Mar-Del Holdings, LLC v. Orange Twp. Board of Sup. v. M. Acker ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mar-Del Holdings, LLC, :
: No. 1228 C.D. 2015
Appellant : Argued: March 7, 2016
:
v. :
:
Orange Township Board of Supervisors :
:
v. :
:
Mark Acker, Donna Acker, Morgan :
Barclay, Mary Barclay, Steve Beyer, :
Cindy Beyer, Patricia Brewster, Robert :
Brewster, Fred Brockway, Jan Brockway, :
Marty Chamberlain, Gail Chamberlain, :
John J. D’Orazio, Barbara D’Orazio, :
John D’Orazio, Pam D’Orazio, Susan B. :
Fetterman, Dan Fetterman, Nathaniel :
Flook, Sherry Flook, Charles Fritz, :
Jennifer Fritz, Susan Hales, Gary Hess, :
Penny Hess, Corey Hughes, Madeleine :
Hughes, Ronald Hunter, Janet Hunter, :
John Katch, Jennifer Thomas, George :
Larson, Nancy Larson, Jayleen Miller, :
Eric Ortuba, Amanda Ortuba, Larry :
Recla, Carrie Recla, Anthony Reed, :
Cathy Reed, Gregory Sherman, Joyce :
Sherman, Andrew Smith, Christine Smith, :
Eric Sorg, Erin Sorg, and Matthew :
Swinehart :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: May12, 2016
Mar-Del Holdings, LLC (Landowner) appeals the order of the Court
of Common Pleas of the 26th Judicial District (Columbia County Branch) (trial
court) affirming the Orange Township (Township) Board of Supervisors’ (Board)
decision that denied Landowner’s conditional use application1 to construct a
1
Section 603(c)(2) of the Municipalities Planning Code (MPC), Act of July 31, 1968,
P.L. 805, as amended, 53 P.S. §10603(c)(2) states, in relevant part:
Zoning ordinances may contain . . . provisions for conditional uses
to be allowed or denied by the governing body . . . pursuant to
express standards and criteria set forth in the zoning ordinance. . . .
In allowing a conditional use, the governing body may attach such
reasonable conditions and safeguards . . . in addition to those
expressed in the ordinance, as it may deem necessary to implement
the purposes of this act and the zoning ordinance[.]
See also Section 909.1(b)(3) of the MPC, added by the Act of December 21, 1988, as amended,
10909.1(b)(3) (“The governing body . . . shall have exclusive jurisdiction to hear and render final
adjudications . . . [on a]pplications for conditional use under the express provisions of the zoning
ordinance pursuant to section 603(c)(2).”); Section 913.2(a), added by the Act of December 21,
1988, as amended, 53 P.S. §10913.2(a) (“Where a governing body, in zoning ordinances, has
stated conditional uses to be granted or denied by the governing body pursuant to express
standards and criteria, the governing body shall hold hearings on and decide requests for such
conditional uses in accordance with such standards and criteria. . . . In granting a conditional use,
the governing body may attach such reasonable conditions and safeguards, in addition to those
expressed in the ordinance, as it may deem necessary to implement the purposes of this act in the
zoning ordinance.”).
As this Court has explained:
A conditional use is a special exception which falls within
the jurisdiction of the municipal legislative body rather than the
zoning hearing board. The municipal legislative body may grant a
conditional use pursuant to express standards and criteria set forth
in the zoning ordinances enacted pursuant to the police powers to
regulate land use. The fact that a use is permitted as a conditional
use, rather than prohibited, reflects a legislative decision that the
use is not per se adverse to the public interest.
(Footnote continued on next page…)
campground and recreational vehicle (RV) park2 on its property in the Township’s
Rural zoning district. We affirm.
In November 2014, Landowner filed a conditional use application3
with the Board to construct a campground and RV park on its 13-acre parcel of
(continued…)
In order to demonstrate that the applicant is entitled to the
conditional use, the applicant initially bears the burden of
establishing that the application complies with the objective
standards and criteria of the particular ordinance. Satisfaction of
the applicant’s burden establishes a legislative presumption that the
use is consistent with the health, safety, and welfare of the
community. Once the applicant has satisfied this initial burden, the
burden shifts to the objectors to rebut this presumption by
establishing that the use will have a detrimental impact on the
surrounding community.
In re Richboro CD Partners, L.P., 89 A.3d 742, 745 (Pa. Cmwlth.), appeal denied, 97 A.3d 746
(Pa. 2014) (citations omitted).
2
Section 3.300 of the Zoning Ordinance defines “Campground or Recreational Vehicle
(RA) Park” as “[a] plot of ground upon which two or more campsites are located, established or
maintained for temporary occupancy by persons using tents or recreational vehicles, and which
shall not be used for long term occupancy or residency of occupants.”
3
Section 1108.4 of the Zoning Ordinance sets forth the standards and criteria required for
the grant of a conditional use:
A. The proposed use shall be in harmony with [the] purposes,
goals, objectives and standards of the Township Comprehensive
Plan, this Ordinance and all other ordinances of the Township.
B. The proposal shall also be evaluated as to the degree to which
the proposed location may be particularly suitable or unsuitable for
the proposed use in terms of the physical characteristics of the site.
C. The proposed use at the proposed location shall not result in a
substantial or undue adverse effect on adjacent property, the
(Footnote continued on next page…)
2
(continued…)
character of the neighborhood, traffic conditions, parking, public
improvements, public sites or rights-of-way, adjacent property
values, or other matters affecting the public health, safety, and
general welfare, either as they now exist or as they may in the
future be developed as a result of the implementation of this
Ordinance, or any other plan, program, map or ordinance of the
Township.
D. In reviewing an application, the following additional factors
shall be considered:
***
5. Adequacy of storm water and drainage facilities [and]
storm water leaving any site shall not exceed pre-
development levels and facilities shall be designed to
accommodate a 10 year storm.
6. Adequacy of water supply and sewage disposal facilities.
***
9. Special attention to the adequacy and impact of
structures, roadways and landscaping in areas with
susceptibility to ponding, flooding and/or erosion.
E. No application shall be approved unless it is found that, in
addition to complying with each of the standards enumerated
above, any of the applicable standards contained in this Ordinance
shall be met.
The applicant shall supply evidence regarding compliance with the
express standards and criteria contained herein; and data or
evidence may be accepted from protestants. Such evidence shall
be evaluated relative to the injurious impact on the health, safety
and welfare of the Township; and the proposed use shall be
approved with appropriate conditions or denied based on said
evaluation.
3
property in the Township’s Rural zoning district. Section 404.4 of the Township’s
Zoning Ordinance permits such a use in the zoning district as a conditional use.
The main entrance to the park would be on Mount Pleasant Road directly across
from Sandy Stone Drive. A private road with a 20-foot cartway would be
constructed of stone.
Landowner intends to construct an RV park consisting of 100 units,
each located on a 50’ by 80’ pad. The pads would be constructed of stone with a
10’ by 20’ concrete slab.4 Some of the units would be in the floodplain and the
remainder would be in the floodway.5 There would be a well drilled and water
4
Section 3.300 of the Zoning Ordinance defines “construction” as “[t]he construction . . .
of a building or structure . . . .” Section 1207 defines “development” as “[a]ny man-made
change to improved or unimproved real estate, including but not limited to the construction
. . . of buildings or other structures . . . ,” and defines a “structure” as “[a]nything constructed or
erected on the ground or attached to the ground including, but not limited to buildings, sheds,
manufactured homes, and other similar items.” Section 3.300 defines a “structure” as “[a]
combination of materials to form a construction for use . . . whether installed on, above, or below
the surface of land or water,” and a “permanent structure” as “[a]nything constructed, the use of
which requires permanent location on the ground . . . .” In light of the foregoing definitions, the
installation of the instant concrete slabs constitutes “construction,” “development,” and
“structure” under the terms of the Zoning Ordinance. See, e.g., H.Y.K. Construction Company v.
Zoning Hearing Board of Perkiomen Township, (Pa. Cmwlth, No. 1191 C.D. 2004, filed March
18, 2005), slip op. at 6 (“Applying that definition here, these slabs will be mixed and poured onto
the ground and will become permanently attached thereto for the purpose of storing HYK’s pre-
cast concrete materials in conjunction with its business. Accordingly, the concrete slabs at issue
in this case fall well within the definition of a ‘structure’ under the Zoning Ordinance . . . .”).
5
Section 1201.1.C., and D. of the Zoning Ordinance provides that the Floodplain
Development Standards are to “[m]inimize danger to the public health by protecting [the] water
supply and natural drainage” and “[r]educe financial burdens imposed on the community, its
governmental units, and its residents, by preventing excessive development in areas subject to
flooding.” Section 1201.2 states that “[i]t shall be unlawful for any person . . . or corporation to
undertake, or cause to be undertaken, any construction or development anywhere within an
identified floodplain area in the Township unless a permit has been issued by the Township in
accord with this Ordinance.” Section 1202.1 states that “[p]ermits shall be required before any
construction or development is undertaken within any identified floodplain area in the
(Footnote continued on next page…)
4
provided to each unit. Each unit would also have a sanitary sewer hookup that
would be attached to the plant owned by Landowner. Based on a conversation
between Landowner and the plant operator, the sewer plant has sufficient capacity
(continued…)
Township.” Section 1202.2 provides that a permit can only be issued “after it has been
determined that the proposed work . . . will be in conformance with the requirements of this and
all other applicable codes and ordinances,” and that no permit shall be issued until it has been
determined that “all other necessary government permits required by State and Federal laws have
been obtained.” Likewise, Section 1204.1.B. states that “[w]ithin any designated floodway (FW)
area, no new construction, development, use, activity, or encroachment of any kind, shall be
allowed, except where the effect of such proposed activity on flood heights is fully offset by
accompanying improvements,” and that “[n]o new construction or development shall be allowed
unless a permit is obtained from the Department of Environmental Protection [(DEP)], Bureau of
Dams and Waterways Management [(Bureau)].”
With respect to sanitary sewer facilities within the floodplain area, Section 1204.3.C.
states:
1. All new or replacement sanitary sewer facilities and systems,
and private package sewage treatment plants (including all
pumping stations and collections systems), shall be located,
designed and constructed to minimize or eliminate flood damages
and the infiltration of flood waters into the systems and discharges
from the systems into flood waters.
2. No part of any on-site sewage system shall be located within
any floodplain area except in strict compliance with all state and
local regulations for such systems. If any such system is
permitted, it shall be located so as to avoid impairment to it, or
contamination from it, during a flood.
Similarly, Section 1204.3.M. provides that “[w]ater supply systems and sanitary sewage systems
shall be designed to prevent the infiltration of flood waters into the system and discharges from
the system into flood waters.”
5
to process the sewage from the proposed RV park.6 All of the utilities would be
placed underground.
6
The entirety of Landowner’s evidence regarding sewage facilities for the development
presented to the Board at hearing is as follows: Landowner’s principal stated, in pertinent part:
There will be provided sanitary sewer. Every unit will
have a sanitary sewer hookup, which will be – which will go to our
plant, we own the plant, here in [the] Township to be treated . . . .
We will have to wait until we get planning approval as far
as getting into the details about the design of the sewer line . . . .
[Board Chairman]: Question on the sewage. You’ve
actually reviewed that with the operators of the sewer plant to
ensure that sewer plant is adequate to support this number of units?
[Principal]: I discussed that with John.
[Board Chairman]: And what was his response?
[Principal]: He said that we were – that we were set up so
that the material and so forth coming from this site will be
regulated over a period of time to go to the plant to be treated.
[Board Chairman]: Okay. And we have documentation for
that?
[Principal]: No, that was verbal from him. The only thing
I have from the township is he told me they have – he asked me a
question on whether we had enough capacity for the sewer and I
said I had talked to the sewer enforcement officer for the township,
and he had said it can work in that plant. There’s enough, yes.
Reproduced Record (R.R.) at 32a-35a.
Additionally, Landowner’s surveyor stated, in relevant part:
I’m a professional land surveyor. Part of my job would be to
complete the land development process through the Columbia
(Footnote continued on next page…)
6
(continued…)
County Planning Commission [(Planning Commission)]. So the
reality of it right now is you’re looking at a sketch, but we are
going to have to go through a very detailed process with the
[Planning Commission] that is basically going to look at every
grade.
Every site there’s certain things we have to have for each
site. A gravel pad. Each site has to be fifty by eighty I believe
under the county’s ordinance. They have fairly restrictive
campground requirements in their ordinance. And so this is like
part one of a long process.
The problem we have is if we don’t – if he doesn’t get a
conditional use approval then we can’t really start the planning
process, so it doesn’t make sense obviously to do that without a
conditional use. So that’s – this is step one of a long drawn out
process.
Sewer, you asked the question on sewer. We would have
to do what’s called a sewage facilities planning module. Part of
that planning module is we need a letter from the bureau stating
that they have adequate capacity. If they don’t, we don’t get
approval. Correct? Or at least for that many units.
[Principal]: Doesn’t have to do with the bureau. That has
to do with –
[Surveyor]: Well, whoever’s servicing the sewer. If the
capacity’s not there we can’t do it. And DEP will have to approve
the module stating that there is capacity and then we can do it.
[Principal]: But until we – until this township does
something about going to the Borough of Orangeville, our material
will all be put into the plant and treated at that plant.
Id. at 36a-37a.
7
Thirty individuals from adjacent residential developments and
neighbors (collectively, Objectors) appeared at the Board hearing and testified
regarding their concerns with the proposed development. As found by the Board:
The neighbors’ concerns included the large influx of
people from the sites wandering around the
neighborhood, security in the neighborhood, noise,
increased vehicular traffic, smoke from 80 to 100
campfires, changes in the character of the neighborhood,
the increase in the cost of the sewer plant from additional
sewage, questions regarding the capacity of the sewage
plant to handle the additional sewage, what type of debris
would be carried downstream by a flood, the property is
in the floodway and floodplain, the devaluation of
neighboring properties, safety issues, concerns for the
children in the area, strain on the wells, the degradation
of the tax base from residents moving away, noise
pollution, environmental impact to vegetation and
wildlife, the bus stop directly across from the entrance to
the property, litter and all-terrain vehicle noise.
R.R. at 14a. Based on its findings, the Board concluded that “[t]he testimony and
evidence of [Landowner] was not sufficient to meet the standards and criteria for a
conditional use in the Rural Zone pursuant to section 1108.4 of the [Township]
Zoning Ordinance.” Id.
Landowner appealed to the trial court and Objectors intervened.
Without receiving additional evidence, the trial court affirmed the Board’s decision
based on the Board’s findings regarding the insufficiency of Landowner’s evidence
regarding the Ordinance requirements for sewage disposal and development in the
floodplain.7 Landowner then filed this appeal arguing that the Board erred in
7
The trial court explained:
The . . . decision to deny the application was based on a
number of factual findings by th[e] Board. In this opinion,
(Footnote continued on next page…)
8
denying its conditional use application because it sustained its burden of
compliance with the specific objective criteria of the Zoning ordinance. We do not
agree.8
As this Court has explained:
(continued…)
however, only two such findings will be addressed: sewage
disposal and flood plain. This is not to say that the other factors
are not relevant, or that there was no substantial evidence to
support the findings. Rather, the sewage disposal and flood plain
issues are so fundamental that the remaining issues are minor in
comparison.
The proposed use would involve the potential for several
hundred people to be occupying the campground during its peak
season. Sewage disposal, therefore, is critical. [Landowner]
submitted no documentation as to its plan for sewage disposal.
Rather, Landowner’s representative indicated that he had verbal
assurance that the local sewage treatment plant had sufficient
capacity. Although this failure may be correctible in a future
resubmitted application, the Board was certainly justified in
insisting on some assurance more trustworthy than glib hearsay.
As noted above, the proposed campground is in the
floodplain and partly in the floodway. Section 1201.2 of the
zoning ordinance requires that any proposed use or development in
a floodway will not be allowed “unless a permit is obtained from
the [DEP’s Bureau].” There was no evidence that such a permit
was obtained, or even applied for.
R.R. at 179a-180a.
8
In a land use appeal where the trial court does not take additional evidence, our review
is limited to determining whether the local governing body abused its discretion or committed an
error of law. In re Thompson, 896 A.2d 659, 666 n. 4 (Pa. Cmwlth. 2006), appeal denied, 916
A.2d 636 (Pa. 2007). The governing body abuses its discretion when its findings of fact are not
supported by substantial evidence. Id. Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. (citations omitted).
9
Ordinarily, many of the types of detail required for a
special exception by the Ordinance here are addressed
further along the permitting and approval process
because zoning only regulates the use of land and not the
particulars of development and construction.[9] But
where more stringent requirements are part of a
township’s special exception requirements, it is proper
for the [Board] to consider them. Even if an applicant
demonstrates that it can comply with the ordinance
requirements and promises to do so, the [Board] does not
err in denying the application. Simply put, a concept
plan is insufficient to warrant the granting of a special
exception; rather, to be entitled to receive a special
exception, the applicant must come forward with
evidence detailing its compliance with the necessary
requirements.
Elizabethtown/Mt. Joy Associates, L.P. v. Mount Joy Township Zoning Hearing
Board, 934 A.2d 759, 768 (Pa. Cmwlth. 2007), appeal denied, 953 A.2d 542 (Pa.
2008) (citations omitted).10
As a result, while a special exception cannot be denied on the basis
that it violates the general requirements of being against the health, welfare, and
safety of the community due to approvals that must be obtained at a later date by a
different agency, an application may be denied where the ordinance contains
9
See, e.g., In re Appeal of Brickstone Realty Corp., 789 A.2d 333, 339 (Pa. Cmwlth.
2001), appeal denied, 806 A.2d 863 (Pa. 2002) (holding that detailed design information such as
floor plot plans, even if required by an ordinance, is not relevant to considering a special
exception application); Schatz v. New Britain Township Zoning Hearing Board of Adjustment,
596 A.2d 294, 298 (Pa. Cmwlth. 1991) (holding that sewage capacity, storm water management,
and water supply issues “are to be addressed further along in the permitting and approval
process”).
10
The ordinance at issue in that case required applicants to demonstrate compliance with
requirements concerning architectural style, signage, traffic and road improvements, and
lighting. Elizabethtown/Mt. Joy Associates, L.P., 934 A.2d at 763.
10
specific requirements regarding the provision of utilities. East Manchester
Township Zoning Hearing Board v. Dallmeyer, 609 A.2d 604, 608 (Pa. Cmwlth.
1992). Where an ordinance requires that all mobile homes be supplied with a
“continuing supply of safe and potable water,” a special exception can be denied if
the applicant fails to establish that sufficient potable water can be supplied to the
proposed development as required. Id. See also Patullo v. Zoning Hearing Board
of Township of Middletown, 701 A.2d 295, 299 (Pa. Cmwlth. 1997) (“As the Board
concluded, the increased flood level caused by the construction of the proposed
garage would have the adverse effect on the public welfare and contravene the
stated purposes of the F–2 district. Since Patullo failed to establish that his
proposal complied with all of the required standards for granting a special
exception, the Board’s refusal to grant a special exception was proper.”).
As outlined above, Section 1108.4.D.6 requires the Board to consider
the “[a]dequacy of water supply and sewage disposal facilities.” Additionally,
Section 1108.4.E. of the Zoning Ordinance states, in relevant part, that “[n]o
application shall be approved unless it is found that, in addition to complying with
each of the standards enumerated above, any of the applicable standards
contained in this Ordinance shall be met.” (Emphasis added).
In turn, Section 1204.1.B.1. only permits development in the
floodway if the effect on flood heights is fully offset by improvements and the
permits from the Township and DEP are obtained. With respect to sanitary sewer
facilities within the flood plain area, Section 1204.3.C. states that “[a]ll new or
replacement sanitary sewer facilities and systems, and private package sewage
treatment plants (including all pumping stations and collections systems), shall be
located, designed and constructed to minimize or eliminate flood damages and the
11
infiltration of flood waters into the systems and discharges from the systems into
flood waters;” that “[n]o part of any on-site sewage system shall be located within
any floodplain area except in strict compliance with all state and local regulations
for such systems;” and that “[i]f any such system is permitted, it shall be located so
as to avoid impairment to it, or contamination from it, during a flood.” Moreover,
Section 1202.1 of the Ordinance states that “[p]ermits shall be required before any
construction or development is undertaken within any identified floodplain area”
and Section 1202.2.B. provides that no permit shall be issued until “all other
necessary government permits required by State and Federal laws have been
obtained.”11
The only evidence that Landowner presented regarding the sewage
disposal facilities was Principal’s uncorroborated statements that he was told by
the operator of the facility “that we were set up so that the material and so forth
coming from this site will be regulated over a period of time to go to the plant to be
treated,” and that he was told by the Township’s sewer enforcement officer that “it
can work in that plant.” R.R. at 34a, 35a. 12 With respect to the development in the
floodway, the Notes on Landowner’s sketch plan state:
11
Landowner’s assertion that the trial court erred in relying on Section 1201.2 of the
Zoning Ordinance in part is specious at best. Although the Board stated in its decision that its
reason for denying the application was Landowner’s failure to comply with Section 1108.4, as
outlined above, Section 1108.4.E. specifically incorporates all other applicable standards in the
Zoning Ordinance; the Board’s decision specifically references the Objectors’ concerns
“regarding the capacity of the sewage plant to handle the additional sewage, what type of debris
would be carried downstream by a flood, [and the fact that] the property is in the floodway and
floodplain;” and one of the three Board members seconded the denial of the application at the
hearing due to “no documentation of the sewage disposal.” R.R. at 14a, 77a.
12
As the ultimate finder of fact, the Board was free to reject Landowner’s self-serving
testimony in this regard. As we have explained, “[i]n conditional use proceedings where the trial
(Footnote continued on next page…)
12
2. Portions of this campground and lake are located
within the 100 year floodway. The improvements
proposed in the floodway must be offset with material
excavated from the proposed lake. Necessary permits for
this work will be obtained prior to construction.
Id. at 182a. As acknowledged by Landowner’s surveyor at the Board hearing:
I think it’s important to keep in mind that the
floodway is regulated not only by [the Township], but
also by, once again, DEP. He’s not allowed to place any
fill within that floodway without getting a joint permit.
It’s a fairly extensive permit granted by DEP and it’s also
regulated basically twice.
Id. at 43a.
Landowner presented no credited evidence that it has sought the
required approvals necessary for the development and construction in the floodway
or the use of the sewer facilities in the floodplain, or that such development meets
the express standards and criteria in the Zoning Ordinance outlined above. As we
have explained, an applicant must “come forward with evidence detailing how it
[will] be in compliance with the requirements necessary to obtain a special
exception,” and “[e]vidence is not a ‘promise’ that the applicant will comply
because that is a legal conclusion the Board makes once it hears what the applicant
intends to do and then determines whether it matches the requirements set forth in
the ordinance.” Edgmont Township v. Springton Lake Montessori School, 622
(continued…)
court has taken no additional evidence, the Board is the finder of fact, empowered to judge the
credibility of witnesses and the weight afforded to their testimony; a court may not substitute its
interpretation of the evidence for that of the Board.” In re Richboro CD Partners, L.P., 89 A.3d
at 754-55 (citation omitted).
13
A.2d 418, 419 (Pa. Cmwlth. 1993) (citation omitted).13 Due to the limited
evidence that Landowner presented as to how the development and construction
would meet the express Zoning Ordinance requirements, the trial court did not err
in affirming the Board’s denial of Landowner’s conditional use application.
Accordingly, the trial court’s order is affirmed.14
MICHAEL H. WOJCIK, Judge
13
Cf. In re Application of Saunders, 636 A.2d 1308, 1311 (Pa. Cmwlth. 1994), appeal
denied, 657 A.2d 494 (Pa. 1995) (“Saunders presented testimony, diagrams and descriptions of
the proposed water and sewage facilities. Because approval of a use is only the first step along
the road for Saunders to receive an occupancy permit and, because the Township’s conditional
use requirements are limited, we are not convinced to expand them. Therefore, we hold that the
information provided by Saunders was adequate to meet the requirement set forth in . . . the
zoning ordinance that the mobile home park have ‘central sewer and water’ and that the
Supervisors erred in denying the application on the basis that the application itself did not meet
the requirements for adequate water and sewage.”).
14
Because Landowner failed to present evidence to satisfy the specific requirements of
the Township’s Zoning Ordinance, we need not address its argument with respect to the
satisfaction of the Ordinance’s general requirements and Objectors’ burden in that regard.
Finally, with respect to the satisfaction of the specific requirements, Landowner’s reliance on
Broussard v. Zoning Board of Adjustment of the City of Pittsburgh, 907 A.2d 494 (Pa. 2006) is
misplaced. In that case, in support of a special exception for off-site parking, the landowner
presented an Interim Planning Overlay District Plan; a Parking Demand Analysis Study; a
Parking Management Plan that had been approved by the City; the testimony of a parking
consultant; and a letter from the lessee-operator of a nearby parking garage confirming that there
would be sufficient parking spaces to meet the requirements of the zoning ordinance. Id. at 497.
As the Supreme Court explained, “the Zoning Board interpreted the relevant provisions of the
ordinance to permit granting a special exception where [the landowner]’s submissions contained
adequate assurances that the off-site parking needs associated with the proposed use would be
met in accordance with the requirements of the ordinance, even though no legally-binding
contract existed at the time of the hearings.” Id. at 502. In contrast, in this case, there was
absolutely no evidence presented to the Board other than the uncorroborated assertions of
Landowner’s principal and surveyor that the specific requirements of the Township’s Zoning
Ordinance would be satisfied.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mar-Del Holdings, LLC, :
: No. 1228 C.D. 2015
Appellant :
:
v. :
:
Orange Township Board of Supervisors :
:
v. :
:
Mark Acker, Donna Acker, Morgan :
Barclay, Mary Barclay, Steve Beyer, :
Cindy Beyer, Patricia Brewster, Robert :
Brewster, Fred Brockway, Jan Brockway, :
Marty Chamberlain, Gail Chamberlain, :
John J. D’Orazio, Barbara D’Orazio, :
John D’Orazio, Pam D’Orazio, Susan B. :
Fetterman, Dan Fetterman, Nathaniel :
Flook, Sherry Flook, Charles Fritz, :
Jennifer Fritz, Susan Hales, Gary Hess, :
Penny Hess, Corey Hughes, Madeleine :
Hughes, Ronald Hunter, Janet Hunter, :
John Katch, Jennifer Thomas, George :
Larson, Nancy Larson, Jayleen Miller, :
Eric Ortuba, Amanda Ortuba, Larry :
Recla, Carrie Recla, Anthony Reed, :
Cathy Reed, Gregory Sherman, Joyce :
Sherman, Andrew Smith, Christine Smith, :
Eric Sorg, Erin Sorg, and Matthew :
Swinehart :
ORDER
AND NOW, this 12th day of May, 2016, the order of the Court of
Common Pleas of the 26th Judicial District (Columbia County Branch) dated June
22, 2015, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge