E. M. Shipley v. Fayette County ZHB (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Edythe M. Shipley, Appellant v. Fayette County Zoning Hearing Board BEFORE: : : : : : : : No. 370 C.D. 2007 Argued: October 9, 2007 HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: January 24, 2008 Appellant, Edythe M. Shipley (Landowner) appeals from an order of the Court of Common Pleas of Fayette County (trial court), which affirmed the decision of the Fayette County Zoning Hearing Board (Board) denying her application for a special exception to operate a correctional facility. Briefs in opposition to the appeal have been filed by the Board and by several individuals and German Township who had challenged Landowner s application before both the Board and the trial court (Intervenors). As Landowner has failed to meet her burden to demonstrate that she met the objective criteria of the Fayette County Zoning Ordinance (Ordinance), we affirm. The present case involves the application of several provisions of the Ordinance.1 To assist with the discussion, we will briefly discuss the applicable provisions of the Ordinance before addressing the relevant facts of the case. The Ordinance provides that a correctional facility is a special exception in a district zoned A-1. (Ordinance § 400.) The special exception section of the Ordinance, Section 602.4,2 provides that [t]he Board shall allow a special 1 We note that the original record contains what appears to be a revised zoning ordinance, that was adopted in November 2006 and became effective immediately; however, because all parties in their arguments only reference what appears to be the prior zoning ordinance, we will do likewise. 2 The case involves the application of Section 602.4 of the Zoning Ordinance of Fayette County (Ordinance). This section provides, in pertinent part, that: The Board shall have the power to hear and decide applications for special exceptions listed under SECTION 400 [use regulations] of this ordinance. In considering such applications, the Board shall give due regard to the nature and condition of all adjacent uses and structures, and may impose such requirements and conditions as the Board may deem necessary for the protection of adjacent properties and the public interest, including specific limitations as to future expansion. (a) The Board shall allow a special exception in any . . . A Agricultural-Rural . . . provided that the proposed use meets all of the following standards: (1) The location and size of the use, the nature and intensity of the operations involved in or conducted in connection with it, its site layout, and its relation to streets giving access to it shall be such that both pedestrian and vehicular traffic to and from the use and the assembly of persons in connection with it will not be hazardous, inconvenient or conflict with the normal traffic on residential streets, both at the time and as the same may be expected to increase in the population of the area, taking into account convenient routes of pedestrian traffic particularly of children, relation to main traffic thoroughfares and to street intersections, and the general character and intensity of development of the area. Ingress and egress to the proposed use, circulation and movement of (Continued ¦) 2 exception in any . . . A Agricultural-Rural . . . District provided that the proposed use meets various requirements, including parking requirements . . . . (Ordinance § 602.4.) Under Section 504 of the Ordinance, all zoning applications, including those for a special exception, require: A plat drawn to scale . . . showing actual shape and dimensions of the lot to be built upon, the exact size and location on the lot of existing buildings and structures and the lines within which the proposed building or structure shall be erected or altered, the existing and intended use of each building or part of a building, the existing and intended use of the property and such neighboring lots and their use as may be necessary to determine and provide for the enforcement of this Ordinance. (Ordinance § 504.1(b).) Landowner owns an 8½ acre parcel of land (the Property) zoned A-1 Agricultural-Rural in German Township, Fayette County, Pennsylvania. The Property contains a one-story structure (the Building), which had been used as a personal care home that, at one time, housed 125 individuals. The Building contains 30 bedrooms. The Property also has a 4-unit apartment building and a private sewage treatment plant. Landowner sought to convert the personal care home into a correctional facility and, in March 2005, Landowner applied to the Board for a special exception to operate a correctional facility on the Property. As part of her application, Landowner included a plat plan that showed the boundary lines for the pedestrian and vehicular traffic, parking requirements and accessibility to the existing and proposed Township of State Road system will be reviewed . . . . 3 Property and also contained a rough outline of existing buildings, structures, and their general location on the Property. The Board conducted hearings on Landowner s application in April and June of 2005. During those hearings, Landowner, herself, did not testify; however, Landowner offered the testimony of the administrator of the personal care home (Administrator). The Administrator testified that Landowner intended to use the existing Building and did not intend to make any improvements other than to install video monitors and door alarms. The Administrator also testified that Landowner intended to add an outdoor, fenced-in area and to add 30 more parking spaces to the existing 19 off-street parking spaces. Moreover, the Administrator testified that she had identified basic criteria that would be used in determining who would be housed at the facility, indicating that only non-violent offenders would be accepted. The Administrator acknowledged that she was aware that various building codes and licenses were necessary from governmental entities, such as the Pennsylvania Department of Corrections, but that she did not know the specifics of the licensing or building codes (Board Decision, Findings of Fact (FOF) ¶ 18) and that Landowner had not yet applied for any. Furthermore, the Administrator acknowledged that certification was required to operate such a facility, but that she was unaware of the requirements of the certification. (FOF ¶ 19.) In addition, several objectors testified against the proposed correctional facility. The objectors essentially characterized the proposed correctional facility 4 as being detrimental to the surrounding community because the details as to how the facility would be operated had not yet been determined.3 Following the hearings, the Board issued a determination denying Landowner s application. In its determination, the Board reasoned that the 3 The objections were described by the Board as follows: 20. Numerous residents expressed concerns regarding personal safety concerns, which may be created by the proposed facility on the subject property. 21. Several area residents testified as to the unsafe road conditions in the area of the proposed facility on the subject property and that the roadway floods periodically throughout the year. 22. An area resident that plans to develop their property for residential housing questioned what impact may be imposed on the development if the proposed facility were to be approved. 23. An area resident who was formerly employed as a correctional officer, stated that after listening to the Petitioner s testimony pertaining to the proposed facility that he was of the opinion that Petitioner was unprepared to operate such a facility. 24. A Supervisor of German Township testified that the roadways in the area were inadequate for a use proposed by the Petitioner and that the Township has no local police force to provide security for the residents in [the] area in the event of an emergency. 25. Also the Supervisor testified that the Township was in the process of installing a municipal sewage system throughout the Township, which will include the area of the proposed facility. The Supervisor further testified that they have been working in cooperation with Fayette County on the proposed zoning maps and have requested the County to zone the areas around and near the proposed facility a Residential Zoning Classification, so as to permit and promote a more dense development of the area properties. 26. An adjoining property owner of the subject property testified that he has several rights of ways across the subject property to provide access to his property. He also testified that if the proposed facility were to be approved it would negatively impact his plans for the residential development of his property. (FOF ¶¶ 20-26.) 5 Landowner s inability to be specific when questioned regarding the requirements for licensing, building codes, security and certification for the operation of the facility gave the Board great concerns for the health, safety and welfare of the community and also the residents of the proposed facility. (Board Decision, Discussion ¶ 1.) The Board also reasoned that Landowner s lack of specificity made it impossible to assess the request and be able to reasonably place conditions on the proposal. (Board Decision, Discussion ¶ 2.) The Board ultimately concluded that Landowner was not entitled to a special exception under Section 602.4 of the Ordinance because the proposed use [would be] in conflict with the parking and traffic provisions and foremost the compatibility of a proposed use with the surrounding community. (Board Decision, Discussion ¶ 7.) Landowner subsequently appealed the Board s determination to the trial court. The trial court did not take any additional evidence but rather reviewed the record that had been developed before the Board. After review, the trial court affirmed the Board s determination. In its order the trial court acknowledged that, because it did not take additional evidence, its standard of review was limited to determining whether there was an abuse of discretion or error of law. The trial court reasoned that: In its written decision, the [Board] indicates that due to the lack of specifics, [Landowner has] not met her burden of proof. It is important to note that the [Board] has the discretionary power to determine whether a party has met its burden of proof. Accelerated Enterprises, Inc. v. Hazle [Township] Zoning Hearing Board, 773 A.2d 824, 826 (Pa. Cmwlth. 2001) . . . . It is not the place of this Court to substitute our judgment for that of the [Board]. We are only to determine if the [Board] abused its discretion or made an error of law. 6 (Trial Court Op. at 12 (citation omitted).) The trial court then concluded that the Board s determination that Landowner had not met her burden was supported by substantial evidence. The trial court supported this conclusion with ample citation to the notes of testimony heard by the Board. Notably, the trial court focused on parking and traffic issues: In its written decision the [Board] emphasized that it was concerned because Hartman was unable to be specific when questioned about the proposed correctional facility. Importantly, the evidence was lacking regarding several of the specific factors contained in § 602.4(a) of the [Ordinance]. For instance, there are nineteen (19) parking spaces on the subject property with plans to add thirty (30) additional spaces. (N.T. 4/21/05, pp. 32, 33.) Hartman does not know where the additional parking spaces will be located. (N.T. 4/21/05 p. 88.) (Trial Court Op. at 13 (footnotes omitted).) For these reasons, the trial court affirmed the determination of the Board. Landowner now appeals to this Court.4 On appeal, Landowner argues that: (1) the Lower Court failed to limit its review to determining whether the Board committed an error of law or an abuse of discretion; (2) the Board committed an error of law and abused its discretion to the extent that it determined that Landowner s proposed use does not comply with the Zoning Ordinance s Special 4 In a case where the common pleas court took no additional evidence, our scope of review is limited to determining whether the zoning hearing board committed an error of law or manifestly abused its discretion. Valley View Civic Ass n v. Zoning Board of Adjustment, 501 Pa. 550, 554, 462 A.2d 637, 639 (1983). An abuse of discretion only arises when the zoning board s findings are not supported by substantial evidence. Id. at 555, 462 A.2d at 640. Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Id. 7 Exception criteria; (3) the Board erred as a matter of law and abused its discretion in denying Landowner s request for relief when the Objectors failed to meet their heavy burden of establishing some health, safety, or welfare problems other than those typically associated with correctional facilities; and (4) the Board erred as a matter of law and abused its discretion in denying Landowner s request for relief based on criteria outside the Ordinance and completely unrelated to land use concerns. In addressing these arguments, we first note that [a] special exception is not an exception to the Zoning Ordinance, but rather a use which is expressly permitted, absent a showing of a detrimental effect on the community. Manor Healthcare Corp. v. Lower Moreland Township Zoning Hearing Board, 590 A.2d 65, 70 (Pa. Cmwlth. 1991). In seeking a special exception, the applicant must first establish that the proposed use meets the requirements in an ordinance for a special exception. East Manchester Township Zoning Hearing Board v. Dallmeyer, 609 A.2d 604, 610 (Pa. Cmwlth. 1992). A party applying for a special exception has both the duty of presenting evidence and the burden of persuading the Zoning Hearing Board that the proposed use satisfies the objective requirements of the ordinance for grant of special exception. Manor Healthcare, 590 A.2d at 70. Only after meeting these requirements is it presumed that the use is consistent with the health, safety, and welfare of the community. Id. Then, once the requirements for a special exception are met, the burden shifts to the objectors to present evidence that the proposed use will have a detrimental effect on the public health, safety, and welfare of the community. Id. This shift occurs because it is presumed that in considering a particular use for a particular zoning district, such 8 general matters as health, safety and general welfare and the general intent of the zoning ordinance have been considered by the Township when it provided for a special exception for the proposed use. East Manchester, 609 A.2d at 610. Landowner first argues that the trial court failed to limit its review to determining whether the Board committed an error of law or an abuse of discretion. Specifically, Landowner contends that the trial court improperly made an independent determination of fact from the record, even though it did not take any additional evidence. According to Landowner, the trial court based its entire opinion on issues of parking and present conditions of the road, whereas the Board s denial was not based on any express finding that [Landowner] did not or could not comply with any specific parking requirements or traffic requirements . . . . (Landowner s Br. at 9.) Landowner contends that the Board merely concluded that [t]he Board finds that the proposed use was to be in conflict with the parking and traffic provisions, (Board Decision, Discussion ¶ 7) but did not explain how the proposed use was in conflict with those provisions. Landowner incorrectly characterizes the trial court s decision. The trial court applied the appropriate standard of review and merely found that the Board s decision was based in law and was not an abuse of discretion. The trial court s discussion was based on the Board s finding that the proposed use was . . . in conflict with the parking and traffic provisions of the Ordinance. (Board Decision, Discussion ¶ 7.) The trial court noted that, [i]mportantly, the evidence was lacking regarding several of the specific factors contained in § 602.4(a) of the [Ordinance]. (Trial Court Op. at 13.) As an example, the trial court referenced 9 several of these factors, including that there were only 19 parking spaces on the subject property with plans for 30 more, but that Landowner could not identify where these spaces would go. This discussion by the trial court is not, as Landowner attempts to characterize it, fact-finding, but rather is merely an articulation of how the evidence presented to the Board supports the Board s conclusions. Therefore, we conclude that the trial court did not err in its review. Landowner next argues that the Board committed an error of law and abused its discretion to the extent that the Board determined that her proposed use does not comply with the Ordinance s special exception criteria, which is set forth in Section 602.4.5 In response, Intervenors contend that Landowner s argument, at its essence, is that there are no facts to support any of the Board s conclusions. Intervenors contend that Landowner s biggest impediment to this argument is that, by failing to provide details of her plans, Landowner prevented the Board from being able to make findings necessary to approve her special exception. The Board argues that Landowner bears the burden of presenting evidence and persuading the Board that the objective criteria of the Ordinance has been met and 5 Landowner disputes that the proposed use violates any of the requirements; notably, it will not violate location and height provisions because the governing board had found that the location and height were acceptable when it granted the occupancy permit for another institutional use the personal care home. Landowner also argues that there is a presumption that traffic would not be an issue because the governing body permitted correctional facilities in the agricultural rural district and, with it, the ancillary traffic that would normally arise. Landowner relies on East Manchester and Valley Forge Plaza Associates v. Upper Merion Township Zoning Hearing Board, 596 A.2d 1201 (Pa. Cmwlth. 1991) for the proposition that normal impacts on the health, safety, and welfare are not sufficient grounds for a denial of a special exception. 10 that she failed to meet her burden here. We disagree with Landowner, and agree with Intervenors and the Board, that Landowner failed to meet her burden. The Ordinance places certain requirements on applications for a special exception. For instance, all applications for a zoning certificate require submission of a plat that is drawn to scale and that accurately depicts the size and location of existing buildings and structures. (Ordinance § 504.) Review of the record shows that, although a plat was submitted with the application, it lacked the detail required by the Ordinance.6 Intervenors correctly note that such a plan is of particular importance in this case because topographical limitations, in the form of a hill on the east side of the property and a stream on the west side of the property, as well as two right-of-ways running on both sides of the existing buildings, limit where structures and parking can be placed. Intervenors correctly note that, without addressing the parking issue, it remains unclear if a variance for parking is required and, if so, what degree of a variance is required. Compliance with parking requirements, or the obtaining of a variance for those requirements, are pre-requisites to the grant of a special exception. (Ordinance § 602.4 (providing that [t]he Board shall allow a special exception in any . . . A Agricultural-Rural . . . District provided that the proposed use meets . . . parking requirements . . . ).); see Omiridis v. Zoning Hearing Board of the City of Chester, 531 A.2d 1196, 1198 6 Additionally, as correctly discussed by the Board and the trial court, Landowner s testimonial evidence offered no assistance in determining where the additional parking spaces would go. 11 (Pa. Cmwlth. 1987). In failing to comply with this requirement, the Board correctly concluded that the Landowner failed to sustain her initial burden.7 For these reasons, we affirm the trial court s order. ________________________________ RENÃ E COHN JUBELIRER, Judge 7 We note that the basis for the Board s denial was multi-faceted and that much of the Landowner s arguments are directed toward these other factors. Since the parking issue discussed here was, itself, sufficient for the Board to deny the application, we need not reach the additional arguments. Accordingly, we do not address the remaining issues. 12 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Edythe M. Shipley, Appellant v. Fayette County Zoning Hearing Board : : : : : : : No. 370 C.D. 2007 O R D E R NOW, January 24, 2008, the order of the Court of Common Pleas of Fayette County in the above-captioned matter is hereby AFFIRMED. ________________________________ RENÃ E COHN JUBELIRER, Judge

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