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Union Township v. Ethan Michael

July 23, 2009

UNION TOWNSHIP AND UNION TOWNSHIP ZONING HEARING BOARD
v.
ETHAN MICHAEL, INC., SOPHIA ARIANA, INC. AND LOUIS J. MASCARO, APPELLANTS



The opinion of the court was delivered by: Senior Judge McCLOSKEY

Argued: June 10, 2009

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.

OPINION

Ethan Michael, Inc., Sophia Ariana, Inc., and Louis Mascaro (hereafter collectively referred to as EMI) petition for review of an order of the Court of Common Pleas of Berks County (trial court), reversing the decision and order of the Union Township Zoning Hearing Board (the Board), which granted EMI's application for special exception. We now reverse.

On August 14, 2001, EMI filed an application for special exception with the Board seeking to develop a recreational motor sports park/racetrack and a commercial campground.*fn1 EMI sought to develop a recreational motor sports park in an area zoned as an Agricultural Preservation Zoning District; and a commercial campground in an area zoned as a Highway Commercial District. The areas were located on the northern and southern sides of Route 724, a state highway in Union Township, Berks County, Pennsylvania. The Union Township Zoning Ordinance (the Ordinance) allows both uses by special exception.

Sixteen hearings were conducted from November 28, 2001, through January 22, 2003. However, the hearings were then stayed for a period of time due to two civil proceedings initiated by EMI; one in which it sought a recusal and disqualification of a Board member who had been newly appointed and one in which it made an allegation that it had been denied procedural due process.*fn2

Eventually, forty-eight additional hearings were held from March 15, 2005, through January 3, 2007, before a hearing officer appointed by the Board.

On July 23, 2007, the hearing officer issued a seventy-seven page report, noting that he had participated in sixty-two hearings, admitted more than 100 exhibits and received numerous expert reports in the matter. In the report, the hearing officer recommended approval of EMI's special exception application for both the motor sports park and the commercial campground. However, the hearing officer recommended that the special exception approval be subject to certain conditions as contained in Annex "C" and Annex "D." Specifically, Annex "C" was a recitation of the conditions to be imposed with respect to the approval for the commercial campground, while Annex "D" referred to the conditions to be imposed with respect to the motor sports park.

Subsequently, on August 22, 2007, the Board adopted the hearing officer's report as its final decision. The Board made some modifications to the conditions and incorporated the modifications, changes and additions into documents entitled "Substitute Annex 'C,' Substitute Annex 'D,' and Revisions and Classifications." (EMI's Brief at Exhibit A). On September 18, 2007, Union Township (the Township) filed a notice of land use appeal with the trial court.*fn3

EMI participated as an intervenor in the land use appeal.

On December 11, 2008, the trial court, without taking additional evidence, issued its opinion reversing the Board's order and denying EMI's special exception application for both the motor sports park and the commercial campground. The trial court concluded that EMI did not have standing to file a special exception application for the commercial campground because it had not joined Schuylkill River Greenways Association (Greenways Association) as a party to the action. The trial court noted that Greenways Association was the owner of a public walking trail which traversed the entire east-west width of EMI's property and, thus, the trail had to be crossed at certain points to gain access to the proposed commercial campground. Thus, the trial court concluded that Greenways Association was an indispensable party.

Moreover, the trial court concluded that although the motor sports park was included within the definition of recreation area pursuant to the Ordinance, the hearing officer and the Board had not considered the "contextual circumstances, including the size and intensity of the use, and the impact on the surrounding neighborhood." (EMI's Brief at Exhibit B, Trial Court Opinion at 18). The trial court noted that Section 401.4 of the Ordinance provided that special exception uses were also subject to, and had to be in accordance with, the provisions contained in Section 1105.2 of the Ordinance.*fn4 Thus, the trial court noted that "[g]ermane to this application" was the consideration of Sections 1105.2(C) and 1105.2(F) of the Ordinance which provide that the use shall not adversely affect the character of the general neighborhood and must be consistent with the Township's Comprehensive Plan. (EMI's Brief at Exhibit B, Trial Court Opinion at 19).

The trial court concluded that the hearing officer's ruling, and, therefore, the Board's decision adopting the hearing officer's report, was, "in essence a statement that [Section 1105.2(F) of the Ordinance] should be given little or no effect" because it presumed that "there [were] no limitations whatsoever to a recreation use" in the agricultural preservation district other than certain dimensional requirements. (EMI's Brief at Exhibit B, Trial Court Opinion at 21-22). The trial court noted that the "parameters" set by the Ordinance regarding an agricultural preservation district were established by its purpose clause and the "sole purpose" for an agricultural preservation district was agricultural preservation. (EMI's Brief at Exhibit B, Trial Court Opinion at 22-23). However, the trial court recognized that it was "clear that the Township did not intend all land in an [agricultural preservation district] to be exclusively reserved for agricultural preservation." (EMI's Brief at Exhibit B, Trial Court Opinion at 24).

Next, the trial court considered the "scale" of EMI's proposed nonagricultural use and concluded that because it encompassed a large percentage of the agricultural preservation district, it would cause the loss of a substantial portion of the lands that the Township sought to preserve. Further, the trial court reasoned that the purpose of EMI's proposal was to build a motor sports park and a campground and not to preserve agricultural lands, and if EMI was allowed to do so, the lands would never be available for agriculture again unless the motor sports park and the campground were abandoned.

The trial court concluded that EMI's proposed uses would adversely affect the general character of the rural and quiet neighborhood, increase traffic in the area, substantially increase the noise and forever transform the nature of the community. Thus, the trial court reversed the order of the Board. EMI then responded by filing a notice of appeal with the trial court.

On appeal,*fn5 EMI argues that the trial court exceeded the scope of its appellate authority by sua sponte considering issues that were not raised or briefed by the Township and, thus, had been waived. Specifically, EMI argues that the trial court improperly considered the issue of its compliance with Section 1105.2(C) of the Ordinance, regarding adversity with the character of the general neighborhood, and Section 1105.2(F) of the Ordinance, regarding consistency with the Township's Comprehensive Plan because the Township failed to preserve this issue. EMI asserts that should this Court agree with it on this issue, its second and third issues need not be considered, but in the alternative, EMI argues that the Board did not err in approving its special exception application because it met the requirements for approval. Finally, EMI argues that the Board did not err in finding that it had standing because Greenways Association was not a necessary party.

In a land use appeal, when an issue has not been raised on appeal before a court of common pleas, that issue has not been properly preserved for review. Agnew v. Bushkill Township Zoning Hearing Board, 837 A.2d 634 (Pa. Cmwlth. 2003), petition for allowance of appeal denied, 578 A.2d 702, 852 A.2d 313 (2004). Further, this Court has held that any party to an appeal before this Court who fails to strictly comply with all provisions of the Pennsylvania Rules of Appellate Procedure (the Rules) is in peril of having its appeal dismissed; nevertheless, the Court will consider the defect and whether meaningful review has been precluded.*fn6 See Means v. Housing Authority of City of Pittsburgh, 747 A.2d 1286 (Pa. Cmwlth. 2000) (concluding that appellant's pro se appeal would be quashed due to his substantial and repeated failures to comply with the briefing requirements articulated in the Rules by failing to provide the court with a standard of review, a scope of review, a statement of the case and a summary of the argument); Eltoron, Inc. v. Zoning Hearing Board of City of Aliquippa, 729 A.2d 149 (Pa. Cmwlth. 1999), petition for allowance of appeal denied, 563 Pa. 632, 758 A.2d 664 (2000) (finding that Eltoron's discussion of an issue on appeal which was limited to a footnote was insufficient to preserve the issue under the Rules; however, it had preserved other issues through its development in other documents and although its compliance with the Rules may have been technically defective, it did not preclude meaningful review of the other issues); Roseberry Life Insurance Company v. Zoning Hearing Board of City of McKeesport, 664 A.2d 688 (Pa. Cmwlth. 1995) (noting that although a party's statement of the case did not include information explaining how issues were raised and preserved as required by the Rules, that defect alone did not preclude meaningful appellate review or cause all of the issues to be waived).

Although we disagree with the Township's assertion that it "specifically raised" EMI's compliance with Sections 1105.2(C) and (F) of the Ordinance in Paragraph 17 of its notice of land use appeal, we do not believe that the Township has waived the issue.*fn7 Additionally, we note that in its brief to the trial court, the Township referenced a different subsection of the Ordinance. However, evidence does exist, albeit minimal, to support the Township's allegation that it did not waive the issue and to allow meaningful review. For example, after a lengthy discussion ...


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