M. Bolinger v. Bd. of Commissioners of Manheim Twp. ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mary Bolinger, :
Appellant :
:
v. : No. 1217 C.D. 2020
: Argued: September 20, 2021
Board of Commissioners of :
Manheim Township, Manheim :
Township, RV Holdings, LP and :
Hurst Family Estate, LP :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge (P.)
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE BROBSON FILED: December 13, 2021
Appellant Mary Bolinger (Appellant) appeals from an order of the Court of
Common Pleas of Lancaster County (Common Pleas), dated October 27, 2020.
Common Pleas affirmed the decision of the Board of Commissioners of Manheim
Township (Board), thereby denying Appellant’s appeal of the approval of RV
Holdings, LP’s (RV Holdings) and Hurst Family Estate, LP’s (Hurst Family Estate)
(collectively, Developers) application for a conditional use (Application). For the
reasons discussed below, we reverse Common Pleas’ order and remand the matter
to Common Pleas with instructions to vacate the Board’s decision and remand the
matter to the Board for the issuance of a new decision.
I. BACKGROUND
Hurst Family Estate is the owner of certain real property located on the west
side of Oregon Pike in Manheim Township (Township), Lancaster County,
Pennsylvania (Site A). Site A, which is comprised of approximately 48.5 acres, is
the location of the Oregon Dairy market, restaurant, barn, and corn maze, as well as
a residence. RV Holdings is the owner of certain real property located in the
Township on the east side of Oregon Pike and on the west side of Pennsylvania State
Route 222 (Site B). Site B, which is comprised of approximately 26.74 acres, is the
location of the former Shawnee Motor Lodge. Both Site A and Site B (collectively,
Property) are located in the Township’s T-5 Oregon Village Overlay Area.
Section 2406 of the Township’s Zoning Ordinance (Ordinance) permits a master site
planned development—i.e., a mixture of medium and higher density residential
development, various office, commercial uses, and hospitality services—in the T-5
Oregon Village Overlay Area as a conditional use. On September 10, 2018,
Developers filed their Application with the Township, seeking conditional use
approval for a master site planned development at the Property (Project).1
The Board conducted public hearings on the Application on various dates
between January 14, 2019, and May 28, 2019. In support of their Application,
Developers offered the testimony of: (1) Joel Young, RLA, who was admitted by
the Board as an expert in land planning and landscape architecture; (2) John M.
Schick, EIT, who was admitted by the Board as an expert in transportation planning
and design; (3) Victor Hurst, principal of RV Holdings and Hurst Family Estate;
and (4) William F. MacAvoy, R.A., who was admitted by the Board as an expert in
architecture and building design. In opposition to Developers’ Application, Martin
L. Wenrich, James L. Garland, and Lester M. Oberholtzer (Protestants)—three of
the individuals who were granted party status by the Board and represented by
counsel—offered their own testimony. Protestants also offered the testimony
1
The Township’s Planning Commission initially reviewed Developers’ Application at its
public meetings on November 28, 2018, and December 18, 2018, and thereafter recommended
approval of the Application.
2
of: (1) David High, who was admitted by the Board as an expert in
architecture; (2) Randolph J. Harris, who was admitted by the Board as an expert in
historic resources and structures in and around the Village of Oregon; (3) Donald B.
Kraybill, who was admitted by the Board as an expert in Amish and Old Order
Mennonite culture, community, and religion; and (4) Glenn Mohler, manager of the
Lancaster County Geographic Information System. At the conclusion of
Protestants’ presentation, other individuals who had been granted party status by the
Board either noted their objections to or support of the Project. One of those
individuals was Appellant, who owns and operates a bed and breakfast in the
Township at the corner of East Oregon Road and Creek Road. Relevant here is the
testimony of Mr. Harris (Protestants’ expert in historic resources and structures in
and around the Village of Oregon), Mr. Schick (Developers’ expert in transportation
planning and design), and Appellant.
Mr. Schick testified that he prepared the traffic study and transportation
improvement concept plan for the Project that was submitted with Developers’
Application. (Reproduced Record (R.R.) at 454a-57a.) Mr. Schick explained the
process and methodology that he employed to study and evaluate the fifteen
intersections located in and around the Project and to propose thereafter certain
improvements to meet the Pennsylvania Department of Transportation’s (PennDOT)
established criteria to mitigate the impact of the Project. (Id. at 458a-69a, 527a.)
Mr. Schick explained that six of those fifteen intersections are currently failing and
PennDot’s criteria requires Developers to ensure that every one of those
intersections has “an acceptable level of service of C or better” and, “[i]f there was
any drop in level of service greater than ten seconds of delay, [Developers] had to
mitigate those.” (Id. at 464a-69a.) Ultimately, Mr. Schick opined that, “[b]ased on
3
the improvements proposed . . . [and] the methodology and studies conducted, . . .
the improvements will handle the traffic generated by the [Project], as well as
background traffic”—i.e., the Project will not “have a substantial adverse effect on
congestion of streets and highways [or] traffic levels of service.” (Id. at 531a.) He
further opined that the proposed improvements will actually have a positive impact
on safety and level of service at existing intersections that are currently failing,
including a reduction of traffic along East Oregon Road and Creek Road.
(Id. at 502a-05a; Notes of Testimony (N.T.), February 25, 2019, at 363, 376-78.)
Mr. Harris testified that, generally speaking, there are two factors that
determine whether a particular property is a historic structure: (1) the age, style,
design, and historic integrity of the property; and (2) who lived at the property and
what events may have occurred at the property. (R.R. at 761a.) Based upon the
collection of buildings, the buildings’ histories, style, and design, and the people
associated with the buildings, Mr. Harris believes that the Village of Oregon is
eligible to be considered a “national historic district.” (Id. at 773a-74a.) Mr. Harris
identified a grist mill complex located on Oregon Road in the Village of Oregon as
being listed in the National Register of Historic Places. (Id. at 777a-78a.) Mr. Harris
also identified thirty-five additional properties located along Oregon Road and Creek
Road in the Village of Oregon—including Appellant’s bed and breakfast—that the
Historic Preservation Trust has identified in the Manheim Township Historic Sites
Inventory because those properties “possibly could hold historic significance due to
their age, style[,] and design.” (Id. at 778a-87a.) Mr. Harris admitted, however, that
the Historic Preservation Trust did not “look into [the properties’] association with
people or events”; he explained that, with the exception of the grist mill complex
and a “handful of [other] properties,” “we don’t know too much about everybody
4
who lived and worked and owned [those] propert[ies] through the years.” (Id.
at 778a, 785a.) Mr. Harris believed that “the historic structures would suffer some
vibration from the excavation and construction downstream [during the] course of
the construction, as well as the increase in traffic that probably would be attendant
to the [Project].” (Id. at 789a.) He explained that “[v]ibration is a serious problem
with historic properties. Mortar gets dry. Mortar gets powderized. And it can have
a destructive effect on the physical characteristics of a historic property.” (Id.)
Mr. Harris, nevertheless, admitted that he did not personally evaluate any of the
historical structures but, instead, relied upon the Historic Preservation Trust’s
materials—i.e., the Manheim Township Historic Sites Inventory. (Id. at 791a.)
Mr. Harris also admitted that he did not perform any evaluation to determine whether
the construction of the underground parking for the Project would have any effect
on the nearby historic structures. (Id. at 793a-94a.)
Appellant testified that she owns a three-story brick Victorian home in the
Village of Oregon, which she has operated as a bed and breakfast for the past year.
(Id. at 928a-29a.) Appellant explained that at least half of her guests have come to
her because they saw the sign for her business located on her property. (Id.
at 929a-30a.) Although she could not forecast to what extent, Appellant believed
that the diversion of traffic from Creek Road and East Oregon Road would have an
impact on the visibility of her business. (Id. at 930a.) Appellant further believed
that her property, which was built in the 1860s with a fieldstone and mortar
foundation and a brick-and-mortar exterior with no stud walls or anything to tie it
together, would qualify as a historic resource due to its architecture and age and that
it could potentially be affected by the vibrations from dynamite blasting that may
occur in connection with the Project. (Id. at 931a-32a.)
5
On June 24, 2019, the Board granted approval of Developers’ Application,
subject to certain enumerated conditions. Thereafter, on July 8, 2019, the Board
issued a rather detailed decision, wherein the Board made the following relevant
findings of fact:
50. Section 2406.13 of the . . . Ordinance sets forth the
information required for submission of a master site planned
development. [Developers] established that they met the submission
requirements for a master site planned development in the T-5 [Oregon
Village] Overlay Area as set forth in Section 2406.13 of the . . .
Ordinance with the expert testimony of Mr. Young and the applicable
exhibits as follows:
....
(e) All existing land uses and lot lines within two
hundred . . . feet of the proposed development, including
the location of all public and private streets, drives or
lanes, railroads, historic sites and other significant
natural or man-made features. Mr. Young testified that
this information is identified on Sheet 2 of Exhibit A-12.
Sheet 2 of Exhibit A-12 includes identification of
adjoining landowners, lot lines, structures, streets, trees,
slopes, and streams within [two hundred] feet of the
proposed development.
(Protestants’ witness, Mr. Harris, stated that
[Developers’] conditional use plans did not identify those
structures that he identified as historic resources located
within [two hundred] feet of the proposed development.
Section 2406.13[(]E[)], which identifies those items to be
identified on the plan[,] uses the term “historic sites”
which is not a defined term in the . . . Ordinance. “Historic
resources” and “Historic buildings” are defined terms in
the . . . Ordinance and these defined terms are not used in
this section of the . . . Ordinance).
....
51. Through the expert testimony of Mr. Young, Mr. Schick
and Mr. MacAvoy, . . . the testimony of Mr. Hurst, and appropriate
exhibits[, Developers] demonstrated that the proposed master site
planned development meets the purpose and intent of Section 2406 [of
6
the Ordinance, relating to the] T-5 Oregon Village Overlay Area[,] as
follows:
(a) Purpose: to permit as an option in specific
circumstances and by conditional use a coordinated
master site planned development process which permits a
mixture of medium and higher density residential
development via providing a variety of dwelling types and
a mixture of various office, commercial uses and
hospitality services by capitalizing on the transportation
opportunities and public utilities while protecting the
surrounding agricultural uses and historic character of
the Village of Oregon. The intent of the Board . . . in
enacting the Oregon Village Overlay Area is:
....
(10) To protect and preserve
historical structures. With the amendment of
the conditional use plan, the existing barn,
which is the only historical resource within
the master site planned development, and the
farmhouse on Site A are being retained. The
reduction in traffic on East Oregon Road and
Creek Road will also protect historical
resources located in close proximity to these
roads.
....
104. [Protestants] presented the expert testimony of Mr. Harris
regarding historic resources and structures. [Mr. Harris] reviewed
Exhibit P-6 and reviewed some of the history of the Village of Oregon
and historic buildings within the Village of Oregon. Mr. Harris noted
his concern of the effect of vibration from project construction,
vibration from an increase in traffic, and the effect on the Village of
Oregon of development occurring next to the existing Village of
Oregon.
(a) Mr. Harris did not perform an evaluation of
the buildings or site to determine if construction would
adversely affect the existing structures in the Village of
Oregon.
(b) The majority of the historic structures
reviewed by Mr. Harris are located on East Oregon Road
and Creek Road. Mr. Schick’s testimony and
7
Transportation Impact Study identified a significant
decrease of traffic on Creek Road and that portion of East
Oregon Road east of the relocated East Oregon Road
which would likely result in a reduction in vibration.
(c) Mr. Harris acknowledged that the plans for
the [P]roject do not include any changes to the historic
structures in the Village of Oregon.
105. Mr. Harris provided no testimony that the proposed
[P]roject will generate adverse impacts to the historic structures in the
Village of Oregon or on the character of the community not normally
generated by this type of development which is specifically provided
for in the T-5 [Oregon Village] Overlay Area of the . . . Ordinance.
....
117. [Appellant], a party to the proceeding, noted her concerns
about the effect of the development on [the] Township generally and
on her bed and breakfast establishment at the corner of East Oregon
Road and Creek Road. She speculated that reduced traffic on East
Oregon Road may reduce the visibility of her business and affect her
business. Finally, she noted concerns that blasting for the [P]roject site
may affect her building. [Appellant’s] property is not adjacent to and
does not abut the [P]roject.
(Board’s Decision at 10-11, 13-15, 29-30, 32 (citations omitted).) Appellant
appealed the Board’s decision to Common Pleas. By opinion and order dated
October 27, 2020, Common Pleas affirmed the Board’s decision. Appellant then
appealed to this Court.
II. ARGUMENTS ON APPEAL
On appeal,2 Appellant argues that the Board abused its discretion and/or
committed an error of law by granting Developers’ Application
2
“In a land use appeal, where the trial court does not take any additional evidence, our
scope of review is limited to determining whether the governing body has committed an error of
law or an abuse of discretion.” 1050 Ashbourne Assocs., LLC v. Cheltenham Twp. Bd. of Comm’rs,
167 A.3d 828, 831 n.6 (Pa. Cmwlth. 2017). A “governing body abuses its discretion when its
findings are not supported by substantial evidence, i.e., such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” LTS Dev., Inc. v. Middle Smithfield Twp.
8
because: (1) Developers failed to include Appellant’s bed and breakfast, which is
located within two hundred feet of the Project, as a historic site on their master site
plan for the Project; (2) Developers failed to demonstrate how the Project complied
with the intent of the T-5 Oregon Village Overlay Area to protect and preserve
historical structures, including Appellant’s bed and breakfast; and (3) the Board
violated its duty as trustee under the Environmental Rights Amendment (ERA) set
forth in Article I, Section 27 of the Pennsylvania Constitution3 to protect and
preserve historic resources.4
III. DISCUSSION
A. Conditional Uses Generally
“A conditional use is nothing more than a special exception which falls within
the jurisdiction of the municipal governing body rather than the zoning hearing
board.” In re Thompson, 896 A.2d 659, 670 (Pa. Cmwlth. 2006), appeal denied,
916 A.2d 636 (Pa. 2007). Just like special exceptions, a conditional use is not an
exception to a municipality’s zoning ordinance, “but rather a use to which [an]
applicant is entitled provided the specific standards enumerated in the ordinance for
the [conditional use] are met by the applicant.” Id. In recognition of the similarity
between special exceptions and conditional uses, courts apply the same burden of
Bd. of Supervisors, 862 A.2d 686, 688 n.1 (Pa. Cmwlth. 2004), appeal denied, 877 A.2d 463(Pa. 2005).
3
The Environmental Rights Amendment provides:
The people have a right to clean air, pure water, and to the preservation of the
natural, scenic, historic, and esthetic values of the environment. Pennsylvania’s
public natural resources are the common property of all the people, including
generations yet to come. As trustee of these resources, the Commonwealth shall
conserve and maintain them for the benefit of all the people.
Pa. Const. art. I, § 27.
4
We have reordered Appellant’s arguments for the purpose of discussion.
9
proof standards to both types of applications. Id. The applicable standard of proof
requires an applicant to demonstrate that the use proposed in an application complies
with the specific criteria of the particular ordinance. Id. An applicant that satisfies
this prima facie burden is entitled to approval, unless the objectors in the proceeding
offer credible and sufficient evidence indicating that the proposed use would have a
detrimental impact on public health, safety, and welfare. Id. This Court has
previously delineated the parties’ respective burdens in an application for
conditional use as follows:
Specific requirements, e.g., categorical definition of the [conditional
use] as a use type or other matter, and objective standards governing
such matter as a [conditional use] and generally:
The applicant has both the duty and the burden.
General detrimental effect, e.g., to the health, safety and welfare of the
neighborhood:
Objectors have both the duty and the burden[;] the
ordinance terms can place the burden on the applicant but
cannot shift the duty . . . .
General policy concern, e.g., as to harmony with the spirit, intent or
purpose of the ordinance:
Objectors have both the duty and the burden; the
ordinance terms cannot place the burden on the applicant
or shift the duty to the applicant . . . .
White Advert. Metro, Inc. v. Zoning Hearing Bd. of Susquehanna Twp., 453 A.2d 29,
32-33 (Pa. Cmwlth. 1982) (quoting Bray v. Zoning Bd. of Adjustment, 410 A.2d 909,
913 (Pa. Cmwlth. 1980)). In other words, the applicant bears the burden of proving
compliance with the specific criteria of an ordinance, whereas the objector bears the
burden of proving a failure to comply with the general criteria of an ordinance.
While conformity/harmony with the intent and purpose of an ordinance is typically
a general criteria and the burden is on the objector to prove noncompliance
10
therewith, an ordinance, by its terms, can specifically require that an applicant
demonstrate that the conditional use is in conformance with the purpose and intent
of the ordinance. See Gouwens v. Indiana Twp. Bd. of Supervisors, ___ A.3d ___,
___ (Pa. Cmwlth., No. 1377 C.D. 2018, filed June 25, 2019), slip op. at 10 (“The
[z]oning [o]rdinance here provides that the [b]oard may approve a [planned
residential development] ‘if, and only if, [it] accomplish[es] the foregoing purposes’
and, therefore, renders the specified purposes requirements.” (some alterations in
original)).
B. Relevant Provisions of the Ordinance
Section 2406.3 of the Ordinance provides two options for development within
the T-5 Oregon Village Overlay District: (1) “uses and developments permitted in
the underlying zoning district;” and (2) a master site planned development by
conditional use. An applicant seeking approval of a master site planned
development by conditional use must meet both the requirements for conditional
uses set forth in Section 2810.3(B) of the Ordinance5 and the requirements for
5
Section 2810.3(B) of the Ordinance provides:
[An] applicant [for conditional use] shall have the burden of proving
compliance with the following:
(l) The suitability of the property for the use desired.
(2) That the proposed use will not have a substantial adverse effect upon
congestion of streets and highways or upon traffic levels of service
or any hazards arising therefrom. The Board may require the
applicant to submit a traffic study prepared by a qualified traffic
engineer to satisfy this requirement.
(3) That the proposed use will not have a substantial adverse effect on
the availability of parking in the immediate area.
(4) That the proposed use will not have a substantial adverse effect on
existing or proposed public water, public sewer, public
11
development and redevelopment within the T-5 Oregon Village Overlay Area set
forth in Section 2406 of the Ordinance. See Section 2406.2(A) of the Ordinance.
One of the requirements for a master site planned development in the T-5 Oregon
Village Overlay Area requires an applicant to “prepare and submit a master site plan
with its application for conditional use.” Section 2406.13 of the Ordinance. The
master site plan “shall include[, inter alia,] . . . [a]ll existing land uses and lot lines
within two hundred (200) feet of the proposed development, including the location
of all public and private streets, drives or lanes, railroads, historic sites and other
significant natural or man-made features.” Section 2406.13(E) of the Ordinance
(emphasis added).
In approving an application for conditional use, “[t]he Board shall impose
such reasonable conditions as it deems necessary to effect the intent and purpose of
[the] [O]rdinance and to protect the health, safety and welfare of the citizens of the
transportation, police and fire protection, public recreation, school
facilities, and other public organizations and systems.
(5) That the proposed use will not have a substantial adverse effect on
the health and safety of the citizens of the Township when such use
may present a danger from fire, explosion, electrocution, pollution,
asphyxiation, or other similar dangers.
(6) That the proposed use will not have a substantial adverse effect upon
adjacent properties. Among any other effects on adjacent
properties, proposed uses shall not injure or detract from the use or
enjoyment or value of the adjacent properties.
(7) The compatibility of the proposed use with the appearance and
general character of the immediate vicinity.
(8) The compatibility of the proposed use with the Township
Comprehensive Plan.
(9) The proposed use shall be in the best interest of the Township and
for the convenience of the community and shall not adversely affect
the general welfare of the community.
12
Township.” Section 2810.3(C) of the Ordinance. The stated purpose of the
T-5 Oregon Village Overlay Area is
to permit as an option in specific circumstances and by conditional use
a coordinated master site planned development process which permits
a mixture of medium and higher density residential development via
providing a variety of dwelling types and a mixture of various office,
commercial uses and hospitality services by capitalizing on the
transportation opportunities and public utilities while protecting the
surrounding agricultural uses and historic character of the Village of
Oregon. The intent of the Board . . . in enacting the [T-5] Oregon
Village Overlay Area [includes]:
....
J. To protect and preserve historical structures.
Section 2406.1(J) of the Ordinance (emphasis added).
Section 503 of the Ordinance defines “historic building” as “[a] building
which constitutes a[] historic resource and which is identified on the Historic
Resources Map” and a “historic resource” as “[a] building, structure, site, district, or
object which possesses historical significance based on its architecture or its
association with one or more historical events or persons.” The terms “historic
structure” and “historic site,” as used in Sections 2406.1(J) and 2406.13(E) of the
Ordinance, however, are not defined within Section 503 of the Ordinance. Pursuant
to Section 501 of the Ordinance, words not defined therein “shall take on the
meanings as defined in the latest edition of the Merriam-Webster Collegiate
Dictionary.” Section 501 of the Ordinance further provides that “[w]ords and
phrases shall be presumed to be used in their ordinary context, unless such word or
phrase is defined differently.” The Merriam-Webster Collegiate Dictionary defines
“historic” as “famous or important in history” and/or “dating from or preserved from
a past time or culture.” Merriam-Webster Collegiate Dictionary,
https://www.merriam-webster.com/dictionary/historic (last visited Dec. 10, 2021).
13
C. Inclusion of Appellant’s Bed and Breakfast
on the Master Site Plan for the Project
Appellant argues that the Board abused its discretion and/or committed an
error of law by approving Developers’ Application because Developers failed to
include Appellant’s bed and breakfast, which is located within two hundred feet of
the Project, as a historic site on their master site plan for the Project as required by
Section 2406.13(E) of the Ordinance. In other words, Appellant suggests that
Section 2406.13(E) required Developers not only to identify Appellant’s bed and
breakfast on the master site plan for the Project but also to label specifically
Appellant’s bed and breakfast as a historic site. Appellant contends that Mr. Harris
identified Appellant’s bed and breakfast as a historic residence located adjacent to
the Project, but the Board improperly rejected Mr. Harris’s unrebutted testimony on
the basis that “historic resources” and “historic buildings,” which are defined terms
in the Ordinance, are not included within the meaning of Section 2406.13(E)’s
reference to “historic sites,” which is not a defined term in the Ordinance.
In response, Developers argue that they properly identified the required land
uses and lot lines within two hundred feet of the Project, including Appellant’s bed
and breakfast, in their master site plan for the Project as required by
Section 2406.13(E) of the Ordinance. Developers suggest that it was not necessary
for them to do more than simply identify Appellant’s bed and breakfast on the master
site plan because Appellant’s bed and breakfast is not an established, recognized
historic site “under the [Merriam-Webster’s] dictionary definition [or] the Board’s
interpretation of its Ordinance”—i.e., there is no evidence of record to establish that
Appellant’s bed and breakfast is “famous or important in history”—and, even if it
was, Section 2406.13(E), by its plain language, merely requires that the land uses
and lot lines be “identified” on the master site plan and not “labeled.”
14
In reply, Appellant argues that Mr. Harris’s testimony was sufficient to
establish the necessary proof that her bed and breakfast is a historic site that
Developers were required to identify on the master site plan for the Project. In
support thereof, Appellant suggests that, contrary to Developers’ arguments, she
“was not required to present evidence of the historical significance [of her bed and
breakfast] based on its architecture or association with a historical event or persons,”
but rather, “[f]or purposes of the . . . Ordinance, it is sufficient for [her] bed and
breakfast to be listed on the . . . Township[’s] Historic Sites Inventory, which
[Appellant suggests] is the historic resources map.” (Appellant’s Reply Br. at 10.)
We agree with Common Pleas that the Board committed an error of law by
failing to include “historic sites” under the definition of “historic resources.”
Section 501 of the Ordinance requires that the term “historic site” be “used in [its]
ordinary context.” The ordinary context of “historic site” certainly must include any
sites possessing historical significance. Interestingly, the definition of “historic
resource” set forth in Section 503 of the Ordinance specifically includes “[a] . . . site
. . . which possesses historical significance based on its architecture or its association
with one or more historical events or persons.” (Emphasis added.) To say that
“historic sites” cannot be included within the definition of “historic resource” simply
because the term “historic resource” is not utilized within Section 2406.13 of the
Ordinance is clearly erroneous. Given, however, that Common Pleas did not take
any additional evidence and was, therefore, required to review the matter simply to
determine whether the Board abused its discretion or committed an error of law, see
1050 Ashbourne Assocs., LLC, 167 A.3d at 831 n.6, Common Pleas exceeded its
authority when it conducted its own independent analysis of whether, based on the
evidence of record, Appellant’s property is a historic site, resource, or structure. For
15
these reasons, a remand to the Board is necessary for the Board to specifically
consider/address whether Appellant presented sufficient evidence to demonstrate
that her property should have been classified as historic. If, on remand, the Board
concludes that Appellant’s property is a historic site, it must be labeled as such on
the master site plan for the Project as required by Section 2406.13(E) of the
Ordinance.
D. Intent of the T-5 Overlay Area to
Protect and Preserve Historical Structures
Appellant argues that the Board abused its discretion and/or committed an
error of law by approving Developers’ Application because Developers failed to
demonstrate how the Project complied with the intent of the T-5 Oregon Village
Overlay Area to protect and preserve the historic structures located within the
vicinity of the Project, including her bed and breakfast. More specifically, Appellant
contends that, despite the fact that Mr. Harris, the only expert on historic resources
and structures to testify before the Board, identified approximately thirty-five
historic properties located within the Village of Oregon, Developers’ Application
was limited to only those historic structures located on the Property and did not
include any discussion of how Developers intended to protect and preserve any of
the off-Property historic structures. Appellant further contends that, while the Board
may have concluded that the reduction in traffic on East Oregon Road and Creek
Road would protect historical resources located within a close proximity to the
Project, the Board did not cite any evidence of record to support that conclusion.
In response, Developers argue that the record contains substantial evidence to
support the Board’s finding that the Project complied with the intent of the
T-5 Oregon Village Overlay Area to protect and preserve historic structures.
Developers contend that Appellant’s argument to the contrary is unpersuasive
16
because: (1) there is no evidence of record to establish that Appellant’s bed and
breakfast is a historic structure; (2) Appellant failed to demonstrate that the Project
would have a substantial adverse effect on her bed and breakfast;6 and (3) the Board
did in fact consider the ways in which the Project would protect and preserve historic
structures outside the Project’s boundaries when it concluded that the Project would
result in decreased traffic on Creek Road.
We must first note that, contrary to Appellant’s contentions, Developers were
not required to demonstrate how the Project complied with the intent and purpose of
the T-5 Oregon Village Overlay Area to protect and preserve the historic structures
located within the vicinity of the Project. As explained more fully above,
compliance with the intent and purpose of an ordinance is typically a general criteria
unless the ordinance, by its terms, makes it a specific requirement—i.e., a specific
criteria. See Gouwens, ___ A.3d at ___, slip op. at 10. The burden to prove
compliance, or in most instances noncompliance, with the general criteria of an
ordinance is on the objectors. See White Advert. Metro, Inc., 453 A.2d at 33. We
6
Developers further contend that while Appellant initially contested the Board’s
determination that the Project would not have a substantial adverse impact on her bed and breakfast
before Common Pleas, Appellant has since abandoned and waived that issue on appeal by omitting
it from the “Statement of the Questions Involved” section of her brief to this Court. (Developers’
Br. at 18.) Developers, nevertheless, suggest that Appellant has attempted “to shoehorn the
adverse impact argument” into her argument regarding the intent of the T-5 Oregon Village
Overlay Area. (Id. at 19.) Even if we were to consider Appellant’s adverse impact argument,
however, such argument would fail. While Mr. Harris may have expressed concern that “the
historic structures [surrounding the Project] would suffer some vibration from the excavation and
construction downstream as a course of the construction, as well as the increase in traffic that
probably would be attendant to the [Project],” Mr. Harris admitted that he did not personally
evaluate any of the historical structures, including Appellant’s property, to determine whether they
would actually be affected by the construction. (R.R. at 789.) Appellant’s concerns about the
potential harm to her property from vibration are likewise unsubstantiated and speculative, and her
concerns relative to the potential harm to her bed and breakfast business are irrelevant, because it
is her building that may be historical, not her business.
17
have reviewed Section 2406.1 of the Ordinance and have found no language
contained therein that makes proving compliance with the intent and purpose of the
T-5 Oregon Village Overlay Area a specific requirement that Developers were
required to establish to obtain conditional use approval for the Project. Thus, the
burden to prove noncompliance therewith—i.e., that the Project is not in “harmony
with the spirit, intent or purpose of the [O]rdinance” to protect the historic character
of the Village of Oregon and to protect and preserve historical structures—rested
with Appellant and/or the other objectors. See White Advert. Metro, Inc., 453 A.2d
at 33.
Based upon our review of the Board’s decision, we cannot ascertain whether
the Board properly considered whether Appellant and/or the other objectors met
their burden in this regard. The only finding that the Board made with respect to the
protection and preservation of historical structures was in Finding of Fact 51(a)(10):
With the amendment of the conditional use plan, the existing barn,
which is the only historical resource within the master site planned
development, and the farmhouse on Site A are being retained. The
reduction in traffic on East Oregon Road and Creek Road will also
protect historical resources located in close proximity to these roads.
A discussion of the impact that the reduction in traffic would have on the historic
resources located in close proximity to East Oregon Road and Creek Road does not
adequately consider whether the Project is in compliance with the intent and purpose
of the T-5 Oregon Village Overlay Area. Thus, a remand to the Board is necessary
for the Board to specifically consider whether Appellant and/or any of the other
objectors met their burden of proving that the Project is not in harmony with the
intent and purpose of the T-5 Oregon Village Overlay Area to protect the historical
character of the Village of Oregon and to protect and preserve historical structures.
18
E. Board’s Duty as Trustee Under the ERA
Appellant argues that the Board abused its discretion and/or committed an
error of law by approving Developers’ Application because the Board violated its
duty as trustee under the ERA by failing to require Developers to preserve and
protect her bed and breakfast and to include it as a historic site on the master site
plan for the Project. In response, Developers argue that the ERA has no application
here because: (1) Appellant’s bed and breakfast is not an environmental or natural
resource; (2) there is no evidence of record to establish that Appellant’s bed and
breakfast has any historical value; and (3) Appellant failed to demonstrate that her
bed and breakfast would be adversely impacted by the Project.
We question whether the ERA is even applicable to the facts and
circumstances presented in this case. To the extent that it is, however, any resolution
of this issue is closely linked to and could potentially turn on how the Board, on
remand, addresses whether Appellant and/or the other objectors met their burden of
establishing that the Project is not in compliance with the intent and purpose of the
T-5 Oregon Village Overlay Area to protect the historical character of the Village of
Oregon and to protect and preserve historical structures. For these reasons, we will
not address Appellant’s arguments relative to the ERA at this time.
19
IV. CONCLUSION
Accordingly, we reverse Common Pleas’ order and remand the matter to
Common Pleas with instructions to vacate the Board’s decision and remand the
matter to the Board for the issuance of a new decision consistent with this opinion.
P. KEVIN BROBSON, President Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mary Bolinger, :
Appellant :
:
v. : No. 1217 C.D. 2020
:
Board of Commissioners of :
Manheim Township, Manheim :
Township, RV Holdings, LP and :
Hurst Family Estate, LP :
ORDER
AND NOW, this 13th day of December, 2021, the order of the Court of
Common Pleas of Lancaster County (Common Pleas), dated October 27, 2020, is
REVERSED, and the matter is remanded to Common Pleas with instructions to
vacate the decision of the Board of Commissioners of Manheim Township (Board)
and remand the matter to the Board for the issuance of a new decision consistent
with the attached opinion.
Jurisdiction relinquished.
P. KEVIN BROBSON, President Judge