In Re: Appeal of Provco Pinegood Sumneytown, LLC ~ Appeal of: Provco Pinegood Sumneytown, LLC ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Provco Pinegood :
Sumneytown, LLC From the :
Decision Dated November 19, 2018 :
of the Board of Commissioners of : No. 1251 C.D. 2019
Upper Gwynedd Township : Argued: November 9, 2020
:
Appeal of: Provco Pinegood :
Sumneytown, LLC :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge (P.)
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: December 14, 2020
Provco Pinegood Sumneytown, LLC (Objector) appeals from the August 8,
2019 Order of the Court of Common Pleas of Montgomery County (common pleas),
which denied Objector’s appeal from the order of the Board of Commissioners
(Board) of Upper Gwynedd Township (Township) approving a conditional use
application (Application) filed by Upper Gwynedd Equities, LLC1 (Applicant).
Applicant owns a 4.56-acre tract of land situated at 467 Sumneytown Pike
1
At the time the Application was filed, Giant Food Stores, LLC owned the Property and
Hartford Properties, LLC, which filed the Application, was the equitable owner of the Property.
After the Application was approved, Upper Gwynedd Equities, LLC completed the purchase of
the Property. Hartford Properties, LLC and Upper Gwynedd Equities, LLC have the same
managing member. Accordingly, we will refer to Upper Gwynedd Equities, LLC as Applicant
throughout this Opinion.
(Property), which is within the Township’s C Commercial Zoning District.
Applicant proposes to develop and operate the Property with a gasoline service
station with convenience store and four multi-tenant buildings (Development).
Under the Township’s zoning ordinance (Ordinance), a conditional use permit is
required for the development of property with multiple principal uses in the C
Commercial Zoning District. On appeal, Objector argues Applicant did not meet its
burden of demonstrating the criteria for the grant of a conditional use permit and,
therefore, the Board erred in granting the Application. Specifically, Objector
submits Applicant did not demonstrate: (1) that the proposed multiple principal uses
are “compatible[] and will not conflict,” as required by Section 195-22.A.(9)(a)[3]
of the Ordinance; and (2) that the Development would not “materially increase
traffic congestion on the streets” as required by Section 195-27.1(E) of the
Ordinance. Upon review, we conclude Applicant met its burden of demonstrating
the foregoing and, therefore, the Board did not err in granting the Application.
I. Factual Background and Procedure
A. Application
Applicant submitted the Application to the Board on July 9, 2018, therein
requesting a conditional use permit to develop and operate the Property with multiple
principal uses. (Decision, Findings of Fact (FOF) ¶ 3.) The Property is located at
the corner of Church Road and Sumneytown Pike. Sumneytown Pike is comprised
of two eastbound traffic lanes and two westbound traffic lanes, and a dedicated left-
turn lane on the westbound side for turns onto Church Road. “The properties
surrounding the [Property] include a dry-cleaning business, Sunoco gas station,
former tavern, formal wear store, apartment buildings, and a parcel used for PECO
2
power lines.” (Id. ¶ 17.) Currently situated on the Property is a former 32,000-
square-foot grocery store building, which was operated by Giant Food Stores, LLC
(Giant), and a gasoline service station pad site, both of which have been vacant for
three years. (Id. ¶¶ 2, 15.) A predecessor in title to Giant was granted approval to
expand the grocery store building to 51,000 square feet and to build a gasoline
service station; however, that construction never took place. (Id. ¶¶ 18-20.)
Applicant proposes to demolish the current improvements and construct
a gasoline service station having sixteen (16) fueling locations with a
5,000[-]square[-]foot canopy and an associated 4,637[-]square[-]foot
convenience store, two (2) 6,000[-square-]foot commercial multi-
tenant buildings, a 5,000[-]square[-]foot commercial multi-tenant
building, an 8,000[-]square[-]foot commercial multi-tenant building,
paved parking areas and drive aisles, concrete sidewalks, storm water
management facilities and related improvements . . . .
(Id. ¶ 4.) For ingress and egress, Applicant proposes a right-in, right-out access drive
on Sumneytown Pike and a full movement access drive on Church Road.
B. Hearings before the Board
The Board considered the Application at its August 27, 2018, September 24,
2018, and October 15, 2018 meetings. At the start of the August 27, 2018 hearing,
the Board granted party status to Objector and Merck Sharpe & Dohme Corp.
(Merck),2 both of which own property diagonally across the street from the Property.
(Id. ¶ 6.) After granting party status to these objectors, the Board turned to the
parties’ witnesses.
Applicant presented four witnesses before the Board. First, Applicant
presented the testimony of its Managing Member, Robert Hill, who testified as to
2
Merck is not participating in the appeal before this Court.
3
the ownership interest of the Property.3 Second, Applicant presented the testimony
of its Principal Project Engineer (Engineer), Michael E. Jeitner, who was accepted
as an expert witness in civil engineering.4 Engineer testified Applicant planned to
construct the Development in a single phase and that the Development will not
contain any residential uses. (Reproduced Record (R.R.) at 55a, 58a; see also FOF
¶¶ 44, 47.) He further testified that the only known tenant of the Development was
that of the gasoline service station. (R.R. at 66a.) When asked whether the Property
“is comprised of sufficient area for the operation of the requested principal uses,”
Engineer responded that it is. (R.R. at 54a; see also FOF ¶¶ 42, 47.) Engineer agreed
that the issue of whether the proposed multiple uses are compatible and do not
conflict is outside the scope of his expertise as a civil engineer. (R.R. at 69a.)
Third, Applicant presented the testimony of Charles Guttenplan, who was
accepted by the Board as an expert in land planning (Land Planner).5 Land Planner
testified that “at this time or juncture, we don’t know who all the tenants are, but
they would be permitted uses or conditional uses or special exception uses that are
currently allowed in [the] C Commercial District.” (R.R. at 97a; see also FOF ¶¶ 61-
62.) However, he represented that the Development would not include a greenhouse,
nursery yard, or the wholesaling storage and sale of lumber, plumbing, and other
building materials. (R.R. at 97a-98a; see also FOF ¶¶ 61-62.) He testified that the
proposed multiple principal uses are compatible as all are permitted in the C
Commercial Zoning District. (R.R. at 109a; see also FOF ¶ 72.) When asked how
he determined if the multiple principal uses are compatible, Land Planner answered:
3
The testimony of Managing Member can be found on pages 19a-20a of the Reproduced
Record.
4
The testimony of Engineer can be found on pages 21a-88a of the Reproduced Record.
5
The testimony of Land Planner can be found on pages 93a-118a of the Reproduced
Record.
4
Well, I think [of this] a couple of different ways. I think, first of all, the
fact that the [T]ownship has allowed these various uses in a C
Commercial District without any indication that they have to be
separated, I think there’s been a legislative determination that these are
potentially compatible uses.
I think by the fact that the [A]pplicant is willing to eliminate the [] uses
that could be considered less compatible, . . . I think that leaves all the
other uses potentially compatible.
I don’t see any difference between this small shopping center and any
other shopping center. We see a potential mix of retail, personal service
shops, restaurants, convenien[ce] store[s]. There are many, many
shopping centers including new and old ones that have these kind of
mixed uses and they operate very compatible with each other.
(R.R. at 109a-10a.)
Last, Applicant presented the testimony of John Wichner, who was accepted
by the Board as an expert in traffic (Traffic Engineer).6 Traffic Engineer testified
that, using the Trip General Manual of the Institute of Transportation Engineers, he
estimated the daily trips to the Property under the previously operated Giant grocery
store and gas station, the daily trips that would have been generated if the grocery
store and gas station had been expanded as proposed and approved for Giant’s
predecessor, and the daily trips that will be generated by the Development. Traffic
Engineer’s Trip Generation Comparison was admitted into the record. As reflected
on the Trip Generation Comparison, Traffic Engineer estimated the daily trips to the
Property under the previously operated Giant grocery store and gas station to be
3,956. (R.R. at 382a.) He estimated the daily trips to the proposed expanded and
approved, but not constructed, grocery store and gas station would have been 6,543.
6
The testimony of Traffic Engineer can be found on pages 146a-243a, 272a-82a, and 321a-
45a of the Reproduced Record.
5
(Id.) Traffic Engineer estimated the daily trips to the Property for the Development
would be between 4,855 and 5,063, depending on the particular uses in the
Development. (Id.) Thus, he concluded the Development would produce between
899 and 1,107 new daily trips to the Property as compared to the previous Giant
grocery store and gas station and between 899 and 1,107 fewer daily trips as
compared to the proposed expanded and approved, but not constructed, grocery store
and gas station. (Id.; see also FOF ¶¶ 93-94.) Traffic Engineer testified that the
Township previously made improvements to Sumneytown Pike in 2009, 2010, or
2011, in contemplation of the expansion of the grocery store building and gas station
by Giant’s predecessor. (R.R. at 168a; see also FOF ¶¶ 99-100.) He opined that if
these improvements were able to accommodate the daily trips generated by the
proposed expanded and approved, but not constructed, grocery store and gas station,
which he estimated would produce higher trips than the Development, the
surrounding roads could accommodate the daily trips attributable to the
Development. (R.R. at 169a; see also FOF ¶¶ 99-100.) Traffic Engineer also
completed a Traffic Impact Study, which was admitted into the record, wherein he
estimated the number of daily trips through the intersection of Church Road and
Sumneytown Pike would increase, in part, because of the Development but that the
increase would not be a material increase from the current numbers. (R.R. at 178a-
79a; see also FOF ¶¶ 113, 115.)
As to ingress and egress, Traffic Engineer testified that the access drive on
Sumneytown Pike would be a right-in, right-out drive and that there would be a
concrete median “to physically restrict any kind of illegal movements.” (R.R. at
181a.) He also testified that both the Sumneytown Pike access drive and the full
movement access drive on Church Road have “adequate sight distance.” (Id. at
6
180a.) He opined the two access sites “will adequately operate to allow for safe
access to the site.” (R.R. at 203a.) He stated that there currently exists a 125-foot
dedicated left-turn lane on Church Road for access to the Property and that a 75-foot
dedicated left-turn lane is required; therefore, the existing left-turn lane is adequate.
(R.R. at 181a-82a; see also FOF ¶ 120.) He also testified that the full access drive
on Church Road would be blocked by traffic during 16% of the peak afternoon traffic
hour, thus blocking left turns into the Property from Church Road, but that the traffic
signal at the intersection of Church Road and Sumneytown Pike would “clear out
the queue and allow the ins and outs to be made safely.” (R.R. at 207a, 272a, 274a;
see also FOF ¶¶ 132, 148.) As to Sumneytown Pike, he estimated that the delay in
making a left turn from Sumneytown Pike onto Church Road to access the site would
increase from 49.1 seconds to 114.3 seconds. (R.R. at 231a-32a; see also FOF
¶ 135.) He estimated the queue for this lane would increase from 278 feet to 715
feet. (R.R. at 235a; see also FOF ¶ 139.)
Merck presented the testimony of Eileen Collins, who was accepted by the
Board as a traffic expert (Merck’s Traffic Expert).7 Merck’s Traffic Expert stated
that Applicant underestimated the anticipated trip generation attributable to the
Development. According to Merck’s Traffic Expert, the Development would
produce 789 more weekday trips than estimated by Applicant. (R.R. at 291a-92a;
see also FOF ¶ 156.) She testified that the Development would further contribute to
the left-turn queues, which already exceed their capacity at peak times. (R.R. at
296a-97a; see also FOF ¶ 159.) When asked whether the increases to the queues are
significant and material, Merck’s Traffic Expert opined that they are. (R.R. at 297a;
7
The testimony of Merck’s Traffic Expert can be found on pages 284a-308a of the
Reproduced Record.
7
see also FOF ¶ 164.) Merck’s Traffic Expert further opined that the Development
will materially increase traffic congestion on the streets, because of
the oversaturated turn lanes that are most likely going to spill into the
through lane causing excessive congestion, poor levels of service at the
Sumneytown Pike/Church Road intersection for the left-turn
movements, and blocking of the site’s access driveways by the queues
of the intersection.
(R.R. at 300a-01a; see also FOF ¶ 164.) Merck’s Traffic Expert proposed several
offsite improvements to the surrounding roads that would help mitigate the
Development’s traffic impacts.
Merck also presented the testimony of its Director of Global Facilities
Management, Nancy Bednarik,8 who expressed traffic concerns. She testified that
Merck currently employs 11,000 workers at its property, which is diagonally across
Sumneytown Pike from the Property, and that the improvements previously made to
Sumneytown Pike could accommodate an additional 3,000 employees. (R.R. at
313a; see also FOF ¶ 176.) She stated the Board should consider the level of traffic
in its review of the Application. (R.R. at 319a; see also FOF ¶ 177.)
While Objector did not present testimony or evidence before the Board, it did
cross-examine some of the witnesses and present closing remarks.
C. Board’s Decision
On November 19, 2018, the Board issued its decision and order finding
Applicant met its burden for approval of the Application. Therein, the Board made
186 findings of fact describing the Property, the Development, and the surrounding
8
The testimony of Merck’s Director of Global Facilities Management can be found on
pages 309a-19a of the Reproduced Record.
8
area, as set forth above, and summarized the testimony of the foregoing witnesses.
Additionally, the Board found “Applicant intends that all tenants which will occupy
the Development’s multi-tenant buildings will engage in uses” permitted in the C
Commercial Zoning District except those uses Applicant’s Land Planner stated
would not be in the Development. (FOF ¶ 61.) The Board found that “[t]he[]
multiple principal uses are generally of a type that will be compatible with each
other” as all are permitted in the C Commercial Zoning District. (Id. ¶ 72.)
As to traffic, the Board did not make explicit credibility findings, but
apparently credited the testimony of Applicant’s experts, as it found: (1) the
Property “is comprised of sufficient area for the internal circulation of” traffic on the
Property; (2) the Development “will not materially increase the traffic congestion on
the streets in the area because the Development’s impact on the level of service
calculations for the surrounding intersections is minimal”; (3) “the total percentage
of the overall additional trips . . . estimated to be attributable to the Development[]
is low”; and (4) the two access drives will “provide adequate egress from the
[Property] and protect the streets from undue congestion and hazard because of their
design . . . .” (Id. ¶ 130(a), (b), (c).)
In addition to the relevant findings of fact, the Board made the following
relevant conclusions of law:
7. After reviewing all of the testimony and exhibits, the Board finds
that the Applicant has met its burden by demonstrating compliance with
the specific criteria of Section 195-22.A.(9)(a) and Section 195-27.1 of
the . . . Ordinance. . . . The [Property] is comprised of 4.56 acres, more
or less and contains sufficient area for the multiple uses of the
Development . . . . Generally, the uses potentially included in the
Development by virtue of being permitted on the [Property] by right,
special exception or conditional use by the [] Ordinance are compatible,
except for those uses prohibited by the [o]rder hereinafter provided. . . .
9
8. In the opinion of the Board, the testimony and evidence
presented at the Hearing established that the Development, as
conditioned in the following [o]rder, is suitable for the property, fits
with the character of the neighborhood, does not over-burden the public
service facilities, does not materially increase traffic congestion as
compared to no-build scenarios and will not adversely affect the public
health, safety and welfare of the community.
9. It is the Board’s specific finding therefore that the requested
conditional use to permit the development of the [Property] with
multiple principal uses . . . as conditioned by the following [o]rder, is
in the best interest of this Township and is not likely to result in any
unanticipated adverse effect to the public, safety and welfare. . . .
(Decision, Conclusions of Law (COL) ¶¶ 7-9.) In an order accompanying its
decision, the Board imposed several conditions on its approval of the Application.
Relevant to the issues raised in this appeal, the Board, “[i]n order to ensure the
compatibility of the uses on the [Property],” determined the following uses are not
permitted: clubs, fraternal organizations or lodges; hotels, boardinghouses, rooming
houses, tourist homes or motels; public garages or automobile repair shops, new or
used car sales; undertaking establishments; residential uses; greenhouses or nursery
sales yards; wholesaling storage and sale of lumber, plumbing and other building
materials and supplies; sales of fireworks; drive-thru facilities (other than the sale of
gasoline, to the extent that sale is considered to be a drive-thru activity); and day
cares for children and seniors. (Board’s Order ¶ 3.)
Objector appealed the Board’s grant of the Application to common pleas.
10
D. Common pleas’ decision
After submission of briefs, common pleas held oral argument on Objector’s
appeal on July 22, 2019. Without taking additional evidence, common pleas denied
Objector’s appeal by Order dated August 8, 2019. Objector then initiated the instant
appeal with this Court. Common pleas ordered Objector to file a statement of errors
complained of on appeal. After receiving Objector’s statement, common pleas
issued an opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a),
Pa.R.A.P. 1925(a) (1925(a) Opinion), therein addressing the two issues raised by
Objector. First, Objector argued Applicant did not demonstrate the proposed
multiple principal uses in the Development are compatible and will not conflict as
required by Section 195-22.A.(9)(a)[3] of the Ordinance. On this issue, common
pleas concluded “that the requirements that the multiple principal uses be compatible
and non-conflicting are non-specific and subjective” and, therefore, that requirement
“is either not enforceable against [Applicant] or [O]bjector[] had the initial burden
on this issue.” (1925(a) Opinion (Op.) at 6.) Notwithstanding, common pleas also
concluded “the uses proposed by [Applicant] are of the type permitted in the C
Commercial District, and the Board conditioned approval by prohibiting certain uses
in order to ensure compatibility.” (1925(a) Op. at 7.)
Second, Objector argued that there was not substantial evidence to support the
Board’s findings that the Development will not materially increase traffic. Common
pleas concluded “the phrases ‘materially increase’ and ‘traffic congestion,’” as
required by Section 195.27.1(E) of the Ordinance, “are too vague to permit
[Applicant] to know what is required of it” and, therefore, that requirement, too, is
not enforceable against Applicant. (1925(a) Op. at 8.) Instead, common pleas
determined that this requirement goes to the issue of public welfare and, therefore,
11
it was the burden of Objector to demonstrate any detrimental effect to the public.
(Id.)
II. Parties’ Arguments
On appeal, Objector submits Applicant did not meet its burden for the grant
of a conditional use permit and the Board erred by concluding otherwise. First,
Objector argues Applicant did not meet its burden of demonstrating the proposed
multiple principal uses are compatible and non-conflicting, as required by Section
195-22.A.(9)(a)[3] of the Ordinance. Objector contests the Board having granted
the Application without requiring Applicant to identify the proposed uses contained
in the Development. According to Objector, “different principal uses could have
different impacts” and “[w]ithout identifying each of the uses that will be located on
the [] Property, [Applicant] could not, and did not demonstrate compliance with the
requirements of” Section 195-22.A.(9)(a)[3] of the Ordinance. (Objector’s Brief
(Br.) at 21-22.) Objector argues that all of the individual uses permitted in the C
Commercial Zoning District are not all inherently compatible with one another and
“if that w[as] the case, there would be no reason for the . . . requirement that an
applicant for conditional use approval demonstrate that the proposed multiple
principal uses would be compatible and would not conflict.” (Id. at 13.) Objector
disagrees with common pleas’ conclusion that the Ordinance’s requirements in
Section 195-22.A.(9)(a)[3] are subjective. Even if the requirement is subjective, and
Objector had the burden of demonstrating the proposed uses were not compatible
and conflicted, Objector contends “it would have been impossible for [it] to
demonstrate that those unidentified multiple principal uses would not be compatible
and would conflict.” (Id. at 22.)
12
Second, Objector argues Applicant did not meet its burden of demonstrating
that the Development would not “materially increase traffic congestion on the
streets” as required by Section 195.27.1(E) of the Ordinance. While the Board
concluded that the Development does not materially increase traffic congestion,
Objector contends this conclusion is not supported by substantial evidence. Citing
the testimony of Applicant’s Traffic Engineer, Objector asserts the Development
“will materially increase traffic congestion from that which exists today.”
(Objector’s Br. at 25 (emphasis omitted).) Objector disagrees with common pleas’
conclusion that Section 195-27.1(E) of the Ordinance is a subjective requirement.
Applicant responds that it did meet its burden for the grant of a conditional
use permit and, therefore, the Board did not err in granting the Application. First,
Applicant argues that Section 195-22.A.(9)(a)[3] of the Ordinance is either vague
and unenforceable or is a subjective requirement and Objector has the burden of
proving the proposed uses are not compatible and would conflict. Applicant asserts
the Ordinance does not define “compatible,” “conflict,” nor “non-conflicting” or
provide any specific or objective criteria to determine whether multiple principal
uses would be compatible and do not conflict. (Applicant’s Br. at 23.) Alternatively,
if Section 195-22.A.(9)(a)[3] of the Ordinance is enforceable and the burden is on
Applicant to demonstrate the requirements therein, Applicant contends it “provided
testimony and evidence that the proposed multiple uses would be those permitted in
the C Commercial District but for a greenhouse, nursery sales yard and wholesaling,
storage and sale of lumber and other building materials and supplies” and that all
permitted uses in the C Commercial District are “inherently compatible.”9
(Applicant’s Br. at 24-25.) Contrary to Objector’s argument, Applicant takes the
9
The Board joins in the part of Applicant’s brief related to there being evidence to support
the finding that the proposed uses are compatible and non-conflicting.
13
position that the Ordinance does not require Applicant to identify “specific tenants
. . . only the uses.” (Id. at 25.) Having met its initial burden of demonstrating the
proposed multiple principal uses are compatible and non-conflicting, Applicant
asserts the burden would have then shifted to Objector to demonstrate that the
proposed multiple principal uses are not compatible and, in fact, conflict. Applicant
contends Objector did not meet this burden and points out “Objector provided no
testimony or evidence at the [h]earings that the proposed uses are not compatible or
conflict.” (Id. at 26.)
Additionally, Applicant argues Section 195.27.1(E) of the Ordinance is either
vague and unenforceable or is a subjective requirement and Objector has the burden
of proving the Development would materially increase traffic. Applicant argues the
Ordinance does not define “materially increase” or “traffic congestion” nor does it
provide any specific or objective criteria to determine whether the Development
would materially increase traffic. (Applicant’s Br. at 23.) Alternatively, if Section
195-27.1(E) of the Ordinance is enforceable and the burden is on Applicant to
demonstrate the requirement therein, Applicant contends it represented sufficient
evidence to establish that the Development would not materially increase traffic.10
Having met its initial burden, Applicant argues the burden then shifted to Objector
to demonstrate the Development would generate traffic not normally generated by
this type of use. Applicant submits Objector did not meet this burden and again
points out “Objector presented no witnesses or exhibits as to traffic.” (Applicant’s
Br. at 32-33.)
10
The Board joins in the part of Applicant’s brief related to there being evidence to support
the finding that the Development will not materially increase traffic.
14
III. Discussion
We begin by recounting the law related to conditional uses and our role in
reviewing the grant or denial of a conditional use application. “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). Like a special exception, a conditional use
is not an exception to a zoning ordinance, “but rather a use to which the applicant is
entitled provided the specific standards enumerated in the ordinance for the
[conditional use] are met by the applicant.” Id. “The fact that a certain use is
permitted as a conditional use evidences a legislative determination that such use
would not have an adverse impact on the public interests in normal circumstances.”
Joseph v. N. Whitehall Twp. Bd. of Supervisors, 16 A.3d 1209, 1215 (Pa. Cmwlth.
2011). The
applicant for conditional use approval has the burden of establishing
compliance with the specific, objective criteria of the zoning ordinance.
Once that burden is satisfied, the applicant has made out a prima facie
case and must be granted a conditional use, unless the objectors present
sufficient evidence that the proposed use will have a detrimental effect
on the public health, safety and welfare.
Id. (citation omitted). In granting a conditional use permit, a governing body “is
permitted to impose [reasonable] conditions on the use of a property to mitigate any
potential adverse impacts from the proposed use, and is required to reduce the
negative impacts to an acceptable level[,] if it can, by imposing conditions.” In re
Maibach, LLC, 26 A.3d 1213, 1216 (Pa. Cmwlth. 2011).
In conditional use cases where common pleas took
no additional evidence, our scope of review . . . is limited to a
determination of whether the [governing body] . . . committed an abuse
15
of discretion or an error of law. An abuse of discretion is established
where the findings are not supported by substantial evidence.
Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.
In re Richboro CD Partners, L.P., 89 A.3d 742, 746 n.1 (Pa. Cmwlth. 2014) (citation
omitted). In reviewing this matter, we are mindful that the Board “is the ultimate
fact-finder and the exclusive arbiter of credibility and evidentiary weight.” Joseph,
16 A.3d at 1218. We may not substitute the Board’s interpretation of the evidence
with our own and “must view the evidence in a light most favorable to” Applicant,
which prevailed before the Board. Marshall v. Charlestown Twp. Bd. of
Supervisors, 169 A.3d 162, 169 (Pa. Cmwlth. 2017). Further, we must “give great
weight and deference” to the Board in its interpretation of the Ordinance as it is the
body “charged with the duty to execute and apply the [sections] at issue.” In re
Thompson, 896 A.2d at 669. Although the Board is entitled to deference in
interpreting the Ordinance, “any ambiguity and conflict in the language of the
[O]rdinance must be resolved in the favor of [Applicant] and the least restrictive use
of the land.” Reihner v. City of Scranton Zoning Hearing Bd., 176 A.3d 396, 400
(Pa. Cmwlth. 2017).
The crux of this appeal is whether Applicant met its burden for the grant of a
conditional use permit. Initially, it is necessary to review the relevant provisions of
the Ordinance. Section 195-22.A of the Ordinance sets forth the permitted uses in
the C Commercial Zoning District. Section 195-22.A provides:
A. Use regulations. A building may be erected, altered or used and a
lot or premises may be used for any one of the following purposes and
no other:
(1) Retail sale of dry goods, variety and general merchandise,
clothing, food, including restaurant without drive-thru, flowers,
beverages, drugs, household supplies or furnishings, sale or repair
16
of jewelry, watches and clocks, optical goods or musical,
professional or scientific instruments, job printing, bakery, tutorial
services, personal service business (including but not limited to hair
salon, nail salon, massage or facial or skin treatments), appliance
store, retail sale of pets and/or pet products and services, hardware
store, cabinet showroom and sales, dry cleaning, bank or financial
institution[] (without a drive thru), medical or dental offices
(including but not limited to emergency or urgent care or surgery
centers), physical therapy facilities and any other use of the same
general nature as those specifically enumerated in this section.
(2) Barbershops, hairdressing establishments and such other shops
in the personal service category.
(3) Business or professional offices or studios.
(4) Club, fraternal organization or lodge.
....
(7) Accessory use on the same lot with and customarily incidental to
the use permitted and utilized.
(8) The following uses when authorized as a special exception:
....
(b) A laundromat or dry-cleaning establishment, provided that no
flammable fluids are used.
(c) Gasoline service station, storage or public garage or
automobile repair shop.
(d) New or used car sales.
(e) Undertaking establishment.
(f) Educational, religious or philanthropic use.
(g) Financial institution.
17
(h) A combined commercial and single-family residential use in
one structure, provided that the commercial use shall be of the
type permitted in [Section] 195-22[.]A. [of the Ordinance]
(i) A car-wash facility . . .
(j) Post office.
(k) The dispensing of medical marijuana by a dispensary . . . .
(9) The following uses when authorized as a conditional use and subject
to the express criteria in connection therewith and the conditional
use standards contained in Section 195.27.1 [of the Ordinance]:
(a) Multiple principal uses on a single lot, provided that:
[1] The lot is comprised of sufficient area for the internal
parking and circulation of employees, contractors, suppliers,
patrons, guests and customers;
[2] The lot is comprised of sufficient area for the operation
of the requested principal uses;
[3] The multiple principal uses are compatible, and will
not conflict;
[4] Multiple principal uses are not permitted to include a
residential use;
[5] The total required parking on the lot shall be the sum of
each individual parking requirements, in accordance with
Section 195-28 [of the Ordinance], except that the parking
requirements for C-Commercial lots developed with five or
more establishments shall comply with Section 195-28.A(11)
[of the Ordinance].
(b) Full service, full amenity hotel, restaurant with drive-thru,
bank or financial institution with drive-thru, day care or
children or seniors, or tavern.
(c) Greenhouse or nursery sales yard.
18
(d) Wholesaling, storage and sale of lumber, plumbing and other
building materials and supplies.
(Emphasis added).
Section 195-27.1 of the Ordinance, entitled “conditional use standards,”
provides the following:
[W]here the Board . . . is required to consider a conditional use of the
[] Ordinance . . . , the Board . . . shall, among other things:
A. Consider the suitability of the property for the use desired.
Assure itself that the proposed change is consistent with the
spirit, purpose and intent of this chapter.
B. Determine that the proposed change shall not substantially
injure or detract from the use of neighboring property or from
the character of the neighborhood, and that the use of the
property adjacent to the area included in the proposed change
or plan is adequately safeguarded.
C. Determine that the proposed change will serve the best
interests of the Township, the convenience of the community,
where applicable, and the public welfare.
D. Consider the effect of the proposed change upon the logical,
efficient and economical extension of public service and
facilities, such as public water, sewers, police and fire
protection and public schools.
E. Consider the suitability of the proposed use with respect
to whether the use would materially increase traffic
congestion of the streets and assure adequate access
arrangements in order to protect streets from undue
congestion and hazard.
(Emphasis added.)
19
A. Whether the Board erred in finding the proposed multiple principal uses
are compatible and non-conflicting.
First, Objector submits the Board erred in finding the proposed multiple
principal uses in the Development are compatible and non-conflicting. In particular,
Objector argues that Applicant did not identify the specific proposed multiple
principal uses and, therefore, there was no way for Applicant to meet its burden of
demonstrating the proposed multiple principal uses are compatible and non-
conflicting. Upon review, we conclude the Board did not err in concluding that the
proposed multiple principal uses are compatible and non-conflicting. Contrary to
Objector’s argument, Applicant did identify the potential proposed uses of the
Development. In its Application, Applicant stated the Development would contain
only uses permitted in the C Commercial Zoning District. (R.R. at 375a.) Likewise,
Land Planner’s testimony before the Board supports the representation made by
Applicant in the Application. He testified that “at this time or juncture, we don’t
know who all the tenants are, but they would be permitted uses or conditional uses
or special exception uses that are currently allowed in [the] C Commercial District.”
(R.R. at 97a; see also FOF ¶¶ 61-62.) He represented the Development would not
include a greenhouse, nursery yard, or the wholesaling storage and sale of lumber,
plumbing, and other building materials. (R.R. at 97a-98a; see also FOF ¶¶ 61-62.)
Therefore, Applicant did identify the potential uses to be contained in the
Development. While Applicant did not identify the specific tenants of the multi-
tenant buildings as Objector may have liked, there is no indication that the Ordinance
requires an applicant for a conditional use permit to identify each specific tenant,
only the use.
The Board found that the proposed uses are inherently compatible “by virtue
of being permitted on the [Property] by right, special exception or conditional use
20
by the [] Ordinance.” (Decision, COL ¶ 7.) This interpretation is consistent with
the well-established principle that “the fact that a certain use is permitted . . .
evidences a legislative determination that such use would not have an adverse impact
on the public interests in normal circumstances.” Joseph, 16 A.3d at 1215. We must
give deference to the Board’s reasonable interpretation of its own ordinance. In re
Thompson, 896 A.2d at 669. Therefore, we conclude Applicant met its burden of
satisfying Section 195-22.A.(9)(a)[3] by demonstrating that the Development will
be occupied only by tenants employing uses permitted in the C Commercial Zoning
District.
We are not persuaded by Objector’s argument that if all permitted uses are
inherently compatible there would be no purpose for requiring conditional use
approval. In reviewing conditional use applications, the Board “is permitted to
impose [reasonable] conditions on the use of a property to mitigate any potential
adverse impacts from the proposed use, and is required to reduce the negative
impacts to an acceptable level[,] if it can, by imposing conditions,” In re Maibach,
LLC, 26 A.3d at 1216, which is exactly what the Board did here. The Board
reviewed the Property and the Development and determined that many of the uses
permitted in the C Commercial Zoning District are not compatible with respect to
the Development or this Property. (Board’s Order ¶ 3.) If Objector believed that
certain uses permitted in the C Commercial District were not compatible in general
or with respect to this Property or Development specifically, it could have presented
evidence to that effect. While we acknowledge this is made more difficult by the
fact that Applicant does not know the specific tenants of the multi-use buildings,
Objector could have presented evidence that certain uses permitted in the C
21
Commercial District would not be compatible, such that the Board could have
considered imposing a condition to exclude them. Objector did not.
Accordingly, we conclude the Board did not err in finding the proposed
multiple principal uses are consistent and non-conflicting except for those identified
in its order.
B. Whether the Board erred in concluding the Development would not
materially increase traffic.
Second, Objector argues there is not substantial evidence to support the
Board’s conclusion that the Development would not “materially increase traffic
congestion on the streets” as required by Section 195.27.1(E) of the Ordinance.
Upon review, we conclude there is substantial evidence to support the Board’s
conclusion that the Development would not materially increase traffic. The Board’s
conclusion is supported by the testimony of Applicant’s Traffic Engineer.
Applicant’s Traffic Engineer estimated the new trips attributable to the Development
would be between 899 and 1,107. (R.R. at 382a; see also FOF ¶¶ 93-94.) He
testified that Sumneytown Pike was improved in 2009, 2010, or 2011 and that the
improvements contemplated the proposed and approved expansion of the grocery
store building and gas station by Giant’s predecessor. (R.R. at 168a; see also FOF
¶¶ 99-100). He concluded that these improvements were able to accommodate the
new trips attributable to the Development, which are estimated to be less than the
new trips that would have been produced by the proposed expanded and approved,
but not constructed, grocery store building and gas station. (R.R. at 169a; see also
FOF ¶¶ 99-100.) Similarly, Traffic Engineer concluded that the Development would
cause an increase in trips through the intersection of Church Road and Sumneytown
Pike but that the increase is not material. (R.R. at 178a-79a; see also FOF ¶¶ 113,
22
115.) The Board did not make express credibility determinations; however, it is
apparent that it credited the testimony of Applicant’s Traffic Engineer as the Board
found the Development would not materially increase traffic. While Merck’s Traffic
Expert estimated a higher number of trips per day and opined that the Development
would materially increase traffic, “[i]t is irrelevant whether the record contains
evidence to support findings other than those made by the fact-finder”; rather, “the
critical inquiry is whether there is evidence to support the findings actually made.”
Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Rev., 949 A.2d 338, 342 (Pa.
Cmwlth. 2008).
In its brief, Objector asserts the proposed Development “will materially
increase traffic congestion from that which exists today.” (Objector’s Br. at 25
(emphasis omitted).) The Property is currently vacant and has been vacant for three
years. Thus, the Development, as would any development, will increase traffic from
that which exists today. However, an increase is not necessarily a “material
increase.” As we stated in Joseph, “[a]n anticipated traffic increase resulting from
a proposed use would not on its own defeat a conditional use request.” 16 A.3d at
1217. Generally, an increase in traffic is grounds for the denial of a conditional use
application only if “there is a high probability that the proposed use will generate
traffic not normally generated by th[e] type of use [in contemplation] and that the
abnormal traffic threatens safety.” Marr Dev. Mifflinville, LLC v. Mifflin Twp.
Zoning Hearing Bd., 166 A.3d 479, 484 (Pa. Cmwlth. 2017) (quoting Accelerated
Enters., Inc. v. The Hazle Twp. Zoning Hearing Bd., 773 A.2d 824, 827 (Pa. Cmwlth.
2001)) (emphasis omitted). Objector here did not present any evidence before the
Board and did not rebut Traffic Engineer’s testimony that the Development would
not materially increase traffic. Merck’s Traffic Expert did not present evidence that
23
the Development would generate traffic not normally generated by this type of
development.
Accordingly, we conclude there was substantial evidence to support the
Board’s finding that the Development would not materially increase traffic.
IV. Conclusion
For the foregoing reasons, we conclude Applicant met its burden of
demonstrating that the proposed uses are compatible and non-conflicting and that
the Development will not materially increase traffic. Accordingly, we conclude the
Board did not err in granting the Application.
_____________________________________
RENÉE COHN JUBELIRER, Judge
24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Provco Pinegood :
Sumneytown, LLC From the :
Decision Dated November 19, 2018 :
of the Board of Commissioners of : No. 1251 C.D. 2019
Upper Gwynedd Township :
:
Appeal of: Provco Pinegood :
Sumneytown, LLC :
ORDER
NOW, December 14, 2020, the Order of the Court of Common Pleas of
Montgomery County in the above-captioned matter is hereby AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge