Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jerome Joseph and North Whitehall For Sustainable v. North Whitehall Township Board of Supervisors

March 11, 2011

JEROME JOSEPH AND NORTH WHITEHALL FOR SUSTAINABLE DEVELOPMENT, APPELLANTS
v.
NORTH WHITEHALL TOWNSHIP BOARD OF SUPERVISORS, NORTH WHITEHALL TOWNSHIP AND WAL-MART STORES EAST, L.P.



The opinion of the court was delivered by: Bonnie Brigance Leadbetter, President Judge

Argued: December 6, 2010

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY PRESIDENT JUDGE LEADBETTER

Jerome Joseph and North Whitehall for Sustainable Development, a citizens' group, (collectively, Objectors), appeal from the order of the Court of Common Pleas of Lehigh County that affirmed the decision of the Board of Supervisors of North Whitehall Township (Board) granting the application of WalMart Stores East, L.P. (Wal-Mart) seeking conditional use approval for a planned commercial development.

The Objectors argue that the Board placed the incorrect burden of proof in granting the conditional use application. The Objectors also challenge the Board's finding that the proposed planned commercial development would not result in or substantially add to a significant traffic hazard or traffic congestion. The Objectors further argue that the Board improperly refused to issue a subpoena to compel the Township's traffic engineer to testify at a hearing and that the Board and its solicitor should have recused themselves from the case because the Township intervened in the Objectors' appeal from the Board's decision as a party through the same solicitor who presided at the Board's hearing. Wal-Mart questions whether its proposed development was authorized by the Board's grant of conditional use approval to the former property owner in 2001.

I.

In 2006, Wal-Mart acquired from Western Lehigh Valley Corporation the subject property consisting of approximately 40 acres of vacant, undeveloped land located on the west side of State Route (SR) 309 in North Whitehall

Township (Township), Lehigh County. The subject property is within a PC Planned Commercial Option zoning district, except the 1.7-acre portion which is located within the AR Agricultural-Rural Residential zoning district. Section 308.C of the Township Zoning Ordinance (Zoning Ordinance) permits a "planned commercial development"*fn1 in the PC zoning district as a conditional use. The stated purposes of the PC zoning district are:

To provide the same uses as are permitted in the VR [Village Residential] district. In addition, to offer a variety of non-residential development with carefully planned and coordinated traffic circulation as an option to the applicant if the applicant proves that the road system will be able to efficiently and safely support the development and that there will be suitable access to reach an arterial street. If an applicant is not able to comply with the traffic access and other requirements as provided in Section 308, then the applicant shall still have opportunities for reasonable variety of residential uses of his/her land under the VR district.

Section 301.D.10 of the Zoning Ordinance (emphasis in original).

In February 2008, Wal-Mart filed an application for conditional use approval for a planned commercial development of the subject property and submitted a site plan showing a layout of the project, landscaping, parking, lighting, signs, sidewalks, grading, a stormwater management and a water supply. Wal-Mart stated that the anticipated uses in the proposed planned commercial development were "retail and commercial in nature and of the type permitted in the PC District" and that "[b]y way of example, one use currently considered [was] a Wal-Mart Supercenter" with a building coverage of 177,700 square feet, or 17% of the total area of the subject property.*fn2 Reproduced Record (R.R.) at 597a. Wal- Mart alternatively sought the Board's determination that the proposed development was authorized by the Board's 2001 grant of conditional use approval to the former owner for a planned commercial development with "214,600 square feet of various retail uses and 20,000 square feet of general office use." R.R. 627a.

An applicant for conditional use approval for a planned commercial development must comply with the specific standards set forth in Section 308.D through I of the Zoning Ordinance, such as a minimum tract and lot area, access requirements and landscaping. In addition, the applicant is required to meet the following criteria for a conditional use set forth in Section 118.C:

1. Any specific standards for the proposed use listed in Sections 402 or 403 [additional requirements for specific principal and accessory uses];

2. Other applicable sections of this Ordinance;

3. The Subdivision and Land Development

Ordinance, as applicable, except that engineering details regarding compliance with such Ordinance may be addressed as part of a subsequent approval under such Ordinance; and

4. Comply with all of the standards listed in Section 119.C.3 [approval of special exception uses].

Section 119.C.3 requires a special exception applicant to prove, inter alia:

b. Traffic. The applicant shall show that the use will not result in or substantially add to a significant traffic hazard or significant traffic congestion.

c. Safety. The applicant shall show that the use will not create a significant public safety hazard, including fire, toxic or explosive hazards.

d. Storm Water Management. Will follow adequate, professionally accepted engineering methods to manage storm water.

....

g. Performance Standards. The applicant shall show that the use will not have a serious threat of inability to comply with the performance standards of this Ordinance, as stated in Article V [environmental protection].

The Township Planning Commission recommended approval of Wal- Mart's application. The Board thereafter held hearings, at which Wal-Mart presented the testimony of its project manager, Harold H. Newton, Jr. who is a registered professional engineer and land surveyor. The Objectors presented the testimony of their traffic expert, Douglas Plank, and numerous exhibits. After the hearings, the Board approved Wal-Mart's application subject to four conditions, concluding that Wal-Mart met all of the requirements in Sections 117 (site plan submission requirements), 118, 119 and 308 of the Zoning Ordinance. The Board required Wal-Mart to post security to ensure traffic improvements, to obtain land development approval for each lot to be subdivided, to submit a landscaping plan, and to prove before issuance of a building permit that the use will not create a significant public safety hazard.

The Objectors appealed the Board's decision to the trial court, and Wal-Mart intervened in the appeal. The Township also intervened through the same solicitor who had presided at the Board's hearing. The trial court rejected the Objectors' argument that Wal-Mart was required to show its compliance with the specific criteria set forth in Sections 402 and 403 of the Zoning Ordinance for anticipated uses in the proposed planned commercial development. The court further concluded that Wal-Mart was not required to submit a traffic impact study and name a public sewage provider at the conditional use approval stage and that the testimony of Wal-Mart's project manager supported the Board's finding that the proposed use will not result in or substantially add to a significant traffic hazard or traffic congestion. The court remanded for the Board's consideration of (1) the Objector's argument that a small area of the subject ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.