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James Defilippo, Jackson Realty v. Cranberry Township Board of Supervisors and Carsense

August 10, 2012

JAMES DEFILIPPO, JACKSON REALTY PARTNERS, CAMERON JONES, AND JOSEPH GRAY, APPELLANTS
v.
CRANBERRY TOWNSHIP BOARD OF SUPERVISORS AND CARSENSE, INC.



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

Argued: April 17, 2012

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY JUDGE LEAVITT

James DeFilippo, Jackson Realty Partners, Cameron Jones, and Joseph Gray (Objectors) appeal an order of the Court of Common Pleas of Butler County (trial court) that dismissed their land use appeal. Objectors challenged Cranberry Township's approval of the proposal of Carsense, Inc. to construct an automobile sales and service center. However, the trial court dismissed Objectors' appeal as moot because the plan and conditional use application ultimately approved by the Township was not the one appealed. Discerning no error, we affirm.

Carsense owns a 15-acre parcel of land located in the Planned Industrial/Commercial Zoning District of Cranberry Township. The sale and servicing of automobiles is a conditional use permitted in the commercial district, and Carsense sought to construct such a facility on its land. To that end, it

submitted a land development plan and a conditional use application. Carsense's application sought a waiver of certain zoning requirements that related to landscaping, parking and garage door placement, asserting that the waivers would allow the construction of a more aesthetically pleasing facility. In effect, Carsense sought variances.

On September 29, 2010, the Township Supervisors held a public hearing on the Carsense proposal. After Carsense made its presentation, the Supervisors opened the meeting to the public. Objectors argued that Carsense's plan did not comply with the zoning ordinance and that strict compliance would not cause Carsense a hardship. The Board deferred action on the Carsense proposal to its November meeting.

On November 4, 2010, the Supervisors approved the Carsense proposal, granting all 13 waivers of the zoning ordinance that Carsense had requested. The Supervisors adopted three resolutions: (1) No. 2010-73 granted Carsense Revised Preliminary Land Development and Conditional Use Approval;

(2) No. 2010-74 granted Preliminary and Final Subdivision Approval; and (3) No. 2010-75 granted Final Phase I Land Development Approval.

On December 3, 2010, Objectors filed a land use appeal with the trial court, challenging the Supervisors' approval of the Carsense land development and conditional use application. Objectors contended that the Supervisors had abused their discretion and acted arbitrarily because Carsense did not prove that it would suffer a hardship without the 13 waivers it had requested. Carsense intervened in Objectors' land use appeal.

In January 2011, Carsense filed a new land development plan and conditional use application for its facility (Plan II), which changed the location and orientation of the proposed building, thereby reducing the number of waivers needed from 13 to five. The Supervisors held a public hearing on Plan II on February 24, 2011. Notice of the hearing on Plan II was published, but no special notice was given to Objectors. On April 6, 2011, the Supervisors approved Plan II, adopting three resolutions: No. 2011-13, granting Revised Preliminary and Final Subdivision Approval; (2) No. 2011-14, granting Revised Preliminary Land Development and Conditional Use Approval; and (3) No. 2011-15, granting Final Phase I Land Development Approval. Objectors did not appear at either public hearing on Plan II.

Two months later, on June 21, 2011, Objectors filed a "Supplement to Appeal," by which they added a challenge to the Supervisors' approval of Plan II to their December 2010 appeal of Plan I. In their supplemental appeal, Objectors stated that they did not learn of Plan II or its approval until they noticed construction activity on the Carsense land. Objectors argued, inter alia, that the Supervisors lacked authority to act on Plan II because their land use appeal in December had divested the Supervisors of any authority to act on any Carsense proposal until their appeal was decided.

Carsense filed a motion to strike Objectors' "Supplement to Appeal" and to dismiss their December 2010 land use appeal as moot. Carsense argued that the plan appealed by Objectors had been abandoned and replaced with Plan II, rendering Objectors' 2010 appeal moot. It also argued that a land use appeal does not stay all proposed plans for a property, but only the specific plan on appeal.

Objectors responded that the two plans were identical because they involved the same parties, property, and use of the property. They accused Carsense of making minor changes for the ...


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