Appeal of: I. Campbell & J. Campbell from the Decision Dated May 16, 2019 of the Whitpain Twp. ZHB ~ Appeal of: I. Campbell & J. Campbell ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Appeal of: Ian Campbell :
and Jean Campbell from the :
Decision Dated May 16, 2019 :
of the Whitpain Township : No. 349 C.D. 2020
Zoning Hearing Board : Argued: March 15, 2021
:
Appeal of: Ian Campbell :
and Jean Campbell :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION BY JUDGE WOJCIK FILED: April 13, 2021
Ian Campbell and Jean Campbell (Objectors) appeal from an order of
the Montgomery County Court of Common Pleas (trial court), which affirmed the
decision of the Whitpain Township (Township) Zoning Hearing Board (Board)
granting the variance application (Application) of CA Senior Living Holdings LLC
(CA), and denied Objectors’ appeal of that Board decision. We vacate and remand.
The following facts may be gleaned from the Board’s decision.1 CA is
the equitable owner of property located at 435 Skippack Pike in the Township’s IN-
1
As this Court has explained:
[T]his Court may not substitute its interpretation of the evidence for
that of the [B]oard. It is the function of [the Board] to weigh the
evidence before it. The [B]oard is the sole judge of the credibility
of witnesses and the weight afforded their testimony. Assuming the
record contains substantial evidence, we are bound by the [B]oard’s
(Footnote continued on next page…)
Institutional District (Property). Reproduced Record (R.R.) at 3a, 4a. CA is
proposing the construction of 90 parking spaces and holding 45% of those spaces in
reserve on the Property. However, Section 160-192.B and 160-192.B(1)(f) of the
Township’s Zoning Ordinance, relating to Required Off-Street Parking Facilities,
require a minimum of 160 spaces and holding 25% of those spaces in reserve.2 Id.
To that end, CA filed the Application for a variance from the foregoing requirements.
Id.
On May 16, 2019, the Board conducted a hearing on the Application.
R.R. at 4a. Objectors, of 453 Skippack Pike, were granted party status in opposition
to the Application. Id. Additionally, a number of non-party residents appeared and
made statements in opposition to the Application. Id. CA’s engineer, John
Alejnikov, P.E.; principal, Ryan Cardin; and traffic engineer, John Harter, also
appeared and testified in support of the Application. Id. at 5a.
Further, the Board entered the following exhibits into evidence: (1) the
Application; (2) Proof of Publication; (3) CA’s Plan; and (4) the Township Board of
Supervisors’ Position Statement and the Township Planning Commission’s Position
findings that result from resolutions of credibility and conflicting
testimony rather than a capricious disregard of evidence.
[The Board] is free to reject even uncontradicted testimony
it finds lacking in credibility, including testimony offered by an
expert witness. It does not abuse its discretion by choosing to
believe the opinion of one expert over that offered by another.
Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807, 811 (Pa. Cmwlth. 2005)
(citations omitted).
2
The Board made no factual findings regarding the physical characteristics of the Property,
the use or improvement that CA proposed for the Property for which parking was necessary, or
the basis upon which the number of parking spaces required under the relevant Zoning Ordinance
provisions was determined. See R.R. at 1a, 3a-5a.
2
Statement. R.R. at 4a-5a. The exhibits attached to CA’s Application were also made
part of the record by incorporation. Id. at 5a.
Based on the foregoing evidence, the Board granted the Application at
the conclusion of the hearing and mailed that decision to Applicant on May 17, 2019
(Same-Night Decision). R.R. at 1a-2a, 5a. On June 20, 2019, the Board issued a
Formal Decision and Order in furtherance of its Same-Night Decision,3 which
contains the following Findings of Fact supporting the grant of a variance:
12. The Board found the testimony of each witness for
[CA] offered in support of the Application to be credible.
13. The testimony offered in support of the Application
demonstrated, among other things, that the [p]roposal will
not have an adverse effect upon the public health, safety,
and welfare. The testimony also demonstrated that the
requested relief is the minimum relief necessary to effect
the Applicant’s proposed improvement.
14. The complete hearing transcript and exhibits are
incorporated by reference as though fully set forth here as
Findings of Fact in support of this Board’s granting of the
Application.
R.R. at 5a.
In light of these findings, the Board set forth the following Conclusions
of Law:
3
It should be noted that the Same-Night Decision contains three conditions for the variance
that are not referenced in the Formal Decision and Order. See R.R. at 1a, 3a-8a.
3
1. Pursuant to Section 909.1 of the Pennsylvania
Municipalities Planning Code (“MPC”),[4] this Board has
exclusive jurisdiction to hear and render a final
adjudication relative to this Application.
2. The requirements for a variance in Pennsylvania are
clear and are specifically stated in Section 910.2[(a)] of the
MPC.[5] It states, in pertinent part, as follows:
***
(a) The [b]oard shall hear requests for variances where it
is alleged that the provisions of the zoning ordinance
inflict unnecessary hardship upon the applicant. The
[b]oard may by rule prescribe the form of application and
may require preliminary application to the zoning officer.
The [b]oard may grant a variance, provided that all of
the following findings are made where relevant in a
given case:
(1) That there are unique physical circumstances or
conditions, including irregularity, narrowness, or
shallowness of lot size or shape, or exceptional
topographical or other physical conditions peculiar
to the particular property and that the unnecessary
hardship is due to such conditions and not the
circumstances or conditions generally created by
the provisions of the zoning ordinance in the
neighborhood or district in which the property is
located[.]
(2) That because of such physical circumstances or
conditions, there is no possibility that the property
can be developed in strict conformity with the
provisions of the zoning ordinance and that the
authorization of a variance is therefore necessary to
enable the reasonable use of the property[.]
4
Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L.
1329, 53 P.S. §10909.1.
5
Added by the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §10910.2(a).
4
(3) That such unnecessary hardship has not been
created by the [appellant.]
(4) That the variance, if authorized, will not alter the
essential character of the neighborhood or district in
which the property is located, nor substantially or
permanently impair the appropriate use or
development of adjacent property, nor be
detrimental to the public welfare[.]
(5) That the variance, if authorized, will represent
the minimum variance that will afford relief and
will represent the least modification possible of the
regulation in issue[.]
***
3. Given the testimony presented at the hearing, a
careful review of the evidentiary record evidence offered
in support of the requested variance relief, and with no
substantive proof offered to the contrary, this Board finds
that [CA] has established an entitlement to its requested
variance relief.
4. Particularly noteworthy, this Board concludes that
[CA’s] requested variance relief will not be adverse to the
public health, safety, and welfare and is the minimum
relief necessary to effect the [p]roposal.
R.R. at 5a-7a (emphasis added).
On June 17, 2019, Objectors appealed the Board’s Formal Decision and
Order to the trial court.6 On February 11, 2020, following argument and without
taking additional evidence, the trial court issued the instant order affirming the
6
CA intervened in Objectors’ appeal to the trial court.
5
Board’s Formal Decision and Order and denying Objectors’ appeal. Objectors then
filed this appeal of the trial court’s order.7
On appeal, Objectors allege, inter alia, that the trial court erred in not
requiring the Board to issue its decision granting the variance with sufficient findings
of fact and conclusions of law demonstrating that all of the requirements of Section
910.2 of the MPC are supported by substantial record evidence.8 We agree.
7
“Because the parties presented no additional evidence after the [b]oard’s decision, our
review is limited to determining whether the [b]oard committed an abuse of discretion or an error
of law.” Taliaferro, 873 A.2d at 811 n.1 (citation omitted).
8
Additionally, Section 908(9) of the MPC states, in relevant part:
(9) The board . . . shall render a written decision or, when no
decision is called for, make written findings on the application
within 45 days after the last hearing before the board . . . . Where the
application is contested or denied, each decision shall be
accompanied by findings of fact and conclusions based thereon
together with the reasons therefor. Conclusions based on any
provisions of this act or of any ordinance, rule or regulation shall
contain a reference to the provision relied on and the reasons why
the conclusion is deemed appropriate in the light of the facts found.
53 P.S. §10908(9). As this Court has explained:
Where an application for zoning relief is contested, the
board’s decision must be accompanied by findings of fact and
conclusions, as well as the reasons for the findings. See Section
908(9) of the [MPC], 53 P.S. §10908(9). “[T]he [MPC] mandates
that the [b]oard issue an opinion, as distinguished from its order or
decision disposing of the matter, setting forth the essential findings
of fact, conclusions of law, and sufficient rationale to demonstrate
that its action was reasoned and not arbitrary.” A zoning board’s
opinion is sufficient if it provides an adequate explanation of its
resolution of the factual questions involved, and sets forth its
reasoning in such a way as to show its decision was reasoned and
not arbitrary.
Taliaferro, 873 A.2d at 816 (citations and footnote omitted).
6
As this Court has previously observed in a similar circumstance:
[The objector] contends that the [b]oard’s
adjudication is of no effect because the [b]oard failed to
make the findings required by [the prior version of Section
912.1] of the [MPC] supporting the applicant’s allegation
that the provisions of the zoning ordinance inflict
unnecessary hardship. The statute just cited provides that
zoning hearing boards must in granting a variance make
the following findings where relevant: (1) that there are
unique physical circumstances or characteristics peculiar
to the property in question causing the unnecessary
hardship, (2) that because of such physical circumstances
or conditions there is no possibility that the property can
be developed in strict conformity with the ordinance and
that the variance is necessary to enable a reasonable use of
the property, (3) that the unnecessary hardship has not
been created by the applicant, (4) that the variance will not
alter the character of the neighborhood or other property,
nor impair the use or development of adjacent land, (5)
that the variance represents the minimum variance that
will afford relief and the least modification possible of the
regulation in issue. In Lando v. Springettsbury Township
Zoning Board of Adjustment, [286 A.2d 924, 927 (Pa.
Cmwlth. 1972)], we held that these findings are essential
to the validity of grants of variance and that reviewing
courts should remand adjudications in which they are not
supplied.[9]
9
Specifically, in Lando, 286 A.2d at 927 (citations omitted), we stated:
Both Section 908(9) of the [MPC] and case law require that
the [b]oard issue an opinion which sets forth the essential findings
of fact and sufficient of the [b]oard’s reasoning to show that its
action was reasoned rather than arbitrary. In addition, [the prior
version of Section 912.1 of the MPC] requires (at least by
implication) specific findings in variance cases. Other recent
decisions have adopted the course of remanding the case to the
[b]oard for correction of the error if the [b]oard has not rendered a
proper opinion.
7
Independent Fire Company No. 1 v. Borough of South Williamsport Zoning Hearing
Board, 510 A.2d 410, 411 (Pa. Cmwlth. 1986). See also Upper Saucon Township v.
Zoning Hearing Board, 583 A.2d 45, 48 (Pa. Cmwlth. 1990) (“Appellate courts
cannot properly and efficiently exercise even a limited function of judicial review
without the [b]oard’s necessary findings of fact and conclusions of law together with
reasons for its decision, even when the record contains complete testimony presented
to the board. [Lando].”).
In this regard, we have also explained:
Independently dispositive, the [zoning hearing
board (ZHB)] has failed to address all five of the factors
required by Section 910.2 of the MPC as a prerequisite to
a grant of a variance. Section 910.2 plainly states, prior to
listing the five factors, that “[the ZHB] may grant a
variance, provided that all of the following findings are
made where relevant in a given case.” 53 P.S. § 10910.2
(emphasis added). In the entirety of its opinion, the ZHB
clearly has not made findings in regard to a minimum of
two of those factors, and possibly as many as four of those
factors . . . . As such, again, effective appellate review of
this matter is precluded. We note that nothing in the record
to this matter indicates that any of Section 910.2’s five
factors would not be relevant in this case, under Section
910.2’s plain language.
Accordingly, we vacate the [Common Pleas]
Court’s Decision, and remand this matter to [that court]
with instructions for further remand to the ZHB for the
sole and limited purpose of producing a decision that
comports with the requirements of Section 910.2 of the
MPC, and which enables effective appellate review
thereof.
8
Kennedy v. Zoning Hearing Board of Middletown Township (Pa. Cmwlth., No. 863
C.D. 2009, filed January 8, 2010), slip op. at 7-8 (emphasis in original).10
As outlined above, in the Formal Decision and Order in this case, the
Board merely made reference in its Findings of Fact and Conclusions of Law
granting the Application that two of the five factors required by Section 910.2 have
been satisfied by the evidence that was presented. See R.R. at 3a-7a. However, the
Board neither considered nor addressed all of the required factors and did not present
any rationale for its conclusion that any of Section 910.2’s factors have been satisfied
in this case. See id. Because the Board’s Formal Decision and Order is so patently
10
See Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§69.414(a) (“Parties may . . . cite an unreported panel decision of this court issued after January
15, 2008, for its persuasive value, but not as binding precedent.”). See also Poole v. Zoning Board
of Adjustment of the City of Philadelphia, 10 A.3d 381, 386 (Pa. Cmwlth. 2010) (footnotes
omitted), wherein we stated:
While the [b]oard set forth in its findings a summary of [the
developer’s] proposed residential development plan, the [b]oard
failed to provide any finding of fact that addresses any of the criteria
supporting the decision to grant the foregoing three variances. The
[b]oard did not provide any explanation for its reasoning. While the
[b]oard’s decision recognized the legal framework for granting
variances, it did not make any factual findings or explain how those
facts led it to determine that unnecessary hardship exists, that there
is no public detriment, and that [the developer] sought the minimum
variance required in order to obtain relief with respect to these three
variance requests.
Thus, a remand is necessary so that the [b]oard may address
and make specific findings with respect to whether [the developer]
established the requirements for the remaining three requested
variances. Accordingly, the order of the [common pleas] court is
vacated and the matter is remanded to th[at] court, with specific
instructions to remand the matter to the [b]oard, for further findings
consistent with this opinion.
9
deficient, the matter must be remanded so that the Board may issue a final decision
and order, based on the record evidence already presented,11 that complies with the
requirements of the MPC and permits effective appellate review by this Court.12
Accordingly, the trial court’s order is vacated, and the matter is
remanded to that court for further remand to the Board to issue a final decision and
order containing the necessary findings of fact and conclusions of law, as required
by Sections 908(9) and 910.2 of the MPC, based on the record evidence already
presented to the Board.13
MICHAEL H. WOJCIK, Judge
See, e.g., Levy v. Senate of Pennsylvania, 94 A.3d 436, 442 (Pa. Cmwlth. 2014) (“A
11
remand does not permit a litigant a ‘proverbial second bite at the apple.’ Emery Worldwide v.
Unemployment [Compensation Board] of Review, [540 A.2d 988, 990 (Pa. Cmwlth. 1988)].”).
12
Compare Taliaferro, 873 A.2d at 816, wherein we stated:
Here, the [b]oard made specific findings and conclusions
concerning the criteria required to grant the requested variance. In
addition, the [b]oard included a discussion in which it explained its
rationale for resolving evidentiary conflicts and credibility issues.
This situation is markedly different from the situation in Lando[,
286 A.2d at 927] (zoning board failed to make findings of fact in
support of its decision to deny a variance), upon which [o]bjectors
rely. As a result, we reject [o]bjectors’ argument that the [b]oard’s
findings and conclusions are inadequate.
13
Based on our disposition of this issue, we will not reach the other allegations of error
raised in this appeal.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Appeal of: Ian Campbell :
and Jean Campbell from the :
Decision Dated May 16, 2019 :
of the Whitpain Township : No. 349 C.D. 2020
Zoning Hearing Board :
:
Appeal of: Ian Campbell :
and Jean Campbell :
ORDER
AND NOW, this 13th day of April, 2021, the order of the Montgomery
County Court of Common Pleas dated February 11, 2020, is VACATED, and the
above-captioned matter is REMANDED to that court for further REMAND to the
Whitpain Township Zoning Hearing Board for proceedings consistent with the
foregoing opinion.
Jurisdiction is RELINQUISHED.
__________________________________
MICHAEL H. WOJCIK, Judge