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Oxford Corporation v. Zoning Hearing Board of the Borough of Oxford and Borough of

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


November 18, 2011

OXFORD CORPORATION, APPELLANT
v.
ZONING HEARING BOARD OF THE BOROUGH OF OXFORD AND BOROUGH OF OXFORD

The opinion of the court was delivered by: Opinion BY Judge McCULLOUGH

Submitted: January 7, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge

Oxford Corporation (Landowner) appeals the June 4, 2010, order of the Court of Common Pleas of Chester County (trial court) denying Landowner‟s land use appeal and affirming the decision of the Zoning Hearing Board (Board) of Oxford Borough (Borough). The Board‟s decision denied Landowner‟s application for a use variance and substantive validity variance and Landowner‟s procedural validity challenge to the Borough‟s Zoning Ordinance. We affirm.

Landowner is the owner of a 10.5-acre parcel of property located in the Borough‟s I General Industrial Zoning District.*fn1 Landowner seeks to develop the property as a residential use, which is not a permitted use in that district. Landowner has owned the parcel since 1970. The parcel is undeveloped and contains approximately four acres of wetlands on the northern portion, with an active rail line along the northern boundary and mature woodlands along the eastern, southern, and part of the western boundaries. There are residential uses to the south and southwest of the parcel in the adjacent R-2 Residential Zoning District of the Borough. Sunny Dell Foods, a mushroom and food processing plant owned by Gary Caligiuri, is located in the I General Industrial Zoning district to the west and northwest of the parcel. Other industrial uses are located to the north of the rail line near the parcel, such as a car wash, an excavation and septic tank service, and an automobile service business.

On April 17, 2006, Landowner submitted a petition to the Borough Council to amend the Borough‟s Zoning Map by designating the parcel as part of the R-2 Zoning District. At its meeting on June 19, 2006, the Borough Council, following the recommendation of the Borough Planning Commission, voted unanimously to deny the petition.

On June 8, 2008, Landowner filed an application with the Board to obtain a use variance, as well as a substantive validity variance, for a multi-family residential townhouse use, or another residential use permitted in the R-2 Zoning District, on the parcel.*fn2 In particular, Landowner alleged, inter alia, that the property cannot be used in any reasonable or economically viable manner as currently zoned.

Landowner also raised a procedural challenge to the validity of the Borough‟s Zoning Ordinance, alleging that the enactment of Ordinance 505-1974, Ordinance 593-1986, Ordinance 598-1986, and Ordinance 636-1989 violated the procedural requirements as provided in Sections 607, 608, and 609 of the Municipalities Planning Code (MPC)*fn3 , and Section 1008(b) of the Borough Code.*fn4 *fn5

Specifically, Landowner alleged, inter alia, that the proposed ordinances were not submitted to either the Borough‟s Planning Commission or the Chester County (County) Planning Commission prior to their enactment or amendment as required by the MPC.

The Board bifurcated the proceedings on the application, and the Board held hearings on Landowner‟s request for a use variance or a substantive validity variance on August 5, 2008, October 21, 2008, and December 9, 2008. In support of the application, Landowner presented the testimony of: Thomas DiCecco, Landowner‟s president; Michael Samuels, an expert in real estate appraisal and valuation; and Wayne Grafton, an expert in land planning. In opposition to the application, the Borough presented the testimony of: Glenn Neuhs, an expert in municipal planning; Gary Caligiuri*fn6 , the aforesaid owner of Sunny Dell Foods; and John Strickland, an expert in real estate appraisal.

On February 10, 2009, the Board issued a decision disposing of Landowner‟s request for a use variance or a substantive validity variance in which it made the following relevant findings of fact: (1) witnesses for both Landowner and the Borough agreed that a minimum of six acres of the property can be developed; (2) Mr. Neuhs presented plans for office building and warehouse facility uses on the parcel that are permitted by right in the I General Industrial Zoning District and that would comply with the Zoning Ordinance; (3) Mr. Caligiuri has made at least two offers to purchase the parcel in order to expand his mushroom and food processing operations, and he is interested in constructing a warehouse facility on the parcel; (4) Landowner has never responded to Mr. Caligiuri‟s offers to purchase the parcel; (5) Mr. Strickland stated that, in his professional opinion, the fair market value of the property is $210,000.00 and that Mr. Caligiuri‟s offer of $250,000.00 is fair and reasonable; (6) Mr. Strickland stated that it is unreasonable for Landowner to believe that the list prices of $850,000.00 and $1,000,000.00 would result in an offer to purchase, or that those list prices were fair asking prices for the parcel; (7) Mr. Strickland stated that the parcel is not "marginal" land as it has approximately eight acres that are buildable; (8) Landowner‟s witness, Mr. Grafton, agreed that there are six and one-quarter acres of developable and usable land on the parcel and that it is physically and legally possible to develop a warehouse or office building on the parcel; (9) the testimony and conclusions of Landowner‟s witness, Mr. Samuels, regarding the lack of value and usability of the parcel as currently zoned, are not credible; and (10) there is no hardship peculiar to Landowner‟s parcel that prevents it from being developed as it is currently zoned. 2/10/09 Board Decision at 6-9. The Board also "[found] the testimony and exhibits proffered by the Borough to be more credible than that introduced by [Landowner] and finds the testimony and report of Mr. Samuels to be extreme and not supported by any clear evidence. Accordingly, the Board concludes that the Property has more than mere distress value as currently zoned." Id. at 10-11.

Based on the foregoing, the Board concluded that "[Landowner] failed to demonstrate by substantial evidence that it [was] entitled to any variance relief." 2/10/09 Board Decision at 13. Accordingly, the Board issued an order denying Landowner‟s request for a use variance or a substantive validity variance. Id. at 14.

On September 1, 2009, the Board issued a decision disposing of Landowner‟s procedural validity challenge based upon the stipulated facts of the parties. With respect to Ordinance 505-1974, the Board made the following relevant findings of fact: (1) residential uses have not been permitted in the I General Industrial Zoning District since the Zoning Ordinance was amended in 1974 by Ordinance 505-1974; (2) the proposed Ordinance 505-1974 was sent to the County‟s Planning Commission and the Borough‟s Planning Commission on September 26, 1973 for review; (3) the proposed Ordinance 505-1974 was revised following a hearing before the Borough‟s Planning Commission on April 15, 1974; (4) on May 21, 1974, at a public meeting, the Borough‟s Planning Commission recommended that the Borough Council adopt the proposed Ordinance 505-1974; (5) on July 8, 1974, at a public hearing on the proposed Ordinance 505-1974, the Borough Council granted a petition to revise the zoning map to retain the then-existing depth requirement of a two-family district; (6) Borough Council held a meeting on August 12, 1974, and again on September 9, 1974, at which Ordinance 505-1974, including the zoning map revision, was adopted; (7) the provision of Ordinance 505-1974 governing the I General Industrial Zoning District, and prohibiting residential uses in that district, was included in the version submitted to the County‟s Planning Commission on September 26, 1973; and (8) Ordinance 505-1974 had been enacted for 34 years at the time of challenge, and there is no evidence of a prior procedural validity challenge. 9/1/09 Board Decision at 5-7.

With respect to Ordinance 593-1986 and Ordinance 598-1986, the Board made the following relevant findings of fact: (1) the County‟s Planning Commission received the proposed Ordinance 593-1986 on August 6, 1985; (2) there was proper notice of the proposed Ordinance 593-1986 for a hearing on March 17, 1986, and it was approved by the Borough Council on April 8, 1986; (3) Borough Council declared Ordinance 593-1986 to be invalid on April 15, 1986; (4) on August 12, 1986, Borough Council authorized advertising a curative amendment to Ordinance 593-1986 that was adopted as Ordinance 598-1986*fn7 ; (5) Landowner does not allege that either Ordinance 593-1986 or Ordinance 598-1986 affected his parcel; and (6) Ordinance 598-1986 had been enacted for 22 years at the time of challenge, and there is no evidence of a prior procedural validity challenge. 9/1/09 Board Decision at 7-8.

With respect to Ordinance 636-1989, the Board made the following relevant findings of fact: (1) on May 23, 1989, Borough Council enacted a codification of all Borough ordinances via the adoption of Ordinance 636-1989; (2) Section 1008(b) of the Borough Code sets forth the procedure for the codification of ordinances, and directs that they are so codified in the same manner as the adoption of ordinances; and (3) Ordinance 636-1989 had been enacted for 19 years at the time of challenge, and there is no evidence of a prior procedural validity challenge. 9/1/09 Board Decision at 8. The Board also found that "[c]learly, there was adequate public notice and opportunity to comment prior to the adoption of Ordinance 505-1974.", that "[O]rdinance 505-1974 has been "on the books‟ and left unchallenged for 34 years.", and that "[t]here is no allegation that the notices were improper or that the ordinances, when adopted, were not put "on the books‟ for public inspection.." Id. at 13.

Based on the foregoing, the Board concluded that "[Landowner] failed to demonstrate that any procedural defects in the adoption of Ordinances 505-1974, 593-1986, 598-1986, or 636-1989 implicated due process rights such that the ordinances were void ab initio.." 9/1/09 Board Decision at 15. Accordingly, the Board issued an order denying Landowner‟s procedural validity challenge. Id. at 16.

On September 30, 2009, Landowner appealed the Board‟s decisions to the trial court.*fn8 On June 4, 2010, following the submission of briefs by the parties, the trial court issued an order denying Landowner‟s land use appeal and affirming the Board‟s decisions. Landowner then filed the instant appeal of the trial court‟s order.*fn9

In this appeal, Landowner claims that the trial court erred in denying its land use appeal, and in affirming the Board‟s decision, because: (1) the Board erred in disregarding the weight of the evidence presented; and (2) the Board erred in concluding that the challenged ordinances were not void ab initio due to the procedural defects in their enactment.

Landowner first claims that the Board erred in disregarding the weight of the evidence presented. More specifically, Landowner contends that, based upon the evidence presented, the Board erred as a matter of law and abused its discretion in denying the requested variances because the property has no reasonable use as it is presently zoned.

In order to qualify for a variance, an applicant must establish: (1) an unnecessary hardship stemming from unique physical circumstances or conditions of the property will result if the variance is denied; (2) because of such physical characteristics or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the ordinance; (3) the hardship has not been created by the applicant; (4) granting the variance will not alter the essential character of the neighborhood nor be detrimental to the public welfare; and (5) the variance sought is the minimum variance that will afford relief. Section 910.2 of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10910.2; Pohlig Builders, LLC; Department of General Services v. Zoning Hearing Board of Susquehanna Township, 677 A.2d 853 (Pa. Cmwlth. 1996); Laurento.*fn10

To demonstrate the requisite unnecessary hardship, an applicant must prove either: (1) the physical characteristics of the property are such that it could not in any case be used for any permitted purpose, or that it could only be used for such purpose at prohibitive expense; or (2) the characteristics of the property are such that the lot has either no value or only distress value for any purpose permitted by the ordinance. Department of General Services; Laurento. Thus, the hardship exception justifying the grant of a variance is only triggered when it is shown that compliance with the zoning ordinance could render the property practically useless. Department of General Services.

In addition, the reasons for granting a variance must be substantial, serious, and compelling. Catholic Social Services Housing Corporation v. Zoning Hearing Board of Edwardsville Borough, 18 A.3d 404 (Pa. Cmwlth. 2011); Department of General Services. The burden of an applicant seeking a zoning variance is heavy, and variances should be granted sparingly and only under exceptional circumstances. Appeal of Lester M. Prange, Inc., 647 A.2d 279 (Pa. Cmwlth. 1994). A variance will not be granted simply because a zoning ordinance deprives the owner of the most lucrative or profitable uses of the property. Wilson v. Plumstead Township Zoning Hearing Board, 594 Pa. 416, 936 A.2d 1061 (2007). Economic hardship short of rendering the property valueless does not justify the grant of a variance. Department of General Services.*fn11

As noted above, in this case the Board made the following relevant findings of fact: (1) witnesses for both Landowner and the Borough agreed that a minimum of six acres of the property can be developed; (2) Mr. Neuhs presented plans for office building and warehouse facility uses on the parcel; (3) Mr. Caligiuri has made at least two offers to purchase the parcel, and he is interested in constructing a warehouse facility on the parcel; (4) Landowner has never responded to Mr. Caligiuri‟s offers; (5) Mr. Strickland stated that fair market value of the property is $210,000.00 and that Mr. Caligiuri‟s offer of $250,000.00 is fair and reasonable; (6) Mr. Strickland stated that it is unreasonable for Landowner to believe that the list prices of $850,000.00 and $1,000,000.00 for the parcel were fair asking prices; (7) Mr. Strickland stated that the parcel is not "marginal" land as it has approximately eight acres that are buildable; and (8) Landowner‟s witness, Mr. Grafton, agreed that it is physically and legally possible to develop a warehouse or office building on the parcel. 2/10/09 Board Decision at 6-9.

The certified record in this case supports the foregoing findings of the Board. As the Board‟s findings are supported by substantial evidence, they are binding upon this Court in this appeal. Pohlig Builders, LLC. Moreover, they support the Board‟s determination that Landowner is not entitled to a variance.

Landowner‟s burden in this case was heavy, and its request for a variance should have been granted sparingly and only under exceptional circumstances. Appeal of Lester M. Prange, Inc. To show the requisite unnecessary hardship, Landowner was required to show that either the physical characteristics of the property precluded its use for any permitted purpose or that such use would be prohibitively expensive, or that the characteristics of the property are such that it either has no value or only distress value for any permitted purpose. Department of General Services; Laurento. In addition, the hardship exception would only be triggered if Landowner could show that compliance with the ordinance would render the property practically useless. Department of General Services; Laurel Point Associates. In this case, Landowner has failed to meet this heavy burden of proof.

Section 27-1002 of the Borough‟s Zoning Ordinance provides that a professional and business office use, and a warehouse or similar use, are permitted by right in the Borough‟s I General Industrial Zoning District. A number of witnesses credibly testified that the property could be put to such uses. Moreover, Landowner has refused to respond to Mr. Caliguiri‟s reasonable offers to purchase the property to put it to such a use. In short, the Board did not err in denying Landowner‟s application for a variance, and the trial court did not err in affirming the Board‟s decision.*fn12

Finally, Landowner claims that the Board erred in concluding that the challenged ordinances were not void ab initio due to the procedural defects in their enactment. More specifically, Landowner contends that the repeated failure to submit the proposed ordinances to the Chester County Planning Commission, as required by the former and present provisions of the MPC, compelled the Board to find a violation of its procedural due process rights.

In general, ordinances enjoy a presumption of validity, and a challenger bears the heavy burden of proving the ordinance‟s invalidity. Schadler v. Zoning Hearing Board of Weisenberg Township, 578 Pa. 177, 850 A.2d 619 (2004); Cranberry Park Associates v. Cranberry Township Zoning Hearing Board, 561 Pa. 456, 751 A.2d 165 (2000). The void ab initio doctrine, which is applicable to statutes and ordinances, only concerns "those claims that implicate notice, due process, or other constitutional rights of a party." Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 143 n. 5, 907 A.2d 1033, 1037 n. 5 (2006). The effect of a finding that an ordinance is void ab initio essentially means that it never became law due to the procedural defects in its enactment. Id. at 147-148, 907 A.2d at 1040.

As this Court has previously noted:

The statutory notice and publication requirements [of the MPC] are to ensure the public‟s right to participate in the consideration and enactment of municipal land use decisions. In other words, the notice provisions protect procedural due process. The concept of due process, however, is a flexible one and imposes only such procedural safeguards as the situation warrants. Demonstrable prejudice is a key factor in assessing whether procedural due process was denied.

In re: Appeal of McGlynn, 974 A.2d 525, 532 (Pa. Cmwlth. 2009) (citations omitted). Thus, "[a]bsent a showing of discernible harm, a denial of due process claim must fail." Id. at 534. See also Messina v. East Penn Township, 995 A.2d 517, 533 (Pa. Cmwlth.), petition for allowance of appeal granted, 607 Pa. 623, 9 A.3d 1136 (2010) ("The ordinance enactment provisions in question implicate procedural due process. The concept of due process, however, is a flexible one and imposes only such procedural safeguards as the situation warrants. Demonstrable prejudice is a key factor in assessing whether procedural due process was denied.") (citations omitted).

Moreover, the void ab initio doctrine will not be applied where public acquiescence in the procedurally defective ordinance can be presumed. See Glen-Gery Corporation, 589 Pa. at 145-146 n. 6, 907 A.2d at 1039 n. 6 (quoting Schadler, 578 Pa. at 189, 850 A.2d at 627) ("[T]he purpose of requiring compliance with the procedural requirements for enacting township ordinances is premised on the importance of notifying the public of impending changes in the law so that members of the public may comment on those changes and intervene when necessary. While we may someday be presented with a case in which a procedurally defective ordinance has been "on the books‟ and obeyed in practice for such a long time that public notice and acquiescence can be presumed, this is not such a case.").

In Geryville Materials, Inc. v. Lower Milford Township Zoning Hearing Board, 972 A.2d 136 (Pa. Cmwlth. 2009), this Court considered the presumed public notice and acquiescence to procedurally defective ordinances mentioned in Glen-Gery Corporation and Schadler. In Geryville Materials, Inc., the challenged ordinances had been "on the books" for from three to 39 years, and the Township had presented evidence that nearly 3,000 permits had been issued in accordance with those ordinances. This Court noted that "[i]n order to reach a presumption that acquiescence has occurred, the Supreme Court indicated, in dicta in Glen-Gery, that the lapse of time of some indefinite amount, coupled with some indication that persons interested in land use in a municipality have obeyed the ordinances purported to have been enacted, would suffice to support a decision electing not to apply the void ab initio doctrine despite evidence of defects in the enactment process.." Geryville Materials, Inc., 972 A.2d at 143. This Court specifically stated that "[t]he simple fact that no party has sought before to challenge the procedural process involved with these ordinances is a plain indication that interested parties have obeyed the ordinances.." Id.

In disposing of Landowner‟s procedural validity challenge in this case, the Board made the following relevant findings of fact with respect to Ordinance 505-1974: (1) the proposed Ordinance 505-1974 was sent to the County‟s Planning Commission and the Borough‟s Planning Commission for review; (2) the proposed Ordinance 505-1974 was revised following a hearing before the Borough‟s Planning Commission; (3) the Borough‟s Planning Commission recommended that the Borough Council adopt the proposed Ordinance 505-1974 at a public meeting; (4) the Borough Council granted a petition to revise the zoning map at a public meeting on the proposed Ordinance 505-1974; (5) Borough Council held two meetings at which Ordinance 505-1974, including the zoning map revision, was adopted; and (6) Ordinance 505-1974 had been "on the books" for 34 years at the time of challenge, and there is no evidence of a prior procedural validity challenge. 9/1/09 Board Decision at 5-7.

With respect to Ordinance 593-1986 and Ordinance 598-1986, the Board made the following relevant findings of fact: (1) the County‟s Planning Commission received the proposed Ordinance 593-1986; (2) there was proper notice of the proposed Ordinance 593-1986 for a hearing, and it was approved by the Borough Council; (3) Borough Council declared Ordinance 593-1986 to be invalid, and authorized advertising a curative amendment to Ordinance 593-1986, which was adopted as Ordinance 598-1986; and (4) Ordinance 598-1986 had been "on the books" for 22 years at the time of challenge, and there is no evidence of a prior procedural validity challenge. 9/1/09 Board Decision at 7-8.

With respect to Ordinance 636-1989, the Board made the following relevant findings of fact: (1) Borough Council enacted a codification of all Borough ordinances via the adoption of Ordinance 636-1989; and (2) Ordinance 636-1989 had been "on the books" for 19 years at the time of challenge, and there is no evidence of a prior procedural validity challenge. 9/1/09 Board Decision at 8.

The certified record in this case supports the foregoing findings of the Board. As the Board‟s findings are supported by substantial evidence, they are binding upon this Court in this appeal. Pohlig Builders, LLC.

In its decision denying Landowner‟s procedural validity challenge in this case, the Board stated the following, in pertinent part:

We believe that the Supreme Court anticipated the very facts presented here when it suggested limitations on the void ab initio doctrine where the procedural irregularity did not affect due process rights and where the ordinance at issue had been on the books and "obeyed in practice for such a long time that public notice and acquiescence can be presumed." Glen-Gery. The fact is, if we permit ordinances that are 19 to 34 years old and have never been challenged before to be challenged on possible procedural irregularities, the potential chaos predicted by the Supreme Court will ensue. The residents and landowners of [the] Borough have relied on these ordinances for decades. As such, it is the opinion and conclusion of this Board that, pursuant to the Courts‟ mandates in Geryville, Glen-Gery, and their precedents, we must deny the untimely procedural challenge asserted by [Landowner] as a matter of law. 9/1/09 Board Decision at 14.

We discern no error in the Board‟s determination in this regard. It is clear that, in the absence of any alleged or proven demonstrable prejudice by Landowner, there has been no procedural due process violation caused by the irregularities which purportedly occurred in the enactment of these ordinances in 1974, 1986 and 1989. In re: Appeal of McGlynn. In the absence of such a due process violation, the void ab initio doctrine is not applicable in this case and Landowner is not entitled to any relief. Glen-Gery Corporation.

Moreover, because these ordinances have been "on the books" for 34 years, 22 years, and 19 years, respectively, and because there have been no prior procedural validity challenges in that time, public notice and acquiescence in the ordinances can be presumed. See Geryville Materials, Inc., 972 A.2d at 145 ("[W]e have little difficulty in concluding that the ordinances Geryville has challenged that are more than eight years old have been "on the books‟ for a sufficiently long time to support a presumption that notice or acquiescence has occurred despite procedural irregularities.."). As a result, the Board did not err in denying Landowner‟s procedural validity challenge, and the trial court did not err in affirming the Board‟s decision.

Accordingly, the order of the trial court is affirmed.

PATRICIA A. McCULLOUGH, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Oxford Corporation, : Appellant : v. : : Zoning Hearing Board of the Borough : of Oxford and Borough of Oxford

No. 1321 C.D. 2010

ORDER

AND NOW, this 18th day of November, 2011, the June 4, 2010 order of the Court of Common Pleas of Chester County is affirmed.

PATRICIA A. McCULLOUGH, Judge

]


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