Opinion
No. 1052 C.D. 2011
04-27-2012
Saucon Creek Road, LP, Appellant v. Upper Saucon Township
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE J. WESLEY OLER, Jr., Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
In this land use appeal, Saucon Creek Road, LP (Appellant) appeals from an order of the Court of Common Pleas of Lehigh County (trial court), dated May 23, 2011. The trial court affirmed the decision of the Board of Supervisors of Upper Saucon Township (Board), which denied Appellant's conditional use application. For the reasons that follow, we affirm.
Appellant is the equitable owner of an undeveloped 2.8 acre parcel of land (Property) located in Upper Saucon Township (Township), which is part of a parent tract of approximately 60.9 acres. The Property and the balance of the 60.9 acre parent tract are located within the Township's Environmentally Sensitive Zone (ESZ) overlay district, as governed by Article 14 of the Township's Zoning Ordinance (Zoning Ordinance). Specifically, the Property lies directly over abandoned zinc mine facilities. Under Article 14 of the Zoning Ordinance, the development of any non-residential use or structure in the ESZ requires approval from the Board in the form of a conditional use application and hearing.
Article 14 of the Zoning Ordinance provides, in pertinent part:
1402. USE REGULATIONS. Notwithstanding the fact that the base zoning district use regulations applicable to a particular lot or structure within an ES[Z] may permit the use or occupancy of a particular lot or structure as a "permitted" use or as a "special exception" use or a "conditional" use or an "accessory" use, all uses and occupancies within any ES[Z] shall be "conditional uses" which may be permitted only following review by the Planning Commission in accordance with the provisions of Article 17 and any other applicable provisions of this Ordinance and the specific requirements set forth in the Article below and approval by the Board of Supervisors.
A. Exempted are the construction and alteration of single family detached residences, accessory structures for sing[le] family detached residences and private sewer systems to serve such residences. . . .
1403. SPECIFIC ES[Z] REGULATIONS. The following specific requirements shall apply to all uses and occupancies in the ES[Z] and these requirements shall be in addition to all requirements imposed by any other section of this Ordinance.
A. No stormwater management basin shall be placed in or over the following features:
Sinkholes, closed depressions, lineaments, fracture traces, caverns, ghost lakes and disappearing streams.
B. Stormwater basins shall be located no closer than 100 feet from the rim of sinkholes, closed depressions and disappearing streams and no closer than 50 feet from lineaments, fracture traces or surface or subsurface pinnacles.
C. Outflow from a stormwater management basin and stormwater flow generated as a result of development shall not empty into or be directed to any of the following carbonate features:
Sinkholes, closed depressions, lineaments, fracture traces, caverns, ghost lakes and disappearing streams.
D. No principal or accessory building shall be located any closer than 100 feet from the rim of sinkholes or closed depressions or 100 feet from ghost lakes, lineaments, fracture traces or disappearing streams unless a detailed surface and subsurface investigation has been performed and procedures provided to mitigate any threat of the feature(s) on groundwater quality and stability of surface and subsurface structures to the satisfaction of the Township. The investigation must be performed by qualified and competent geological or geotechnical engineers experienced with carbonate terrain. The Township reserves the right to deny any land use which would cause damage to the environment generally and/or groundwater quality, in particular.
. . . .
1404. ENVIRONMENTAL ASSESSMENT. No structure, lot, land or water shall be used or developed for any purpose (except for exemptions provided in 1402. USE REGULATIONS), and no structure shall be located, extended, converted or structurally altered until the applicant has filed an Environmental Assessment Report with the Township in accordance with the provision of this subsection. The report shall provide information to the Township demonstrating that the applicant can comply with all standards in Section 1403, (Specific ES[Z] Regulations), or that one or more of such standards would not be applicable, given the conditions of the applicant's property or existing uses thereon, or that his proposed use or action poses no threat t[o] the publics' [sic] health and safety or to groundwater quality.
. . . .
B. The Environmental Assessment Report must be received by the Township at the time which conditional use approval is sought. . . . The Report shall be reviewed by the Township Engineer and other consultants as designated by the Township in addition to the Township Planning Commission and Board of Supervisors.
On September 9, 2008, Appellant submitted a conditional use application, seeking to subdivide the Property for the development of a daycare center and a bank. The Board held hearings on April 26, May 17, and June 21, 2010, at which Appellant submitted numerous exhibits and presented the testimony of three experts—a professional civil engineer, a professional structural engineer, and a professional geotechnical engineer. The Board also heard the testimony of Kenneth V. Littlefield, the Township's Geologist. By order dated August 2, 2010, the Board denied Appellant's conditional use application. The Board determined that Appellant failed to establish compliance with the requirements set forth in Article 14 of the Zoning Ordinance on the grounds that Appellant's investigation of the subsurface conditions of the Property was inadequate. In so determining, the Board found the testimony of Mr. Littlefield to be credible, and the testimony of Appellant's experts to be not credible. Appellant appealed to the trial court, which affirmed the Board's order. This appeal followed.
On appeal, Appellant argues, first, that this Court should reverse the Board's decision because Appellant's Environmental Assessment Report was not reviewed by the Township Engineer as mandated by Section 1404.B of the Zoning Ordinance. Even if this Court were to agree with Appellant's interpretation of Section 1404.B of the Zoning Ordinance, Appellant failed to raise this issue before the trial court; therefore, it is waived. See Pa. R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.")
"Because the trial court did not take any additional evidence, our scope of review is limited to determining whether the [Board] committed an error of law or manifestly abused its discretion." Diversified Health Assocs., Inc. v. Zoning Hearing Bd. of the Borough of Norristown, 781 A.2d 244, 246-47 (Pa. Cmwlth. 2001). --------
In its remaining arguments, Appellant essentially contends that the Board abused its discretion and/or committed errors of law in finding Mr. Littlefield more credible than Appellant's experts. Specifically, Appellant raises the following issues:
II. WHERE A FINDER OF FACT BASES AN ENTIRE DECISION SOLELY ON THE CREDIBILITY OF AN EXPERT WITNESSES [SIC], IS IT CAPRICIOUS DISREGARD OF EVIDENCE TO IGNORE THE ADMITTED BIAS OF THE EXPERT DEEMED TO BE CREDIBLE?(Appellant's Brief at 4.) The trial court thoroughly and correctly addressed these issues in its opinion below. Accordingly, we adopt in full the well-reasoned opinion of Judge J. Brian Johnson, entered in Saucon Creek Road, LP v. Upper Saucon Township (C.C.P of Lehigh County, No. 2010-C-4233, filed May 23, 2011), and affirm the trial court's May 23, 2011 order.
III. WHERE A FINDER OF FACT BASES AN ENTIRE DECISION SOLELY ON THE CREDIBILITY OF AN EXPERT WITNESSES [SIC], BUT FAILS TO DISCUS [SIC] EITHER THE DEMEANOR OR THE SUBSTANTIVE CREDIBILITY OF THAT WITNESSES [SIC], IT IS PROPER FOR AN APPELLATE COURT TO IGNORE THE AFORESAID CREDIBILITY FINDING?
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 27th day of April, 2012, the order of the Court of Common Pleas of Lehigh County (trial court), dated May 23, 2011, is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge
Image materials not available for display.