IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Suzanne M. Ebbert, : Appellant : : v. : No C.D : Argued: March 9, 2015 Upper Saucon Township : Zoning Board, Upper Saucon Township, : Douglas and Carolyn Shoenberger : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BROBSON FILED: March 26, 2015 Suzanne M. Ebbert (Ebbert) appeals from an order of the Court of Common Pleas of Lehigh County (trial court), affirming an order of the Upper Saucon Township (Township) Zoning Hearing Board (Board), denying Ebbert a zoning permit. For the reasons discussed below, we reverse and remand. Ebbert owns property located at 4393 Limeport Pike, Coopersburg, Upper Saucon Township, Lehigh County, Pennsylvania (the Property). The Property consists of 76 acres used exclusively as a farm and contains no residential units. It is located in the Township s Agricultural Preservation Zone. On October 1, 2013, Ebbert applied for a zoning permit to build a 9,600-square-foot barn, six 864-square-foot permanent horse run-ins, and a related access road.

2 When Ebbert submitted her zoning permit application, the Township s Zoning Officer advised her that the Township s Zoning Ordinance 1 requires compliance with all local laws, including the Township s Subdivision and Land Development Ordinance 2 (SALDO). The SALDO requires submission and approval of land development plans prior to all land development, and the Zoning Officer informed Ebbert that the permit would be denied until she submitted a land development plan in compliance with the SALDO. Ebbert told the Zoning Officer that she did not need approval under the SALDO because her Property is a farm. The Zoning Officer denied Ebbert s zoning permit application on the basis that the SALDO required submission and Township approval of a land development plan, which Ebbert had not submitted. Ebbert appealed the denial to the Board, arguing that she did not need approval from the Township under the SALDO because farms are exempted from the definition of land development. At the hearing before the Board, the Township argued that while the Board had the authority to decide the appeal from the denial of the zoning permit, the Board lacked the authority to decide whether the Property was exempt from the SALDO requirements. Instead, the Township argued, the authority to interpret SALDO rested with the Township Board of Supervisors, and it should be the body to decide if the Property was exempt from the SALDO requirements. Ebbert argued that the Board had the authority to interpret the 2009). 1 Ordinance No. 141, The Upper Saucon Township Zoning Ordinance of 2009 (June 2 Ordinance No. 145, Subdivision and Land Development Ordinance (December 2011). 2

3 SALDO because the Zoning Officer s denial evidenced an incorrect interpretation of the SALDO. 3 The Board affirmed the denial of the zoning permit on the basis that Ebbert failed to comply with the SALDO, as required by the Zoning Ordinance. The Board explained: [Ebbert], herself, testified that she did not obtain a permit under [the SALDO]. She took the position that she was exempt from [the SALDO], because this was a farm and that everyone agreed that the property was a farm. Nevertheless, the party that would be in a position to make a determination [as] to whether or not [Ebbert] was exempt from the SALDO provisions is the Board of Supervisors of Upper Saucon Township not the [Board]. The [Board] has no jurisdiction over [the SALDO] and really is not in a position to make a determination as to whether or not [Ebbert] is entitled to be exempt from the SALDO provisions or if they apply. The body charged with that determination is the Board of Supervisors. Therefore, the [Board] denied the appeal based upon the fact that they had no jurisdiction over [the SALDO] and, affirmed the decision of the [Z]oning [O]fficer in his enforcement letter that [Ebbert] be denied the zoning permit for failing to comply with the other ordinances of the Township including the SALDO provisions. (Reproduced Record (R.R.) ) Ebbert appealed the decision of the Board to the trial court. Ebbert argued that the Board erred in denying her zoning permit because the SALDO excludes farms from the definition of land development and, if the Board has 3 It appears that Ebbert attended the hearing before the Board without counsel. 3

4 jurisdiction to determine whether a zoning permit is required, then it must have jurisdiction to decide all subsidiary issues, such as the SALDO s applicability. Alternatively, Ebbert argued, if the Board does not have jurisdiction over the SALDO issue, then the requirement for a zoning permit is void on its face because it creates a requirement with no forum for relief. The trial court heard argument, but it took no additional evidence. The trial court examined the provisions of the SALDO and the Zoning Ordinance and began by noting that Section 901.A.11 of the Zoning Ordinance requires a Zoning Officer to reject any application that fails to comply with the provisions of this Ordinance and all pertinent local laws. The trial court concluded that Ebbert s zoning permit application fails to comply with all pertinent local laws because she did not comply with the SALDO by submitting and receiving approval of a land development plan or by seeking an exemption from the SALDO requirement. (R.R. 10.) The trial court then addressed Ebbert s argument that the SALDO exempts farms. The trial court noted that the SALDO defines land development as: Any of the following activities: 1. The improvement of one (1) lot or two (2) or more contiguous lots, tracts, or parcels of land for any purpose involving: a. A group of two (2) or more residential or nonresidential buildings, whether proposed initially or cumulatively, or a single nonresidential building on a lot or lots regardless of the number of occupants or tenure; The following activities are excluded from this term:... 4

5 b. The addition of an accessory building or use, including farm buildings, on a lot or lots subordinate to an existing principal residence or farm;.... (SALDO 108.C.) The trial court further noted that the SALDO defines a farm as: A parcel of land that is used for one (1) or more agricultural operations, including but not necessarily limited to the raising of agricultural products, livestock, poultry, or the production of dairy products. A farm shall be understood to include a dwelling unit as well as all structures necessary for the housing of animals, storage of feed and equipment, and other operations customarily incidental to farm use. (SALDO 108.C.) Following an examination of those definitions, the trial court concluded that [w]hile these definitions are included in the [SALDO], the definition alone is not enough to warrant a complete exemption. Rather, the authority with jurisdiction over the SALDO would have to determine if [Ebbert] is exempt from the SALDO requirements.... Instead, Ebbert sought an exemption from the SALDO provision by pursuing her zoning permit appeal with the Board. (R.R. 11.) Thus, the trial court concluded that the Board did not err in denying Ebbert s zoning permit application, and it affirmed the order of the Board. On appeal 4 to this Court, Ebbert renews the arguments presented to the trial court. There are, in essence, two issues: (1) whether the Board has 4 When no additional evidence is taken following the determination of a zoning hearing board, this Court s scope of review is limited to determining whether the zoning board committed an error of law or a manifest abuse of discretion in rendering its decision. Pennsy Supply, Inc. v. Zoning Hearing Bd. of Dorrance Twp., 987 A.2d 1243, 1248 n.5 (Pa. Cmwlth. 2009), appeal denied, 4 A.3d 1056 (Pa. 2010). For questions of law, our scope of review is (Footnote continued on next page ) 5

6 jurisdiction to decide if the SALDO applies to the proposed development of the Property; and (2) whether the Board properly denied the zoning permit application. The Pennsylvania Municipalities Planning Code 5 (MPC) delegates authority over the zoning ordinance to the zoning hearing board. Article IX of the MPC, 53 P.S A zoning board s power and authority is limited to that conferred expressly by the legislature, or by necessary implication, and this granted authority is to be strictly construed. Greth Dev. Grp., Inc. v. Zoning Hearing Bd. of Lower Heidelberg Twp., 918 A.2d 181, 189 (Pa. Cmwlth.), appeal denied, 929 A.2d 1163 (Pa. 2007). Among those powers expressly conferred by the legislature is the power to hear and decide appeals from a determination of a zoning officer. Id. (citing Section of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53 P.S ). The Board argues that it did not have jurisdiction to interpret the SALDO because the authority to interpret the SALDO is vested in the Township s Board of Supervisors. This, however, misapprehends what the Board was being asked to do. The Board was not being asked to interpret the SALDO; rather, it was being asked to decide if the Zoning Officer erred in denying Ebbert s permit. Determining whether the Zoning Officer erred in denying Ebbert s permit is, in fact, within the exclusive jurisdiction of the Board. Section of the MPC. Section 901.A.11 of the Zoning Ordinance requires a Zoning Officer to reject any (continued ) plenary. Harman v. Forest Cnty. Conservation Dist., 950 A.2d 1117, 1118 n.2 (Pa. Cmwlth. 2008). 5 Act of July 31, 1968, P.L. 805, as amended, 53 P.S

7 application that fails to comply with the provisions of this Ordinance and all pertinent local laws. The Zoning Officer is, therefore, empowered to decide if an applicant has complied with the SALDO when considering a permit application. If a Zoning Officer relies on the SALDO to deny a permit, then the Board must be empowered to decide if the Zoning Officer was correct. To conclude otherwise would leave an applicant denied a permit because of noncompliance with the SALDO no avenue of redress. In this case, the Zoning Officer denied Ebbert s application because the Township[ s SALDO] requires submission and Township approval of a Land Development Plan for this project. (R.R. 24.) Thus, the Zoning Officer determined that the SALDO applied to Ebbert s project, and that Ebbert was not in compliance with the SALDO because she did not file a land development plan. Because the Board has exclusive jurisdiction to decide if the Zoning Officer s denial was correct, the Board also had the authority to make a determination as to the SALDO s applicability. See Greth, 918 A.2d at 189; Section of the MPC. The trial court erred, therefore, in holding that the Board did not have jurisdiction to consider whether Ebbert was required to submit a land development plan in order to be granted a zoning permit. Because we are reversing on the basis of the jurisdictional question, we need not decide whether the Board erred in denying Ebbert s permit. We note, however, that it was not until oral argument at this Court that the Township expressed a concern that the Property was not actually an existing farm and that the proposed barn may not be used for an agricultural purpose. The Board and the trial court both concentrated on the jurisdictional issue, and, as a result, the record contains no evidence regarding the current and proposed use of the land and barn. 7

8 For the reasons stated above, we reverse the order of the trial court and remand the matter to the trial court with instruction that it further remand the matter to the Board for the creation of a record and a decision on the merits. P. KEVIN BROBSON, Judge 8

9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Suzanne M. Ebbert, : Appellant : : v. : No C.D : Upper Saucon Township : Zoning Board, Upper Saucon Township, : Douglas and Carolyn Shoenberger : O R D E R AND NOW, this 26th day of March, 2015, the order of the Court of Common Pleas of Lehigh County (trial court) is hereby REVERSED, and the matter is REMANDED to the trial court with instruction that the trial court further remand the matter to the Upper Saucon Township Zoning Hearing Board for further proceedings consistent with this opinion. Jurisdiction relinquished. P. KEVIN BROBSON, Judge

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