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UTILITY CONSTRUCTORS v. SADSBURY TOWNSHIP SUPERVISORS ET AL. CONNEAUT LAKE AREA HOMEOWNERS ASSOCIATION ET AL. (12/19/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 19, 1984.

UTILITY CONSTRUCTORS, INC. ET AL.
v.
THE SADSBURY TOWNSHIP SUPERVISORS ET AL. CONNEAUT LAKE AREA HOMEOWNERS ASSOCIATION ET AL., APPELLANTS

Appeal from the Order of the Court of Common Pleas of Crawford County in case of Utility Constructors, Inc. and Clairmont Summers and Lynn Summers v. The Sadsbury Township Supervisors and Conneaut Lake Area Homeowners Association, Huidekoper Bay Park, Inc., Huidekoper Residents Association and Alfred W. DeCapua, No. A.D. 1983-432.

COUNSEL

E. Max Weiss, Culbertson, Weiss, Schetroma and Schug, for appellants.

Paul D. Shafer, Jr., with him, Louis J. Stack, Shafer, Dornhaffer, Swick, Bailey & Irwin, for appellees.

Judges MacPhail, Barry and Colins, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 86 Pa. Commw. Page 451]

This appeal results from an order of the Court of Common Pleas of Crawford County, reversing an order of the Sadsbury Township Zoning Hearing Board, which held that an amendment to the Sadsbury Township Zoning Ordinance was unconstitutional and thus invalid.

In early 1980, appellee Utility Constructors, Inc., submitted an application for an amendment of the Sadsbury Township Zoning Ordinance to the Township's Board of Supervisors. Following public hearings, the supervisors conditionally approved the amendment. Objectors, which included appellant Conneaut Lake Homeowners Association, filed an appeal to the Court of Common Pleas of Crawford County, alleging procedural defects in the adoption of the amendment. The court agreed and invalidated the ordinance, ordering further study and additional public hearings. Following those mandated proceedings, the supervisors again adopted an amendment to the zoning ordinance in June, 1981.

Utility Constructors, Inc., then applied for a permit for a travel trailer park, a special exception permitted under the most recent amendment. The township's zoning officer, however, refused to issue the permit, thereby necessitating Utility Constructors,

[ 86 Pa. Commw. Page 452]

Inc.'s appeal to the zoning hearing board, which denied the request for a special exception. On appeal, the Court of Common Pleas of Crawford County, on August 4, 1982, reversed and ordered the zoning board to issue the special exception use permit. Objectors appealed to this Court which affirmed the trial court's order on the basis of that court's opinion. Utility Constructors, Inc. v. Zoning Hearing Board of Sadsbury Township, 80 Pa. Commonwealth Ct. 477, 471 A.2d 944 (1984).

On October 22, 1982, the Conneaut Lake Homeowners Association filed a substantive challenge to the validity of the amendment with the zoning hearing board. Following public hearings, the zoning hearing board, on May 12, 1983, declared the amendment invalid. Utility Constructors, Inc., again appealed to the Court of Common Pleas of Crawford County. The court took additional testimony without any objection from the objecting homeowners. In March of 1984, the court reversed the zoning hearing board and this appeal followed.

Where the trial court takes additional evidence pursuant to Section 1010 of the Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, added by the Act of June 1, 1972, P.L. , 53 P.S. ยง 11010, and exercises de novo review, our scope of review is limited to determining whether the court abused its discretion or erred as a matter of law. Minnick v. Zoning Hearing Board, Town of McCandless, 71 Pa. Commonwealth Ct. 333, 455 A.2d 243 (1983). Appellant's first two contentions are interrelated, and claim that the trial court improperly received additional evidence and thereby improperly expanded its scope of review. At the commencement of the hearing at which the additional evidence was presented, appellants' counsel stated, "I'm not objecting

[ 86 Pa. Commw. Page 453]

    to [the presentation of additional evidence] or asking for it or not asking for it." (Evidentiary hearing, 8 Sept. 1983, page 12). Appellants have, therefore, waived these two issues.

Appellants challenge the validity of the amendment to the zoning ordinance, arguing the amendment is (1) substantively invalid as arbitrary, unreasonable and without substantial relationship to the public health, safety and welfare, (2) illegal "contract zoning" as granting a special use to a specific developer and (3) invalid spot zoning. These issues are identical to the questions presented to the trial court and we therefore affirm on the thorough and able opinion of Judge P. Richard Thomas reported at D. & C. 3d .

Order

Now, December 19, 1984, the March 20, 1984 order of the Court of Common Pleas of Crawford County at Civil Action No. A.D. 1983-432, is affirmed.

Disposition

Affirmed.

19841219

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