September 1, 2010
HAMILTON HILLS GROUP, LLC, APPELLANT
HAMILTON TOWNSHIP ZONING HEARING BOARD AND HAMILTON TOWNSHIP BOARD OF SUPERVISORS
The opinion of the court was delivered by: Judge Cohn Jubelirer
Submitted: June 21, 2010
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Hamilton Hills Group, LLC, (Group) appeals from an order of the Court of Common Pleas of Adams County (trial court), which affirmed the Hamilton Township Zoning Hearing Board's (Board) denial of the Group's request for a special exception under the Hamilton Township (Township) Zoning Ordinance (Ordinance). The Group's application called for the construction of 325 townhouse units on a parcel of land spanning three municipalities. Under the Ordinance, the Group was required to provide for 300 square feet of open space per unit. (Ordinance § 150-34A(8).) Finding that the Group failed to introduce sufficient evidence to establish that the proposed development contained the required amount of open space within the Township's borders, the Board denied the application. On appeal, the Group argues that, when viewed as a whole, the land on which the development was to be built contains sufficient open space, and it is irrelevant that the open space is located in neighboring municipalities.
The issue presented in this case is a novel one: in the absence of explicit language in a zoning ordinance directly stating that all requirements for a special exception must be satisfied by land within the borders of the enacting municipality, may a zoning hearing board refuse to consider land located outside its jurisdiction in determining whether the developer's plan satisfies the municipality's zoning requirements? Based on the plain language of the Ordinance in question, the limited nature of the zoning power, and the constitutional boundaries within which that power is exercised, we hold that a zoning hearing board may limit itself to the consideration of land located within the borders of the enacting municipality.
Over the past five years, the Group has been planning a large development of townhouses. If brought to completion, the development will be built on an 89.37 acre parcel of land (Property) owned by the Group. The Property spans three municipalities: the Township, Berwick Township (Berwick), and the Borough of Abbottstown (Abbottstown). However, the plan calls for all 325 of the proposed townhouse units to be built on the portion of the Property located in the Township. That portion of the Property is located in an R-3 Residential District, which permits moderate density residential uses. The proposed development is not a use permitted by right in that district.*fn1 (See Ordinance § 150-33.)
On October 23, 2008, the Group appeared before the Board to apply for a special exception under Section 150-34A of the Ordinance, which permits construction of townhome developments in the R-3 district, provided certain criteria are met.*fn2 (Ordinance § 150-34A.) Of the eleven requirements set forth in Section 150-34A, only one is at issue in this appeal: Subsection 8, which states that any development with more than 12 dwelling units must contain a "designated open space or recreation area," containing a minimum of 300 feet of open space per unit.*fn3 (Ordinance § 150-34A(8).)
At the hearing, Mr. Aiello, a consultant working for the Group, testified that, when viewed as a whole, the Property contained sufficient acreage to meet the Ordinance's open space requirement. (Board Hr'g Tr. at 41, October 23, 2008.)*fn4
However, Mr. Aiello also testified that, while all the townhouses would be built in the Township, he was unsure as to how much of the open space would be located in the Township, or whether there was sufficient open space to satisfy the requirement if the parts of the Property located in Abbottstown and Berwick were not considered. (Board Hr'g Tr. at 41.) The Board accepted public comment and testimony and, after several continuances, ultimately rejected the application. In its opinion, the Board stated that the Group failed to establish that its plan contained the required amount of open space within the Township.*fn5 (Board Op., Findings of Fact (FOF) ¶¶ 11-12.) The Group appealed to the trial court.
In an order issued on October 16, 2009, the trial court affirmed the Board's decision without taking additional evidence. The trial court held that, because municipalities have no authority to exert extraterritorial control, it would have been improper for the Board to consider the portions of the Property not located within the Township's borders. (Trial Ct. Op. at 3-4.) On November 12, 2009, the Group filed a notice of appeal from the trial court's order.*fn6
As a preliminary matter, we address the Board's*fn7 argument that the Group waived its right to raise any issue before this Court by failing to file a timely petition for review as required by Pa. R.A.P. 1512; a "general statement of . . . objections" pursuant to Pa. R.A.P. 1513(d)(5); or alternatively, a Concise Statement of Errors Complained of on Appeal pursuant to Pa. R.A.P. 1925(b). We conclude that the Group did not waive its right to raise any issue.
This Court has already addressed the timeliness issue, as well as the Group's failure to include a statement of objections. On March 10, 2009, the Board filed a Motion to Quash or Alternatively Dismiss Petitioner's Notice of Appeal (Motion) on the grounds that the Group's petition for review was untimely and improper under Chapter 15 of the Rules of Appellate Procedure. On March 16, 2010, this Court denied the Motion, finding that an appeal from a trial court order is taken by filing a timely notice of appeal in accordance with Pa. R.A.P. 903, and that the Group had complied with all the requirements of Chapter 9 of the Pennsylvania Rules of Appellate Procedure.*fn8 Hamilton Hills Group, LLC v. Hamilton Township Zoning Hearing Board (Pa. Cmwlth. No. 2224 C.D. 2009, filed March 16, 2010).
The Board also argues that the Group waived its issues by failing to file a 1925(b) Statement. However, the Board is mistaken as to the purpose of Pa. R.A.P. 1925(b). Rule 1925(b) authorizes trial judges who feel they need clarification as to the basis of an appellant's appeal before drafting a Rule 1925(a) opinion to order an appellant to file a 1925(b) statement. Pa. R.A.P. 1925(b). As no such order appears in the record, the Group was under no obligation to file a 1925(b) statement.
Having concluded that the Group did not waive any issues, we turn to the merits of its appeal. The Group argues that because the Ordinance does not unambiguously state that the open space requirement must be satisfied by land located within the Township's borders, the Board was required to give the Ordinance the most liberal interpretation possible.
In an application for a special exception, the applicant has the burden of production and persuasion, and must prove to the zoning hearing board that the applicant's proposal meets all the requirements contained in the ordinance. Bray v. Zoning Board of Adjustment, 410 A.2d 909, 910-11 (Pa. Cmwlth. 1980). Due to their expertise and experience, "a zoning hearing board's interpretation of its own zoning ordinance is entitled to great weight and deference." City of Hope v. Sadsbury Township Zoning Hearing Board, 890 A.2d 1137, 1143 (Pa. Cmwlth. 2006). The general principle that zoning ordinances must be construed so as to give landowners the broadest possible use of their property gives way where the ordinance, read rationally and as a whole, clearly signals that a more restrictive meaning was intended. Hess v. Warwick Township Zoning Hearing Board, 977 A.2d 1216, 1221-22 (Pa. Cmwlth. 2009). Although the Group is correct that zoning ordinances must be construed liberally, Tenyson v. Zoning Hearing Board of West Bradford Township, 952 A.2d 739, 744-45 (Pa. Cmwlth. 2008), it is important to clarify precisely what the Group claims the Ordinance means when interpreted liberally. According to the Group, the Ordinance, when properly construed, does not just permit, but in fact compels the Board to consider land located outside its jurisdiction. We decline to adopt such a broad interpretation.
Subsection 8 of Section 150-34A provides that any development containing more than 12 townhouse units must provide for 300 square feet of open space per townhouse unit. Neither the definitions section of the Ordinance, nor Section 150-34A itself, contains a definition of the term "square feet," or otherwise explicitly indicates whether the open space calculation may include land not located within the Township. However, other sections of the Ordinance offer some guidance. According to the Ordinance's statement of purpose at Section 150-2, a central goal of the Ordinance is "to prevent the overcrowding of land" (Ordinance § 150-2); the statement of purpose accompanying the R-3 classification indicates that the Ordinance is also concerned with preserving the "rural nature" of the community and avoiding excessive development "within the Township" (Ordinance § 150-32D (emphasis added)). To that end, the Ordinance was enacted "with a view of," among other factors, "encouraging the most appropriate use of land throughout the Township." (Ordinance § 150-2.) The Township established the R-3 classification to balance the potential for overcrowding with the need to provide a variety of residential opportunities. (See Ordinance § 150-32.) It achieved this balance by permitting construction of higher density developments in residential districts, provided those developments were offset by sufficient open space to prevent excessive growth in population density. (See Ordinance § 150-34A(2), (8).) Section 150-34, which sets out the criteria for the townhouse community special exception, specifies that it applies "[w]ithin the R-3 District," which is located entirely within the Township. (Ordinance § 150-34 (emphasis added).) Thus, the Ordinance's language reflects an overarching concern with the effect of zoning and land use regulation within the Township; no mention is made of giving consideration to neighboring municipalities.
The interpretation of the Ordinance urged by the Group does not represent a liberal construction of ambiguous language contained in the Ordinance, but an impermissible departure from the plainly discernible intent of the enacting body. The special exception at issue in this case is a part of the Ordinance's R-3 classification. The language of the Ordinance indicates that the Township designed the R-3 classification to balance the need for "a mixture of residential opportunities" for the Township's residents with the need to "[l]imit development density . . . within the Township." (Ordinance § 150-32.) This can only be accomplished if the density and open space requirements used to balance higher density developments are satisfied by land within the borders of the Township. The Group, however, would have this Court interpret the Ordinance to require a dense development within the Township to be offset by open space in other municipalities. This is contrary to the Ordinance's clearly established goal of managing development and population density within the Township, and is inconsistent with the terms of the Ordinance when read as a whole. We cannot endorse such a strained reading solely in the interest of giving the Ordinance a liberal construction or granting the Group a broader use of its land.
While the Board's decision to limit its consideration to the part of the Property located within the Township's borders had the effect of imposing a requirement that may not have been explicitly stated in the special exception, this Court has previously upheld decisions imposing such requirements, provided the additional requirements were plainly implied by the text of the ordinance when read as a whole. In Hess, we considered a zoning hearing board's interpretation of a provision in Warwick Township's zoning ordinance, which permitted shelters housing pets as an accessory use in an R-1 Residential District. 977 A.2d at 1218-19. Although the zoning ordinance made no specific mention of a limitation on the number of animals that could be housed in such a structure, the zoning hearing board concluded that a shelter housing twenty-one large dogs was not a valid accessory use under the terms of the zoning ordinance. Id. at 1219. In interpreting Warwick Township's zoning ordinance, this Court concluded that the R-1 Residential classification was intended to provide some limitation on the maximum permitted intensity of land use. Id. at 1222. Based on this reading of Warwick Township's zoning ordinance, this Court held that the only rational interpretation of the disputed provision had to include an implicit limit on the number of animals that could be sheltered as an accessory use of a residential property. Id. The Board's refusal in the present case to consider the part of the Property located in Abbottstown and Berwick is no more of an interpretive leap, given the Ordinance's express goals of "encouraging the most appropriate use of land throughout the Township" and "prevent[ing] the overcrowding of land . . . [and] avoid[ing] undue concentration of population." (Ordinance § 150-2.)
Our interpretation of the Ordinance is consistent with the limits inherent in the zoning authority held by municipalities. Municipalities are creations of the Commonwealth and possess no power beyond that which is expressly delegated to them. In re Realen Valley Forge Greenes Associates, 576 Pa. 115, 132-33, 838 A.2d 718,729(2003). In the context of zoning decisions, Section 501 of the Pennsylvania Municipalities Planning Code (MPC)*fn9 grants municipalities the authority to control development within their borders. See 53 P.S. § 10501 (making multiple references to the authority to control development "within the municipality"); see also King v. Perkasie Borough Zoning Hearing Board, 552 A.2d 354, 355-56 (Pa. Cmwlth. 1989) (interpreting Section 501 of the MPC to forbid extraterritorial control by a municipality on the grounds that, under the MPC, a municipality's powers stop at its border). Pursuant to Section 619.1(d) of the MPC,*fn10 municipalities may exercise extraterritorial control when they enter into a specific written agreement with a neighboring municipality. 53 P.S. § 10619.1(d); Baronoff v. Zoning Board of Adjustment, 385 Pa. 110, 118, 122 A.2d 65, 68 (1956). While the MPC does not state that municipalities are precluded from considering extraterritorial matters when making zoning decisions, numerous sections of the MPC indicate that there is an underlying assumption that zoning decisions can be made based on factors within the municipality's jurisdiction. See, e.g., Section 605 of the MPC, 53 P.S. § 10605 (providing that provisions of a zoning ordinance may be classified so that different requirements apply to different districts "of the municipality"); Section 503(4.1) of the MPC, 53 P.S. § 10503(4.1) (granting municipalities the authority to impose certain requirements "uniformly throughout the municipality"). The limited nature of municipal authority, and the MPC's underlying assumption that municipalities will confine their efforts to furthering the well-being of their own constituencies, indicate that, in general, zoning ordinances should be construed so as to permit consideration only of land located within the borders of the enacting body.
Municipal authority to regulate land use and development is further limited by the constitutional source of that authority, the police power, which grants municipalities the authority to enact zoning to protect the "public health, safety, morals or general welfare" of the community. Ward's Appeal, 289 Pa. 458, 462-63, 137 A. 630, 631 (1927). If an ordinance exceeds either the scope of the municipality's authority under the MPC, or the limits of its police power, the ordinance is invalid. Robert S. Ryan, Pennsylvania Zoning Law and Practice § 3.1.2 (2001). The Commonwealth's delegation of police powers to a municipality creates duties as well as rights; municipalities must exercise their police powers for the good of their constituents and, in general, may not irretrievably surrender that obligation to a third party. G. C. Murphy Co. v. Redevelopment Authority, 458 Pa. 219, 227, 326 A.2d 358, 363-64 (1974) (quoting City of McKeesport v. The McKeesport and Reynoldtown Passenger Ry., 2 Pa. Super. 242, 247 (1896) ("The state cannot bargain away its right to exercise at all times its police power, nor can a municipality, to which is delegated the right to exercise the state's police power over streets and highways, enter into any contract by which the free exercise of the power granted can be abridged, limited or destroyed.")); Helicon Corporation v. Brownsville, 449 A.2d 118, 120 (Pa. Cmwlth. 1982) ("[I]t is well-settled that a municipality's police power, which protects the general welfare and the public interest, cannot be abridged by contract."); 35 Pennsylvania Law Encyclopedia, Municipal Corporations § 413 (2007) ("When police power has been delegated by the state to a municipality, the municipality cannot, beyond recall, surrender it or divest itself thereof by contract or otherwise. The municipality cannot enter into any contract by which the free exercise of the power granted would be abridged, limited or destroyed." (footnote omitted)).
The MPC delegates the authority to enact zoning ordinances to municipalities with the understanding that the authority will be used to allow for population growth and to provide for a variety of residential opportunities, while avoiding excessive population density. Section 604(1), (4) of the MPC, 53 P.S. § 10604(1), (4). Pursuant to that duty, the Board refused to allow the Group to offset a development located in the Township by providing for open space in Abbottstown and Berwick. We cannot say that this refusal was an abuse of discretion. Responsibility for the well-being of the citizens of Abbottstown and Berwick belongs to their own governing bodies; bound by the limits of the police power, the Board has neither the duty nor the authority to exercise its zoning power to benefit the citizens of neighboring municipalities.
If compelled to grant the Group's application, the Board will be unable to ensure that the Group does not develop the open space in the future. Under the Group's current plan, the majority of the open space, which the Ordinance declares necessary for the welfare of the Township and its residents, would be located outside of the Board's jurisdiction and, thus beyond its control. Baronoff, 385 Pa. at 118, 122 A.2d at 68. If the application is granted, the Board would be forced to entrust the welfare of the Township to the discretion of the zoning hearing boards of Abbottstown and Berwick, or to the good intentions attributed to the Group by its counsel.*fn11 We hold that the Board, in refusing to surrender either the ability or the authority to protect the welfare of the Township, did not commit a reversible error.
In light of the preceding discussion, the Board did not abuse its discretion in requiring the application for special exception to satisfy the Ordinance's requirements using only land located within the borders of the Township.*fn12
Accordingly, we affirm the trial court's order.
NOW,September 1, 2010, the order of the Court of Common Pleas of Adams County in the above-captioned matter is hereby AFFIRMED.
RENÉE COHN JUBELIRER, Judge