Millcreek Road Assoc., LP v. Bd. of Comm. of Lower Merion Twp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Millcreek Road Associates, LP, :
Appellant :
:
v. : No. 1050 C.D. 2020
: Argued: March 10, 2022
Board of Commissioners of Lower :
Merion Township :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE LEAVITT FILED: June 17, 2022
Millcreek Road Associates, LP (Landowner) appeals an order of the
Court of Common Pleas of Montgomery County (trial court) that affirmed the
decision of the Board of Commissioners of Lower Merion Township to deny
Landowner’s conditional use and dimensional relief application.1 Landowner seeks
to rehabilitate two historic mill buildings and convert them, along with a new
building, into a condominium complex. Concluding that the Board of
Commissioners’ stated reasons for denying Landowner’s application were barred by
collateral estoppel and that its factual findings were not supported by substantial
evidence, we reverse the trial court.
1
THE CODE OF THE TOWNSHIP OF LOWER MERION, CHAPTER 155, ZONING (1927) (Zoning Code),
https://www.lowermerion.org/home/showpublisheddocument/23161/637188241907500000 (last
visited June 16, 2022). On February 26, 2020, by Township Ordinance No. 4181, the Board of
Commissioners amended Chapter 155 in its entirety.
Background
Landowner owns a 2.175-acre property (Property) in Lower Merion
Township, which is surrounded on three sides by Rolling Hill Park, a 103-acre
“natural state” park owned by the Township. The Mill Creek borders the fourth side
of the property. The two historic mill buildings are sited on the banks of the Mill
Creek, and on the opposite bank lies Mill Creek Road. The Property is located in
the Township’s RAA Residential District, where the use of land is limited to certain
purposes, such as single-family homes, under the Zoning Code. ZONING CODE §155-
11. Because of its two historic mill buildings, the Property’s use is also governed
by the Historic Resource Overlay District, which allows uses otherwise not
permitted.2 ZONING CODE §155-151.
Landowner plans to restore the historic mill buildings and develop them
into 13 condominium units. Adjacent to them, Landowner plans to construct a 5-
story building (New Building) for 20 more condominium units. The three buildings
will form a circle around a courtyard, which is presently used as a parking lot for the
abandoned mills. Multi-family residential uses are permitted by conditional use in
an Historic Resource Overlay District. ZONING CODE §155-151.B(1)(f). The three
buildings will not be physically connected at ground level, but they will be connected
by the underground parking garage to be constructed below the courtyard.
Landowner’s proposed development has a long regulatory history. On
October 19, 2005, the Board of Commissioners issued an adjudication approving
Landowner’s preliminary land development plan (Preliminary Plan) subject to 46
2
The two historic mill buildings have been designated Class I Historic Resources under the Zoning
Code as “resources designated as such pursuant to criteria previously applied or as set forth in
Chapter 88 of the [Zoning] Code and which are listed on the Historic Resource Inventory, Chapter
A180, together with contributing resources thereto.” ZONING CODE §155-4.
2
conditions, one of which required Landowner to obtain a conditional use approval
of its proposed multi-family residential use. On November 16, 2005, the Board of
Commissioners granted Landowner’s conditional use application. On September
20, 2006, the Board of Commissioners approved an amendment to the Preliminary
Plan to add 6 more condominium units, raising the total to 33 units. On December
16, 2009, the Board of Commissioners approved another amendment to the
Preliminary Plan that revised the sanitary sewer line and the grading of the Property.
With each Plan amendment, the Board of Commissioners confirmed Landowner’s
conditional multi-family use. On May 16, 2018, the Board of Commissioners
confirmed its previously approved conditional use, with the proviso that Landowner
file a final land development plan within 12 months.
In February 2019, Landowner filed an application requesting a
clarification on how to measure the height of the New Building. A 2005 amendment
to the Zoning Code revised the methodology for measuring building height.
Specifically, it required a building to be measured from the building’s lowest point
to its highest point. Previously, the height of a building was measured by using the
mean grade of the slope adjacent to a building and the mean high point of the roof.3
The actual height of the proposed New Building and the number of stories has
remained the same from inception. However, because the New Building will be
constructed on a steep hill, the change in measurement methodology added 10 feet
to its height, i.e., to 54.4 feet. This triggered more restrictive impervious surface,
3
“The height of a single-family detached dwelling or a building accessory thereto shall not exceed
three stories in height or 35 feet, and the height of any other building[] may exceed 35 feet in
accordance with the provisions of §155-137 [(regarding building height requirements; exceptions)]
hereof, but shall not exceed 65 feet.” ZONING CODE §155-13.
3
building area and setback requirements under the dimensional standards in the RAA
District.4
The Board of Commissioners confirmed that the 2005 Zoning Code
amendment applied to Landowner’s Preliminary Plan. Because Landowner had not
sought relief from the dimensional requirements imposed by the newly calculated
height, the Board denied the February 2019 conditional use application and did not
act on Landowner’s request for extension of the deadline for submitting a final plan.
Landowner did not appeal.
On June 12, 2019, Landowner filed a conditional use application
seeking relief from the RAA District dimensional requirements, which was
supported by the Township’s Historical Commission. The Historical Commission
recommended that the Board of Commissioners approve a reduction of “front, side
and rear yard setbacks” and “building area, impervious surface, and building
height”5 requirements in the RAA Zoning District. R.R. 154a. On the other hand,
the Township’s Planning Commission recommended disapproval of the conditional
use application for the stated reason that the Zoning Code’s authorized expansion to
a historic resource did not contemplate the construction of a separate building, such
as the New Building.
Hearings were conducted on September 23, October 24, and October
31, 2019, by a Township hearing officer. The Township presented one witness and
4
The RAA District permits the construction of a building 65 feet in height. However, for each
foot of building height above 35 feet, the setback, building area and impervious surface
requirements become more restrictive. See ZONING CODE §155-137(A).
5
The minutes of the Historical Commission reported that a consultant had stated that “the height
of the [N]ew [B]uilding might not be perceived fully from the road but would dwarf the historic
resources.” Reproduced Record at 652a (R.R. __).
4
several documents; Landowner presented numerous witnesses and extensive
documentary evidence.
On behalf of the Township, Donna Heller, the Township’s Director of
Parks and Recreation, testified. She was not offered or accepted as an expert witness.
She stated that the New Building’s location next to the Rolling Hill Park “would
change the experience of [the] [p]ark. It’s currently an open, natural space with no
sight obstructions to nature.” Notes of Testimony (N.T.), 10/24/2019, at 13; R.R.
362a. Heller believed the New Building would adversely impact the park experience
of its users. The Township presented no other witnesses.
Landowner presented Charles Jefferson, an expert in adaptive reuse of
historic properties. He testified that the mill buildings were in “poor condition,”
noting that mortar in both buildings had failed, and there were signs of timber rot.
N.T., 9/23/2019, at 75; R.R. 245a. Further, he observed that a steel truss that runs
from one end of the larger mill building to the other had dropped, which indicated a
foundation issue. Nevertheless, Jefferson opined that the mill buildings could be
reused. He estimated the cost of stabilizing and restoring the two mill buildings at
$4.1 million. Jefferson explained that the New Building is needed to make the
rehabilitation and reuse of the two mill buildings economically feasible.
Robert Wise, an expert in historic architecture and preservation, also
testified for Landowner. Wise described the historical significance of the mill
buildings and acknowledged that some of their architectural features cannot be
retained. Nevertheless, Wise opined that Landowner’s proposed development
would preserve the important architectural characteristics of the mill buildings.
Wise acknowledged that there are no five-story buildings in the Mill Creek Historic
District and agreed that the New Building will be visible from the adjacent park.
5
However, Wise described the current view as a “derelict historic site” covered with
“graffiti.” N.T., 10/24/2019, at 97; R.R. 332a.
Michael Bowker, a licensed engineer, who has been involved since
2002 with Landowner’s proposal, testified about the development’s overall design
and its regulatory history. Lisa Thomas, an expert in historic preservation, testified
about the landscaping plan she prepared for the proposed development. Frank
Tavani, a professional traffic operations engineer, testified about the proposal’s off-
site traffic impacts. Finally, Michael Samuels testified about the valuation of
Landowner’s proposed development and why alternative designs, with fewer
residential units, were not economically feasible.
Landowner also introduced the report of Frederick Baumert, a
professional engineer, who did “a structural condition assessment[.]” R.R. 478a-
87a. He reported that the mill buildings are seriously decayed and at risk of collapse.
This report was done on behalf of a third party, not for Landowner.
At the conclusion of the hearings, several residents commented.
Kathleen Abplanalp, of the Lower Merion Conservancy and a Township resident,
testified that the Conservancy did not support Landowner’s application. Abplanalp
stated that she recently walked through the site and was shocked by the “state of
decline” of the mill buildings over the last 15 years. N.T., 10/31/2019, at 77; R.R.
380a. She explained that the Conservancy previously supported the proposed
development, but the engineer’s report about the current condition of one of the mill
buildings had caused the Conservancy to withdraw its support.
On December 6, 2019, the hearing officer recommended that the Board
of Commissioners deny Landowner’s application. The hearing officer concluded
that Landowner had not complied with the terms of the Zoning Code’s provisions
6
for uses in the Historic Resource Overlay District. The hearing officer reasoned as
follows.
First, the Zoning Code allows one principal building on a lot in the
RAA District. ZONING CODE §155-4 (“Lot” is defined as “[a] parcel of land which
is occupied or intended to be occupied by one principal building”). The two mill
buildings are lawful non-conforming uses, but the New Building would be a third
principal building. This violated the Zoning Code. ZONING CODE §§155-4, 155-
151.B(1)(f)[2]. The Zoning Code allows for conversion of a Class I Historic
Resource but not for the construction of a separate building. Stated otherwise, the
New Building was not a use allowed at any height or size.
Second, Landowner’s New Building did not meet the 250-foot setback
requirement from another permitted “use.” ZONING CODE §155-151.B(1)(f). The
hearing officer reasoned that Rolling Hill Park is a permitted “use,” and it is located
five feet from the existing mill buildings.
Third, Landowner did not demonstrate a basis for relief from the
dimensional requirements of the Zoning Code. Specifically, Landowner did not
prove that dimensional relief was essential to the preservation and reuse of the mill
buildings. Further, it was not feasible to preserve the larger mill building, which had
to be demolished for the sake of public safety. The hearing officer did not credit the
opinion of Landowner’s expert that this larger mill building could be reconstructed
without affecting the exterior façade.
Finally, the doctrine of collateral estoppel did not bar the denial of the
conditional use approval for the New Building. The hearing officer explained:
Previous applications for conditional use approval represented
the New Building to be code compliant with 35 feet or four
stories in height. Each time [Landowner] revealed an increase in
the height of the proposed building, in April 2019 (44.41-ft) and
7
June 2019 (54.4-ft), the [Landowner’s] engineer has testified the
increase was due to a change in Lower Merion’s definition of
building height in 2005. These material changes in the height of
the New Building in 2019 are not satisfactorily explained by a
change in the [Zoning] Code’s definition of building height in
2005. Previous conditional use approvals would not have been
granted if the actual 55.4-ft height of the New Building was
known. There was not a full and fair opportunity to litigate the
issue in previous conditional use applications because the actual
55.4-ft building height was not provided by the [Landowner]. It
would be inequitable to collaterally estop the Township when
new issues are raised for the first time in this application.
Hearing Officer Proposed Adjudication at 62-63, Conclusion of Law No. 123; R.R.
710a-11a.
After receiving the hearing officer’s recommended adjudication,
Landowner submitted an affidavit from Baumert. It stated that Baumert revisited
the site on December 9, 2019, and reported that Landowner had stayed further
deterioration of the mill buildings. A temporary roof was installed on the smaller
mill building, and the steel beam in the larger mill building had been shored up and
stabilized. This allayed Baumert’s concerns about the larger mill building’s
stability.
On February 19, 2020, the Board of Commissioners adopted the
hearing officer’s proposed recommendation and denied Landowner’s multi-family
conditional use and dimensional relief application. It declared the Preliminary Plan
to be null and void, which mooted Landowner’s request for an extension of time to
file a final plan.
Landowner filed a land use appeal with the trial court. On August 20,
2020, the parties presented oral argument before the trial court. Thereafter, on
September 16, 2020, the trial court denied Landowner’s land use appeal. After
Landowner appealed to this Court, the trial court issued an order directing
8
Landowner to file a concise statement of errors complained of on appeal pursuant to
PA. R.A.P. 1925(b). The trial court then issued its PA. R.A.P. 1925(a) Opinion,
addressing each of Landowner’s issues.
First, the trial court held that the prior proceedings before the Board of
Commissioners did not trigger the doctrine of collateral estoppel because the height
of the New Building and the advanced deterioration of the mill buildings were facts
not considered in the prior proceedings. Therefore, the Board was not barred from
raising, for the first time, the issue of whether the Zoning Code allowed the
construction of the New Building as part of a rehabilitation of a historic resource.
Second, the trial court rejected Landowner’s argument that the New
Building was an expansion of the existing mill buildings that could be built for a
multi-family residential use. The trial court rejected the notion that the connection
of the mill buildings to the New Building by an underground parking garage made
any difference to this analysis. Further, the expansion of the historic resource could
not be done because it would be located five feet from Rolling Hill Park, a separate
permitted “use.” Even assuming the New Building constituted a permitted
“expansion,” it still had to be located 250 feet from Rolling Hill Park.
Third, the trial court rejected Landowner’s argument that the evidence
did not support the Board of Commissioners’ finding that the historic mill building
had to be demolished. The trial court explained that Baumert stated that the larger
mill building was seriously deteriorated. Although he clarified in his affidavit that
this mill building had been stabilized and did not require demolition, the Board based
its finding on “the totality of the circumstances with respect to the condition and
proposed restoration of the two mill buildings and the impact of the New Building
on the surrounding environment.” Trial Court 1925(a) Op. at 22. Stated otherwise,
the trial court did not believe the case turned on whether the mill buildings could be
9
saved. In any case, evidence of deterioration since 2004 was also documented in a
June 19, 2019, Historic Resource Impact Study. Viewing the evidence most
favorably to the Township, the trial court held that substantial evidence supported
the Board of Commissioners’ finding of fact that the mill buildings could not be
saved.
Finally, on the denial of dimensional relief, the trial court found no
error. The New Building was not a historic resource and, thus, Landowner needed
a variance from the Zoning Hearing Board to obtain relief from the building area,
impervious surface and setback requirements for the New Building.
Landowner appealed to this Court.
Appeal
On appeal,6 Landowner raises seven issues.7 First, it argues that the
Board of Commissioners was collaterally estopped from reversing its prior
adjudication that the New Building was an authorized expansion of a historic
resource. Second, it argues that the Board of Commissioners erred in holding that
the nearest permitted use to Landowner’s proposed condominium use was less than
250 feet away. Third, it argues that the Board of Commissioners lacked substantial
evidence for its factual finding that one of the mill buildings had to be demolished.
Fourth, it argues that the Board of Commissioners erred and abused its discretion by
6
Where the trial court did not take additional evidence, this Court’s review determines whether
the local governing body committed an error of law or abused its discretion. Marshall v. East
Bradford Township Board of Supervisors, 250 A.3d 481, 487 n.5 (Pa. Cmwlth. 2021). A local
governing body abuses its discretion when its findings are not supported by substantial evidence.
Id. Substantial evidence has been defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Id. Where an appeal presents issues of law, including
statutory interpretation, this Court’s scope of review is plenary, and our standard of review is de
novo. Id.7
For purposes of this opinion, we have reorganized Landowner’s issues on appeal.
10
basing factual findings on unsworn public statements. Fifth, it argues that the Board
of Commissioners erred in holding that Landowner did not submit sufficient details
of its planned historic rehabilitation and compliance with all standards applicable
thereto. Sixth, it argues that the Board of Commissioners erred by denying its
application on the basis of purported noncompliance with subjective, vague, and
inapplicable provisions of the Zoning Code. Seventh, it argues the Board of
Commissioners erred and abused its discretion in declaring the Preliminary Plan
void and, on that basis, not extending the 12-month deadline for submission of a
final land development plan.
Analysis
“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.” Williams Holding Group, LLC v. Board of Supervisors of West
Hanover Township, 101 A.3d 1202, 1212 (Pa. Cmwlth. 2014) (quoting In re
Thompson, 896 A.2d 659, 670 (Pa. Cmwlth. 2006)). A conditional use, like a special
exception, is not an exception to the municipality’s zoning ordinance, but rather a
use to which an applicant is entitled as a matter of right unless the municipal
legislative body determines “that the use does not satisfy the specific, objective
criteria in the zoning ordinance for that conditional use.” In re Drumore Crossings,
L.P., 984 A.2d 589, 595 (Pa. Cmwlth. 2009). It is the applicant’s burden to establish
that the proposed use satisfies the specific criteria in the particular zoning ordinance.
Williams Holding Group, 101 A.3d at 1212. “An applicant who satisfies this prima
facie burden is entitled to approval, unless objectors in the proceeding offer credible
and sufficient evidence indicating that the proposed use would have a detrimental
impact on public health, safety, and welfare.” Id.11
In its first and second issues, Landowner argues that the trial court erred
in holding that the Board of Commissioners was not collaterally estopped by its prior
adjudications from applying the Zoning Code in new and different ways so as to
preclude the New Building. The actual size and height of the New Building has not
changed and neither have the Zoning Code’s provisions on permitted uses in the
Historic Resource Overlay District. Simply, the dimensional requirements for the
RAA District triggered by the new measurement of the New Building and the present
condition of the mill buildings have no bearing on whether the New Building is a
permitted use. Even so, the New Building is allowed in the Historic Resource
Overlay District because the Zoning Code allows Landowner to expand the building
area on the property by up to 50%.
We begin with a review of the relevant provision of the Zoning Code.
Section §155-151.B(1)(f) states as follows:
The following uses and no other shall be permitted in the Historic
Resource Overlay District:
***
B. Uses permitted on properties designated as Class I Historic
Resource:
(1) Provided that the guarantee referenced in
§155-153B(4) has first been submitted and
approved, a property upon which a Class I Historic
Resource is situated, excluding buildings and
structures which do not contribute to the historic
resource . . . may, . . . be used for any one of the
following uses, subject to obtaining a
recommendation from either the Board of Historical
Architectural Review or the Historical
Commission, pursuant to Chapter 88, and obtaining
conditional use and approval from the Board of
Commissioners:
***
12
(f) A Class I building in a residential
zoning district presently being put to a
nonconforming, nonresidential use
may be converted to a multifamily use,
provided each dwelling unit shall have
no fewer than 1,250 square feet of
occupied area.
[1] The area within the
perimeter of the building
measured at grade level
may be expanded by up to
25% in conjunction with
a conversion to a
multifamily use, provided
there exists between the
multifamily use and the
nearest adjacent
permitted use at least 250
feet.
[2] The area within the
perimeter of the building
measured at grade level
may be expanded by up to
50% in conjunction with
a conversion to a
multifamily use, provided
there exists between the
multifamily use and the
nearest adjacent
permitted use at least 500
feet.
ZONING CODE §155-151.B(1)(f) (emphasis added).8 In short, depending on the
location of the “nearest adjacent permitted use,” the area of the Class I building may
8
Section 155-153.B(4) explains that a means to guarantee the permanent protection of the
historical integrity of the resource, such as the establishment of a conservation easement or
appropriate covenants, shall be provided to the landowner. ZONING CODE §155-153.B(4). There
13
be increased by 25% (where the nearest permitted use is 250 feet away) or 50%
(where the nearest permitted use is 500 feet away).
Landowner explains that the “area within the perimeter of the building”
refers to the total square footage of the existing buildings. ZONING CODE §155-
151.B(1)(f)[1]. Landowner is allowed a 50% expansion because the nearest
permitted use is more than 500 feet away. Because building area will be expanded
in conjunction with the conversion of the historic mill building, the expansion may
also be used for multi-family use. Landowner further explains Section 155-
151.B(1)(f)[2] of the Zoning Code does not limit the building area expansion to a
structure physically attached to the existing Class I Historic Resource.
The Board of Commissioners concluded that Rolling Hill Park is a
permitted use, and it is located less than 250 feet from the Property. In four prior
approvals, however, the Township conceded that the nearest adjacent permitted use
was more than 500 feet away. Likewise, the Township agreed that the New Building
was a permissible expansion of the historic mill buildings. Landowner argues that
both these conclusions were essential to the prior adjudications of the Board of
Commissioners to grant the conditional use and, thus, subject to the doctrine of
collateral estoppel.
We agree. The Township was collaterally estopped from taking the
position that the nearest permitted use is less than 250 feet away or that the New
Building was not a valid expansion of the building area of an historic resource. The
Board of Commissioners was likewise precluded from so holding.
In any case, neither Township position is valid. The Zoning Code
permits the “area within the perimeter of the building” to be expanded “by up to 50%
is no question that Landowner has the guarantee and has secured the recommendation of the
Township’s Historical Commission.
14
in conjunction with a conversion to a multifamily use.” ZONING CODE §155-
151.B(1)(f)[2]. The “area within the perimeter of the building” refers to the total
square footage of the Class I Historic Resource, i.e., the existing building area.
Because expansion of the building area attributed to the historic resource occurs “in
conjunction with” the conversion to multi-family use, the additional building area
may also be used for multi-family use. Id.
Section 155-151.B(1)(f)[2] does not limit the allowed expansion to a
structure physically attached to the Class I Historic Resource. It is more flexible.
This is consistent with the Historic Resource Overlay District, which was established
to protect and retain the historical integrity of historic resources. ZONING CODE
§155-149.A, F.9 By placing the expansion in a separate building to the rear of the
mill buildings, Landowner will preserve the historical integrity of the mills. Further,
Section 155-151.B(1)(f)[2] authorizes the expansion of the building area on the
Property up to 50% because the nearest adjacent permitted use is at least 500 feet
away.
9
It states:
It is hereby declared as a matter of public policy that the preservation and protection
of buildings, structures and sites of historic, architectural, cultural, archaeological,
educational and aesthetic merit are public necessities and are in the interests of the
health, prosperity and welfare of the people of Lower Merion Township. To that
end, a separate zoning district is hereby created to overlay all other zoning districts
in the Township. The provisions of this article, coupled with the provisions of
Chapter 88, are intended to:
A. Promote the general welfare by protecting the integrity of the
historic resources of Lower Merion Township.
***
F. Promote retention of historical integrity in the context of
proposed land use and/or structural changes.
ZONING CODE §155-149.A, F.
15
Rolling Hill Park is a Township public park. A municipal use includes
public parks; administrative offices; equipment or material storage; public sewage
and/or water, collection, treatment, storage, transmission and/or distribution
facilities; stormwater management facilities; public parking facilities; public
libraries or other similar uses owned or operated by the Township. ZONING CODE
§155-4. However, the RAA District permits a “[m]unicipal building and municipal
use,” which is more restrictive than the general “municipal use.” ZONING CODE
§155-11.H. There is no municipal building being used for municipal purposes
within 500 feet of the property. To read the phrase “municipal building and
municipal use” as synonymous with “municipal use” would mean, for example, that
a Township stormwater basin less than 250 feet away would prohibit any expansion
of a Class I historic resource. The inclusion of “municipal building” with “municipal
use” was intended to address density concerns that would occur, for example, by
placing a multifamily use next to a township office building. In short, there is no
permitted use within 500 feet of the multi-family use, as the Township correctly
maintained in every prior proceeding on Landowner’s conditional use application.
Under the Zoning Code, Landowner is permitted to add the New
Building as part of the proposed expansion of the building area of the Property by
up to 50%. The Board of Commissioners erred as a matter of law when it determined
that the New Building did not comply with Section 155-151.B(1)(f)[2] of the Zoning
Code.
In its third issue, Landowner argues that the Board of Commissioners’
factual finding that the larger mill building was “unsalvageable and must be
demolished for safety reasons” is not supported by substantial evidence. Landowner
Brief at 17. The Board of Commissioners relied on Baumert’s structural report,
which provided a snapshot of the condition of the mill buildings on the date of their
16
inspection. Baumert’s report was prepared to advise “a prospective buyer of the
current state” of the mill buildings. Id. (quoting R.R. 478a). Baumert was not
engaged to evaluate the circumstances under which the mill buildings could be
rehabilitated or preserved.
The trial court reasoned that the Board of Commissioners did not rely
exclusively on Baumert’s report but looked at the totality of the circumstances.
Landowner argues that the uncontroverted evidence shows that the mill buildings
can be restored, which evidence the Board of Commissioners simply ignored. Lest
there be any doubt, Baumert submitted an affidavit clarifying that his report “makes
no evaluation or conclusion about whether it is technically feasible to adaptively
reuse the [m]ill [b]uildings.” Landowner Brief at 18 (quoting R.R. 720a).
We agree with Landowner that considering the totality of
circumstances required a review only of substantial evidence. The record lacks any
substantial evidence to support a finding that one of the mill buildings cannot be
saved.
Further, the Board of Commissioners erred in using its own out-of-
context characterization of statements in a lengthy document, Landowner’s Historic
Resource Impact Study, to support a finding of fact. That study identified specific
problems with the historic resource, but its conclusion was clear that the mill
buildings can be restored and reused. In any case, the fact that Landowner’s expert
highlighted the urgency of the rehabilitation supports the finding that preservation is
attainable. Likewise, the Board of Commissioners ignored the testimony of
Landowner’s expert, Charles Jefferson, that the mill buildings could be rehabilitated
and reused.
In its fourth issue, Landowner argues that the Board of Commissioners
erred in basing its factual findings on unsworn or irrelevant testimony. Abplanalp’s
17
comments about the Property’s current condition and the height of the New Building
are not evidence. These statements are nothing more than her personal
understanding of how the proposed development would be received by park visitors.
Landowner contends that an unsupported lay opinion does not constitute substantial
evidence and cannot defeat expert opinion evidence. Landowner further contends
that the Township’s sole witness, Heller, worked for the Township in its parks
department and lacked any experience or expertise in the Historic Resource Overlay
District or the conservation of historic buildings and landscapes. We agree.
The trial court erred in characterizing Heller’s testimony as providing
the Board of Commissioners a factual basis for rejecting the recommendation of the
Township’s Historical Commission or the testimony of Landowner’s expert witness.
Further, Heller’s opinion that the “habits” of users of Rolling Hill Park would be
adversely impacted by Landowner’s proposed development lacked any foundation.
Heller did not conduct a survey of park users.
In its fifth issue, Landowner argues that the Board of Commissioners
erred in holding that Landowner did not submit sufficient details of its planned
historic rehabilitation. With respect to the larger of the two mill buildings,
Landowner’s rehabilitation plan explained: (1) the wall material will be cleaned and
repaired, using materials that match the original materials; (2) new windows will be
matched and finished to resemble the original windows; (3) the roof will be replaced
and finished to match an original appearance; and (4) the brick chimney will be
salvaged and repointed, if feasible. The Historic Resource Impact Study explained
that features later added to the mill building will be rehabilitated or replaced with
matching materials. With respect to the smaller mill building, Landowner’s
rehabilitation plan explained: (1) walls and windows would either be restored or
replaced and matched with the original features; (2) the roof would be replaced and
18
match the historic color palette of the previous roof; and (3) the bridge connection
between the two mill buildings would be reconstructed with matching materials. A
report prepared by Noble Preservation Services fully analyzed the historical exterior
finishes and masonry materials of both buildings and determined which materials
could be effectively restored and, for those materials that could not, identified
materials that would best approximate the original. Both the Noble report and the
Historic Resource Impact Study were admitted into evidence.
The Historical Commission recommended approval of the conditional
use and dimensional relief application, as it had on four prior occasions. Robert
Wise, Landowner’s expert in historic preservation, agreed with the
recommendations of the Historical Commission. In his testimony, Wise discussed
the plan to rehabilitate the exterior of the buildings with, for example, new windows
finished to match the historic color, among other details.
Nevertheless, the Board of Commissioners concluded that the final
design of the mill building façades remained “an open question.” R.R. 130a. This
was erroneous, given the copious evidence on rehabilitation, but it is not relevant to
the conditional use application. Landowner was not required to provide “particular
details of the design of the proposed development,” because conditional use
proceedings “involve only the proposed use of the land.” Thompson, 896 A.2d at
670. Detailed design information, such as a floor plan, “even if required by the
ordinance, is not relevant to the consideration of a special exception or conditional
[use] application,” but is addressed in later stages of the land development process.
Id. at 671. Indeed, further “refinements” to a rehabilitation plan are entirely
appropriate as the project proceeds. The Historical Commission has authority to
review and make comments on land development plans in these later stages of the
19
land development process.10 Indeed, the Historical Commission can require future
“refinements” to the architectural details. The trial court erred in upholding the
Board of Commissioners’ rationale that the rehabilitation of the mill buildings was
“an open question.” R.R. 130a.
In its sixth issue, Landowner argues that the Board of Commissioners
erred in citing Zoning Code provisions that were general, vague or subjective, and
not relevant to a conditional use. The Board asserted that Landowner had to
demonstrate that its proposal will not jeopardize the preservation of the Class I
Historic Resource due to “the exterior changes to be made or the exterior character
of the structure to be erected” or the “appropriateness of exterior architectural
features of structures involved with the proposed work.” Landowner Brief at 36-37.
The Board also claimed Landowner did not demonstrate that “the historical integrity
of the resource has been provided through the design of the building improvements”
and “all other land development features.” Id. at 37-38. Landowner contends that
at this stage it is required only to demonstrate that its conditional use “will not be
destructive of the integrity of the historic resource or detrimentally affect the value
of surrounding properties.” Id. at 38. We agree.
Courts “have observed that ‘[s]pecificity is the essential characteristic
of operative [conditional use] requirements in an ordinance.’” Williams Holding
Group, 101 A.3d at 1212 (quoting Bray v. Zoning Board of Adjustment, 410 A.2d
909, 911 (Pa. Cmwlth. 1980)).11 Accordingly, general, non-specific, or non-
10
TOWNSHIP SUBDIVISION AND LAND DEVELOPMENT ORDINANCE (SALDO) §135-7.C(1); R.R.
154a.
11
The Court in Williams Holding Group cited case law which dealt with special exceptions, noting
that “[i]n recognition of the similarity between special exceptions and conditional uses, courts
apply the same standards of proof to both types of applications.” Williams Holding Group, 101
20
objective requirements are not “part of the threshold persuasion burden and
presentation duty of the applicant” seeking approval of a conditional use. Williams
Holding Group, 101 A.3d at 1212 (quoting Bray, 410 A.2d at 911).12 The focus is
on the specific criteria relevant to a conditional use because it is unfair to require a
landowner to conform to a general “policy statement.” Appeal of George Baker, 339
A.2d 131, 135 (Pa. Cmwlth. 1975). A subjective or vague requirement “may be
either one that may not be enforced or one for which an applicant bears no initial
evidentiary burden.” Williams Holding Group, 101 A.3d at 1213.
The Board of Commissioners impermissibly required Landowner to
demonstrate compliance with both vague and subjective standards and standards
more appropriately applied in the land development approval process.
The Board of Commissioners concluded that Landowner did not
provide “complete” information about the restoration and landscaping for the
historic mill buildings and merely committed to working with the Historical
Commission. First, this conclusion is at odds with Landowner’s extensive and
detailed evidence on these features of its development plan. In any case, an
application for a conditional use is not the proceeding for working out the technical
details of building design and construction. Indeed, Landowner is required to work
A.3d at 1212; See also Thompson, 896 A.2d at 670 (“Because the law regarding conditional uses
and special exceptions is virtually identical, the burden of proof standards are the same for both.”).
12
The Court in Bray cited the decision in Cherbel Realty Corporation v. Zoning Hearing Board,
285 A.2d 905 (Pa. Cmwlth. 1972), which held that where an ordinance purported to place upon
the applicant the burden to prove that the special exception would be “in harmony with the general
purpose(s) and intent” of the zoning ordinance, the language was
so vague that the lower court was correct in concluding that the applicant’s only
burden was to prove that its request for special exception conformed to the
requirements of the ordinance and that the opposition to the exception must carry
the burden of proving that the proposed use would be contrary to the public interest.
Bray, 410 A.2d at 912 (quoting Cherbel Realty Corporation, 285 A.2d at 906).
21
with the Historical Commission on design details in the land development approval
process. SALDO §135-7.C(1). Second, the standards in the Zoning Code cited by
the Board are open to interpretation and cannot be applied to a conditional use
application. These include “all other land development features,” ZONING CODE
§155-153.B(5); “value of surrounding properties,” i.e., Rolling Hill Park, ZONING
CODE §155-153.B(6); “community development objectives,” ZONING CODE §155-
141.2.B(1); and “all other elements of proper land planning,” ZONING CODE §155-
141.2.B(5). All these provisions are open to interpretation and cannot be applied
predictably and objectively to a conditional use application. Third, the Board’s
stated basis for concluding that Landowner’s evidence was inadequate was based on
its factual finding that one of the mill buildings must be torn down. As shown,
however, there is no substantial evidence to support this factual finding. In sum, the
Board erred.
In its final issue, Landowner argues that it was entitled to conditional
use relief from the underlying bulk, area, and setback requirements because the
Zoning Code permits the requested relief where essential to preservation of the
historic resource. Section 155-152.C of the Zoning Code states as follows:
Bulk, Area and Setback requirements.
Provided that the guarantee referenced in §155-153B(4) has first
been submitted and approved, the requirements applicable to the
underlying zoning district relating to building area, impervious
surface and front, side and rear yard setbacks may be modified
by up to 15% with respect to Class I and Class II Historic
Resources, subject to obtaining a recommendation from either
the Historical Commission or the Board of Historical
Architectural Review, pursuant to Chapter 88, and to obtaining
conditional use approval from the Board of Commissioners.
These modifications shall apply to the area of the lot as it existed
on March 15, 2000.
22
***
C. Where the requested relief is determined by the
Board of Commissioners to be essential to the
preservation of the historic resource because
without such relief it would not be physically or
economically possible to maintain the historic
resource, the Board of Commissioners may, by
conditional use, reduce such requirements to a
greater degree than permitted by this section to
protect the historic resource.
ZONING CODE §155-152.C (emphasis added). Stated otherwise, the dimensional
requirements in the RAA District may be modified by up to 15% for historic
resources, and greater relief can be granted where “essential to the preservation of
the historic resource[.]” Id. Landowner’s uncontroverted evidence demonstrated
that it would not be physically or economically possible to reuse the historic
resources without the inclusion of the New Building in that reuse.
Before the trial court, the Board of Commissioners argued that the New
Building is not a “historic resource,” and therefore, not entitled to any dimensional
relief. However, the “preservation of the historic resource” requires the addition of
the New Building as the only economically feasible way to incur the expense of
rehabilitating the historic mill buildings. ZONING CODE §155-152.C. The Board of
Commissioners erred. In any case, because this claim was not raised in the Board’s
adjudication, it is waived.
Conclusion
The Board of Commissioners erred in denying Landowner’s
conditional use and dimensional relief application under Section 155-151.B(1)(f)[2]
of the Zoning Code. Specifically, the Board erred and abused its discretion by taking
legal positions barred by the doctrine of collateral estoppel, by applying provisions
of the Zoning Code and SALDO not relevant to a conditional use application and by
23
making factual findings not supported by substantial evidence. The Board likewise
erred and abused its discretion by declaring the Preliminary Plan null and void and
on that basis denying an extension of time for the recording of Landowner’s final
land development plan. Finally, the Board erred in denying Landowner’s request
for an extension of time to file a final plan as moot for the stated reason that
Landowner’s Preliminary Plan had been declared null and void.
For these reasons, the trial court’s order affirming the Board of
Commissioner’s adjudication is reversed. The Court remands this matter to the trial
court with directions to remand to the Board of Commissioners to grant Landowner’s
conditional use application and to approve Landowner’s request for a one-year
extension to file a final land development plan.
_____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Millcreek Road Associates, LP, :
Appellant :
:
v. : No. 1050 C.D. 2020
:
Board of Commissioners of Lower :
Merion Township :
ORDER
AND NOW this 17th day of June, 2022, the September 16, 2020, order
of the Court of Common Pleas of Montgomery County affirming the February 19,
2020, order of the Board of Commissioners of Lower Merion Township is
REVERSED. The Court remands this matter to the Court of Common Pleas with
instructions that it remand the case to the Board of Commissioners of Lower Merion
Township to grant Millcreek Road Associates, LP’s conditional use application and
to approve a one-year extension of the deadline for Millcreek Road Associates, LP
to submit a final land development plan.
Jurisdiction relinquished.
_____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita