Opinion
No. 1029 C.D. 2011
04-18-2012
Bert and Dvorah Zauderer, Appellants v. Lower Merion Township Board of Commissioners and Kohelet Foundation
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
Bert and Dvorah C. Zauderer (the Zauderers) appeal pro se from the May 4, 2011, order of the Court of Common Pleas of Montgomery County (trial court) denying their appeal of the decision of the Lower Merion Township Board of Commissioners (Board) to approve the preliminary land development plans of the Kohelet Foundation (Foundation) relating to improvements, including an addition, to the Stern Hebrew High School (SHHS). We affirm.
The Board approved both the Foundation's request for a waiver of land development plans for phase I improvements (relating to the driveway and parking areas) and the Foundation's preliminary plans for phase II improvements (relating to demolition of a portion of the building and the addition), subject to 60 conditions. (R.R. at 9a-15a.)
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 Zoning Hearing Board of Lower Merion Township (ZHB) for a special exception seeking permission 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 SHHS to operate a private high school for Judaic and general college preparatory studies. The ZHB conducted several hearings relating to the Foundation's application and ultimately granted the application subject to certain conditions relating to a limit on the number of students and staff, proof of licensing, and compliance with Township codes and ordinances. The Zauderers appealed to the trial court, which affirmed the ZHB's decision. The Zauderers appealed to this Court, and we affirmed the trial court's order.
On February 22, 2010, the Jewish Federation completed the conveyance of the Property to the Foundation.
In re: Appeal of Bert and Dvorah C. Zauderer, Pa. Cmwlth., No. 2702 C.D. 2010, filed December 27, 2011. The Zauderers filed an application for reconsideration of our decision, which remains pending before this Court.
While these appeals were pending, the Foundation filed a preliminary land development application seeking approval to demolish a portion of the existing library, to construct an addition known as a Beit Midrash, a combination of worship and study space, and to make improvements to the driveway and parking areas, including the addition of two new rain gardens and additional landscaping. The Foundation subsequently amended its plans and sought a waiver of land development approval for the minor improvements to the existing driveway and parking areas. The waiver request and preliminary plans were reviewed by the Township's Planning Commission and the Board's Building and Planning Committee, both of which recommended approval of the same. On June 16, 2010, the Board issued its decision approving the waiver request and preliminary plans subject to 60 conditions, all of which were accepted by the Foundation.
The Zauderers filed an appeal with the trial court. By order dated May 4, 2011, the trial court denied the appeal. The Zauderers filed a notice of appeal with the trial court. In a subsequent opinion in support of its order, the trial court concluded that the Board's decision was supported by substantial evidence, including a landscape plan and a post-construction stormwater management report submitted by the Foundation. The trial court also noted that the waiver request and preliminary plans had received the approval of the Township's engineer, the Planning Commission, and the Board's Building and Planning Committee. The trial court explained that the record established that the Foundation's plans resulted in no net change in the impervious cover on the property.
The Foundation intervened in this appeal.
As in their previous appeal, the Zauderers were primarily concerned with water runoff and excess groundwater and flooding resulting from the construction of the addition.
The trial court also referenced the construction of the proposed rain gardens to utilize the stormwater runoff generated by the roof of the new addition as well as the existence of a previously-built subsurface stormwater detention facility. Additionally, the trial court noted the approval of a bio-retention area to be installed to accommodate the runoff from the new addition. Further, the trial court determined that the proposed landscaping changes and conditions will result in no net adverse impact on the number of trees existing on the property.
The trial court observed that the approval of a preliminary subdivision or land development plan may not be withheld when the plan complies with all of the objective requirements of the applicable subdivision ordinance and regulations. Akin v. South Middleton Township Zoning Hearing Board, 547 A.2d 883 (Pa. Cmwlth. 1988). The trial court noted that a preliminary plan is essentially conditional in nature and that a developer must still fulfill all the requirements to obtain final approval. CACO Three, Inc. v. Board of Supervisors of Huntington Township, 845 A.2d 991 (Pa. Cmwlth.), appeal denied, 580 Pa. 707, 860 A.2d 491 (2004). The trial court also cited the Board's authority and discretion in granting waiver requests. Section 512.1 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §10512.1; Telvil Construction Corporation v. Zoning Hearing Board of East Pikeland Township, 896 A.2d 651 (Pa. Cmwlth. 2006).
On appeal to this Court, the Zauderers reiterate the issues raised in their prior appeal to this Court from the decision of the ZHB granting the Foundation a special exception to construct the addition. Indeed, in their first statement of questions involved, the Zauderers allege that the Board erred in granting a special exception, which was not at issue at this stage of the proceedings. In their subsequent questions, the Zauderers raise issues regarding trespass, sufficiency of evidence, and due process. Again, all of these issues were raised and addressed in our prior opinion.
Where the trial court takes no additional evidence, our scope of review is limited to determining whether a board of supervisors committed an error of law or abused its discretion. 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). The board abuses its discretion when its findings of fact are not supported by substantial evidence. Id.
In re: Appeal of Bert and Dvorah C. Zauderer, Pa. Cmwlth., No. 2702 C.D. 2010, filed December 27, 2011.
In a section of their brief entitled "SUMMARY OF THE ARGUMENT," the Zauderers allege that the rain garden will not solve any water problems because of its location above the rainwater ponds and that, contrary to the assertions of the Board and the Foundation, they did cite specific sections of the Township's Subdivision and Land Development Ordinance (SALDO) which the Foundation failed to meet. However, the trial court concluded that the plans sufficiently addressed the stormwater and groundwater issues and that the plans conformed to all SALDO requirements. The trial court cited specific evidence from the record supporting this conclusion, including the landscape plan and post-construction stormwater management report. Because substantial evidence supports the trial court's findings and conclusions, we discern no error in the trial court's order.
We note that the Zauderers' brief does not contain an argument section. Rather, the brief proceeds from its section entitled "SUMMARY OF THE ARGUMENT" directly to a section entitled "CONCLUSION." --------
Accordingly, the order of the trial court is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 18th day of April, 2012, the order of the Court of Common Pleas of Montgomery County, dated May 4, 2011, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge