CHR Corp., d/b/a Rutter's v. Upper Leacock Twp. ZHB & Upper Leacock Twp. ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
CHR Corp., d/b/a Rutter’s, :
Appellant :
:
v. : No. 1174 C.D. 2021
: Submitted: February 3, 2023
Upper Leacock Township :
Zoning Hearing Board :
and Upper Leacock Township :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: May 19, 2023
CHR Corp., d/b/a Rutter’s (CHR), appeals from the decision of the Court of
Common Pleas of Lancaster County (Common Pleas) dismissing as moot its appeal
of the June 5, 2019 decision of the Upper Leacock Township (Township) Zoning
Hearing Board (Board). On appeal, CHR argues Common Pleas erred in
determining its appeal was moot and that even if its appeal was moot, Common Pleas
should have considered the merits of its arguments under an exception to the
mootness doctrine. Upon review, we affirm.
CHR operates a convenience store and gas station on an approximately
12-acre parcel of land in the Township. Board Dec., 6/5/19, at 2. On January 28,
2019, CHR submitted a Zoning Application to the Township, pursuant to the
provisions of the Pennsylvania Race Horse Development and Gaming Act (Gaming
Act),1 requesting permission to add five video gaming terminals (VGTs) as an
accessory use to its convenience store.2 Id.
The Township’s zoning officer denied CHR’s application, because (a) VGTs
are not an accessory use to a convenience store since they “are not a use customarily
incidental and subordinate to a convenience store,” and (b) VGTs are permitted
under the Gaming Act only at truck stops, and CHR’s property does not qualify as a
truck stop under the Township’s Zoning Ordinance (Ordinance)3 or the Gaming Act.
Board Dec., 6/5/19, at 3.
CHR appealed the zoning officer’s decision to the Board. By written decision
dated June 5, 2019, the Board denied CHR’s appeal and upheld the zoning officer’s
denial of CHR’s application. Id. at 15-16. On July 2, 2019, the General Assembly
amended Title 53 of the Pennsylvania Consolidated Statutes to provide
municipalities with a 60-day period within which they could enact a resolution
prohibiting VGTs within their boundaries.4 See 53 Pa.C.S. § 502. CHR appealed
1
4 Pa.C.S. §§ 1101-1904.
2
Under the Gaming Act, a truck stop establishment may obtain a license to permit VGTs as an
accessory use.
3
Upper Leacock Township, Pa. Zoning Ordinance (2015), as amended.
4
53 Pa.C.S. § 502 gave municipalities the ability to prohibit all VGTs within their boundaries,
even if the VGTs had been existing and lawful before the municipality enacted its resolution. See
53 Pa.C.S. § 502(a)(1)(i), 502 (a)(1)(ii) (“A municipality may, by delivering a resolution of the
municipality’s governing body to the board no later than 60 days after the effective date of this
subsection, prohibit the location of an establishment licensee within the municipality as follows:
(i) Prior to the board approving an application and issuing an establishment license within the
municipality. (ii) After an establishment license has been issued within the municipality.”); 53
Pa.C.S. § 502(a)(2) (“An establishment licensee may not be located in a municipality which has
exercised its option under this subsection.”); 53 Pa.C.S. § 502(c) (“if a truck stop establishment
has been approved for an establishment license or submits an application and the fees for an
establishment license . . . and the municipality within which the truck stop establishment is located
elects to prohibit establishment licenses under subsection (a), the board shall refund the fees to the
applicant.”).
2
the Board’s decision to Common Pleas on July 3, 2019. Reproduced Record (R.R.)
at 77a.
On July 18, 2019, the Township adopted a resolution prohibiting VGTs within
the Township. Common Pleas’ Op., 9/17/21, at 3. Common Pleas then declined to
address CHR’s substantive issues on appeal and determined the Township’s
adoption of a resolution prohibiting VGTs pursuant to the recently enacted
provisions of 53 Pa.C.S. § 502 meant CHR could not install VGTs at its facility even
if Common Pleas granted CHR’s appeal. Common Pleas’ Op., 9/17/21, at 3-8.
Thus, Common Pleas dismissed CHR’s appeal as moot. Id. at 4-8.
CHR appealed to this Court and argues its appeal is not moot because its
property rights under the Ordinance to install VGTs have not been resolved and the
Township could unilaterally rescind its prohibition of VGTs at any time. See
Appellant’s Br., at 7-9. Even if its appeal is technically moot, CHR argues this Court
should consider the issues because CHR will suffer detriment without a court’s
decision on its rights under the Ordinance. Id. at 10-12.
Since “Common Pleas did not take additional evidence in this zoning appeal,”
this Court’s role “is limited to reviewing the [Board]’s decision, not that of Common
Pleas.” Dowds v. Zoning Bd. of Adjustment, 242 A.3d 683, 695 (Pa. Cmwlth. 2020)
(citation omitted). Thus, we evaluate whether the Board committed an error of law
or abused its discretion. Id. With regard to whether the Board committed an error
of law, we conduct a de novo review and “are not bound by the legal conclusions of
the governing body or lower court[].” EQT Prod. Co. v. Borough of Jefferson Hills,
208 A.3d 1010, 1025 (Pa. 2019) (citation omitted).
Although we review the Board’s decision, not Common Pleas’ decision, we
note Common Pleas reviewed the Board’s decision using the same standard of
3
review we must use to review the Board’s decision. In addition, Common Pleas
considered the mootness issue in the first instance, because the General Assembly
enacted 53 Pa.C.S. § 502 after the Board issued its decision. Having reviewed this
matter, we conclude the Honorable Margaret C. Miller appropriately reviewed the
Board’s decision and correctly applied the mootness doctrine in dismissing CHR’s
appeal. Accordingly, we affirm Common Pleas’ dismissal of CHR’s appeal as moot
on the basis of Common Pleas’ well-reasoned opinion and order in CHR Corp., d/b/a
Rutter’s v. Upper Leacock Township Zoning Hearing Board (C.P. Lancaster, Case
No. CI-19-06292, filed September 17, 2021).
______________________________
STACY WALLACE, Judge
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
CHR Corp., d/b/a Rutter’s, :
Appellant :
:
v. : No. 1174 C.D. 2021
:
Upper Leacock Township :
Zoning Hearing Board :
and Upper Leacock Township :
ORDER
AND NOW, this 19th day of May 2023, the order of the Court of Common
Pleas of Lancaster County, dated September 17, 2021, is AFFIRMED.
______________________________
STACY WALLACE, Judge
ENTERED AND FILED
PROTHONOTARY' SOFFICE
LANCASTER, PA
***Electronically Filed*****
Sep 17 2021 10:53AM
Ryan McMinn
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CIVIL
CHR CORP., d/b/a RUTTER'S
Appellant
VS. No. CI- 19-06292
UPPER LEACOCK TOWNSHIP
ZONING HEARING BOARD LAND USE APPEAL
Appellee
UPPER LEACOCK TOWNSHIP
Intervenor
OPINION
BY: MILLER, J
September 17, 2021
The instant matter arises from the July 3, 2019, Notice of Land Use Appeal ("Appeal")
filed by CHR Corp., d/b/a Rutter's ("Appellant") from the June 5, 2019, decision of the Upper
Leacock Township Zoning Hearing Board ("ZHB"). For the reasons that follow, the appeal is
dismissed as moot.
BACKGROUND
The property subject to appeal (" Property") is aconvenience store with accessory fueling
pump stations located at 370 West Main Street in Upper Leacock Township, Lancaster County,
Pennsylvania, The Property is located within the General Commercial Zoning District (" GC
APPENDIX A
No. CI- 19-06292
LAND USE APPEAL
Zone").' In 2017, the Pennsylvania General Assembly passed Act 2017-52 amending the Race
Horse Development and Gaming Act with respect to video gaming terminals ("VGTs "). 2 Under
the Gaming Act, an establishment license may be issued to permit VGTs to be operated as an
accessory use on the premises of atruck stop establishment. On January 28, 2019, Appellant
submitted azoning permit application ("Permit Application") to the Upper Leacock Township
Zoning Officer, Mark Diemler ("Zoning Officer") requesting permission to install five (5) video
VGTs on the Property as an accessory use. By undated letter, the Zoning Officer denied
Appellant's Permit Application for the following reasons: 1) VGTs are not an accessory use to a
convenience store, the principal use at the Property; 2) VGTs are not ause customarily incidental
and subordinate to aconvenience store; and 3) the Property is not atruck stop as defined by the
Upper Leacock Township Zoning Ordinance ("Zoning Ordinance") or under the Pennsylvania
State Gaming Act (" Gaming Act"). 3 Appellant appealed the Zoning Officer's denial of the Permit
Application to the ZHB and ahearing was held on May 1, 2019. The ZHB issued awritten decision
on June 5, 2019, affirming the Zoning Officer's denial of the Permit Application and denying the
appeal (" ZHB Decision").
'See Appellant's Notice of Land Use Appeal, pp. 3-4.
2 See 4Pa. C.S. §§ 3101; 58 Pa. Code §§ 1101.1.
3 The Zoning Officer's letter states that while the Gaming Act permits VGTs at truck stops, under the Zoning
Ordinance truck stops are ause only permitted in the Light Industrial Zone and not in the GC Zone; thus, finding the
Property, located in the CG Zone, not atruck stop under the Zoning Ordinance. The Zoning Officer further states that
the Gaming Act requires a minimum of twenty (20) tractor trailer parking spaces to be provided in order to be
considered eligible for the location of VGTs at an approved truck stop and the Property only has eighteen ( 18) spots;
thus, finding the Property not atruck stop under the Gaming Act.
2
No. CI- 19-06292
LAND USE APPEAL
On July 2, 2019, the Pennsylvania legislature amended Title 53, Municipalities Generally,
of the Pennsylvania Consolidated Statutes to give municipalities the option to prohibit the location
and operation of VGTs within their boundaries ("Municipal Option Amendment"). See 53 Pa. C.S.
§502. Appellant filed the instant Appeal one day later, on July 3, 2019. On July 18, 2019, the ZHB
adopted aresolution prohibiting VGTs ("VGT Prohibition Resolution") within the boundaries of
the Township in accordance with the Municipal Option Amendment. 4 On July 25, 2019, Upper
Leacock Township ("Township") filed its Notice of Intervention and on August 12, 2019, the ZHB
filed the certified record. On September 23, 2019, Appellant filed its Brief in Support of Land Use
Appeal. On October 22, 2019, the Township filed its Brief of Intervenor and on November 1, 2019,
Appellant filed its Reply Brief thereto.
Instantly, Appellant's Appeal raises two issues for the court's consideration as it intends to
pursue the installation of VGTs on the Property should the ZHB ever rescind the VGT Prohibition
Resolution. 5 First, Appellant claims that the ZHB erred in determining that VGTs are not permitted
at the Property as an accessory use. Second, Appellant claims that the ZHB erred in assessing
whether the Property meets the qualifications for issuance of an establishment license under the
Gaming Act. Accordingly, Appellant asserts that the ZHB erred as amatter of law and abused its
discretion and thus requests that this court reverse the ZHB Decision that VGTs are not permitted
by right as an accessory use on the Property. However, the Township argues, and the court agrees,
that following the adoption of the VGT Prohibition Resolution by the ZHB and the filing of the
aSee Brief of Intervenor Upper Leacock Township, pg. 3-2; Upper Leacock Township Resolution No. 2019-11.
sSee Appellants Brief in Support of Land Use Appeal, pg. 4.
3
No. CI- 19-06292
LAND USE APPEAL
VGT Prohibition Resolution with the Pennsylvania Gaming Board, the issues raised by Appellant
in the Appeal are moot. 6 Thus, having considered the briefs and arguments of the parties, the court
must conclude there no longer exists a viable dispute for which the court may grant relief.
Accordingly, the Appeal must be dismissed as moot.
DISCUSSION
The mootness doctrine requires that acourt should dismiss an appeal as moot unless there
is an actual case or controversy at all stages of review. Pilchesky v. Lackawanna County, 88 A.3d
954, 964 (Pa. 2014); Horsehead Resource Development Company, Inc. v. Department of
Environmental Protection, 780 A.2d 856 (Pa. Cmwlth. 2001). Further, the mootness doctrine
requires that an actual controversy must exist at all stages of review, not merely at the time the
complaint is file. Paradise Materials, Inc. vParadise Township, 676 A.2d 1314 (Pa. Cmwlth.
1996). Appeals may be rendered moot by anew legislative enactment which supersedes the statute
or ordinance under which the action was brought. In re: Gross, 382 A.2d 116 (Pa. 1978); Paradise
Materials, Inc. vParadise Township, 676 A.2d 1314 (Pa. Cmwlth. 1996). Principles of mootness
are applicable in zoning matters, Id.; Benoff v. Zoning Board of Adjustment, 528 A.2d 705 (Pa.
Cmwlth. 1987). An issue may become moot during the pendency of an appeal due to an
intervening change in facts of the case. In re Cain, 590 A.2d 291, 292 (
Pa. 1991).
If, while an appeal is pending, an event occurs which renders it impossible for the court to
grant the request relief, the appeal will be dismissed as moot. Benoff v. Zoning Board of
6 See Brief of Intervenor Upper Leacock Township, pg. 7.
4
No. CI- 19-06292
LAND USE APPEAL
Adjustment, 528 A.2d 705 (Pa. Cmwlth. 1987); Commonwealth v. Smith, 486 A.2d 445 (Pa. Super.
1984). An issue is moot if in ruling upon the issue, the court cannot enter an order that has any
legal force or effect. Chruby v. Department of Corrections, 4A.3d 764, 770-71 (Pa. Cmwlth.
2010). A court will not enter judgments or decrees to which no effect can be given. St. Clair
Memorial Hospital v. Department of Health, 691 A.2d 1040 (Pa. Cmwlth. 1997). However, even
if an issue is technically moot, acourt may still choose to hear the issue if any one of three
exceptions apply: ( 1) the issue is aquestion of great public importance, (2) the issue is capable of
repetition and apt to elude appellate review, or (3) aparty to the controversy will suffer some
detriment due to the decision of the trial court to dismiss on mootness. Chruby v. Department of
Corrections, 4A.3d 764, 771 (Pa. Cmwlth. 2010).
Appellant acknowledges that it is not currently permitted to install VGTs on the Property
due to the VGT Prohibition Resolution.? Nonetheless, Appellant does not concede that this matter
is moot. In response to the Township's mootness argument, Appellant claims that the issues
presented in its Appeal, notwithstanding Appellant's acknowledgment of its current inability under
state law to install VGTs on the Property, have not changed and the VGT Prohibition Resolution
did not divest Appellant's Appeal of acase and controversy.$ First, Appellant argues it appealed
the ZHB Decision to preserve its right to install VGTs in the future if the ZHB rescinds the VGT
Prohibition Resolution. 9 Next, Appellant argues it would suffer prejudice if it fails to pursue the
I See Appellants Brief in Support of Land Use Appeal, pg. 4; Appellant's Reply Brief, pg. 3.
8 See Appellant's Reply Brief to Brief of Intervenor, pg. 3.
9 Id.5
No. CI- 19-06292
LAND USE APPEAL
Appeal and the VGT Prohibition Resolution is subsequently rescinded, as Appellant would be
required to submit anew zoning permit application to install VGTs on the Property. 10 Further,
Appellant argues by ruling on the appeal, the court will ensure that the parties will not be required
to relitigate this issue in the future should the VGT Prohibition Resolution ever be rescinded. 11
However, the Township argues and this court agrees, that such aspeculative form of relief
requested by Appellant is abstract in nature and would serve as merely as an advisory opinion
because the ZHB may never rescind the VGT Prohibition Resolution; thus, rendering the relief
Appellant seeks as the type of relief the mootness doctrine intended to prevent. 12 The court also
finds there is currently no case or controversy because the VGT Prohibition Resolution adopted
by the ZHB currently does not permit the operation of VGTs within the Township; thus, even if
this court were to reverse the ZHB Decision, the relief requested by Appellant would not produce
any legal effect because the VGT Prohibition Resolution would still prohibit Appellant from
installing VGTs.
Appellant has not claimed that any exception to the mootness doctrine would permit its
Appeal to remain viable. Nevertheless, the court considered the exceptions and finds that none is
applicable. This case does not involve conduct which is capable of repetition, yet likely to evade
judicial review. In re: Application ofMilton S. Hershey Medical Center, 595 A.2d 1290 (Pa. Super.
1991). Nor is it acase in which one of the parties will continue to suffer detriment due to the action
io Id.11 Id. at 3-4.
"- See Brief of Intervenor of Upper Leacock Township, pg. 8.
6
No. CI- 19-06292
LAND USE APPEAL
of the ZHB. Commonwealth v. Sal-Mar Amusements, 630 A.2d 1269 (
Pa. Super. 1993) (
expiration
of one year closure as nuisance bar does not render appeal moot since finding affects bar owner's
liquor license and record with the Pennsylvania Liquor Control Board as well as bar owner's
subsequent efforts to apply for, extend and/or maintain new or existing liquor license.) Lastly, this
case is not one of the rare instances in which acase will be heard, although moot, due to its great
public importance. Meyer v. Strouse, 221 A.2d 191 (
Pa. 1966); Conti v. Department of Labor and
Industry, 175 A.2d 56 (
Pa. 1961).
The conclusion that the Appeal is moot becomes inescapable when one considers the
practical consequences of the decision in this case. Even if the court were to sustain the Appeal,
that ruling would not affect Appellant's current inability to install VGTs on the Property due to
the enactment of the VGT Prohibition Resolution. There has been no challenge to the validity of
the VGT Prohibition Resolution and it remains in force. Thus, adecision in this Appeal will have
no effect whatsoever. If the court were to render adecision on the merits of this Appeal, it would
be nothing more than an unwarranted and ill-advised advisory opinion. Okkerse v. Howe, 556 A.2d
827 (
Pa. 1989) (
advisory opinions are without legal effect); In re: Condemnation by the
Commonwealth Department of Transportation, 515 A.2d 102 (Pa. Cmwlth. 1986) (
advisory
opinions are not within the purview of an appellate court's jurisdiction); Courtney v. Ryan Homes,
Inc., 497 A.2d 938 (
Pa. Super. 1985) (
courts are not instituted to render advisory opinions).
7
No. CI- 19-06292
LAND USE APPEAL
Thus, because the court finds Appellant's Land Use Appeal moot and Appellant has not
established an exception to the mootness doctrine to which this court could address the merits of
the Appeal, the court must dismiss the Appeal as moot.
Accordingly, the Court enters the following Order:
8
No. CI- 19-06292
LAND USE APPEAL
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CIVIL
CHR CORP., d/b/a RUTTER' S
Appellant
VS. No. CI- 19-06292
UPPER LEACOCK TOWNSHIP
ZONING HEARING BOARD LAND USE APPEAL
Appellee
UPPER LEACOCK TOWNSHIP
Intervenor
ORDER
AND NOW, this 15" day of September, 2021, Appellant's Land Use Appeal is DISMISSED
as moot for the reasons set forth in the foregoing Opinion.
BY THE COURT: ``\\\\ ,,111►►►,, ,/
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Copies to: Helen Gemmill, Esquire — Attorney for Appellant
Claudie N. Shank, Esquire — Attorney for Appelfdt
Robert E. Sisko, Esquire — Attorn ey for Appelle TICE OF ENTRY OF ORDER OR DECREE
RSUANT TO PA. R.C.P. NO: 236
William J. Cassidy Jr., Esquire —Attorney for InI'a TI -THE ATTACHED DOCUMENT
HAS BEEN FILED IN THIS CASE
-
g PROTHONOTARY OF LANCASTER CO., PA
DATE:
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