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 ...