IN THE COMMONWEALTH COURT OF PENNSYLVANIA Industrial Developments : International, Inc., : Appellant : : v. : No. 472 C.D. 2009 : Argued: November 5, 2009 Board of Supervisors of the : Township of Lower Nazareth and : Township of Palmer, Stephen F. : and Renee L. Ferretti, Charles T. : and Mary E. Spitale, Carl W. and : Barbara F. Miller, and Steven and : Suzanne Nerone : BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge HONORABLE JAMES R. KELLEY, Senior Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge (P.) OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE McCLOSKEY FILED: December 3, 2009 Industrial Developments International, Inc. (IDI) petitions for review of an order of the Court of Common Pleas of Northampton County (trial court) affirming Lower Nazareth Township s (the Township s) imposition of conditions on the approval of its application for conditional use. We now affirm. On January 16, 2007, IDI filed an application for conditional use with the Township seeking to build a planned business development in an area zoned as a light industrial (LI) district located between Newburg Road and Northwood Avenue in the Township. The site for the proposed business development would be adjacent to a residential neighborhood located in Palmer Township. Such a business development is permitted by Township Ordinance (the Ordinance) within
the LI zoned district as a conditional use. The proposed planned business development included three warehouse/distribution facilities with a combined dimension of approximately 1,236,650 square feet. The Board of Supervisors of the Township of Lower Nazareth (the Board) held a series of nine hearings on the application over the course of eight months, from May 9, 2007, through January 23, 2008. 1 IDI presented several expert witnesses on its behalf, all of whom were accepted as experts in the areas for which their testimony was elicited. IDI s expert witnesses included Fidel Gonzalez, Project Engineer of Rettew Engineering; Frank Pekunas, IDI s Regional Development Officer; Preston Hitchens, a traffic engineer; Griffith Jones, an environmental scientist; Michael Szura, a landscape/lighting architect and Adam Holtzapple, a traffic engineer. The Board also recognized the following residents of nearby Palmer Township as parties to the hearings: Stephen F. Ferretti, Renee L. Ferretti, Charles T. Spitale, Mary E. Spitale, Carl W. Miller, Barbara F. Miller, Steven Nerone and Suzanne Nerone (collectively referred to as the Objectors). Additionally, the Board recognized Palmer Township as a party, but Palmer Township did not present any witnesses or evidence at the hearings. 2 In opposition to the application, the Objectors presented the testimony of Kevin Stewart, Director of Environmental Health for the American Lung Association and Richard Tucker, a truck driver. Although the Board heard the testimony of these two witnesses, it did not accept these witnesses as experts in 1 A stipulation between IDI and Palmer Township was admitted into evidence. In the stipulation, IDI agreed to perform certain actions during the land development process in order to address concerns that had been raised by residents of Palmer Township. 2 Charles Bruno, Esquire, appeared on behalf of Palmer Township but his participation was limited to the cross-examination of certain witnesses and the submission of the stipulation between IDI and Palmer Township. 2
their respective fields. Thirty-two residents from the Township testified that they objected to the proposed use of the property and several written statements by residents of the Township who opposed the planned development were admitted into the record. The record was closed on January 23, 2008. By opinion and order dated February 27, 2008, the Board granted IDI s application for conditional use and imposed several conditions. The Board noted that although IDI s proposed planned business development presented serious challenges, the proposed use was not significantly incompatible with the Township s comprehensive plan or the Ordinance and that the design of the facility would not significantly negatively affect the desirable character of existing residential neighborhoods. (R.R. at 18a). Additionally, the Board concluded that traffic, site lighting, noise, stormwater management, landscaping/screening and environmental issues would be adequately addressed through the land development review process and that compliance with the Township s subdivision and land development ordinance (SALDO) would be required at a later date. With regard to the imposition of conditions, the Board found that the testimony of residents of the Township was more persuasive than IDI s testimony as to traffic congestion and safety difficulties at certain intersections. Thus, the Board concluded that a more detailed and comprehensive traffic study was required and that further approval would be required with regard to the traffic issues after completion of the traffic study. 3 The Board accepted Mr. Szura s 3 The Board indicated that the conditions set forth in its opinion and such other mitigation required as a result of further traffic studies would be the subject of Township review and would be a precondition for approval of future land development plans and building permits. (R.R. at 24a). 3
testimony concerning site lighting and adopted and imposed as conditions of conditional use approval, the requirements that he had testified to on the record. (R.R. at 27a). 4 The Board imposed a limitation on yard activities, internal truck movements, and unloading and offloading of vehicles to the hours of 6:00 a.m. through 10:00 p.m. due to its concerns about the potential of noise causing a nuisance to the neighboring residential areas. (R.R. at 27a). The Board required that the stormwater management plans incorporated all of the stormwater volume controls and water quality measures as required by Township, county and state regulations. (R.R. at 28a). The Board required landscape buffers and screening to avoid significant negative influences on the adjacent residential neighborhoods. Finally, the Board required that both a Karst Hazards Study addressing the potential for damage arising from sinkholes and/or subsidence and an environmental impact study addressing the health effects of diesel emissions on the surrounding residential community be completed. On March 27, 2008, IDI filed an appeal with the trial court and challenged the imposition of all of the conditions as being unreasonable and/or illegal. IDI asserted that the imposition of the conditions on the grant of the conditional use was improper because the Objectors did not present sufficient evidence establishing that the proposed use did not comply with the non-objective criteria set forth in Section 118.D of the Ordinance. 5 Additionally, IDI asserted that it might have been entitled to a deemed approval without conditions pursuant 4 The Board noted that these requirements included requiring compliance with Section 1614 of the Ordinance; requiring submission of the lighting plan at the time of the land development review; limiting the hours for non-essential exterior lighting and considering the use of solar powered parking area lights. 5 The Objectors and Palmer Township were granted permission to intervene in IDI s appeal. 4
to Section 913.2(b)(2) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. 10913.2(b)(2). 6 Following the submission of briefs and oral argument, by opinion and order dated February 19, 2009, the trial court denied IDI s request to strike all but one of the challenged conditions, the additional traffic impact study. Initially, the trial court noted that the Board did not specifically find that the Objectors had presented evidence, showing that to a high degree of probability, that the proposed use would generate adverse impacts of the type of which are not normally generated by this type of use. (Trial Court s Opinion at 8). However, the trial court acknowledged that the lack of such a finding by the Board did not preclude the imposition of conditions and safeguards upon the approval. The trial court noted that Section 603 of the MPC and Section 118.C.2 of the Ordinance provided the Board with the authority to attach such reasonable conditions and safeguards as it deemed necessary to implement the purposes of the MPC and the Ordinance. The trial court then comprehensively addressed each of the imposed conditions and concluded that each of the challenged conditions, except for the one requiring IDI to conduct an additional traffic study, was properly imposed. The trial court rejected the requirement for the additional traffic study because it concluded that the Board was impermissibly delaying its consideration of the impact on traffic until the time of land development submission, when it was 6 Section 913.2(b)(2) provides that where the governing body fails to render the decision within the period required by this subsection or fails to commence, conduct or complete the required hearing, the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed in writing or on the record to an extension of time. 5
required to be considered during the conditional use stage. (Trial Court s Opinion at 14). Next, the trial court considered IDI s assertion that it was entitled to a deemed approval in its favor and concluded that IDI s argument was without merit. The trial court noted that despite IDI s argument to the contrary, a plain reading of the Board s decision demonstrated that the Board had granted IDI s conditional use application. (Trial Court s Opinion at 17). The trial court concluded that the fact that some of the conditions imposed [were] subject to additional and separate review did not render the Board s action meaningless or indicate that it had failed to render a decision within the time required by the MPC. Id. The trial court noted that satisfying the criteria for conditional use was just one step of the subdivision approval process and that the Board s imposition of specific conditions should serve to simplify the land development process for IDI as specific parameters have been placed on criteria that are required to be evaluated during the land development stage. (Trial Court s Opinion at 18). Thus, the Board concluded that IDI was not entitled to a deemed approval. IDI then filed a notice of appeal with this Court. On appeal, 7 IDI argues that the imposition of conditions was improper because the Objectors failed to present evidence that the use would have an 7 In a land use appeal, where the trial court has not taken additional evidence, this Court is limited to determining whether the local governing body committed an error of law or the necessary findings of fact were not supported by substantial evidence. Herr v. Lancaster County Planning Commission, 625 A.2d 164 (Pa. Cmwlth. 1993), petition for allowance of appeal denied, 538 Pa. 677, 649 A.2d 677 (1994). A conclusion that the Board abused its discretion may be reached only if its findings are not supported by substantial evidence. Centre Lime and Stone Company, Inc. v. Spring Township Board of Supervisors, 787 A.2d 1105 (Pa. Cmwlth. 2001), petition for allowance of appeal denied, 568 Pa. 740, 798 A.2d 1291 (2002). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. 6
adverse impact on the health, safety, or welfare of the public or would not comply with the general requirements of the ordinance and there was no substantial evidence in the record supporting the imposition of such conditions. IDI also argues that the Board failed to render a timely decision by deferring certain zoning issues until it reviewed IDI s land development application and, thus, it was entitled to a deemed approval in its favor. We disagree. With regard to the Board s imposition of conditions, IDI argues that because the Board specifically concluded that the proposed use was not significantly incompatible with the Township comprehensive plan or the Ordinance, the burden then shifted to the Objectors to present evidence of the detrimental effect of that use to public health, safety and welfare. IDI argues that the Objectors failed to show any adverse impact from the proposed use and that the trial court erroneously relied upon language in Leckey v. Lower Southampton Township Zoning Hearing Board, 864 A.2d 593 (Pa. Cmwlth. 2004), to support its conclusion that its review of the Board s imposition of conditions did not involve a determination of whether or not there was substantial evidence to support the imposition of those conditions. IDI argues that Pennsylvania courts have long held that in zoning matters, a Board commits an abuse of discretion when its facts are not supported by substantial evidence, and further, those courts have applied the same standard in reviewing the reasonableness of the imposed conditions. (IDI s Brief at 18). More specifically, IDI argues that the Board s imposition of the condition limiting the hours of operation for outdoor activities at the facility is a particularly egregious example of the Board s abuse of discretion because of the complete absence of evidence supporting the need for such a condition. (IDI s 7
Brief at 20). IDI argues that the Board imposed this condition based solely upon the unsubstantiated concerns and conjectures of the Objectors about the potential impacts on their properties and that the only remotely objective evidence requiring the imposition of this condition was the testimony of Mr. Jones, an expert environmental scientist. (IDI s Brief at 21). IDI asserts that Mr. Jones conducted a study of the existing and projected noise volumes in the area and concluded that at no time during the period studied would the sound limits of the Ordinance be exceeded or even equaled. (IDI s Brief at 22) (emphasis in original). Further, IDI argues that Section 1611 of the Ordinance provides the performance standards for noise levels for all uses and activities and requires only that the proposed use not have a serious threat of future inability to comply with Section 1611 of the Ordinance. (IDI s Brief at 23). IDI asserts that the Objectors did not present any evidence that the proposed use will not comply with Section 1611 of the Ordinance. Finally, IDI argues that even if there was a basis for the Board s limitation on operational hours, there is no evidence that the Board s chosen hours have any rational basis to that concern other than the testimony of nearby residents who stated that they were concerned about the operations but did not present any objective evidence of harm. (IDI s Brief at 25). Generally, conditional use ordinances are evidence that a municipality has determined that a particular use is not adverse to the public interest per se. Glendon Energy Company v. Borough of Glendon, 656 A.2d 150 (Pa. Cmwlth.), petition for allowance of appeal denied, 543 Pa. 705, 670 A.2d 644 (1995). A conditional use is nothing more than a special exception that falls within the jurisdiction of the municipal legislative body rather than the zoning hearing board. Bailey v. Upper Southampton Township, 690 A.2d 1324 (Pa. Cmwlth. 1997). A 8
conditional use is not an exception to a zoning ordinance, but rather, is a use to which an applicant is entitled unless objectors demonstrate, according to standards set forth in the zoning ordinance, that the proposed use would adversely affect the community. Rapaport v. Zoning Hearing Board of the City of Allentown, 687 A.2d 29 (Pa. Cmwlth. 1996). The applicant for conditional use approval has the burden of first proving that the proposed use qualifies as the use permitted by conditional use and, second, that the proposed plan complies with all of the objective requirements of the zoning ordinance. In re Thompson, 896 A.2d 659 (Pa. Cmwlth. 2006), petition for allowance of appeal denied, 591 Pa. 669, 916 A.2d 636 (2007). To meet this burden, the applicant is generally not required to demonstrate compliance with all provisions of the zoning ordinance, which ultimately would become pertinent at the final stages of subdivision; rather, the applicant must show that he complies with those provisions of the zoning ordinance that relate specifically to the conditional use. In re Thompson, 896 A.2d at 670. Thus, the extent of the burden of production at the conditional use approval stage may be conditioned upon a showing of compliance with all applicable zoning requirements. Id. The burden on the objectors to produce evidence of a detrimental effect by the proposed use on the public health, safety and welfare is a heavy one. Sunnyside Up Corporation v. City of Lancaster Zoning Hearing Board, 739 A.2d 644 (Pa. Cmwlth. 1999), petition for allowance of appeal denied, 563 Pa. 636, 758 A.2d 666 (2000). The objectors are required to present evidence that establishes, to a high degree of probability, that the use will generate impacts not normally associated with the type of use and that the impacts generated would pose a substantial threat to the health and safety of the community. In re Brickstone 9
Realty Corporation, 789 A.2d 333 (Pa. Cmwlth. 2001), petition for allowance of appeal denied, 569 Pa. 723, 806 A.2d 863 (2002). The evidence presented by the objectors cannot be mere bald assertions, personal opinions and perceptions of the effect that the proposed use might have on the neighborhood. Visionquest National, Limited v. Board of Supervisors of Honey Brook Township, 524 Pa. 107, 112, 569 A.2d 915, 917 (1990). Moreover, Section 603(c)(2) of the MPC provides that zoning ordinances may contain provisions for conditional uses to be allowed or denied by a governing body pursuant to, inter alia, express standards and criteria set forth in the zoning ordinance. 53 P.S. 10603(c)(2). Further, that Section provides that in approving a conditional use, a governing body may attach such reasonable conditions and safeguards, other than those related to offsite transportation or road improvements, in addition to those expressed in the ordinance, as it may deem necessary to implement the purposes of this act and the zoning ordinance. 53 P.S. 10603(c)(2). However, the imposition of conditions is not unfettered, as the conditions must be reasonable and must find support in the record warranting the imposition of such conditions, otherwise, the imposition of the conditions is an abuse of discretion. Coal Gas Recovery, L.P. v. Franklin Township Zoning Hearing Board, Greene County, 944 A.2d 832, 839 (Pa. Cmwlth. 2008). Additionally, Section 118.C of the Ordinance provides that the Board shall approve any proposed conditional use if they find adequate evidence that the proposed use meets the standards of Section 118.D of the Ordinance, any specific standards for the proposed use listed in Article XV, all other applicable sections of the Ordinance and be capable of meeting all applicable sections of the Township s SALDO. Section 118.D of the Ordinance provides that each conditional use shall: 10
comply with other laws, comply with the comprehensive plan, not present additional traffic concerns or public safety concerns, not affect the management of stormwater, not significantly negatively affect the desirable character of the neighborhood, involve adequate site design methods and will not have a serious threat of future inability to comply with the performance standards of the Ordinance. The MPC and the Ordinance confer broad discretion on the Board to impose such conditions and safeguards to a conditional use as it deems necessary. While IDI correctly states that there is a presumption that when an ordinance permits a conditional use, the local governing body has determined that such a use satisfies the public health, safety and welfare concerns and is consistent with the intent of the ordinance, IDI incorrectly concludes that the Board cannot impose conditions unless the objectors present contrary evidence. The Board found that the testimony of residents of the Township with regard to traffic congestion and noise caused by the increased number of tractor trailer trips to and from the facilities was more persuasive than IDI s expert testimony. Additionally, IDI confuses the standard of review in an appeal from the granting or denial of a conditional use with the standard of review, applicable to this appeal, where the imposition of conditions is challenged. Contrary to IDI s argument, the correct standard of review in this appeal is for the Court to consider if the conditions imposed by the Board are reasonable and if they are supported by evidence of record. We conclude that the Board s imposition of the condition limiting the hours of operation is reasonable and supported by the record. With respect to IDI s entitlement to a deemed approval, despite IDI s argument that that the Board issued two different documents, an opinion and a 11
decision, we conclude that the Board rendered a timely written decision within forty-five days of the last hearing as required by Section 913.2(b) of the MPC. We reject IDI s argument that the Board s opinion does not specifically say whether IDI has, or has not, met the conditional use requirements of the Ordinance. (IDI s Brief at 28). The Board s decision asserted that IDI s conditional use was been approved and that specific performance conditions were imposed and designed to address identifiable issues such as stormwater management and visual screening that would aid the Township in the land development review process. (Board s Brief at 18). Further, the Board asserted that it believed that IDI could meet the performance standards and [t]hat is why a conditional use approval was granted. (Board s Brief at 19). Thus, we conclude that IDI is not entitled to a deemed approval. Accordingly, the trial court s order is affirmed. JOSEPH F. McCLOSKEY, Senior Judge 12
THE COMMONWEALTH COURT OF PENNSYLVANIA Industrial Developments : International, Inc., : Appellant : : v. : No. 472 C.D. 2009 : Board of Supervisors of the : Township of Lower Nazareth and : Township of Palmer, Stephen F. : and Renee L. Ferretti, Charles T. : and Mary E. Spitale, Carl W. and : Barbara F. Miller, and Steven and : Suzanne Nerone : O R D E R AND NOW, this 3 rd of December, 2009, the order of the Court of Common Pleas of Northampton County is hereby affirmed. JOSEPH F. McCLOSKEY, Senior Judge 13