Opinion
No. 2702 C.D. 2010
12-27-2011
In Re: Appeal of Bert and Dvorah C. Zauderer from the Decision of the Zoning Hearing Board of Lower Merion Township Dated March 19, 2010 Appeal of: Bert and Dvorah C. Zauderer
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Bert and Dvorah C. Zauderer (the Zauderers) appeal pro se from the October 12, 2010, order of the Court of Common Pleas of Montgomery County (trial court) affirming the decision of the Zoning Hearing Board of Lower Merion Township (Board) granting the application of the Kohelet Foundation (Foundation) for a special exception to construct an addition on its property. We affirm.
The followings facts are not in dispute and are derived from the opinions of the Board and the trial court in this matter. In 2008, the Jewish Federation of Greater Philadelphia (Jewish Federation) acquired two adjacent parcels of land (Property) from Akiba Hebrew Academy (Akiba) in Merion Station, Lower Merion Township, Montgomery County. The parcels are located at 223 North Highland Avenue and 280 Melrose Avenue, respectively, in an area zoned R-1 Residential and consist of approximately six acres of land. The Property borders the Zauderers' property located at 275 North Highland Avenue.
Akiba had operated a private educational institution for grades six through twelve at the Property since 1956 after obtaining a special exception from the Board. Akiba thereafter received numerous approvals from the Board to expand its use of the Property. By 2008, the Property included an estate house, a classroom building, administrative offices, a gymnasium, and 68 parking spaces. During that year, Akiba relocated to Radnor Township and sold the Property to the Jewish Federation, which subsequently entered into an agreement conveying the Property to the Foundation.
While the sale was pending, the Foundation filed an application with the Board for a special exception seeking to construct a 3,836 square-foot addition and to reconfigure the on-site parking and traffic circulation on the Property. The Foundation intended to lease the Property to Stern Hebrew High School (SHHS) to operate a private high school for Judaic and general college preparatory studies.
On February 22, 2010, the Jewish Federation completed the conveyance of the Property to the Foundation.
The Board conducted several hearings relating to the Foundation's application, each of which was attended by Appellant Bert Zauderer. David Magerman, the Foundation's president and founder, testified regarding the Foundation's mission to promote Jewish education in the Greater Philadelphia and Delaware Valley region. Magerman had donated $4 million to the Jewish Federation to acquire the Property from Akiba with the intent to establish a Jewish high school at the site. Jerry Roller, an architect hired by the Foundation, testified regarding the floor and building plans of the proposed SHHS. Roller described the proposed uses of the existing buildings by SHHS as nearly identical to the previous uses by Akiba. Roller testified that, with the construction of the proposed addition, the Property would include 42,500 square feet of habitable floor area, with 6.7% dedicated to administrative use. Roller described the proposed addition as a Beit Midrash, a combination of worship and study space.
Scott Seligsohn, president of the board of directors of SHHS, testified regarding the history of SHHS, noting that it has grown from its original 15 students to its current 95 students in grades 9 through 12. Seligsohn noted that SHHS intended to continue to teach these grade levels at the Property, and hoped to increase the number of students to 180 by 2020, adding that approximately half of the students would be of driving age. Seligsohn indicated that the normal school day would see students arriving between 7:45 a.m. and 8:00 a.m. and departing between 5:20 p.m. and 5:40 p.m. Seligsohn also indicated that SHHS would hold several special events during the school year, including an open house, parent/teacher night, back to school night, an annual dinner, an annual concert, graduation, and an annual basketball tournament.
Counsel for the Foundation noted that SHHS would serve slightly less than half the number of students that attended Akiba, which was capped at 350. Counsel agreed to condition the present application to a limitation of 180 students and require any increase to be approved by the Board.
Greg Richardson, an engineer with Traffic Planning and Design, testified regarding a traffic study he conducted for the Foundation. Richardson noted that he conducted a similar study for Akiba in 2004. Richardson indicated that the access points to the Property would remain unchanged and that SHHS would have a reduced amount of traffic because of a lesser number of students than Akiba, resulting in no significant impact on the surrounding roadways. Richardson also indicated that the Foundation proposed to increase the number of parking spaces from 68 to 71, which he opined was adequate to handle normal operation of the proposed high school.
Finally, David Fiorello, a civil engineer with Momenee and Associates, testified that he prepared a site plan and impervious transition plan with respect to the Property and proposed addition. Fiorello stated that although the addition will increase the amount of impervious surface at the Property, the plans convert other currently impervious surfaces to green surfaces, with the net result being no increase in the overall impervious surface area at the site. Fiorello also testified that the stormwater management plan for the property, a groundwater recharge system, will meet the requirements of the applicable Township ordinances and will not require the removal of any trees. Fiorello noted that the elevated ground water condition is endemic to the entire neighborhood around the Property.
Appellant Bert Zauderer thereafter offered testimony in opposition to the Foundation's application. Zauderer noted that he has lived in the Township since 1961 and he has a doctorate in mechanical engineering from the Massachusetts Institute of Technology. Zauderer testified that the topography around his property and the Foundation's Property has created a water problem, namely a depression where the water collects, which he has been trying to solve since he moved to the area. Zauderer indicated that in prior proceedings, the Township's engineer had required Akiba to install a catch basin in the area of the proposed new addition, but Akiba never did so. Zauderer also stated that Akiba had increased the amount of impervious coverage at the Property in years past without the Board's approval, which has resulted in a higher water table on his property.
However, in making these statements, Zauderer relied on his recollection of documents and testimony from prior proceedings involving Akiba, to which counsel for the Foundation repeatedly objected.
Ultimately, the Board issued an opinion and order granting the Foundation's application for a special exception to construct an addition subject to the following conditions:
1. Use of the property by parties other than [the Foundation] and SHHS shall not be permitted; any additional use and/or additional users of the property must be approved by the Board as a special exception;In rendering its opinion, the Board concluded that the Foundation met the objective criteria of the Township's zoning ordinance relating to the size of administrative offices, spacing and density, impervious coverage, traffic, and parking.
2. Enrollment is capped at 180 students; the number of faculty/staff/volunteers is capped at 63; any increase in these amounts must be approved by the Board as a special exception;
3. The [Foundation] shall provide the Township Zoning Officer with a current license from the State Board of Private Academic Schools to operate a school on the property; use of the property for an accredited educational institution shall not commence until the license is provided; and
4. The [Foundation's] final plans and subsequent construction shall adhere to all applicable Township codes and ordinances.
Additionally, the Board concluded that the Zauderers failed to meet their burden of establishing that the proposed expansion would generate adverse impacts not normally generated by this type of use and that these impacts will pose a substantial threat to the health and safety of the community. In this regard, the Board noted that the Zauderers had been actively opposing expansions at the Property since 1990. The Board conceded that a water problem exists in the vicinity of the Zauderers' property. However, the Board indicated that the testimony of Fiorello, the Foundation's engineer, that the stormwater management plan for the Property will meet the requirements of the applicable Township ordinances, was sufficient for purposes of the Foundation's application. Further, the Board stated that the Zauderers failed to produce an expert witness or other competent evidence to establish that construction of the proposed addition would have an adverse impact on their property in terms of stormwater management.
The Board explained that it was only required to consider whether an applicant can supply stormwater management at this stage of the proceedings, not whether the stormwater management plan meets the applicable criteria for a permit. Rather, the Board noted that this issue would be addressed later in the permitting and approval process.
The Zauderers thereafter filed an appeal with the trial court which, by order dated October 12, 2010, denied the Zauderers' appeal and affirmed the Board's decision. The Zauderers then filed a notice of appeal with the trial court as well as a statement of matters complained of on appeal, which indicated that the statement was "incomplete" because the trial court had not issued an opinion setting forth the reasons for its order. The Zauderers reiterated the reasons underlying their original appeal, i.e., water problems related to the increase of impervious coverage at the Property and the potential aggravation of those problems with the proposed addition. The Zauderers also complained of a lack of equal rights to adjacent property owners, the Foundation's initiation of construction prior to obtaining the required Township approvals, and an "invasion of mice" resulting from the digging undertaken for the proposed addition.
The Foundation and the Township intervened in this appeal.
The trial court subsequently issued an opinion in support of its order. The trial court first stated that the Zauderers' appeal should be quashed because their statement of matters complained of on appeal failed to identify the issues raised on appeal, and any issue not raised is deemed waived. Alternatively, the trial court held that the Board properly concluded that the Zauderers failed to sustain their burden of proving that the Foundation's proposed expansion would have an adverse impact not normally generated by such a use. In this regard, the trial court noted that the Zauderers relied primarily on expert testimony from prior proceedings involving Akiba and from experts who did not appear at the present proceedings before the Board. Additionally, the trial court observed that the Board credited Fiorello's testimony that the current stormwater management plan meets all applicable Township ordinances and concluded that said testimony was sufficient to support the Board's decision. The trial court also cited the Zauderers' lack of evidence regarding pollution, the credible testimony of traffic engineer Richardson that there would be no impact on traffic, and evidence that there would be fewer students and staff at SHHS as compared to Akiba.
On appeal to this Court, the Zauderers argue that the Board abused its discretion and/or committed an error of law in granting the Foundation's application for a special exception. We disagree.
Our scope of review where, as here, the trial court does not take any additional evidence, is limited to determining whether the zoning hearing board abused its discretion or committed an error of law. A&L Investments v. Zoning Hearing Board of the City of McKeesport, 829 A.2d 775 (Pa. Cmwlth. 2003). The board abuses its discretion when its findings of fact are not supported by substantial evidence. Schultheis v. Board of Supervisors of Upper Bern Township, 727 A.2d 145 (Pa. Cmwlth.), appeal denied, 559 Pa. 709, 740 A.2d 236 (1999).
We first address the trial court's conclusion that the Zauderers' appeal should be quashed for failing to identify the issues raised on appeal. The trial court correctly notes that Pa. R.A.P. 1925(b)(4)(ii) requires a statement of matters complained of on appeal to "concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues...." The Zauderers noted in their statement that the trial court merely issued an order denying their appeal and that the issues they wished to raise were fully set forth in their land use appeal. The Zauderers proceeded to specify their concerns regarding the long-term water problems at and around the Property, the potential aggravation of those problems with the new addition, and the overall increase in the amount of impervious coverage at the site. While the format of their statement may be lacking, we conclude that the Zauderers sufficiently addressed the issues such that their appeal should not be quashed.
We now turn to the merits. A special exception is a use that is expressly permitted by the zoning ordinance, absent a showing of a detrimental effect on the community. Manor Healthcare Corp. v. Lower Moreland Township Zoning Hearing Board, 590 A.2d 65 (Pa. Cmwlth. 1991). The applicant for a special exception has the burden to demonstrate that the proposed use satisfies the objective requirements of the ordinance. Id. Once the applicant has met this burden, a presumption arises that the proposed use is consistent with the health, safety, and general welfare of the community. Id. The burden then shifts to the objectors to demonstrate that the proposed use will have a detrimental effect on the health, safety, and general welfare of the community. Id.
Pursuant to section 155-11 S(2) of the Township's zoning ordinance, an accredited educational institution is a permitted use by special exception. Similarly, section 155-11 X of the Township's zoning ordinance permits an expansion of such use only by special exception. As required by section 155-11 Y(1)-(7) of the Township's zoning ordinance, the Foundation submitted evidence relating to traffic, a summary of the proposed intensity of the use of the addition, spacing and density, loading/queuing, lighting, buffering, and impervious surface. The Board found such evidence to be credible and sufficient to satisfy the objective requirements of the Township's zoning ordinance. Thus, the burden shifted to the Zauderers to establish that the proposed addition would have a detrimental effect on the health, safety, and general welfare of the community. Manor Healthcare Corp.
However, as the trial court noted, the Zauderers failed to present any expert witnesses to support their allegations regarding aggravation of existing water problems in the area or problems related to air pollution, traffic congestion, or the noise level at the Property. Nor did the Zauderers present any evidence establishing that the Foundation's proposed addition contravenes the objective requirements of the Township's ordinance. To the contrary, the record reveals that the Foundation's stormwater management plan meets the requirements of the applicable Township ordinances and that the Foundation's school use, with the exception of the addition, actually appears to be less intensive than Akiba's prior use. Moreover, the Foundation's plans provide for a conversion of existing impervious surfaces to green surfaces, such that the net effect of the proposed addition would be a zero percent increase in the overall impervious coverage at the Property. Thus, the Board did not abuse its discretion and/or commit an error of law in granting the Foundation's application for a special exception.
The Zauderers allege in their brief to this Court that the Board committed an error of law and/or an abuse of discretion by dismissing scientific data testimony presented by Appellant Bert Zauderer. However, the Board merely chose to accept the testimony of Fiorello, the Foundation's engineer, as more credible than the testimony of Appellant Bert Zauderer. The law is well settled that, in cases such as this where the trial court has not taken any additional evidence, the Board is the sole judge of the credibility of witnesses and the weight to be afforded their testimony. Pohlig Builders, LLC v. Zoning Hearing Board of Schuylkill Township, 25 A.3d 1260 (Pa. Cmwlth. 2011); Laurento v. Zoning Hearing Board of Borough of West Chester, 638 A.2d 437 (Pa. Cmwlth. 1994).
Accordingly, the order of the trial court is affirmed.
In their brief to this Court, the Zauderers raise issues regarding trespass and due process. However, the Zauderers failed to raise these issues before the Board or the trial court. Hence, these issues are waived. 1700 Columbus Associates, LLC v. City of Philadelphia, Zoning Board of Adjustment, 976 A.2d 1257 (Pa. Cmwlth. 2009), appeal denied, 605 Pa. 704, 990 A.2d 731 (2010). --------
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 27th day of December, 2011, the order of the Court of Common Pleas of Montgomery County, dated October 12, 2010, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge