The opinion of the court was delivered by: Senior Judge Flaherty
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Briar Meadows Development, Inc. (Briar) appeals from an order of the Court of Common Pleas of the 26th Judicial District (Columbia County Branch) (trial court) which denied Briar's curative amendment request. We affirm.
On July 13, 2007, Briar filed a curative amendment application with the South Centre Township Board of Supervisors (Board). Briar sought to rezone certain property in South Centre Township (Township) from Agricultural to Commercial/Industrial. Briar holds an option on two tracts of land in the Township. The properties are bounded to the north by Interstate 80 and to the east by an adjoining property owner and the Interstate 80 exit ramp. To the south, the property is bordered by property owned by Laura Baker (Baker) and State Route 11, and to the west by State Route 1003/Lows Road. The properties consist of one 33.89 acre parcel which is located entirely within the Agricultural Zoning district, and one 91.5 acre parcel which is located in both the Agricultural and Commercial Districts. Only 21% of the total site is located within the Commercial district. After a hearing, the Board issued a decision denying the curative amendment application.
Briar filed an appeal with the trial court. On June 3, 2008, the trial court granted Briar's motion for leave to present additional evidence and remanded the case to the Board to hold a de novo hearing pursuant to public notice, as that term is defined in the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202. The Board filed a petition for reconsideration of the trial court's June 3, 2008 order. The parties then entered into a stipulation, approved by the trial court, which stayed the proceedings to afford Briar an opportunity to apply for a use variance. The use variance was not approved, and according to the stipulation, Briar's request for a curative amendment was to proceed as directed by the trial court.
On October 9, 2008, the trial court issued an order amending its June 3, 2008 order and directing that a hearing be scheduled before the trial court for the purpose of taking additional testimony and presenting additional evidence, with such testimony and evidence not to be duplicative of any testimony or evidence previously presented at the hearing before the Board. The Board was directed to give notice of the hearing in accordance with the Ordinance and the MPC. The order further directed that the trial court judges were recusing themselves from further proceedings in the matter and directed the court administrator to have a visiting judge preside.
In another order dated October 9, 2008, the Northumberland County Court of Common Pleas was directed to handle the matter. Thereafter, a hearing was conducted by Judge Saylor on April 22, 2009, at which Briar introduced a plan showing that it intended to develop the properties into thirty building lots as part of a planned commercial center. Baker, an adjoining landowner, filed a petition to intervene in the curative amendment proceeding.
On July 31, 2009, Judge Saylor issued a decision and order denying Briar's curative amendment request and affirming the Board's decision. Judge Saylor also concluded that Baker's request to intervene in the matter was moot.
In its decision, the trial court observed that when considering a curative amendment, the question for the court to determine is the validity of the zoning ordinance. A zoning ordinance is presumed constitutional unless the challenging party shows it is unreasonable, arbitrary or not substantially related to the police power. C & M Developers, Inc. v. Bedminster Township Zoning Hearing Board, 573 Pa. 2, 820 A.2d 143 (2002). According to the trial court, Briar presented no evidence that would overturn the Ordinance on constitutional grounds. Instead of demonstrating a defect in the Ordinance, Briar simply maintained that its proposed development was consistent with the comprehensive plan of the Ordinance, that it would not cause any harm, would naturally extend the Commercial zoning district and is reasonable. However, as stated by the trial court, these reasons do not in any way indicate a defect in the zoning ordinance which establishes the area as Agricultural. Briar appeals the trial court's order of July 31, 2009 to this court.*fn1
Initially, Briar argues that the trial court, although directed to do so by previous court orders, did not conduct a denovo hearing.*fn2 Briar points to instances in the trial court's decision where it references the Board's prior decision and discusses its findings. Specifically, Briar points out that the trial court stated, "at the hearing before both the Board and the Court, Briar Meadows presented a number of pictures purporting to show the area in question." (R.R. at 23a.) Briar claims it was improper for the trial court to consider the Board's opinion.
The Board responds that the trial court submitted its own findings of fact and conclusions of law. The trial court followed the order which directed it to conduct a hearing and that no testimony or evidence was to be submitted that would be duplicative of what was previously presented at the Board's hearing. We agree that the prior testimony from the hearing before the Board was to be considered by the trial court and that the trial court did consider the testimony taken before the Board. Merely because the trial court referenced testimony that was presented before it and the Board, it does not follow that the trial court failed to employ a de novostandard. As correctly stated by the board, the trial court issued its own findings of fact and conclusions of law.
Next, Briar maintains that the curative amendment is consistent with the ...