J. Yannone v. The Town of Bloomsburg Code Appeal Bd. & The Town of Bloomsburg ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph Yannone, :
Appellant :
: No. 1563 C.D. 2018
v. :
: Argued: September 10, 2019
The Town of Bloomsburg :
Code Appeal Board and :
The Town of Bloomsburg :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION BY
JUDGE McCULLOUGH FILED: October 2, 2019
Joseph Yannone (Landowner) appeals from the October 30, 2018 order
of the Court of Common Pleas of the Twenty-Sixth Judicial District, Columbia
County Branch (trial court), which held that the Shade Tree Commission
(Commission) was permitted to plant a replacement tree along Landowner’s frontage
at a location of its choosing with costs to be assessed to Landowner.
Facts and Procedural History
The underlying facts of this case are not in dispute and are set forth in
the record. Landowner is the owner of property located at 53-55 East Main Street,
Bloomsburg, Columbia County, Pennsylvania, where he operates a restaurant. The
Town of Bloomsburg Code Appeal Board (Board) is an agency of the Town of
Bloomsburg (Bloomsburg). On April 13, 2017, Landowner filed a Shade Tree
Permit Application with the Commission to remove a tree at his property pursuant
to a local ordinance.1 Landowner’s petition was approved on April 21, 2017. The
permit application was marked approved on the condition that a new tree be
replanted within six months. (Reproduced Record (R.R.) at 2a-19a.)
Despite this condition, Landowner failed to replant a tree within the six-
month period as required. On December 28, 2017, 68 days after the initial six-month
period to replant expired, Landowner appealed to the Board, challenging the
requirement of replanting the tree. In his appeal, Landowner cited a litany of reasons
as to why the tree should not be planted, including tripping hazards, insect
infestations, financial harm to his business, harm to Bloomsburg, dangerous
walkways, and damage to the sidewalk. The Board held hearings on March 27, 2018
regarding the appeal.
Landowner testified on his own behalf before the Board, stating that
following the tearing down of the tree, he placed tables and chairs in front of the
building to increase his sales. (Notes of Testimony (N.T.), 3/27/18, at 15-16.)
Landowner noted that the missing tree increased his business and, therefore, he did
not want to replant it. (N.T. at 17.) Instead of planting a tree, the sidewalk was
repaired and the tree pit was filled with cement, as the previous tree had caused
damage to the sidewalk. (N.T. at 18.) Further, he indicated that he believed the tree
would eventually be destroyed, that children would climb it, and that it could be
damaged. (N.T. at 19.) Additionally, Landowner believed that the tree was a
nuisance, that it attracted bugs and ants, that individuals would permit their animals
1
The removal of a tree is governed by the local Bloomsburg, Pa., Ordinance §25-101 –
§25-203 (2017) (Ordinance). Specifically, section 25-201 of the Ordinance authorized removal.
The initial removal of the tree is not at issue in this case.
2
to relieve themselves on the tree without picking it up, that it would destroy the
sidewalk, and that it blocked his sign entirely. (N.T. at 21.)
In regards to the damage that the tree was causing his business,
Landowner testified that he needed the outside seating for his business to survive in
the summer. (N.T. at 22.) He explained that if the tree was replanted in the space
from which it was removed he could no longer have the outside seating because it
would not be wide enough for individuals, or for those in wheelchairs to pass by.
(N.T. at 22-23.) Landowner also admitted that he had knowledge of the tree when
he purchased the business and, from 2013 to 2017, operated his business with the
tree in front of it. (N.T. at 33.) However, he asserted that he was just “scraping
[by]” before the tree was removed. (N.T. at 35.) He insisted that over the summer
when students are gone from Bloomsburg, he loses half of his business and needs to
put tables outside to compete with the other restaurants in Bloomsburg. (N.T. at 72.)
Finally, Landowner testified that “[b]ut then once we was [sic] put the tables and
chairs out there, [sic] found out that we did not have to replant it because there’s
laws protecting business owners, we decided not to replant it.” (N.T. at 96.)
The Board presented testimony from Arborist Joseph Mullen. He
testified that the issue of not being able to see the business sign was a legitimate
concern. (N.T. at 46.) He suggested that it was possible to put a narrow tree at
another location on the property, and to prune it regularly, so as not to interfere with
the signage. (N.T. at 46-47; 52.)
Ultimately, by decision dated April 19, 2018, the Board concluded that
Landowner’s failure to replant a tree was a violation of the Ordinance and he was
3
therefore ordered to replant a tree.2 Subsequently, Landowner appealed the Board’s
decision to the trial court. (R.R. at 20a-35a.) Landowner argued before the trial
court that the Ordinance provisions resulted in an unreasonable interference with his
business and an “unconstitutional lack of criteria to guide the Township in
determining whether to require planting of shade trees, leading to ‘unbridled
discretion’ being vested with the Town’s code officials, citing [Bassett v. Borough
of Edgeworth Shade Tree Commission (Pa. Cmwlth., No. 145 C.D. 2016, filed
January 24, 2017) (unreported)3].” (Trial court op. at 7). Following briefing and
oral argument, the trial court issued a decision on October 30, 2018, affirming the
Board but modifying the order to allow the Commission to replace the tree at
Landowner’s cost. (Trial court op. at 1-15; R.R. at 101a-115a.)
The trial court reasoned that section 25-201(E)4 of the Ordinance
requires that the replacement tree be planted in or near the original site. Although it
considered Landowner’s concerns, the trial court found that, because Landowner
had not elected to plant a replacement tree, it was the prerogative of the Commission
2
In his appeal, Landowner expressed his support for the Commission and suggested that
he would sponsor another tree planting in a more desirable location other than his property. (R.R.
at 22a.)
3
Bassett is an unreported opinion. Under section 414(a) of this Court’s Internal Operating
Procedures, an unreported opinion may be cited for its persuasive value. 210 Pa. Code §69.414(a).
4
Section 25-201(E) provides:
A condition of permission to remove a tree (§ 25-108(2), "Cost of
Planting or Removal of Trees to be Paid by Property Owner") is that
the tree shall be replaced in or near the site. Replacements must be
in accordance with § 25-203.
4
to replace the tree under section 25-108(3).5 As a result of Landowner failing to
replant the tree himself, the trial court found that he lost the right to choose the
location of the new tree. The trial court rejected Landowner’s argument that the tree
resulted in an unreasonable interference with his business and that there was an
unconstitutional lack of criteria to guide Bloomsburg’s code officials in determining
whether to replant the tree that gave the Township “unbridled discretion.” (Trial
court op. at 5-7.)
In deciding the constitutional issue, the trial court discussed this Court’s
decision in Bassett, which was referenced by Landowner. The court reasoned that
Bassett was inapplicable because, unlike Bassett, here, the Ordinance contained
extensive criteria on the removal and replanting of shade trees. In deciding the
business interference issue, the court found Landowner’s claim lacked credibility,
and that planting a tree was not an unreasonable interference with Landowner’s
business. (Trial court op. at 8-15.)
5
Section 25-108(3) provides:
Any owner may elect to plant or replant trees or to have the Town
of Bloomsburg plant or replant the trees required to be planted or
replanted by this Part. If the owner elects to plant or replant the trees,
they must be planted or replanted within six months of their
removal. Upon the failure of the owner to plant or replant the trees
within six months of their removal or upon the failure of the owner
to comply with the terms of this Part, the Commission may cause
shade trees to be planted, replanted, removed, maintained or
protected, as the case may be, at the expense of the Town, and
thereupon, in the name of the Town, collect the cost of such work
from the owners in default as set forth below.
5
Discussion
On appeal,6 Landowner raises two arguments. First, Landowner
contends that the trial court7 abused its discretion by affirming the decision of the
Board because it misapplied section 10 of the Act of October 1, 1981, P.L. 279, 53
P.S. §53860. Second, Landowner contends that the trial court committed an error of
law when it affirmed the decision of the Board by requiring the tree to be replanted
at his cost.
Whether the Ordinance Unreasonably Interfered with Landowner’s Business
In a zoning case, the decision of the board must be upheld unless the
board committed an error of law or “a manifest abuse of discretion.” Valley View
Civic Association v. Zoning Board of Adjustment, 462 A.2d 637, 639 (Pa. 1983).
Discretion is only abused where “findings are not supported by substantial
evidence.” Id. at 640. Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id.
6
Because there is a full record and the trial court did not take additional evidence, our
scope of review is limited under 2 Pa. C.S. §754 to review the decision of the local agency rather
than the court of common pleas’ decision. Ficco v. Board of Supervisors of Hempfield Township,
677 A.2d 897, 899 n.4 (Pa. Cmwlth. 1996). This Court should affirm the local agency unless it is
shown that “constitutional rights were violated [or], an error of law was committed, that procedure
before the agency was contrary to statute or that a necessary finding of fact was unsupported by
substantial evidence.” Appeal of McClellan, 475 A.2d 867, 869 (Pa. Cmwlth. 1984).
7
As noted above, because the trial court did not take additional evidence, we are bound
under 2 Pa. C.S. §754 to review of the local agency’s adjudication, not the court of common pleas’
decision. Appellant in his brief erroneously alleges errors of the trial court, over which this Court
has no scope of review in this instance. However, as the trial court affirmed the decision of the
Board, we will review Appellant’s arguments as they pertain to the Board’s decision.
6
As noted by the trial court, “[t]he Commission is granted ‘exclusive
custody and control of the shade trees in the incorporated town, and is authorized to
plant, remove, maintain and protect shade trees . . . [53 P.S.] §53853.” (Trial court
op. at 3.) As further noted by the trial court, “[t]he cost of planting and removing
shade trees, including sidewalk work is imposed upon abutting real estate owners . .
. [53 P.S.] §53856 . . . .” (Trial court op. at 3.) Section 25-107(3)8 of the Ordinance
requires that a permit be obtained before removing a tree. Section 25-108(2)9 states
that “[a]s a condition for granting of a permit as required to remove a shade tree, the
commission shall require that the permittee plant at his expense another tree in the
place of the one removed.” Section 25-108(3) further states that either the owner of
the property can elect to plant the tree or require the Commission to replant it, and
if he fails to do so within six months the Commission may complete the planting at
8
Section 25-107(3) provides:
Permit Required. It shall be unlawful for any person, without first
obtaining a permit, to cut, prune, break, climb with spurs, injure in
any manner or remove any shade tree, to cut down or interfere in
any way with the main roots of any shade tree, to spray with any
chemicals or insecticides any tree, to place any rope, guy wire, cable,
signs, posters or other fixtures on a tree or tree guard or to injure,
misuse or remove any device placed to protect shade trees, except
in case of immediate necessity for protection of life or property.
9
Section 25-108(2) provides:
As a condition for the granting of a permit as required to remove any
shade tree, the Commission shall require that the permittee plant, at
his expense, another tree in the place of the one removed. The
Commission, in such case, may direct the type, size and location of
the tree to be planted and the time within which the work shall be
done.
7
the owner’s cost. However, Section 25-201(E) clearly states that the tree shall be
replaced in or near the site of the original tree.
As correctly noted by the trial court, section 1 of the enabling statute,
53 P.S. §53851,10 permits an incorporated town, by ordinance, to establish a shade
tree commission which can require the planting and replanting of suitable shade
trees. However, section 10 of the enabling statute includes the following limitation,
“[t]his section shall not authorize any incorporated town to require the planting or
replanting of trees at any point which may interfere with the necessary or reasonable
use of any street or abutting property or unreasonably interfere with any business
conducted thereon.” 53 P.S. §53860.11 Although this language is not explicitly
10
This section provides:
An incorporated town may by ordinance establish a commission to
be known as the shade tree commission, but in incorporated towns
where the council shall not elect by ordinance a shade tree
commission council may exercise all the rights and perform the
duties and obligations imposed by this act upon the shade tree
commission.
53 P.S. §53851
11
This section provides:
Any incorporated town may, by ordinance, upon the petition of a
majority of the property owners upon any public street thereof,
require the planting and replanting of suitable shade trees along and
upon the sides of such streets, upon such alignment and at such
points as may be designated by such ordinance, by the owners of
property abutting the street at the points designated. This section
shall not authorize any incorporated town to require the planting or
replanting of trees at any point which may interfere with the
necessary or reasonable use of any street or abutting property or
unreasonably interfere with any business conducted thereon.
53 P.S. §53860
8
included in the Ordinance, the enabling statute makes it clear that the Ordinance
must comply with this provision, whether stated or not.
In its April 19, 2018 order, the Board found that the failure to replant
the tree was a violation of the Ordinance and ordered Landowner to replace the tree.
The Ordinance requires that a tree be replanted in or near the site from which it was
removed. However, the enabling statute makes it clear that there is a limitation –
the replanting of a tree cannot “unreasonably interfere with any business conducted
thereon.” 53 P.S. §53860. Landowner argued the tree interfered with his business
profits by preventing him from having outside seating and interfered with the
visibility of the signage of his business.
In regards to the lost profits issue, Landowner stated that he was aware
of the tree when he purchased the business in 2013. While he testified that his
business struggled to get by, it functioned for four years until 2017. However, after
the tree was taken down, he stated that his business increased and was no longer
“scraping [by].” (N.T. at 35.) Other than this testimony, Landowner put forth no
further evidence in regards to the purported financial problems his business suffered
as a result of the tree. It is significant that Landowner purchased the business and
operated successfully for nearly four years. The lack of evidence regarding the
alleged interference with his profits prevents us from holding that the Board erred in
ordering Landowner to replant the tree.
The same is true for the signage. Landowner testified that the tree
blocked his signage. However, Arborist Mullen clearly testified that the tree could
be replanted in a different place, a narrow tree could be planted, and it could be
appropriately trimmed so as not to interfere with the business.
9
Therefore, without any further evidence by Landowner contradicting
this credible testimony, the Board did not abuse its discretion in its application of
the statute to uphold the violation.
Whether the Ordinance Requires the Tree to be Replanted at Landowner’s
Cost
Second, Landowner complains that the trial court committed an error
of law in affirming the Board’s decision requiring the tree to be replanted at his cost.
“The rules of statutory construction are applicable to statutes and ordinances alike.”
In re Thompson, 896 A.2d 659, 669 (Pa. Cmwlth. 2006).12 When the words of the
statute are clear and free of all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit. Id. at 669 (citing Section 1921 of the
Statutory Construction Act of 1972, 1 Pa.C.S. §1921).
Here, both the words of the Ordinance and enabling statute are free and
clear of all ambiguity. As stated above, section 25-108(2) of the Ordinance requires
that a tree be replanted at the expense of the owner if it is removed. Section 25-
108(3) of the Ordinance also explains that either the owner of the property can elect
to replant the tree within six months, or the Commission shall be permitted, at the
landowner’s cost, to replant it if the landowner fails to make an election.
Additionally, section 25-201(E) provides that the tree must be replanted “in or near
the site” of the original tree. Nevertheless, the Ordinance is limited by the enabling
statute, which states “[t]his section shall not authorize any incorporated town to
12
In order for a municipality to enact an ordinance it must be authorized by a statute, and
any ordinance not in conformity with its enabling statute is void. City of Philadelphia v.
Schweiker, 858 A.2d 75 (Pa. 2004); City of Sunbury v. Karpinski, 453 A.2d 1062, 1063 (Pa.
Cmwlth. 1982).
10
require the planting or replanting of trees at any point which may . . . unreasonably
interfere with any business conducted thereon.” 53 P.S. §53860. Significantly,
pursuant to section 25-201(E), Landowner could have placed it anywhere along his
frontage “in or near the site” of the original tree.
In other words, the language of the enabling statute is clear: when a tree
is removed, it must to be replanted either by the Commission or the individual
property owner,13 and such replanting cannot unreasonably interfere with a business.
Because the record establishes that the tree did not unreasonably interfere with his
business, the trial court did not error as a matter of law in affirming the Board’s
decision requiring the tree to be replanted at Landowner’s cost.
It is Landowner’s position that the proper course of action is for the
Board to undertake the replanting of the tree itself, and seek reimbursement from the
landowner. However, the language of the statute is clear. “Upon the failure of the
owner to plant or replant the trees within six months of their removal . . . the
Commission may cause shade trees to be planted, replanted, removed, maintained,
or protected. . . [and] collect the cost of such work from the owners in default.”
Ordinance §25-108(3). Thus, upon Landowner’s failure to replant, the Commission
may replant it if it so wishes at Landowner’s expense.
Lastly, although not separately listed as an argument or issue before
this Court, Landowner asserts that the standards of the Ordinance permit unbridled
government discretion because no criteria is provided regarding when not to replant
a tree which has been removed.
13
In this case, Landowner was given the opportunity to find another property owner on
Main Street that would accept a donated tree to be planted on its property instead; however, he
was unsuccessful.
11
Initially, we recognize that Rule 2119(a) of the Pennsylvania Rules of
Appellate Procedure provides:
(a) General rule. The argument shall be divided into as
many parts as there are questions to be argued; and shall
have at the head of each part—in distinctive type or in type
distinctively displayed—the particular point treated
therein, followed by such discussion and citation
of authorities as are deemed pertinent.
Pa. R.A.P. 2119(a). Arguments that are not developed by providing case law or
record evidence are deemed to be waived and we are precluded from addressing such
issues. School District of Philadelphia v. Jones, 139 A.3d 358, 365 (Pa. Cmwlth.
2016) (citing In Re Condemnation of Land for Se. Cent. Bus. Dist. Redevelopment
Area No. 1, 946 A.2d 1154, 1156 (Pa. Cmwlth. 2008)). “‘We decline to become
substitute counsel for appellant,’ and as such, ‘we will deem an issue abandoned
where it has been identified on appeal but not properly developed in appellant’s
brief.’” Aveline v. Pennsylvania Board of Probation and Parole, 729 A.2d 1254,
1256 n.5 (Pa. Cmwlth. 1999) (citation omitted).
Here, Landowner devotes a single paragraph in his brief to what might
appear to be a constitutional argument, namely that the municipal government was
left with unbridled discretion, relying on this Court’s unpublished decision in
Bassett. He buttresses this argument by asserting that the Ordinance provides no
criteria for deciding a request not to replant a tree that had been removed. However,
Landowner does not cite to any constitutional provision allegedly violated, but
simply makes a bald assertion that his rights were violated.14 Because Landowner
14
Contrary to Landowner’s argument, the Ordinance does contain criteria for deciding a
request not to replant a tree which has been removed.
12
has not developed his argument sufficiently for this Court to review it, it is waived.
Nonetheless, even if we were to address the issue, we agree with the trial court that,
Bassett is not controlling or ‘persuasive.’ Bassett dealt
with a denial of an application to remove a shade tree, and
the ordinance in Bassett contained no criteria by which the
local agency could determine whether to grant or deny an
application for removal. In this case, [Landowner’s]
Application for removal was granted and he was notified
three (3) times that, as a condition of removing the original
tree, he would be required to plant a replacement tree.
Further, the Ordinance contains extensive criteria on the
removal and replanting of shade trees . . . . The Ordinance
is nothing like the bare bones ordinance at issue in Bassett.
(Trial court op. at 7-8.) Hence, although we find waiver of any constitutional claim
for failure to properly develop the argument pursuant to Pa. R.A.P. 2119, were we
to reach the merits of this claim, we agree with the trial court that it is without merit.
Conclusion
In light of the above, the trial court did not abuse its discretion or
commit an error of law in affirming the Board and modifying the order to provide
that Landowner would bear the cost of planting a new tree.
Accordingly, the order of the trial court is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph Yannone, :
Appellant :
: No. 1563 C.D. 2018
v. :
:
The Town of Bloomsburg :
Code Appeal Board and :
The Town of Bloomsburg :
ORDER
AND NOW, this 2nd day of October, 2019, the order of the Court of
Common Pleas of the Twenty-Sixth Judicial District, Columbia County Branch,
dated October 30, 2018, is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge