R. H. Black, et al. v. The ZHB of The Twp of Cheltenham (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Robert H. Black and Joan Kosove, : Appellants : v. : No. 1732 C.D. 2007 : Argued: June 9, 2008 The Zoning Hearing Board of The : Township of Cheltenham : : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: July 16, 2008 Robert H. Black and Joan Kosove (Appellants/Neighbors) appeal from an order of the Court of Common Pleas of Montgomery County that affirmed the decision of the Zoning Hearing Board of the Township of Cheltenham (Board) granting special exceptions and variances from the Cheltenham Township Zoning Ordinance (Ordinance), sought by H. Laurence Reinhard, III, and Greenwood Realty Partners, LLC, (Applicants) to develop a single residence and an access driveway on a lot identified as CTRERP Block 156, Unit 023 (Property). The Board also granted variances sought by Roger and Tracy Davis to disturb the steep slopes on a corner portion of 1101 Greenwood Avenue (Greenwood Lot) (Unit 024) to allow for the access driveway.1 1 The application, amended from development of two residences to a single residence, requested the following relief for the Property: a special exception and a variance from the rules and regulations of the R-3 Residence District, Article V, Section 295-22; special exceptions from the Steep Slope Conservation District (SSCD), Article XXII, Sections 295-168(B) and 295168(C); and variances from the SSCD, Sections 295-169(A)(1) - (A)(3) and 295-169(B). For the Greenwood Lot, the Davises sought variances from the SSCD, Sections 295-169(A)(2) - (A)(3) and 295-169(B). For the text of the provisions, see infra n2. The grant of relief was subject to (Footnote continued on next page ¦) The statement of questions presented is whether the trial court erred in determining that the Board neither committed an abuse of discretion nor an error of law where Appellants alleged facts showing 1) the grant of a special exception and/or variance pertaining to inadequate frontage from the street line; 2) a disregard of testimony and stipulations supporting the fact that the Property and the Greenwood Lot were physically merged by James F. and Mildred R. Besecker in 1957 and remained so until 2004; 3) a disregard for the fact that any hardship faced by Applicants was self-inflicted; and 4) a disregard for the testimony of neighbors and experts, which highlights the adverse effects that development on the Property would have on the health, safety, morals and general welfare of the community. The Property, approximately 1.78 acres, is a vacant wooded lot with 30 feet of street frontage on Greenwood Avenue and "flagpole" width of 30 feet that extends 210 feet into the lot depth; it is located in the R-3 Residence District and in the SSCD. Other such "flag" lots exist in the immediate area. The Greenwood Lot is an adjacent lot improved with a single-family residence. In 2004 the Estate of Mildred R. Besecker conveyed both lots under a single deed to Reinhard who then conveyed the Greenwood Lot to Roger and Tracy Davis but retained a driveway easement for access to the Property; development of a driveway would require disturbances of steep slopes in both lots. Applicants and the Davises sought zoning relief for the proposed development. (continued ¦) two conditions, one of which is that a temporary sound barrier be maintained during construction activities between the development site and the neighboring residence of Appellant Black to mitigate the impact of construction noise for Appellant Black's son, Shawn Black, who undergoes daily therapy for autism. 2 On the issue of lawful subdivision of the lots, the Board noted the Township's actions regarding the separate real estate registrations, the separate tax parcel numbers, the separate tax bills and the tax map showing the two parcels, with the Property's obviously substandard frontage. It concluded as follows: Such evidence entitles Applicants to invoke a presumption of regularity in favor of the Township officials. The Board must presume that Township officials accepted the registration and provided the information necessary to create tax parcels on some official act or failure to act that made the substandard lot lawful. Board Decision, p. 13. Alternatively, it concluded that Applicants are entitled to a variance by estoppel: Here, Cheltenham Township did not merely fail to enforce the minimum street frontage requirement but, instead, regularly issued tax bills and accepted payment on two tax bills for two lots. Even though the nonconformance was obvious, the Township maintained a tax map illustrating the two independent parcels. The Township was certainly aware that potential purchasers would ¦ rely upon the map and the tax bills. ¦ If the Township were now to prevent development of the Property ¦ Applicants would suffer financial hardship in an instance ¦ where no unforeseen detriment will result to the community. Id. Lastly, the Board stated that Section 295-26 of the Ordinance empowers it to grant special exceptions to allow lots with substandard widths. Noting that the Property's nonconformity is limited to its width, the Board concluded that the grant of special exceptions is required here where development will not result in any extraordinary adverse impact upon the community. Regarding Appellants' argument of merger, the Board observed that the two lots had different characteristics and concluded: 3 Although some owner at one time built a utility shed and may have run electric power to the shed, this scant evidence is not such as to invoke the notion of merger. Notwithstanding the remembrances of Mr. Besecker's neighbor, the Board cannot determine that the Beseckers ever unequivocally intended to merge the parcels ¦. Board Decision, p. 14. The Board heard expert testimony as to whether the driveway leading to Greenwood Avenue would cause traffic hazards. Applicants presented expert testimony from John W. Leapson, a civil engineer, and John R. Caruolo, P.E., a traffic engineer; Appellants presented expert testimony from John H. Comiskey, Jr., P.E., a traffic engineer, and Joseph Augustine, an architect. Although the experts disagreed on whether proper sight distances existed, the Board stated: Absent from the record, however, was any evidence that the street frontage requirement or the steep slope limitations had anything to do with sight distances or safety considerations on the placement of driveways. The only evidence is that driveways are permitted along this stretch of Greenwood Avenue. With no record that this driveway is uniquely hazardous or that the placement of this driveway should not have been anticipated by the Board of Commissioners, this Board must conclude that the proposed placement does not create a condition that was not anticipated by the Commissioners and considered acceptable in this zoning district. Accordingly, protestants [sic] driveway hazard argument must fail. Id. at 15. The Board noted that it has historically granted relief from limitations on development in steep slopes in less compelling circumstances and that no unusual adverse effects resulted from the proposed use.2 The trial court affirmed. 2 The applicable ordinance provisions are as follows: Article V, Section 295-22 (Lot area and lot width): "A lot area of not less than [20,000 square feet] and a lot width of not less than one hundred (100) feet ¦ shall be provided for every principal building hereafter erected, altered or used in this district"; Section 295-26 (Nonconforming lots): "[the Board] may grant special (Footnote continued on next page ¦) 4 The Court's review when a trial court takes no additional evidence in a land use appeal is limited to determining whether the zoning board committed an error of law or abused its discretion. Dudlik v. Upper Moreland Township Zoning (continued ¦) exceptions in the case of lots which are nonconforming as to area and width regulations"; and Section 295-30 (Building area): "The building area shall not exceed fifteen per centum (15%) of the lot area for buildings over one (1) story in height or twenty-five per centum (25%) of the lot area for one-story buildings." Under Article XXII, the following sections apply: Section 295168 (Permitted uses): "The following uses shall be permitted by special exception ¦ B. Sanitary or storm sewers and impoundment basins with the approval of the Township Engineer and the Pennsylvania Departments of Environmental Protection and Energy. C. Underground utility transmission lines"; Section 295-169 (Prohibited uses), providing: The following shall be prohibited within the boundaries of the Steep Slope Conservation District: (1) Freestanding structures, buildings and retaining walls, unless no alternative location is feasible ¦. (2) Roads, access driveways and parking facilities, unless no alternative alignment or location is available.... (3) The filling or removal of topsoil except when related to an activity approved by special exception ¦. Also, Article XXVII (criteria for granting special exceptions and variances), Section 295-209 provides as follows: A. An applicant for a special exception shall have the burden of establishing both: (1) That his application falls within the provision of this chapter which accords to the applicant the right to seek a special exception; and (2) That allowance of the special exception will not be contrary to the public interest ¦. ¦. C. In determining whether the allowance of a special exception ¦ is contrary to the public interest, the Board shall consider whether the application, if granted, will: (1) Adversely affect the public health, safety and welfare due to changes in traffic conditions, drainage, air quality, noise levels, and natural features of the land, neighborhood property values and neighborhood aesthetic characteristics. (2) Be in accordance with the Cheltenham Comprehensive Plan. 5 Hearing Board, 840 A.2d 1048 (Pa. Cmwlth. 2004). After examining the record, the Court is of the opinion that the trial court correctly disposed of the issues. The Ordinance allows development of the Property by special exception where there is no showing of detrimental effect on the community. Assuming arguendo that the concept of merger applies, the Court agrees that the evidence was insufficient to meet Appellants' burden to prove a merger of the lots. Under Tinicum Township v. Jones, 723 A.2d 1068 (Pa. Cmwlth. 1998), the party asserting a physical merger has the burden of proof. Because the Board committed no error of law or abuse of discretion, the Court affirms the trial court on the basis of the opinion issued by the Honorable Thomas M. Del Ricci of the Court of Common Pleas of Montgomery County in Robert H. Black, Esquire, and Joan Kosove v. The Zoning Hearing Board of The Township of Cheltenham, (No. 05-22660, filed December 11, 2007). DORIS A. SMITH-RIBNER, Judge 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Robert H. Black and Joan Kosove, : Appellants : v. : : The Zoning Hearing Board of The : Township of Cheltenham : No. 1732 C.D. 2007 ORDER AND NOW, this 16th day of July, 2008, the Court affirms the order of the Court of Common Pleas of Montgomery County on the basis of the opinion authored by the Honorable Thomas M. Del Ricci of the Court of Common Pleas of Montgomery County in Robert H. Black, Esquire, and Joan Kosove v. The Zoning Hearing Board of The Township of Cheltenham, (No. 05-22660, filed December 11, 2007). DORIS A. SMITH-RIBNER, Judge

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