
William Peter R. Cross (Cross) and Scannapieco Holding Company, LLC (Scannapieco) (collectively, "Landowners") appeal from the orders of the Court of Common Pleas of Bucks County (trial court) affirming the Zoning Hearing Board of Solebury Township's (Board) denial of Landowners' requests for variances from the requirements of the Solebury Township Zoning Ordinance (Ordinance). For the reasons that follow, we affirm.
Landowners own adjacent properties located between the Delaware River and Delaware Canal in Solebury Township (Township). The Cross property, consisting of three parcels, is 16.95 acres in area, irregularly shaped, heavily wooded and completely undeveloped. The Scannapieco property is 3.69 acres in area and improved with a parking lot associated with the neighboring Waterview Condominium development. Neither property has direct frontage on any public road, but both have access to River Road via an easement over the condominium development. The properties are in the Township's RB-Residential/Agricultural Zoning District within the Riparian Corridor and Floodplain Conservation Overlay Districts. Residential uses and the construction of buildings are prohibited in the Riparian Corridor and Floodplain Conservation Overlay Districts.
Under Section 501 of the Ordinance, permitted principal uses in the RB-Residential/Agricultural District include single-family detached dwellings, two-family dwellings and conversions into two-family dwellings, agricultural use, municipal use and forestry/timber harvesting. That section also lists a number of permitted conditional and accessory uses.
Uses permitted in the Riparian Corridor Conservation District include, inter alia, wildlife sanctuaries, nature preserves, forest preserves, fishing areas, passive areas of public and private parklands, reforestation and agricultural uses. Section 1507.E of the Ordinance.
Uses permitted in the Floodplain Conservation Overlay District include, inter alia, agricultural uses; public and private recreational uses and activities; accessory residential and commercial uses; utilities, public facilities and improvements such as railroads, streets and bridges; water-related uses such as marinas and docks; temporary uses such as circuses and carnivals; and storage of materials and equipment. Section 1408.E of the Ordinance.
See Sections 1507.E.5 and 1408.E.1 of the Ordinance. The Pennsylvania "Flood Plain Management Act," (Act) Act of October 4, 1978, P.L. 851, as amended, 32 P.S. §§679.101-679.601, provides:
[e]ach municipality which has been identified by the United States Department of Housing and Urban Development as having an area or areas subject to flooding, shall adopt such flood plain management regulations, and amendments thereto, as are necessary to comply with the requirements of the National Flood Insurance Program within six months after a flood plain map is approved or promulgated for the municipality by the United States Department of Housing and Urban Development.Section 202 of the Act, 32 P.S. §679.202. Section 207 of the Act prohibits "construction or substantial improvement of structures in an area which has been determined by the Environmental Quality Board as a flood hazard area...which may endanger human life." 32 P.S. §679.207. In accordance with those sections of the Act, Section 1408 of the Ordinance provides, in relevant part:
A. All uses, activities and development occurring within the Flood Plain Conservation District shall be undertaken only in strict compliance with the provisions of this Ordinance and with all other applicable codes and ordinances, such as the Township Building Code and the Township Subdivision and Land Development Ordinance. In addition, all such uses, activities and the development shall be undertaken only in compliance with federal or state law, including Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. [§]1334; the Pennsylvania Sewage Facilities Act [Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P.S. §§750.1 - 750.20a] (Act 537); the Pennsylvania Dam Safety and Encroachment Act [Act of November 26, 1978, P.L. 1375, as amended, 32 P.S. §§ 693.1-693.27] (Act 325) and the Pennsylvania Clean Streams Act [Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§ 691.1-691.1001] (Act 394).
B. Under no circumstances shall any use, activity and/or development lower the capacity of the channels or floodways of any watercourse, drainage ditch or any other drainage facility or system.
C. Prior to any proposed alteration or relocation of any stream, water course, etc., within the municipality, a permit shall be obtained from the Department of Environmental Protection, Bureau of Dams, Waterways and Wetlands. Further, notification of the proposal by the Township shall be given to all affected adjacent municipalities. Copies of such notification shall be forwarded to both the Federal Emergency Management Administration and the Pennsylvania Department of Community and Economic Development.
D. In the Flood Plain Conservation District, no development shall be permitted except where any rise in flood heights caused by the proposed development will be fully offset by accompanying improvements which have been approved by all appropriate local, State and Federal authorities as required above.
Cross proposed to subdivide his property into four lots and construct a single-family detached dwelling on each lot, while Scannapieco proposed to construct one single-family detached dwelling on its property. Landowners also proposed to construct sewage systems and individual wells on each lot, as well as a shared driveway that would extend through the condominium development to River Road to provide access to the properties. In December 2009, Cross submitted an application to the Township for variances from several sections of the Ordinance, and Scannapieco submitted an application for variances shortly thereafter.
Specifically, Cross sought variances from the following sections of the Ordinance:
• Section 1408 - Uses Permitted within the Flood Plain Conservation District
• Section 1801.B - Requirement for frontage on a public or private street
• Section 1902.C.2 - Shared driveway requirements
• Section 1504.A - Prohibition against alteration, grading, filling, or building upon the flood plain
• Section 1505.B - Prohibition against disturbance or encroachment into floodplains, wetlands, Waters of the Commonwealth or the United States, Delaware Canal or Riparian Corridor
• Section 1505.F - Chart of Resource Protection Standards
• Section 1504.E - Prohibition against alteration, grading, filling, or building upon the wetlands
• Section 1504.E.5.b - Prohibition against disturbance or encroachment within 300 feet of any exceptional value wetlands
• Section 1504.E.5.c - Prohibition against disturbance or encroachment within 100 feet of any other wetlands
• Section 1504.B.3.C - Alteration, grading, clearing or building upon Class III steep slopes
• Section 1507.E.3.c - Minimum required front, side and rear yard within Riparian Corridor Overlay District
• Section 1507.E.5.a - Prohibition against buildings and other types of permitted structures within the Riparian Corridor Overlay District
• Section 1507.E.5.k - Prohibition against individual on-lot sewage systems within the Riparian Corridor Overlay District
• Section 1814.C - Setbacks from resource protected lands
• Section 1905.A - Requirement for 150 foot setback from the Delaware Canal
Scannapieco applied for variances from all the same sections of the Ordinance as Cross did except for Sections 1504.B.3.C and 1905.A.
Both variance requests were consolidated for hearing. Before the Board, Frank X. Browne, P.E. (Dr. Browne), an expert in civil and environmental engineering, testified that each of the proposed dwellings would be elevated above the 100-year flood level and that construction in the floodplain would cause no measurable increase in flood elevations on the properties. Although agricultural and forestry uses are permitted by right under the Ordinance, Dr. Browne opined that the properties are "not conducive to agriculture, especially non-animal agriculture," because their soils are "very well drained, very granular, basic alluvial soils." (April 29, 2010 Hearing Transcript at 46). Moreover, he testified that the shape of the Cross property and small size of the Scannapieco property makes any agricultural or forestry use infeasible. Dr. Browne also explained that constructing residential dwellings on the properties would be "much better for the environment" than any agricultural use because agriculture is "very intensive" and "very prone to pollution." Id. at 48. He further testified that even if the properties could be utilized for a permitted agricultural or forestry purpose, those uses would require grading and tilling of the land and the construction of a driveway, which are prohibited by the Ordinance.
The regulations implementing the Flood Plain Management Act provide, in relevant part, that flood plain management regulations adopted by municipalities shall require at a minimum:
(1) That, within a flood hazard area as determined by the Environmental Quality Board except for a delineated floodway area, the construction or substantial improvement shall be prohibited unless it is elevated or floodproofed to remain dry up to at least 1 1/2 feet above the 100-year flood elevation.12 Pa. Code §113.7(b). The regulations also require an applicant seeking a variance to demonstrate that approval of the variance will not result in increased flood heights within any designated floodway. 12 Pa. Code §113.6(i)(4). See also Section 1410.A of the Ordinance - Elevation and Flood Proofing Requirements.
Edward Momorella (Momorella), an expert in emergency management, testified that the water level of the Delaware River is monitored by the National Weather Service and the United States Geological Survey. He also testified as to the various systems in place to notify counties, municipalities and individuals of potential flooding events. Momorella explained that from an emergency management standpoint, the number one priority is life safety. Although he testified that injuries and fatalities have occurred as a result of flooding, Momorella ultimately opined that a river flooding would not create a significant risk to life if residents followed instructions.
The Township presented the testimony of one witness, Corporal Kevin Edwards (Corporal Edwards) of the Township Police Department. Corporal Edwards testified as to flooding events in the Township in recent years and their effect on the subject properties and surrounding areas. He identified 71 photographs depicting flooding at the properties and the neighboring Waterview Condominium development, and testified that the photographs accurately showed the conditions during past floods.
Finding that Landowners failed to establish entitlement to the requested variances, the Board denied both applications. Specifically, the Board concluded that the floodplain on the subject properties creates a condition applicable generally to properties located in a floodplain and not unique to Landowners' properties. Finding Landowners' witness not credible, the Board also concluded that Landowners failed to prove that their properties could not be used for permitted agricultural or forestry purposes. The Board also found that any unnecessary hardship had been created by Landowners; that granting the requested variances would be detrimental to the public welfare because it would permit and facilitate the introduction of a prohibited residential use into a floodplain and would expose additional residents to known flooding hazards and the risk of injury and death; and that the variances would not represent the minimum variances necessary to afford relief.
Both Board decisions state "The applicants met their burden...as to the request for the variance from Section 1801.B relating to the requirement for road frontage." (Cross Decision at 22; Scannapieco Decision at 22). However, both orders specifically deny the requests for variances from Section 1801.B. While we note the inconsistency in the Board's decisions, we must rely on the language in its orders denying the variance from Section 1801.B.
In so finding, the Board rejected Dr. Browne's testimony as to suitability of the properties for agricultural uses as not credible, noting that he was offered and accepted as an expert in civil engineering, but that there was no offer of expertise as to agronomy, soil science or agriculture. Moreover, the Board noted that Dr. Browne failed to present any soil studies in support of his claims. With respect to a forestry use, the Board found that "Dr. Brown[e] conceded that no variances would be necessary in order to utilize the subject property in connection with a forestry use, excepting, perhaps, a variance for the location of a farm road." (Cross Decision at 7; Scannapieco Decision at 7).
With respect to the Scannapieco property, the Board also noted that Scannapieco "currently makes reasonable use of the subject property as a parking lot." (Scannapieco Decision at 22).
Landowners then separately appealed to the trial court, which consolidated the appeals. Based on the record, the trial court affirmed the Board's decisions. While it found that the Board erred in concluding that the Ordinance's requirements do not affect the properties any differently than other properties in the Township subject to such regulations, it agreed with the Board that Landowners failed to prove that the properties could not be used for any permitted agricultural or forestry purposes. This consolidated appeal by Landowners followed.
Our standard of review in a zoning case where the trial court has taken no additional evidence is limited to determining whether the Board abused its discretion or committed an error of law. An abuse of discretion will be found only if the Board's findings are not supported by substantial evidence, that is, such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Lamar Advertising of Pennsylvania, LLC v. Zoning Hearing Board of the Borough of Deer Lake, 915 A.2d 705, 709 n.9 (Pa. Cmwlth. 2007).
On appeal, Landowners contend that the requested variances should have been granted because the Board's conclusion that they failed to prove the properties could not be utilized for a permitted agricultural or forestry purpose was not supported by substantial evidence. Landowners claim that the uncontroverted testimony of Dr. Browne established that neither property could reasonably be used for either of those permitted purposes. Because that testimony demonstrated that compliance with the Ordinance would render the properties virtually useless, Landowners allege that they demonstrated the requisite unnecessary hardship to warrant the grant of a variance.
An applicant for a variance must establish that (1) an unnecessary hardship stemming from unique physical circumstances or conditions of the property will result if the variance is denied; (2) because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and a variance is necessary to enable the reasonable use of the property; (3) the hardship has not been created by the applicant; (4) granting the variance will not alter the essential character of the neighborhood nor be detrimental to the public welfare; and (5) the variance sought is the minimum variance that will afford relief. Laurento v. Zoning Hearing Board of West Chester, 638 A.2d 437, 439 (Pa. Cmwlth. 1994). Additional requirements for the grant of a variance imposed by State and Federal flood plain management regulations are outlined in Section 1409 of the Ordinance. That section provides, in relevant part, that:
Variances...shall only be issued after the [Board]...has determined that the granting of such will not result in:
Section 1409.A.13 of the Ordinance.(a) increases in flood heights;
(b) additional threats to public safety;
(c) extraordinary public expense;
(d) creation of nuisances;
(e) fraud or victimization of the public;
(f) conflict with local laws or ordinances; or
(g) modification greater than that necessary to obtain relief.
However, Landowners failed to meet their burden of proving entitlement to the requested variances for a simple reason - the Board did not accept Dr. Browne's testimony that it would not be feasible to use the properties for any permitted agricultural or forestry purpose. Because Dr. Browne was not offered as an agricultural expert and presented no studies in support of his opinion that the properties were not suitable for any agricultural or forestry use, the Board had a sufficient basis for finding that portion of his testimony not credible. Although Dr. Browne opined that variances would be required in order to make any use of the properties, he did not provide any detailed analysis to support those claims, and even admitted that he did not study whether variances were necessary to implement non-livestock agricultural uses. (April 29, 2010 Hearing Transcript at 43). Given that testimony, the Board did not abuse its discretion by concluding that Dr. Browne's testimony was not credible and that it amounted to "little more than conclusory speculation." (Cross Decision at 17; Scannapieco Decision at 16). Landowners are essentially asking this Court to weigh the evidence differently, but we may not substitute our judgment for that of the Board. Accordingly, we find no error or abuse of discretion by the Board in determining that Landowners failed to meet their burden of proving that the properties could not be reasonably used for any permitted purpose without the granting of a variance.
It is the function of the Board to weigh the evidence before it, and the Board is the sole judge of the credibility of witnesses and the weight afforded their testimony. Assuming the record contains substantial evidence, we are bound by the Board's findings that result from resolutions of credibility and conflicting testimony. Lamar Advantage GP Co. v. Zoning Hearing Board of Adjustment of the City of Pittsburgh, 997 A.2d 423, 441 (Pa. Cmwlth. 2010).
Even if the Board had accepted Dr. Browne's testimony and found that the properties could not be used for any permitted purpose, Landowners still would have failed to meet their burden of proving entitlement to the requested variances because the Board found that granting them would expose additional residents to known flooding hazards and the risk of injury and, thus, be detrimental to the public welfare. In so finding, the Board merely gave more weight to the testimony of Corporal Edwards and the documentary evidence presented by the Township than it gave to Landowners' evidence on that issue. Again, because credibility determinations and the weighing of evidence are solely within the province of the Board, we are bound by its findings.
Accordingly, the orders of the Board are affirmed.
Landowners raise two additional arguments in their briefs to this Court. First, they argue that even if the properties could feasibly be used for limited agricultural or forestry purposes, such limited uses do not allow for the reasonable use and enjoyment of private property and are, therefore, confiscatory. Second, they contend that they were deprived of their right to a fair and impartial decision because the Township acted as both a judge and an advocate during the zoning proceedings and allegedly disregarded uncontroverted evidence. Landowners failed to raise either of these arguments before the Board or trial court and they are, therefore, waived. See, e.g., Hudachek v. Zoning Hearing Board of Newton Borough, 608 A.2d 652, 657 (Pa. Cmwlth. 1992) ("The doctrine of waiver is well settled, a new and different theory of relief may not be successfully advanced on appeal.") --------
/s/_________
DAN PELLEGRINI, President Judge Judge Covey did not participate in the decision in this case. ORDER
AND NOW, this 5th day of November, 2012, the orders of the Court of Common Pleas of Bucks County, dated December 7, 2011, at Nos. 2010-12773 and 2010-12774, are affirmed.
/s/_________
DAN PELLEGRINI, President Judge