Joyce Outdoor Advertising, LLC v. ZHB of the Borough of Moosic ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joyce Outdoor Advertising, LLC, :
Appellant :
:
v. : No. 195 C.D. 2020
: ARGUED: April 15, 2021
Zoning Hearing Board of the Borough :
of Moosic and Moosic Borough and :
Hemingway Limited Partnership :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: August 2, 2021
Applicant, Joyce Outdoor Advertising, LLC, appeals from an order of
the Court of Common Pleas of Lackawanna County that (1) affirmed the decision of
the Zoning Hearing Board of the Borough of Moosic (ZHB) denying Applicant’s
application for a use variance to erect a billboard in the Borough; and (2) denied
Applicant’s land use appeal and motion to present additional evidence.1 We affirm.
Applicant is the lessee of a 12.65-acre undeveloped property located on
Montage Mountain Road in the Borough’s commercial general (C-2) zoning district.
(ZHB’s Feb. 6, 2019 Dec., Finding of Fact “F.F.” No. 2.) Originally 17.13 acres,
the Pennsylvania Department of Transportation condemned and acquired 4.48 acres
in 2001 as part of the Interstate 81 ramp project and paid the property owner
1
The ZHB joins in the briefs of the Borough and Hemingway Limited Partnership.
$925,000.2 (Id., F.F. No. 11.) Steeply sloped, the remaining property contains
wetlands, a flood plain, and a portion of Stafford Meadow Brook.
In 2016, Applicant applied for zoning relief because billboards are a
permitted use only in manufacturing (M) zoning districts under the Moosic Borough
Zoning Ordinance. Applicant proposed a double-sided outdoor advertising sign, 35ꞌ
in height and measuring 10ꞌ x 30ꞌ (300 square feet). One side would be digital and
the other side conventional. (Id., F.F. No. 1.) After the ZHB unanimously voted to
deny the zoning application, Applicant filed its first land use appeal with the trial
court. In March 2018, Applicant filed its first motion to present additional evidence.
Notwithstanding the objections of the Borough and Hemingway Limited Partnership
(an objecting neighboring property owner and the developer of Glenmaura),3 the trial
court granted Applicant’s first motion and remanded the matter to the ZHB. On
remand, the ZHB heard additional testimony in July and August 2018. Once again,
the ZHB unanimously denied the zoning application.
In March 2019, Applicant filed its second land use appeal. In
September 2019, Applicant filed its second motion to present additional evidence,
2
The 4.48 acres were apportioned as follows: 2.18 acres for a required right-of-way; 1.05
acres for a required right-of-way access for a utility access road; and 1.25 acres for a required
right-of-way for a borough street. (ZHB’s Aug. 20, 2018, Remand Hr’g, Ex. 11, July 11, 2018,
Pet. for Appt. of a Bd. of Viewers at 1-3; Reproduced R. “R.R.” at 1152a-54a.) The $925,000 was
apportioned as follows: $818,910.98-land; $500-limited reimbursement for appraisal, attorney,
and engineering fees; and $105,589.02-delay damages. (Id., Ex. 12, Nov. 22, 2006, Stip. of Settl’t
at 1-4; R.R. at 1157a-60a.)
3
Glenmaura is a planned, mixed-use development that includes shopping, commercial,
residential, and recreational uses.
2
which the ZHB, Hemingway, and the Borough opposed. Following the trial court’s
denial of both the appeal and the motion, Applicant’s appeal to this Court followed.4
On appeal, Applicant’s cognizable issues are as follows:5 (1) whether
the ZHB erred in denying Applicant’s application for a variance; and (2) whether
the trial court erred in how it chose to adjudicate Applicant’s second land use appeal.6
I
Pursuant to Section 910.2 of the Pennsylvania Municipalities Planning
Code (MPC),7 which the Borough adopted, the power to grant a variance is limited
to only those circumstances where the applicant proves: that a zoning restriction
imposes an unnecessary hardship due to unique physical conditions peculiar to his
property that are not self-created; that the requested variance is necessary to enable
4
Where the trial court takes no additional evidence we may determine, based upon the issues
raised, whether the ZHB committed an error of law or made findings of fact that are not supported
by substantial evidence. Pequea Twp. v. Zoning Hearing Bd. of Pequea Twp., 180 A.3d 500, 504
(Pa. Cmwlth. 2018). Substantial evidence is defined as relevant evidence that a reasonable mind
might accept as adequate to support a conclusion. Id.5
Given our resolution in this matter, we need not consider whether the ZHB erred in
determining that the proposed billboard did not meet the 2,000ꞌ separation requirement found in
Section 300-30(F)(3)(b) of the Zoning Ordinance due to the existence of an outdoor advertising
sign 1,410ꞌ away on Interstate 81.
6
In the guise of additional issues, Applicant argues that the ZHB’s findings of fact are not
supported by substantial evidence, that the ZHB failed to show its reasoning for certain findings,
and that it disregarded relevant, competent evidence. However, Applicant’s contentions primarily
are tantamount to challenges to the ZHB’s credibility determinations and decisions as to what
weight to afford the evidence. If the record contains substantial evidence, we are bound by the
ZHB’s findings that result from its resolution of credibility and conflicting testimony. Pohlig
Builders, LLC v. Zoning Hearing Bd. of Schuylkill Twp., 25 A.3d 1260, 1266 (Pa. Cmwlth. 2011).
Additionally, a careful reading of the ZHB’s decision reveals that it made the requisite findings of
fact and provided adequate rationale for each of its determinations. Finally, there is support in the
record for the findings of fact essential to the ZHB’s decision.
7
Act of July 31, 1968, P.L. 805, as amended, added by Section 89 of the Act of December
21, 1988, P.L. 1329, No. 170, 53 P.S. § 10910.2.
3
a reasonable use of the property; that the grant of a variance will not alter the
essential character of the neighborhood, nor substantially or permanently impair
appropriate use or development of adjacent property, nor be detrimental to the public
welfare; and that the requested variance represents the minimum variance that will
afford relief and the least possible modification of the requirement. Zoning
Ordinance, § 300-40(A). “The burden of an applicant seeking a zoning variance is
heavy, and variances should only be granted sparingly and only under exceptional
circumstances.” Oxford Corp. v. Zoning Hearing Bd. of Borough of Oxford, 34 A.3d
286, 296 (Pa. Cmwlth. 2011) (citation omitted).
We turn first to the criterion requiring that Applicant establish that there
are unique physical conditions peculiar to the property and that any alleged
unnecessary hardship is due to such conditions and not conditions generally created
by the Zoning Ordinance in the area where the property is located. Applicant
asserted that the subject property was unique as compared to the neighboring
properties due to its bowl shape and steep slopes. However, the evidence reflects
and the ZHB found that the surrounding properties on the mountain and the subject
property are sloped and share similar topography that presents challenges to
development. (ZHB’s Feb. 6, 2019, Dec., F.F. Nos. 16 and 28.) In support, the ZHB
credited the testimony of Joseph Stachokus, P.E., that the lot upon which the
proposed billboard would sit is not unique as compared to the neighboring
properties. (Id. at 5 and 11.) Noting his experience with developing nearby projects
such as the Shoppes at Montage and the Exxon Gas station, Stachokus stated that
“[a]ll of the developments he has worked with on the mountain [have] required
cutting and filling to level the topography which is hilly and rocky.” (Id. at 5.)
Additionally, Stachokus testified that “most of the lots up on the mountain for
4
development have anywhere from 30[-] to 100[-]foot difference in elevation across
the parcels . . . [and] . . . this 12[-]acre parcel is similar to that.” (ZHB’s Aug. 20,
2018, Hr’g, Notes of Test. “N.T.” at 130; Reproduced R. “R.R.” at 686a.) He
explained: “There is a grade drop-off off of Montage Mountain Road, because when
that road was constructed, they needed to provide the necessary grade from the 81
interchange down to Glenmaura, which created the embankment that’s there now.
The topography–multiple lots on the mountain have wetlands that they have to deal
with.” (Id.) Additionally, the properties located in the planned development zone
where Glenmaura is located and the C-2 zoning districts share the same billboard
restriction. Accordingly, we agree with the ZHB that Applicant failed to satisfy the
unique physical conditions criterion.
We turn next to the criterion requiring that Applicant prove that the
requested variance is necessary to enable a reasonable use of the property. Permitted
uses in the C-2 zoning district include but are not limited to office buildings, hotels,
motels, commercial buildings, and large-scale developments. (ZHB’s Feb. 6, 2019,
Dec., F.F. No. 3.) Applicant maintained that treacherous topographical features on
the property, including wetlands, Stafford Meadow Brook, the floodplain, and
Norwich soils, rendered the property undevelopable for the permitted uses.
Additionally, Applicant asserted an inability to construct an access driveway to
Montage Mountain Road.
Applicant’s position is without merit. The ZHB concluded, and the
evidence reflects, that the subject property could be conformed for a use permitted
in the C-2 zoning district “at a reasonable expense reflective of neighboring land
currently under development[] as well as[] lands previously developed.” (Id., F.F.
No. 26.) In support, it credited Stachokus’s testimony that approximately 2.46 acres
5
of the subject property were developable, noting similarly situated parcels of lands
such as the Shoppes at Montage, the Exxon Gas station, and the Glenmaura Senior
Living project. (Id. at 5, 10-11.) Stachokus estimated that the cost of development
would be $602,000 and that the cost of an access road would be $319,728.8 (ZHB’s
Aug. 20, 2018, Hr’g, N.T. at 111-12; R.R. at 667a-68a.) The development cost
included leveling the land to make a flat pad and bringing the utilities to the pad
area. (Id. at 110-11; R.R. at 666a-67a.) The road costs included grading, the
pavement, the concrete curbing, and the guiderail. (Id. at 112; R.R. at 668a.)
Moreover, the ZHB rejected Applicant’s argument that an access road
could not be constructed. The ZHB accepted Objector’s Exhibit 2, Stachokus’s plan
for driveway access reflecting a driveway that complied with the sight line and slope
requirements of the Zoning Ordinance. (ZHB’s Feb. 6, 2019, Dec., F.F. No. 21.)
Specifically, Stachokus “testified that a roadway to ingress and egress the property
is accessible on the [n]orthern end of the property with a [twenty-four] foot access
road, and presented a concept map for the [ZHB’s] review.” (Id. at 5.)
Consequently, based on Stachokus’s testimony and plan, the ZHB found that the
subject property could be developed economically.9 (Id., F.F. No. 22.)
8
Stachokus also referenced the eminent domain documents, stating that the $319,728 was
included in the original figure. (ZHB’s Aug. 20, 2018, Hr’g, N.T. at 112; R.R. at 668a.) However,
how the property owner funds development of the access road and whether he already received
such funds is not before us. Accordingly, while Stachokus’s testimony as to the cost of the access
road is relevant, his testimony as to what portion the property owner may or may not have received
in the eminent domain proceeding is speculative.
9
Applicant makes much of the fact that the ZHB permitted Robert Pomento to testify about
an access driveway because he was certified as a construction expert such that he should not have
opined as to matters relating to engineering and land use. Given the fact that the ZHB relied upon
the testimony of a professional engineer, Applicant’s argument is of no moment.
6
Further, it is irrelevant that Objector’s witnesses presented what
counsel for Applicant later characterized as conflicting plans as to the potential
location for an access driveway. It is within the purview of the ZHB to consider the
evidence, to determine credibility and the weight of the evidence, and to resolve
conflicting evidence. Pohlig Builders, LLC v. Zoning Hearing Bd. of Schuylkill
Twp., 25 A.3d 1260, 1266 (Pa. Cmwlth. 2011). The fact that Objector’s evidence
seemingly was conflicting was merely a factor for the ZHB to consider in its capacity
as the factfinder. Accordingly, the ZHB’s finding that the property owner could
make productive use of the land without the variance was supported.
We turn now to the criterion requiring that Applicant establish that the
grant of a variance will not alter the essential character of the neighborhood.
Applicant asserted that the subject property is along a four-lane highway in a
commercial district and, accordingly, granting the variance would not alter the
essential character of the neighborhood. The ZHB disagreed, determining that “the
granting of a use variance for an outdoor advertising sign would change the character
of the development on the mountain.” (ZHB’s Feb. 6, 2019, Dec. at 10.) In support,
the ZHB observed that “[v]arious commercial property owners and residential
property owners testified as to adverse effects on property values, quality of life and
the planning process that protects their properties from the proposed billboard.” (Id.,
F.F. No. 17.) In general, they testified that the proposed billboard would be located
at the gateway to Glenmaura, that they would be able to see the billboard from their
homes, and that the content of the billboard might be objectionable.10 (Id.)
10
The ZHB summarized the property owners’ testimony. James Snyder and Benjamin
Accardi testified as to their fears about traffic safety, with Accardi referencing possible property
devaluation. (ZHB’s Feb. 6, 2019, Dec. at 3.) Laurie Fitzsimons testified that she relocated to
Moosic partially because of the aesthetics of the Montage area and the lack of billboards and
(Footnote continued on next page…)
7
In addition, the ZHB emphasized the Borough Solicitor’s statement “on
the record that the absence of billboards on Montage Mountain Road was
intentional.” (Id., F.F. No. 18.) The ZHB observed: “Clearly the restrictions on
billboards were intentionally [sic] and well[-]planned by the Borough.” (Id.)
Accordingly, the ZHB found and the accepted evidence reflects that granting the
variance would alter the essential character of the neighborhood. (Id., F.F. Nos. 34
and 35.)
II
We turn next to Applicant’s arguments that the trial court improperly
adjudicated the second land use appeal. Applicant contends that the trial court erred
in denying Applicant’s second motion to present additional evidence, erred in not
hearing the second land use appeal de novo, and violated Applicant’s due process
rights by not holding oral argument on the second land use appeal. In rendering
these arguments, Applicant acknowledges that the trial court had no obligation to
permit additional evidence and that had the court decided to do so, it intended to
limit the scope to prevent a full redo of the zoning proceedings. Nonetheless,
Applicant argues that the trial court’s handling of the second land use appeal was
prejudicial and constituted a deprivation of due process.
commercialization of the Glenmaura Development. She also expressed a concern about traffic
safety. (Id.) Carolyn Wallace testified that she did not want to see a billboard from her back deck
and feared that it would feature advertisements for adult businesses such as a billboard near the
airport. (Id. at 4.) Joseph Paone stated that a digital display would present a safety hazard for the
driving public and cause distractions. (Id.) Thomas Mallis testified that a billboard at the entry
way to Glenmaura would adversely affect the property values of the homes located there. (Id.)
Richard Angelicola, developer of the Glenmaura Senior Living project, testified that the billboard
would be directly visible from his property, that it would have an adverse effect on his business
and property value, and that he would not have purchased his property had he known that a
billboard would be permitted on the subject property. (Id.)
8
Section 1005-A of the MPC11 provides guidance to a trial court on how
to adjudicate a land use appeal. In pertinent part, Section 1005-A provides:
Hearing and argument of land use appeal
If, upon motion, it is shown that proper consideration of
the land use appeal requires the presentation of additional
evidence, a judge of the court may hold a hearing to
receive additional evidence, may remand the case to the
body, agency or officer whose decision or order has been
brought up for review, or may refer the case to a referee to
receive additional evidence . . . . If the record below
includes findings of fact made by the . . . board . . .whose
decision or action is brought up for review and the court
does not take additional evidence or appoint a referee to
take additional evidence, the findings of the . . . board . . .
shall not be disturbed by the court if supported by
substantial evidence. If the record does not include
findings of fact or if additional evidence is taken by the
court or by a referee, the court shall make its own findings
of fact based on the record below as supplemented by the
additional evidence, if any.
53 P.S. § 11005-A. The decision to permit additional evidence lies within a trial
court’s discretion, Crystal Forest Associates, LP v. Buckingham Township
Supervisors, 872 A.2d 206, 213 (Pa. Cmwlth. 2006), but only where the party
seeking to submit it demonstrates that the record is incomplete because the party was
denied the opportunity to be fully heard or because relevant testimony was offered
and excluded. Piper Grp., Inc. v. Bedminster Twp. Bd. of Sup’rs, 992 A.2d 224, 238
(Pa. Cmwlth. 2010).
In the present case, the trial court did not hear the second land use
appeal de novo because it concluded that the record below was complete, and that
Applicant was afforded ample opportunity to produce relevant evidence. (Trial Ct.’s
11
Added by Section 101 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 11005-A.
9
Jan. 17, 2020, Op. at 4-5.) Additionally, the trial court denied Applicant’s second
motion to present additional evidence pertaining to the following: (1) wetland
delineation regarding the location, size, scope, and impact on any development; (2)
the cost of an access road; (3) whether any hardship was self-created; and (4)
submission of visuals of the property, i.e., a site visit. Preventing what most likely
would have resulted in a third remand hearing, the trial court determined that there
was no basis for reopening the record because much of the testimony at the two
remand hearings centered on the presence of wetlands and the flood plain. Further,
noting Applicant’s assertion that a wetlands coordinator opined that the flood plain
maps might be outdated and, therefore, inaccurate, the trial court concluded that
Applicant otherwise failed to offer a reason why it did not pursue a water delineation
expert earlier. (Id. at 6.)
We conclude that the trial court did not abuse its discretion in declining
to hear the second land use appeal de novo and in denying the second motion to
present additional evidence. In addition to the reasons set forth by the trial court, we
emphasize the ZHB’s finding that “[t]he viability and cost of constructing an access
driveway on the subject property onto Montage Mountain Road occupied a large
portion of the [ZHB’s] three hearings . . . .” (ZHB’s Feb. 6, 2019, Dec., F.F. No.
12.) Additionally, where an applicant fails, at an appropriate earlier stage in the
proceedings, to establish that any alleged hardship was not self-created and to submit
sufficient visual aids depicting the subject property, a record is not rendered
incomplete and additional evidence is not warranted.
As for not holding oral argument on the second land use appeal, we
note that the trial court held what was tantamount to oral argument in this matter on
both August 19, 2019, and October 7, 2019. Notwithstanding the fact that the
10
transcripts reflect ample dialog between counsel and the trial court, it is clear that
Applicant did not suffer prejudice or a deprivation of due process by the manner in
which the trial court chose to conduct and afford oral argument.
Accordingly, we affirm.12
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
12
As for Applicant’s concerns regarding the trial court’s denial of its emergency motion for
reconsideration and decision not to issue a written order, any determination falls within the trial
court’s sound discretion. Belleville v. David Cutler Grp., Inc., 118 A.3d 1184, 1195-96 (Pa.
Cmwlth. 2015). “An abuse of discretion is more than just an error in judgment and, on appeal, the
trial court will not be found to have abused its discretion unless the record discloses that the
judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-
will.” Id. at 1195 [quoting Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996)]. There is no
indication in the present case that the trial court abused its discretion. In any event, Applicant filed
a timely notice of appeal from the trial court’s order on the merits.
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joyce Outdoor Advertising, LLC, :
Appellant :
:
v. : No. 195 C.D. 2020
:
Zoning Hearing Board of the Borough :
of Moosic and Moosic Borough and :
Hemingway Limited Partnership :
ORDER
AND NOW, this 2nd day of August, 2021, the order of the Court of
Common Pleas of Lackawanna County is hereby AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita