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

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. ...


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