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IRWIN J. STEIN v. EASTTOWN TOWNSHIP BOARD SUPERVISORS (10/16/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 16, 1987.

IRWIN J. STEIN, APPELLANT
v.
EASTTOWN TOWNSHIP BOARD OF SUPERVISORS, APPELLEE. IRWIN J. STEIN, APPELLANT V. EASTTOWN TOWNSHIP ZONING HEARING BOARD, APPELLEE

Appeals from the Orders of the Court of Common Pleas of Chester County in the cases of Irwin J. Stein v. Easttown Township Board of Supervisors, No. 85-01832; Irwin J. Stein v. Easttown Township Zoning Hearing Board, No. 85-01127.

COUNSEL

John C. Snyder, with him, Sean A. O'Neill, Lentz, Cantor, Kilgore & Massey, Ltd., for appellant.

John S. Halsted, Gawthrop, Greenwood & Halsted, for appellee.

Judges Craig, Doyle and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 110 Pa. Commw. Page 295]

In this consolidated appeal, Irwin J. Stein (Appellant) appeals from two orders of the Court of Common Pleas of Chester County, one affirming the denial by the Board of Supervisors of Easttown Township (Board) of Appellant's preliminary land development plan and application, and the other affirming a decision of the Easttown Township Zoning Hearing Board (ZHB) denying Appellant's application for a special exception. We reverse both orders.

Appellant is the owner of .585-acre tract located in Easttown Township in the "B-Business District." On this tract, Appellant sought to construct a nineteen-unit apartment complex, including an adjacent parking lot. It is uncontested that the apartment development is a permitted use in the "B-Business District." Accordingly, in 1981, Appellant submitted to the Board a preliminary land development plan and application.

In connection with the proposed development, Appellant also applied to the Pennsylvania Department of Environmental Resources (DER) for a permit for the enclosure and piping of a stream that traverses the front portion of the property. Appellant ultimately sought to

[ 110 Pa. Commw. Page 296]

    cover the piped stream with fill and place the parking lot on top of it.

Additionally, in October 1984, Appellant applied to the ZHB, requesting that it either grant him a special exception under Section 1504 of the Easttown Township Zoning Ordinance for the parking lot and concomitant piping and enclosure of the stream or, alternatively, rule that the proposed parking lot and stream enclosure constituted a permitted use subject only to DER approval.

On January 24, 1985, the ZHB ruled that the proposed parking lot and stream enclosure was not a permitted use, but required a special exception,*fn1 and it then denied Appellant's request for the special exception. While Appellant's appeal of this decision was pending before the common pleas court, the Board voted to deny Appellant's application for preliminary land development approval. Appellant appealed this decision as well to the common pleas court, which consolidated the appeals. Without taking any additional evidence, the trial court affirmed both the decision of the ZHB and the decision of the Board, and Appellant appealed to this Court.*fn2

[ 110 Pa. Commw. Page 297]

    dams, obstructions, and other structures 'along, across or projecting into all streams and bodies of water,' as well as changes in the course current, cross-sections or location of any stream in the Commonwealth of Pennsylvania. Submission of plans and calculations in accordance with Department of Environmental Resources criteria must be made to D.E.R. and a permit obtained whenever an alteration or obstruction of a stream or body of water is contemplated. . . .

Easttown Township, Pa., Zoning Ordinance § 1504(1) (1981) (emphasis added).

Appellant first argues that the enclosure of the stream in order to place a parking lot atop, is a permitted use under Section 1504(1). A plain reading of that Section, however, compels us to disagree. While permeable parking lots are permitted uses in the flood hazard district, see § 1504(1)(d), in order to accomplish this, Appellant proposes to first pipe the stream and cover it with fill. Section 1504 expressly and clearly states that uses requiring fill are not permitted uses. When words of a zoning ordinance are clear and unambiguous, the letter of the ordinance is not to be disregarded. Lucia v. Zoning Hearing Board of Upper St. Clair Township, 63 Pa. Commonwealth Ct. 272, 437 A.2d 1294 (1981), cf. 1 Pa. C.S. § 1921(b). Accordingly, the ZHB did not err in ruling that Appellant's proposed manner of use was not a permitted use in the flood hazard district.

Appellant next asserts that, even if a special exception is required for his proposed use, he demonstrated his entitlement to one under the zoning ordinance, and the ZHB abused its discretion by denying the special exception.

Under Section 1504(3)(a) of the zoning ordinance, any use not specifically prohibited by Section 1504(2) is

[ 110 Pa. Commw. Page 299]

    permitted by special exception in the flood hazard district if an applicant meets certain enumerated criteria. There is no dispute that Appellant's proposed use would be permitted if the criteria were met. The ZHB, however, found that Appellant failed to satisfy criteria (1), (2) and (5) of Section 1504(3)(a), which provides that one seeking a special exception must demonstrate:

(1) That there is no danger to life or property due to increased flood heights or velocities caused by any encroachment permitted by such granting of special relief. . . .

(2) That there is no danger that materials may be swept onto other lands or downstream to the injury of others.

(5) That the proposed use is not susceptible to flood damage when the lands are inundated to the base flood level.

Easttown Township, Pa., Zoning Ordinance § 1504 (3)(a) (1), (2), (5).

Appellant's proposal called for constructing headwalls at the north and south points of the stream as it traverses his property, connected by piping. The northern (up-stream) headwall would have iron bars to prevent large pieces of debris from clogging the pipe or being swept downstream. The southern headwall would open into a filling basin in order to spread the flow of water coming through the piping, thereby decreasing the water's velocity.

The ZHB based its denial of the special exception on the testimony of the engineer for intervenor Easttown Township, who testified that he was concerned that, if routine maintenance of the headwalls was not performed, sediment could accumulate at the south headwall and cause increased water velocity, and debris could clog the north headwall and cause the stream to

[ 110 Pa. Commw. Page 300]

    flood. Therefore, the ZHB ruled that Appellant failed to satisfy criteria (1), (2) and (5) of Section 1504(3)(a) of the zoning ordinance.

This Court agrees with Appellant, however, that this constituted an abuse of discretion by the ZHB. For a special exception, an applicant has the duty to present evidence and the burden of establishing that the proposed use is one permitted by special exception, and that the use is in compliance with the applicable specific requirements of the zoning ordinance. Bray v. Zoning Board of Adjustment, 48 Pa. Commonwealth Ct. 523, 410 A.2d 909 (1980). The counter obligation of presenting evidence with respect to a general detriment to health, safety and welfare lies with the objector. Id. The objector must show that any adverse impact as a result of the proposed use is abnormal, and that there is a high probability of occurrence. Warren County Probation Association v. Warren County Zoning Hearing Board, 50 Pa. Commonwealth Ct. 486, 414 A.2d 398 (1980).

Here, with respect to maintenance of the stream enclosure, Appellant demonstrated that it submitted a bond to DER for just this purpose. Moreover, numerous DER regulations require the regular maintenance of stream enclosures. See 25 Pa. Code §§ 105.19, 105.51-105.54, 105.71, 105.211. We believe this constituted sufficient evidence to satisfy the criteria of Section 1504(3)(a) of the zoning ordinance, and the Board's ruling constituted error. Moreover, the objector, Easttown Township, never presented any evidence that a special exception would have an abnormally adverse impact upon the health, safety and welfare of the community; the testimony of the engineer was mere speculation that improper maintenance could have an adverse impact. There is no proof that improper maintenance is highly probable. Accordingly, Appellant has demonstrated entitlement

[ 110 Pa. Commw. Page 301]

    to a special exception, and on this issue we are constrained to reverse the order of the trial court.*fn3

The Appeal from the Township Board of Supervisors

The decision of the Board denying Appellant's application contained fifteen separate paragraphs purportedly specifying the defects in the preliminary plan.*fn4 Section

[ 110 Pa. Commw. Page 302508]

(2) of the Pennsylvania Municipalities Planning Code (MPC)*fn5 states that, with respect to a preliminary or final land development application:

When the application is not approved in terms as filed the decision shall specify the defects found in the application and describe the requirements

[ 110 Pa. Commw. Page 303]

    which have not been met and shall, in each case, cite to the provisions of the statute or ordinance relied upon.

53 P.S. § 10508(2). It is well-settled that this provision is mandatory, and enumerated defects without citation to

[ 110 Pa. Commw. Page 304]

    the provisions of the statute or ordinance relied upon cannot support a denial of an application. Rosanelli v. Quakertown Borough Council, 43 Pa. Commonwealth Ct. 420, 402 A.2d 1115 (1979). As paragraphs 8 and 11 through 14 of the Board's decision contain no citations to a statute or ordinance, it is clear that these could not form a proper base upon which to deny Appellant's application. Moreover, the Board in its brief concedes that paragraphs 3 and 15 of the decision also fail to satisfy the requirements of Section 508(2). Accordingly, we will confine our review to paragraphs 1, 2, 4 through 7, 9, and 10 of the decision, and address them in order.

Paragraph 1 of the decision based denial of the application on the fact that Appellant had not yet received a special exception from the ZHB and, therefore, the application failed to comply with Section 601-1 of the Easttown Township Subdivision and Land Development Ordinance (Subdivision Ordinance).*fn6 Essentially, Section 601-1 requires an applicant for land development to comply generally with applicable zoning laws. However, as this Court recently stated:

[N]either the zoning ordinance nor the subdivision regulations specify when a developer must obtain a special exception in relation to the preliminary approval process, and we will not read into the ordinances a requirement that a developer must obtain a special exception before approval of its preliminary plan.

[ 110 Pa. Commw. Page 305]

    and the Township's parking ordinance that Appellant's plan supposedly violated. The Board argues, however, that the exhibits and testimony given at the hearing were sufficient to advise Appellant as to the needed corrective action. This is precisely the sort of argument we recently rejected in Coretsky v. Board of Commissioners of Butler Township, 103 Pa. Commonwealth Ct. 28, 519 A.2d 571 (1987) and, accordingly, paragraph 4 does not satisfy Section 508(2) of the MPC and cannot support the rejection of Appellant's application.

Appellant next contends that the Board erred in paragraph 5, wherein his application was declared defective because he had not yet obtained DER approval to enclose and pipe the stream on the property. Setting aside the fact that Appellant's evidence showed that his application for the permit application was pending with DER, we agree that "it would appear to be more reasonable and consistent with the mandate of Section 508(2) to condition final subdivision approval upon the issuance of this . . . permit rather than to abort the plan at conception." Harrisburg Fore Associates v. Board of Supervisors of Lower Paxton Township, 21 Pa. Commonwealth Ct. 137, 143, 344 A.2d 277, 282 (1975); Valley Run, Inc.; see also Traymore Associates v. Board of Supervisors of Northampton Township, 24 Pa. Commonwealth Ct. 564, 357 A.2d 729 (1976).

Paragraphs 6, 7 and 10 of the Board's decision all specify as defects the lack of certain construction details in the Appellant's preliminary plan. However, the sections of the subdivision ordinance cited by the Board in these paragraphs do not require the types of details that the Board asserts are missing. Thus, rejection of the preliminary plan on these bases was improper.

Likewise, paragraph 9 of the decision does not support denial of preliminary approval. The Board ruled

[ 110 Pa. Commw. Page 307]

    that the detention of the stone beds in Appellant's drainage system was not "acceptable." Nothing in this paragraph or the cited ordinance provision, however, explains why it is unacceptable. Paragraph 9 of the decision thus does not comply with Section 508(2) of the MPC.

Reversed.

Order

Now, October 16, 1987, the order of the Court of Common Pleas of Chester County, No. 85-01127 dated May 8, 1986, is reversed. The order of the Court of Common Pleas of Chester County, No. 85-01832 dated May 8, 1986, is reversed.

Disposition

Decisions reversed.


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