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Whitehall Fiduciary, LLC, Trustee v. the Zoning Hearing Board of the Township of Whitehall and Whitehall Township

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


August 10, 2012

WHITEHALL FIDUCIARY, LLC, TRUSTEE, APPELLANT
v.
THE ZONING HEARING BOARD OF THE TOWNSHIP OF WHITEHALL AND WHITEHALL TOWNSHIP

The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Argued: June 4, 2012

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION

BY JUDGE LEAVITT

Whitehall Fiduciary, LLC (Trust), by its trustee, appeals an order of the Lehigh County Court of Common Pleas (trial court) that denied its land use appeal of a condition imposed by the Zoning Hearing Board of the Township of Whitehall upon its approval of the Trust's adult daycare facility. The condition at issue requires the Trust to install 159 parking spaces. The Trust contends that the Zoning Hearing Board abused its discretion because this condition effectively amended the Zoning Board's prior approval of an entirely different plan, i.e., the Trust's expansion of its assisted living facility.

In 2010, Abraham R. Atiyeh transferred property he owned in the R-5 High-Density Residential Zoning District to the Trust for estate planning purposes. Atiyeh is both settlor and sole trustee of the Trust. At the time of the transfer, Atiyeh had developed the property with an assisted living facility and doctor's office. In addition, Atiyeh had proposed a series of other development plans for the property, some of which were approved before Atiyeh transferred the property to the Trust.

In 2005, Atiyeh sought to expand the existing assisted living facility with a two-story, 13,552 square foot addition, referred to as "Phase 4." The Zoning Board docketed the application as Zoning Case 1464 (Phase 4 Addition), and on March 8, 2005, the Zoning Board approved this application with conditions. The Board required "the applicant [to] provide the additional 44 spaces of parking on the southern part of the property" and to move the existing handicapped parking spaces closer to the entrance of the facility. Reproduced Record at 282a (R.R.___).

In 2008, Atiyeh sought to develop an adult daycare center on the property as a use accessory to his assisted living facility. He planned to use the existing facilities and the yet to be constructed Phase 4 Addition to house the adult daycare center. Atiyeh's 2008 application was docketed as Zoning Case 1592 (Adult Daycare I). On April 29, 2008, the Zoning Board approved Adult Daycare I on the condition that, within six months, the 135 parking spaces shown on his application be paved. The Zoning Board also directed that "No Parking" be painted on an area of the parking lot, identified on the application, where vehicles had been illegally parking. When Atiyeh did not open Adult Daycare I within one year of approval, the Township notified Atiyeh that his approval had lapsed.

In June of 2010, before the transfer of the property to the Trust, Atiyeh filed a new application, docketed as Zoning Case 1672 (Adult Daycare II). After a hearing, the Zoning Board approved Adult Daycare II with conditions, requiring Atiyeh to produce a written lease for parking spaces within ten days of the hearing and to provide parking spaces in accordance with the Township Zoning Ordinance. Because Atiyeh did not produce a written lease for the parking spaces within ten days, the approval of Adult Daycare II lapsed.

Thereafter, the Trust obtained title to the property, and Atiyeh, as trustee, filed a third application to develop an adult daycare center, docketed as Zoning Case 1688 (Adult Daycare III). The Trust requested the Zoning Board use the evidentiary record developed in Adult Daycare II to rule on Adult Daycare III. On August 30, 2010, the Zoning Board approved Adult Daycare III as a special exception with the condition that the Trust provide parking spaces as per current Township Zoning Ordinance, not as submitted on plan; when Phase 4 starts, all 159 parking spaces, as required per Township Zoning Ordinance, must be provided.

Board Adjudication of 08/30/10 at 12; R.R. 298a (emphasis added).*fn1

The Trust appealed to the trial court specifying several errors. The Trust argued that the Zoning Board did not have authority to impose conditions on a permitted special exception or to amend its prior approval of the Phase 4 Addition by imposing a new parking condition. The Trust also argued that the Zoning Board misconstrued the Zoning Ordinance; improperly refused to accept the Trust's uncontroverted evidence; and in other ways erred and abused its discretion.

The trial court affirmed the Board. The trial court noted that the Municipalities Planning Code*fn2 authorizes municipalities to impose reasonable conditions upon the grant of a special exception. The trial court also noted that the parking proposed for Adult Daycare III did not conform to the Zoning Ordinance's 10-foot width requirement for a single parking space. Thus, it was reasonable for the Zoning Board to condition its approval of Adult Daycare III on compliance with the Zoning Ordinance's parking requirements. Finally, the trial court rejected the Trust's challenge to the condition on the grounds that it improperly amended the Zoning Board's prior approval of the Phase 4 Addition. In this challenge, the Trust had invoked the statute commonly referred to as "Act 46."*fn3 The trial court held that the Trust waived the Act 46 argument because it had not been specified in its notice of appeal. The Trust appealed to this Court.

On appeal, *fn4 the Trust raises two issues for our review. First, the Trust argues that the Zoning Board abused its discretion in conditioning its approval of Adult Daycare III on changing the parking requirements for the Phase 4 Addition so that parking would have to be increased from 135 to 159 spaces. Second, the Trust argues the trial court erred in not considering its Act 46 argument.

Section 912.1 of the Municipalities Planning Code authorizes a municipality to "attach such reasonable conditions and safeguards, in addition to those expressed in the ordinance, as it may deem necessary to implement the purposes of this act and the zoning ordinance." 53 P.S. §10912.1.*fn5 As explained in Leckey v. Lower Southhampton Township Zoning Hearing Board, 864 A.2d 593, 596 (Pa. Cmwlth. 2004), courts review conditions under an abuse of discretion standard, and it is the landowner's burden to prove abuse of discretion. However, as this Court explained in HHI Trucking & Supply, Inc. v. Borough Council of the Borough of Oakmont, 990 A.2d 152 (Pa. Cmwlth. 2010), Leckey does not authorize a zoning hearing board to "devise conditions out of thin air and without any reference to the record evidence." Id. at 160. Rather, a reasonable condition must (1) relate to a standard in the applicable zoning ordinance or in the Municipalities Planning Code and (2) be supported by evidence in the record before the zoning hearing board. Id. at 160-161. If the condition does not satisfy these requirements, then the landowner proves an abuse of discretion.

The Trust argues that the Zoning Board's condition was unreasonable because it tried to effect an improper amendment to the Board's prior approval of the Phase 4 Addition, which required 44 new spaces. The Trust also argues that the imposition of 159 parking spaces was improper because the circumstances surrounding the application have not changed since Adult Daycare I, which was approved with 135 parking spaces, which included the 44 needed for the Phase 4 Addition.

The record is not clear on the number of parking spaces that presently exist, are planned, or are needed to conform with the Zoning Ordinance. The Zoning Board approved Adult Daycare I with 135 spaces, as shown on Atiyeh's plan. The evidentiary record in Adult Daycare II showed that Eugene Berg, Atiyeh's architect, stated that there would be 149 parking spaces. At the first day of the hearing on Adult Daycare II, Brian Ritter, Atiyeh's engineer, stated that 135 spaces existed on the property, in accordance with what had been approved for Adult Daycare I. He also stated that there was a surplus of parking and that no new spaces were needed. However, on the second day of the hearing, Ritter stated that there were 138 parking spaces, but 32 did not conform to the Zoning Ordinance's width requirements. Supplemental Reproduced Record at 25b-27b (S.R.R.___). Atiyeh stated that 43 of the 138 spaces were on a private street, which Atiyeh leased. S.R.R. 39b, 40b.A Board member responded to Atiyeh that 115 spaces were needed for the assisted living facility, the doctor's office and the proposed adult daycare.*fn6 In the Adult Daycare II proceeding, a Board member moved that Atiyeh be required to have 159 spaces, which included the 44 needed for the Phase 4 Addition. Atiyeh responded that this would be "fair." S.R.R. 57b. Ultimately, the Zoning Board approved Adult Daycare II with the conditions that Atiyeh produce a written lease for parking spaces and provide 159 spaces to satisfy the requirements of the Zoning Ordinance.

In Adult Daycare III, the Board again imposed a condition that the development comply with the Zoning Ordinance parking requirements and went on to require the Trust to have 159 spaces before beginning construction on the Phase 4 Addition. The Board reached this number by adding 44 spaces to the 115 that were needed for the uses outside of the Phase 4 Addition, according to a Board member's colloquy with Atiyeh at the hearing on Adult Daycare II.

A condition that simply requires the landowner to comply with the parking requirements in the Zoning Ordinance is not unreasonable. It is not drawn out of thin air but, rather, relates specifically to a standard in the local ordinance. HHI Trucking, 990 A.2d at 160.

The Trust's real challenge is to the second part of the condition, i.e., that "when Phase 4 starts, all 159 parking spaces, as required per Township Zoning Ordinance, must be provided." R.R. 298a. The Trust argues that it is unreasonable to require additional parking spaces be built before construction of Phase 4, which will tear up the site. At the hearing on Adult Daycare II, the Zoning Board passed a resolution that the parking should satisfy the Zoning Ordinance up until [the start of] Phase 4.." S.R.R. 57b. Given this resolution, it is logical that the Township will not require construction of the 159 spaces until after completion of the Phase 4 Addition, not before construction starts.

The imposition of 159 spaces, even if it has to be done after construction of the Phase 4 Addition, must be stricken as an abuse of discretion. There is nothing wrong with the Zoning Board's math: 115 plus 44 equals 159. However, 88 parking spaces were on the property at the time the Phase 4 Addition was approved, and the 135 spaces that existed at the time Adult Daycare II was decided appears to have included the 44 spaces previously required. Colloquies between Atiyeh and Zoning Board members only added to the confusion. Given this record, it is impossible to know at this point what must be done by the Trust to comply with the Zoning Ordinance's parking requirements.

Finally, the Trust argues that the trial court erred in refusing to consider its Act 46 argument. The Trust argues that it did not need to raise this argument before the Zoning Board because there was no reason to suspect that the Board would impose a condition that would amend its prior decision. Further, the Trust contends that its Act 46 argument was fairly comprised within its notice of appeal, noting that Section 1003-A of the MPC simply requires the notice of appeal to "concisely set[ ] forth the grounds upon which [an] appellant relies." 53 P.S. §11003-A(a).*fn7 Section 1003-A has been liberally construed by this Court. Great Valley School District v. Zoning Hearing Board of East Whiteland Township, 863 A.2d 74 (Pa. Cmwlth. 2004); Summit Township Board of Supervisors v. Summit Township Zoning Hearing Board, 571 A.2d 560 (Pa. Cmwlth. 1990). The Trust argues that its Act 46 argument was fairly comprised in its appeal.

We agree that the Trust did not have to advance its Act 46 argument before the Zoning Board because it could not be expected to anticipate the Board would impose a condition that improperly amended a prior approval. We also agree that the notice of appeal sufficiently raised the Act 46 argument even though it did not make a specific reference to the statute. The notice of appeal raised the issue of whether the Zoning Board could amend a prior order issued on another project in the course of its consideration of Adult Daycare III. It is not necessary in a notice of appeal for the appellant to spell out every legal argument but only to identify the issue. However, Act 46 makes no difference. A municipality cannot revise prior land use orders in a subsequent proceeding long after the time to appeal its prior order has passed.

We do not, however, accept the Trust's premise that 159 spaces is the wrong number of spaces. Rather, we conclude that is not clear on this record what number of spaces are required under the Zoning Ordinance or when they will be required.

The Zoning Board's condition requires the Trust to comply with the Zoning Ordinance's parking requirement. This is not an unreasonable condition. The condition's reference to what will be required at the start, or finish, of the Phase 4 Addition must be stricken. The precise number and width of parking spaces that will be required at completion of Adult Daycare III and the Phase 4 Addition is not known and can be litigated, if necessary, in another proceeding.

Accordingly, we affirm the Zoning Board's condition that the Trust comply with the Zoning Ordinance's parking requirements and reverse the second part of the condition, i.e., that 159 parking spaces are required, because the Phase 4 Addition was not before the Zoning Board.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Whitehall Fiduciary, LLC, Trustee, : Appellant : v. The Zoning Hearing Board of The : Township of Whitehall and : Whitehall Township :

No. 1290 C.D. 2011 :

ORDER

AND NOW, this 10th day of August, 2012, the order of the Court of Common Pleas of Lehigh County, dated June 24, 2011, in the above-captioned matter is hereby AFFIRMED in part and REVERSED in part, in accordance with the attached Opinion.

MARY HANNAH LEAVITT, Judge


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