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In re Appeal of Deemed Approved Conditional Use

May 19, 2009

IN RE: APPEAL OF DEEMED APPROVED CONDITIONAL USE
APPEAL OF: BOROUGH OF SCHUYLKILL HAVEN
RICHARD STERNER, PAUL BECKER AND DEBORAH BECKER
v.
SCHUYLKILL HAVEN BOROUGH
APPEAL OF: PAUL BECKER AND DEBORAH BECKER
IN RE: APPEAL OF DEEMED APPROVED CONDITIONAL USE
APPEAL OF: RICHARD STERNER



The opinion of the court was delivered by: Judge McGINLEY

Submitted: February 27, 2009

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Richard Sterner (Sterner) and the Borough of Schuylkill Haven (Borough) appeal from an order of the Court of Common Pleas of Schuylkill County (common pleas court) that denied Sterner's notice of conditional use appeal and petition for review.*fn1 Also, before this Court is the cross-appeal of Paul Becker and Deborah Becker (the Beckers) from an order of the common pleas court that overruled the Beckers' preliminary objections to the conditional use appeal and petition for review.

On February 8, 2008, Sterner filed a notice of conditional use appeal and petition for review and alleged:

4. [The Beckers] propose building storage sheds in the Schuylkill Haven Borough flood plain, in the area of Saint Charles Street and West Liberty Street [the Property]. (emphasis added).

6. Appellant's [Sterner's] property is located in the flood plain of Schuylkill Haven Borough .

8. The area of Saint Charles Street and West Liberty Street . . . [the Property] is in an identified flood plain.

9. To build storage sheds in the flood plain, [the Beckers are] required to receive approval of the . . . Borough Council under "Conditional use" provisions of the various zoning and building codes of the Borough. (Copies of "Borough of Schuylkill Haven Zoning Ordinance" and "Schuylkill Haven Code" are attached and incorporated herein by reference and marked as Exhibit A and Exhibit B, respectively). (emphasis added)

10. On October 9, 2007 the first of a two-session Conditional Use hearing was held before . . . Borough Council. (Transcripts attached and incorporated herein by reference and marked as Exhibit C).

11. On October 16, 2007 the second and final Conditional Use hearing was held before . . . Borough Council. (Transcripts attached and incorporated herein by reference and marked as Exhibit D).

15. On December 19, 2007 Borough Solicitor, Mark Semanchik, Esquire announced at the regular council meeting that Borough Council had voted not to grant the conditional approval for storage sheds in the flood zone. (emphasis added).

16. The Borough despite their ruling on December 19, 2007, failed to comply with the Pennsylvania Municipalities Planning Code, 53 P.S. § 10913.2 and issue a written ruling based on its findings.*fn2 (emphasis added).

17. On January 31, 2008 and February 7, 2008 a notice by Paul Becker and Deborah Becker [the Beckers] was published in the Pottsville Republican & Herald, that their application for approval of a Land Development Plan is "deemed approved" . . . . (emphasis added).

18. Appellant [Sterner] and his property would be adversely, directly, immediately and substantially affected by the "deemed approved", "conditional use" that will allow the building of storage sheds in the flood plain where Appellant's [Sterner's] home is also located. Whereas . . . [i]t is respectively requested that this Honorable Court review the evidence before it (exhibits A-B-C-D-E-F) and dissolve and reverse the "deemed approved" status.

Notice of Conditional Use Appeal and Petition for Review, February 8, 2008, Paragraphs 4, 6, 8-11, and 15-18 at 1-4; Exhibit A.*fn3

On March 13, 2008, the Beckers preliminarily objected and asserted:

2. On or about February 8, 2008, Appellant [Sterner] filed an appeal from the said deemed approval with this Court.

3. On or about February 19, 2008, the Borough filed a Notice of Intervention in said appeal.*fn4

4. On or about February 25, 2008, [Paul] Becker [the Beckers] filed a Notice of Intervention in the said appeal.

7. No separate appeal was filed within the applicable thirty day time limit from the date of the deemed approval by the Borough.

8. There is no challenge before this Court to the propriety of the deemed approval.

9. By virtue of the deemed approval, the Borough is deemed to have approved the application of [the Beckers] for a conditional use. (emphasis added).

10. The Borough may not appeal (or be a party to an appeal) from its own decision approving the application. (emphasis added).

13. The Notice contains no specific grounds for the appeal; rather there is only a general request that the Court conduct a de novo review of the transcript of the prior proceedings, and reverse the "deemed approved" status.

14. The Notice thus fails to conform with the requirements of Pa. R.A.P. No. 1513; Sch. R.C.P. No. 14(I)(A)(2)(f); and Section 1003-A of the Pennsylvania Municipalities Planning Code (53 P.S. § 11003-A).

Preliminary Objections, March 18, 2008, Paragraphs 2-10 and 13-14 at 1-2.

On April 24, 2008, the common pleas court overruled the Beckers' preliminary objections.

At the October 9, 2007, hearing, Paul Becker testified that he proposed to place self-storage sheds on the Property which are "all metal, and . . . sit on 4-inch concrete slabs [that are] bolted down. They're basically for people who don't have enough room at their home . . . they rent them to put the excess . . . [i]t ...


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