Nedco Madison Avenue, LLC v. Lackawanna College and Betton House, LLC (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Nedco Madison Avenue, LLC v. Lackawanna College and Betton House, LLC v. The Zoning Hearing Board of the City of Scranton v. The Lackawanna Institute and Paul Mansour Appeal of: Nedco Madison Avenue, Lackawanna College, and Betton House, LLC BEFORE: : : : : : : : : : : : : : : : : : : : : No. 820 C.D. 2007 Argued: December 11, 2007 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: January 15, 2008 Appellants appeal from the order of the Court of Common Pleas of Lackawanna County that granted in part and denied in part Appellants' land use/zoning appeal from a decision of the City of Scranton Zoning Hearing Board. The issue before it was whether activities taking place at 501 Madison Avenue, the subject property owned by Nedco Madison Avenue (Nedco), violated or exceeded the scope of the use variance granted to Lackawanna College on October 13, 2004 to build a dormitory and parking garage at the property. The original application for the variance stated that a dormitory would provide 144 residents and 144 parking spaces and that the dormitory's second floor would be occupied by the Family School. The entire subject property was leased to Lackawanna College, which subleased the second floor to Betton House, LLC, a wholly-owned subsidiary of the Family Foundation, Inc., which is a not-for-profit corporation. The Board found that Betton House's website indicated that it is a transitional program for young adults aged 18 - 24 who have completed their rehabilitation or a wilderness or therapeutic high school program and who want to maintain a sober lifestyle as they enter college or begin a job. Michael Wallace, the Zoning Enforcement Officer, issued a notice of violation to Nedco on October 5, 2005 stating that the subject property was being used as a "transitional living center" in violation of the "Zoning Ordinance Council Section 74 of 1993: Section 202[,] 306(B), 402.17 and 409.49; operating a treatment center/transitional living center in an R-2 Zone." Section 202 of the Ordinance defines "dormitory" as: "Residential facilities that are only inhabited by teaching faculty and/or full-time students of an accredited college, university, medical training facility, or State-licensed teaching hospital, or approved 'Care and Treatment Center for Children' or an accredited public or private primary or secondary school and which are owned and operated by such principal use to which the dormitory serves." Nedco appealed the violation notice to the Board, which made many findings after which it upheld the Zoning Officer's determination that the property was being used in part as a treatment center/transitional living center. The Board concluded that Betton House's uses exceeded those defined in the Ordinance to qualify as a dormitory, and as such Nedco was in violation of the Ordinance and the variance granted in October 2004. 2 Nedco appealed to the trial court, which took no additional evidence. The trial court rejected the Board's narrow reading of Section 202 of the Ordinance as it failed to analyze the specifics of the violations and "sweeps" the College students with the same broad brush as the other residents of Betton House. The trial court agreed that some of the students enrolled in a GED program cannot qualify as a full-time student of an accredited college as required by the Ordinance but that no legal basis existed for determining that the receipt of services from Betton House by the full-time students of the College would be in violation of the variance, particularly where they paid tuition to the College. According to the trial court, the record does contain substantial evidence, however, to show that some of the activities cited went beyond the scope of the use variance for a dormitory. It granted Nedco's appeal in part as to the full-time college students, but it denied the appeal as to the remaining violations upheld by the Board. Appellants raised the following three questions in their appeal to this Court: whether it was error to uphold the notice of violation based upon testimony that showed a denial of due process resulting from the Board's prejudgment of the matter; whether the Board erred in finding that the use was not as a dormitory; and whether the Board waived any right to object to the Betton House use since the Board was aware at the time the variance was granted that part of the subject property would be used by third parties to house students. The Court's review in zoning cases, where, as here, the trial court took no additional evidence, is limited to determining whether the zoning hearing board committed an error of law or an abuse of discretion. Finn v. Zoning Hearing Board of Beaver Borough, 869 A.2d 1124 (Pa. Cmwlth. 2005). The Court has examined the record and has considered the parties' arguments, and it is satisfied that the trial court was correct in determining the core issue presented in this case, i.e., whether substantial evidence exists to prove that 3 Betton House's use exceeded the use variance granted to Lackawanna College in October 2004. The Court finds no merit to the arguments presented regarding the remaining questions related to the Board's alleged prejudgment of the case and whether it waived any objection to Betton House's use since it was aware that the subject property would be used by third parties to house students. Suffice it to say that the trial court's reversal in part of the Board's decision shows that the trial court resolved any questions pertaining to the Board's alleged bias. Furthermore, the Board did not grant a use variance for a treatment or transitional living center; it granted a variance for a dormitory as defined by Section 202 of the Ordinance, which clearly does not include such facilities. Because the trial court thoroughly resolved the core issue presented in this case and the Court agrees with the trial court's analysis, it affirms on the basis of the opinion by the Honorable Carmen D. Minora in Nedco Madison Avenue, LLC v. Lackawanna College and Betton House, LLC v. Zoning Hearing Board of the City of Scranton and Lackawanna Institute and Paul Mansour, (Lackawanna County, No. 2005 CV 5141, filed March 26, 2007). DORIS A. SMITH-RIBNER, Judge 4 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Nedco Madison Avenue, LLC v. Lackawanna College and Betton House, LLC v. The Zoning Hearing Board of the City of Scranton v. The Lackawanna Institute and Paul Mansour Appeal of: Nedco Madison Avenue, Lackawanna College, and Betton House, LLC : : : : : : : : : : : : : : : : : : : : No. 820 C.D. 2007 ORDER AND NOW, this 15th day of January, 2008, Court affirms the order of the Court of Common Pleas of Lackawanna County based on the opinion of the Honorable Carmen D. Minora in Nedco Madison Avenue, LLC v. Lackawanna College and Betton House, LLC v. Zoning Hearing Board of the City of Scranton and Lackawanna Institute and Paul Mansour, (Lackawanna County, No. 2005 CV 5141, filed March 26, 2007). DORIS A. SMITH-RIBNER, Judge
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