River's Edge Funeral Chapel and Crematory, Inc. v. ZHB of Tullytown Borough Appeal of: The Borough of Tullytown ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
River’s Edge Funeral Chapel and :
Crematory, Inc. :
: No. 22 C.D. 2016
v. :
: Argued: October 18, 2016
The Zoning Hearing Board of :
Tullytown Borough :
:
Appeal of: The Borough of Tullytown :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge (P.)
OPINION BY
JUDGE McCULLOUGH FILED: November 16, 2016
The Borough of Tullytown (the Borough) appeals from the December
22, 2015 order of the Court of Common Pleas of Bucks County (trial court), which
reversed the Borough’s Zoning Hearing Board’s (Board) order affirming a Borough
zoning officer’s decision to deny River’s Edge Funeral Chapel and Crematory, Inc.’s
(Appellee) application for a Use and Occupancy Certificate to operate a funeral
home.
Facts and Procedural History
Appellee is the lessee of property located at 70 Fox Drive, Tullytown,
Pennsylvania (the property). The property contains an improved commercial
building (the building) and is located in the Borough’s Light Industrial (LI) Zoning
District. Pursuant to the Borough’s zoning ordinance (Ordinance), a funeral home is
a permitted principal use in the LI Zoning District. However, the Ordinance prohibits
a crematory as a principal use in the LI Zoning District, although a crematory is
permitted as an accessory use in the same.
In September 2013, Appellee filed an application for a Use and
Occupancy Certificate with the Borough, seeking to operate a funeral home and
crematory at the property. After several requests for additional information by the
Borough’s zoning officer, the complete application was received on October 15,
2014. In its application, Appellee submitted a narrative describing the services it
would provide at the property, stating that:
[W]e will complete all duties and services associated with
the running of a state licensed funeral facility. That
includes: meeting with clients, arrangements, embalming,
cremating, dressing of deceased, casketing, and conducting
funeral services as needed. These would be exactly the
same goods and services provided by my other state
licensed funeral facility located at 3500 Bristol Oxford
Valley Road in Levittown, PA.
(Reproduced Record (R.R.) at 92a.)
Appellee also provided a site plan of the property that identified the
interior and exterior spaces of the building, a copy of its lease agreement, and proof
of business registration with the Commonwealth. (R.R. at 86a-91a.)
On October 28, 2014, the Borough’s zoning officer denied Appellee’s
application, reasoning that, although Appellee indicated that the proposed use was a
funeral home with accessory crematory use, “[i]t appears the crematory will be the
principal use at the property.” (R.R. at 94a.)
Appellee filed a timely appeal to the Board, arguing that the zoning
officer improperly denied its application because the property’s principal use was a
2
funeral home. Appellee acknowledged that cremation would be an accessory use to
its funeral home; however, it noted that cremation is a permitted accessory use in the
Borough’s LI Zoning District. On January 7, 2015, the Board held a hearing where
witnesses and several Borough residents testified.
At the hearing, Mike Schiller, a licensed funeral director and an
employee at the Galzerano Funeral Home, testified that, if Appellee’s application is
approved, he will work as an on-site supervisor at Appellee’s funeral home. He
worked as a supervisor of funeral homes for forty years and explained that Appellee’s
funeral home would provide traditional funeral services if requested, which would
include a service, a viewing, and transporting the body to a cemetery. Schiller
explained that he would meet with customers at Appellee’s funeral home, that the
funeral home will contain a morgue, and that it will also contain a crematory. (R.R.
at 194a-95a.)
Schiller further testified that he would be present at the funeral home
from 8:00 a.m. to 5:00 p.m., Monday through Friday, as well as additional hours upon
request. Appellee would advertise its funeral home services to the public through the
local newspaper, radio stations, and television. Schiller further explained that
Appellee is attempting to provide an economical approach to funeral services where a
consumer’s funeral costs may be significantly reduced due to decreasing the
building’s extravagance. He again confirmed that traditional funerals would be
conducted at the property upon request by the public, that viewings would be held at
the same, and explained that the public could visit the property to discuss funeral
arrangements. (R.R. at 197a-200a.)
Schiller further testified that the Galzerano Funeral Home provides
traditional funerals, day and nighttime viewings, and cremations with viewings and
3
direct cremations. He stated that, at the Galzerano home, members of the public visit
to discuss arrangements, enter into contracts, and attend viewings and noted that the
Galzerano home operates as a funeral home and a crematory. Schiller further stated
that a location’s appearance is an important factor for a funeral home in a competitive
market and acknowledged that the Galzerano home appears different than the
building on the property. (R.R. at 201a-06a.)
Regarding the differences between the Galzerano home and the building
on the property, Schiller explained that the Galzerano home is owned outright by Mr.
Galzerano, that he has invested substantial resources to improve the same, and that it
is valued at approximately $3.5 million. In contrast, Schiller testified that Appellee is
offering an economical approach to funeral services. Schiller acknowledged that
Appellee is owned by Mrs. Galzerano and that she is the wife of Mr. Galzerano;
however, he clarified that Appellee is an entity in and of itself and will solicit and
receive orders for funerals and cremation services from the public, but not other
funeral homes. Schiller stated that Appellee is a standalone operation that will not
perform cremation services for the Galzerano home. (R.R. at 208a-12a.)
Sally Bellaspica, the Borough’s zoning officer, testified that a funeral
home is a use-by-right in the LI Zoning District and explained that a crematory is
permitted as an accessory use in the same. She stated that she reviewed the
property’s layout and determined that the principal use would be a crematory with the
possibility of funeral service operations because the site plan indicated that the
building had rooms containing retorts, or cremators, which would be used for
crematory use. She further stated that, prior to reviewing Appellee’s application, she
had never reviewed an application for approval of a funeral home while working for
the Borough, never inspected a facility comparable to that presented in Appellee’s
4
application, and had not contacted the Commonwealth to inquire how the state
determines what constitutes a funeral home. (R.R. at 213a-16a.)
In addition to reviewing the property’s layout, Bellaspica testified that
she considered the property’s location in denying Appellee’s application; specifically,
she considered that the property was located in an industrial area. She stated that she
drove past the property and observed a warehouse, which did not look like a typical
funeral home. She also noted that she considered a 2011 application for a Use and
Occupancy Certificate to operate a crematory on the property when making her
determination.1 (R.R. at 216a-24a.)
Bellaspica noted that Appellee’s application was submitted by the same
principal that submitted the 2011 application, and that she rejected Appellee’s
application as incomplete because it did not contain a proposed use and requested
additional information six times before Appellee’s application stated a proposed use,
which it identified was a funeral home with an accessory crematory use. According
to Bellaspica, the floor plan Appellee submitted was basically the same as that
submitted in 2011 except that Appellee’s application contained more labeling, which
she had directed Appellee to include. Bellaspica testified that the two cremators were
in the same location on both the 2011 application and Appellee’s application and,
consequently, she believed the property’s principal use would be a crematory. (R.R.
at 225a-29a.)
Kathy Ryan, general counsel for the Pennsylvania Funeral Directors
Association, testified that there are numerous state licensing requirements for a
funeral home in Pennsylvania. For example, she stated that the entity seeking
1
The Board sustained Appellee’s counsel’s objection that the 2011 application not be
admitted. (R.R. at 192a-93a; Board’s Finding of Fact at No. 14.)
5
licensure must have a business entity license, the location must have a supervisor, and
that cremation services may only be offered to the public through a licensed funeral
director who may only practice through a licensed funeral home. While cremation
services may only be offered to the public by a licensed funeral director through a
licensed funeral home, Ryan noted that, conversely, a licensed funeral director is not
necessary if the entity solely provides cremation services to other funeral homes and
not to the public. (R.R. at 234a, 240a-41a, 261a-62a.)
Ryan further testified that offering cremation services does not preclude
offering other services. According to Ryan, even if cremation is the final form of
disposition, other services likely accompany the cremation, which requires proper
licensure. Ryan stated that a Use and Occupancy permit is necessary to receive a
license to operate a funeral home. She explained that, based upon her inspection of
the property, it met the elements required to constitute a licensed funeral home absent
decorations and furnishings, which she opined could be obtained and installed in one
day. Specifically, Ryan stated that the building contained a room for viewing, a room
for embalming, a chapel or area for the service to be performed, and a garage to
accommodate vehicles that transport bodies. (R.R. at 242a-43a, 260a-61a.)
Additionally, Borough residents asked questions and offered testimony,
which may be summarized as inquiries regarding parking at the property, the chapel’s
capacity, the amount of anticipated savings using Appellee’s marketing model, and
concerns that Appellee was attempting to operate a crematory at the property using a
back-door method and regarding the impact of the crematory operation on the quality
of the air. (R.R. at 270a-77a.)
By order dated February 17, 2015, the Board denied Appellee’s
application, concluding that:
6
In the present appeal, the record supports the Zoning
Officer’s finding that the crematory use will not be
incidental or subordinate to the use of the property as a
funeral home, but rather its principal use. The location and
appearance of the building which is intended to house the
funeral chapel and crematory is not suitable for a funeral
home use and clearly indicates that the applicant’s intention
is to use the subject premises primarily for cremations.
Moreover, the Property was the subject of a prior appeal to
the Board in which the applicant was seeking to use the
Property solely as a crematory. Thus, it is clear that the
crematory is intended to be the primary or principal use of
the Property, which is not permitted in an LI-Light
Industrial District. Therefore, this Board must deny the
applicant’s appeal of the denial of its application for a Use
and Occupancy Certificate.
(R.R. at 341a-42a.)
Appellee filed an appeal to the trial court, which did not receive
additional evidence, and argued that the Board erred in finding that the crematory was
the property’s principal use based on its location, current appearance, and the prior,
unrelated application for a Use and Occupancy Certificate to operate a crematory. By
order dated December 22, 2015, the trial court reversed the Board’s decision and
ordered that a Use and Occupancy Certificate be issued as requested in Appellee’s
application.
In its opinion, the trial court reasoned that the evidence the Board relied
upon when making its determination, i.e., the property’s location, appearance, and the
prior application to operate a crematory, did not constitute substantial evidence that a
reasonable mind would find adequate when viewed in light of the overall record. The
trial court noted that Appellee’s plot plan indicated that the building would include a
chapel, a greeting area, and public restrooms in addition to the crematory and other
preparation rooms. The trial court also noted that only twelve percent of the
building’s total area would be allotted to the crematory operation and that Appellee
7
indicated that it would offer various services at the property, including meeting with
clients, making funeral arrangements, embalming, casketing, and dressing the
deceased. According to the trial court, a crematory would not offer the majority of
services that Appellee intends to offer.
The trial court further noted that Appellee hired Schiller to be the
supervisor of its funeral home, which would be unnecessary if Appellee’s intent was
to operate a crematory. Consistent with Ryan’s testimony, the trial court concluded
that Appellee would satisfy each element necessary to be a licensed funeral home in
the Commonwealth. The trial court reasoned that the property’s location in an
industrial park in the LI Zoning District was not a compelling reason for denying
Appellee’s application because the Ordinance permits a funeral home as a principal
use within the same. Similarly, the trial court determined that the Board’s finding
that the building’s appearance was not suitable for a funeral home was not supported
by Pennsylvania law or the Ordinance and, thus, there was no basis to deny
Appellee’s application on those grounds. Finally, the trial court determined that the
Board improperly relied on Mr. Galzerano’s prior application to operate a crematory
at the same location. Specifically, it reasoned that:
In order to maintain that Appellee’s true goal is to operate a
crematory, despite the overwhelming evidence presented to
the contrary, Appellant would essentially need to believe
that Appellee will either not make any attempt to operate a
funeral home, or is engaged in a ruse that will see a
crematory operate behind the façade of a funeral home.
Even if Appellant is ultimately proved correct that Appellee
is inauthentic in its stated purpose, Appellant now seeks to
hold a facially meritorious application accountable for a
suspected future violation, which would ultimately be an
enforcement issue to act upon once the violation occurs.
(R.R. at 386a-87a.)
8
On appeal to this Court,2 the Borough asserts that the trial court erred
because the record evidence shows that the property’s principal use would be a
crematory, not a funeral home. The Borough argues that the Board’s decision was
supported by substantial evidence and no abuse of discretion or error of law occurred.
The Borough also argues that the trial court erred because it accepted testimony from
Appellee’s purported expert when the same was not submitted to the Borough’s
zoning officer for consideration and the trial court further erred in dismissing the
history of Mr. Galzerano’s 2011 application for a crematory. Finally, the Borough
avers that its decision was supported by Pennsylvania law and the Ordinance.
Conversely, Appellee argues that the trial court’s decision was proper
because the property’s principal use would be a funeral home and maintains that the
2011 application for a crematory did not constitute substantial evidence to justify the
Board’s denial of Appellee’s application. Moreover, Appellee avers that the trial
court properly considered the expert testimony and correctly concluded that the
Board’s decision was not supported by the Ordinance or Pennsylvania law.
2
When no additional evidence is taken following the determination of a zoning hearing
board, this Court’s review is limited to determining whether the zoning hearing board committed an
error of law or a manifest abuse of discretion. H.E. Rohrer, Inc. v. Zoning Hearing Board of
Jackson Township, 808 A.2d 1014, 1016 n.1 (Pa. Cmwlth. 2002). An abuse of discretion occurs
when findings are not supported by substantial evidence. Coal Gas Recovery, L.P. v. Franklin
Township Zoning Hearing Board, 944 A.2d 832, 838 n.9 (Pa. Cmwlth. 2008). Substantial evidence
is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
Id.
9
Discussion
Because the term “funeral home” is not defined in the Ordinance, we
must determine whether the property’s proposed use would constitute a funeral home
and, if so, whether the funeral home use would be the property’s principal use.
In interpreting zoning ordinances, this Court relies upon the common
usage of the words and phrases contained therein and will construe that language in a
sensible manner. Ruley v. West Nantmeal Township Zoning Hearing Board, 948
A.2d 265, 269 (Pa. Cmwlth. 2008). An undefined term is given its plain meaning and
“any doubt is resolved in favor of the landowner and the least restrictive use of the
land.” H.E. Rohrer, Inc. v. Zoning Hearing Board of Jackson Township, 808 A.2d
1014, 1016-17 (Pa. Cmwlth. 2002) (emphasis in original). This Court may consult
definitions found in statutes, regulations, or the dictionary for assistance when
defining an undefined term. Id. at 1017. However, a phrase must be interpreted in
context and read together with the entire ordinance. Id.
A “funeral home” is defined as “an establishment with facilities for the
preparation of the dead for burial or cremation, for the viewing of the body, and for
funerals.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 472 (10th ed. 2001).
Similarly, although it does not define a funeral home, the Funeral Director Law3
defines a “funeral establishment” as “every place or premise approved by the State
Board of Funeral Directors wherein a licensed funeral director conducts the
professional practice of funeral directing including the preparation, care and funeral
services for the human dead.” Section 2 of the Funeral Director Law, 63 P.S.
§479.2(6); see also Galzerano v. Zoning Hearing Board of Tullytown Borough, 92
A.3d 891, 895 n.5 (Pa. Cmwlth. 2014) (consulting the Funeral Director Law when
3
Act of January 14, 1952, P.L. 1898, as amended, 63 P.S. §§479.1 – 479.20.
10
interpreting an undefined zoning ordinance term). Moreover, the relevant regulation
provides that a funeral establishment shall contain: (1) a preparation room for
preparation of human remains; (2) a proper area or room for the reposing of human
remains; and (3) restroom facilities. 49 Pa. Code §13.94.
Based on these definitions of a funeral home and a funeral
establishment, it is apparent that the property would constitute a funeral home.
Consistent with the dictionary definition, Schiller testified that Appellee would
provide traditional funerals at the property which would include a service, a viewing,
and transporting of the body to a cemetery. Similarly, Ryan testified that the property
met the elements necessary to constitute a licensed funeral home in Pennsylvania.
The property, as indicated by the plot plan and Schiller’s testimony, contains facilities
for the preparation of the dead for burial or cremation, for viewing, and for funerals.
Moreover, consistent with Schiller and Ryan’s testimony, Appellee hired Schiller as a
supervising funeral director, which is necessary to offer funeral services to the public.
Therefore, it is clear that the property’s proposed use would constitute a funeral home
because it would provide services a funeral home offers and employs the individuals
required to offer licensed funeral services to the public.
Principal Use
Next, we must determine whether the property’s principal use would be
a funeral home or a crematory.
Whether a proposed use falls within a given zoning ordinance
categorization is a question of law. H.E. Rohrer, 808 A.2d at 1016. Generally, a
zoning hearing board’s interpretation of its own zoning ordinance is entitled to great
weight and deference. City of Hope v. Sadsbury Township Zoning Hearing Board,
11
890 A.2d 1137, 1143 (Pa. Cmwlth. 2006). However, it is fundamental that
ordinances are to be construed expansively such that the landowner is afforded the
broadest possible use and enjoyment of his or her land. H.E. Rohrer, 808 A.2d at
1016. “The size and scope of an accessory use is a factor the [zoning hearing board]
must consider in determining whether a use is subordinate and incidental to a
principal use.” Tennyson v. Zoning Hearing Board of West Bradford Township, 952
A.2d 739, 745 (Pa. Cmwlth. 2008).
Here, the scope of the proposed crematory use is not clear from the
record and the Board made no express finding regarding the same. However, the
Board found that “[t]he total area dedicated to the crematory, as shown on the plan, is
428 square feet or twelve percent (12%) of the total building area.” (Board’s Finding
of Fact at No. 22.) The size of the use, although not determinative, suggests that the
crematory use would be an accessory use on the property because it constitutes only a
slight portion of the building’s total area. Similarly, although the Board did not
reduce the space dedicated to a funeral home to an express finding, the plot plan, as
well as Ryan’s testimony, suggest that a large portion of the building’s space is
dedicated to funeral home related services, such as: a room for viewing; a morgue; a
room for embalming; a chapel; and a garage to accommodate vehicles that would be
transporting bodies. The existence of these spaces dedicated to funeral services
indicates that a funeral home would not be an accessory use on the property; rather,
the property’s principal use would be a funeral home.
Similarly, as Ryan testified and the trial court found after its own
independent review, the property met all the necessary criteria to operate as a funeral
home under Pennsylvania law. (Board’s Finding of Fact at No. 24.) Appellee also
hired Schiller, a funeral director with over forty years’ experience, to serve as the
12
supervisor at its proposed funeral home, a necessary prerequisite to offering funeral
services to the public. See Galzerano, 92 A.3d at 895 (“Moreover, funeral homes are
generally understood as facilities that provide professional services directly to the
families and loves ones of the deceased”) (emphasis added).
In the Board’s decision and the Borough’s brief before this Court, much
is made of the 2011 application for a crematory that involved the property, asserting
that it indicates that the current application for a funeral home is a pretext to operate a
crematory. We disagree.
As a legal matter, the Board sustained Appellee’s counsel’s objection to
the admission of the 2011 application into the record. (R.R. at 192a-93a; Board’s
Finding of Fact at No. 14.) Although not bound by the Pennsylvania rules of
evidence, the Board must base its findings on record evidence only. See Van Sciver
v. Zoning Board of Adjustment of Philadelphia, 152 A.2d 717, 722 (Pa. 1959).
Therefore, its consideration of the 2011 application was erroneous. As a practical
matter, the relevance of the 2011 application is unclear to this Court because the 2011
application was filed by a different applicant for a different purpose. The resolution
of the 2011 application before this Court highlights the differences in Appellee’s
application.
In Galzerano, the plaintiff filed an application for a Use and Occupancy
Certificate to operate a crematory in the LI Zoning District. He testified before the
Board that the crematory would not be open to the public and that a family or loved
one could not secure the services of the proposed crematory directly; rather, the
proposed crematory would provide services to other funeral homes. The Board
denied the plaintiff’s application, reasoning that a crematory is only permitted as an
accessory use in the zoning district and is not the same as a funeral home or a
13
mortuary, both of which were permitted uses in the same. According to the Board, a
crematory was more analogous to an incinerator use, which is only permitted in
another zoning district. The plaintiff appealed to the trial court, which affirmed the
Board and concluded the proposed use does not constitute a funeral home because its
primary purpose would be to perform cremation services for other funeral homes and
would only conduct funeral services in limited circumstances.
On appeal to this Court, the plaintiff argued that a crematory constitutes
a funeral home and also argued that it would be unjust to require him to expend a
great deal of time and resources to operate a new funeral home merely to operate a
crematory. We noted that a funeral home is an establishment with facilities for the
preparation of the dead for burial or cremation, for the viewing of the body, and for
funerals and reasoned that a use for the preparation of the dead for burial or
cremation is not the same as a use where actual burial or cremation occurs. We also
noted that the plaintiff would not be offering services to the public and, therefore, the
Board did not err in differentiating between a funeral home and a standalone
crematory.
Although involving the same property, the 2011 application was filed by
a different applicant, for a different purpose, and is substantially different than
Appellee’s application. Unlike the plaintiff in Galzerano, Appellee would offer
services directly to the public. Moreover, Mr. Galzerano planned to only offer
funeral services in limited circumstances whereas Appellee plans to offer a variety of
funeral services at the property. Therefore, notwithstanding its legal infirmity, the
practical relevance of the 2011 application is unclear and is not evidence a reasonable
mind would find adequate to support the conclusion that the property’s principal use
would be a crematory. Indeed, in the present matter, Appellee did precisely what the
14
plaintiff in Galzerano argued was unjust: expended time and resources to operate a
funeral home in addition to operating a crematory.
Regarding the Borough’s argument that the Board’s determination was
proper because the property’s location and the building’s appearance made it
unsuitable for a funeral home, we also disagree.
The property’s location, in the LI Zoning District, is where the Borough
determined that a funeral home should be located. The Borough is the entity
authorized with determining the propriety of the use on the property, not the Board.
See Hill v. Zoning Hearing Board of Maxatawny Township, 597 A.2d 1245, 1248 (Pa.
Cmwlth. 1991) (“[I]t is the governing body of the municipality which has the power
to enact laws to regulate land use pursuant to the police power.”). Similarly, there is
no authority in the Ordinance or Pennsylvania law indicating that a building’s
appearance is a sufficient basis to deny a use-by-right or is even a valid consideration
when determining whether a property’s principal use constitutes a funeral home. See
Riverside Development Group, LLC v. City of Harrisburg Zoning Hearing Board,
109 A.3d 358, 364 (Pa. Cmwlth. 2015) (“Zoning boards . . . must not impose their
concept of what the zoning ordinance should be, but rather their function is only to
enforce the zoning ordinance in accordance with applicable law.”); see also
Tennyson, 952 A.2d at 746 (“A special exception is not an exception to the zoning
ordinance but, rather, a permitted use, allowed by the applicable legislation so long as
specifically listed standards are met.”).
The size of the crematory use in the building is minimal, suggesting it
would be an accessory use, not a principal use, whereas the size of the proposed
funeral home use would be significant, containing facilities to perform services
typically offered by a funeral home. Similarly, the property meets the requirements
15
to be a licensed funeral home in Pennsylvania and Appellee hired a supervisor for its
funeral home, which is necessary to offer funeral services to the public. Moreover,
the Borough, not the Board, is the entity authorized to determine where a use is
permitted and has already determined that a funeral home is a proper use in the LI
Zoning District. Additionally, there is no authority, under the Ordinance or
applicable Pennsylvania law, for the Board to consider a building’s appearance when
considering whether it constitutes a funeral home. Therefore, construing the
Ordinance expansively such that Appellee is afforded the broadest possible use and
enjoyment of its land, we conclude that the property’s principal use would be a
funeral home, not a crematory.
2011 Application for Crematory
The Borough next argues that the trial court erred in dismissing the 2011
application as evidence of whether the property’s principal use is a crematory.
As articulated above, the Board sustained Appellee’s counsel’s objection
to the admission of the 2011 application into the record. Therefore, it would have
been erroneous for the trial court to consider the 2011 application because it was not
record evidence. Moreover, as previously explained, the relevance of the 2011
application is suspect because it was submitted by a different applicant who proposed
a significantly different use that would be offered to other funeral homes. Therefore,
we discern no error in the trial court’s treatment of the 2011 application.
Substantial Evidence
The Borough also argues that its decision was supported by substantial
evidence and, therefore, the trial court’s reversal was improper.
16
Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. Coal Gas Recovery, L.P. v.
Franklin Township Zoning Hearing Board, 944 A.2d 832, 838 n.9 (Pa. Cmwlth.
2008).
The evidence the Board relied on when making its determination was the
building’s location, its appearance, and the 2011 application. As articulated above,
the Borough is the entity authorized to enact regulations governing land use, not the
Board. Indeed, the Borough has determined, via promulgation of the Ordinance, that
the LI Zoning District is a suitable location for a funeral home. The Board may not
circumvent that determination and is required to enforce the Ordinance, not how the
Board believes the Ordinance should be enforced. Similarly, there is no authority in
the Ordinance or Pennsylvania law indicating that a building’s appearance is a valid
consideration when determining whether a property’s use constitutes a funeral home,
or is a sufficient basis to deny a use-by-right. Finally, notwithstanding that the 2011
application was excluded from the record, its relevance to the present matter is
questionable because it was submitted by a different applicant who proposed a
significantly different use that would not be offered to the public.
Therefore, based on the irrelevant and arbitrary nature of the evidence
the Board relied upon, we conclude that the trial court did not err in reversing the
Board because its decision was not supported by evidence that a reasonable mind
would accept as adequate to support the conclusion that the property’s principal use
would be a crematory.
17
Expert’s Testimony
The Borough avers that the trial court erred in considering the testimony
of Ryan because it was not originally submitted to the Borough’s zoning officer and
should not have been introduced at a later date.
The relevant testimony was proffered before the Board. However, the
Borough did not make this specific objection to the Board, or complain of the same
before the trial court. See Eltoron, Inc. v. Zoning Hearing Board of City of Aliquippa,
729 A.2d 149, 153 (Pa. Cmwlth. 1999). Therefore, the issue is waived. See
Pa.R.A.P. 302(a).
Sufficiency of the Board’s Decision
Finally, the Borough argues that the Board’s decision was supported by
the Ordinance and Pennsylvania law. The Borough cites no authority for this
proposition except for the 2011 application and this Court’s decision in Galzerano.
However, as articulated above, the 2011 application was not admitted into the record
and, even if it was, is not relevant to the present action because it was submitted by a
different applicant for a different use. Similarly, there is no authority in the
Ordinance or Pennsylvania law authorizing the Board to consider the building’s
appearance when making its determination whether the property’s principal use is a
funeral home. Moreover, as previously stated, the Board must not impose its concept
of what the Ordinance should be, such as where a funeral home should be located;
rather, its function is to enforce the Ordinance. Thus, we disagree with the Borough’s
contention that the Board’s decision was supported by the Ordinance and
Pennsylvania law.
18
Conclusion
Therefore, construing the Ordinance expansively such that Appellee is
afforded the broadest possible use and enjoyment of its land, we conclude that the
property’s principal use would be a funeral home because the size of the crematory
use is minimal and the building contains facilities to perform services typically
offered by a funeral home. Additionally, the property meets the necessary criteria to
qualify as a funeral home under Pennsylvania law and Appellee hired a supervisor,
which is necessary to offer funeral services to the public.
Accordingly, the trial court’s order is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
River’s Edge Funeral Chapel and :
Crematory, Inc. :
: No. 22 C.D. 2016
v. :
:
The Zoning Hearing Board of :
Tullytown Borough :
:
Appeal of: The Borough of Tullytown :
ORDER
AND NOW, this 16th day of November, 2016, the December 22, 2015
order of the Court of Common Pleas of Bucks County is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge