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Appeal of Richboro CD Partners, L.P.

Commonwealth Court of Pennsylvania

April 8, 2014

Appeal of Richboro CD Partners, L.P. From the Decision of the Board of Supervisors of Northampton Township Dated January 15, 2012. Appeal of: Richboro CD Partners, L.P

Argued October 8, 2013

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[Copyrighted Material Omitted]

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Appealed from No. 12-00983-34. Common Pleas Court of the County of Bucks. Bateman, Jr., J.

Marc B. Kaplin, Blue Bell, for appellant.

Michael J. Savona, Doylestown, for appellee Northampton Township.

Jeffrey S. Batoff, Philadelphia, for appellees Murray Battleman, Lynda Battleman, C& B Supermarket, Inc., Richboro Shop N Bag, William O'Hara, Mary Rita O'Hara, Douglas E. Meyers, Christine Meyers, Paul J. Scipione, Bridget Scipione, Allan R. Spurr, Bonnie G. Spurr, Mr. Printer, Inc., Douglas C. Brong, and Richboro Optique.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY SENIOR JUDGE COLINS. Judge Cohn Jubelirer recused.

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OPINION

JAMES GARDNER COLINS, Senior Judge

Richboro CD Partners L.P. (Richboro) appeals the November 29, 2012 order of the Bucks County Court of Common Pleas (Trial Court) affirming the decision of the Board of Supervisors of Northampton Township (Board) denying Richboro's application for conditional use approval pursuant to the Northampton Township Zoning Ordinance (Ordinance). Richboro sought conditional use approval to construct a shopping center on a split-zoned site where a portion of the site is located in the R-2 Residential District (R-2 District) and a portion is located in the village overlay (VOD) section of the C-2 General Commercial/ Office District (C-2 District) in Northampton Township (Township). Ordinance § § 140-15, 140-20.

A conditional use is a special exception which falls within the jurisdiction of the municipal legislative body rather than the zoning hearing board. Section 603(c) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10603(c). The municipal legislative body may grant a conditional use pursuant to the express standards and criteria set forth in the zoning ordinances enacted pursuant to the police powers to regulate land use. Id.; Clinton County Solid Waste Authority v. Wayne Township, 164 Pa.Cmwlth. 632, 643 A.2d 1162, 1168 (Pa. Cmwlth. 1994). The fact that a use is permitted as a conditional use, rather than prohibited, reflects a legislative decision that the use is not per se adverse to the public interest. K. Hovnanian Pennsylvania Acquisitions, LLC v. Newtown Township Board of Supervisors, 954 A.2d 718, 725 (Pa. Cmwlth. 2008); Susquehanna Township Board of Commissioners v. Hardee's Food Systems, Inc., 59 Pa.Cmwlth. 479, 430 A.2d 367, 369 (Pa. Cmwlth. 1981).

In order to demonstrate that the applicant is entitled to the conditional use, the applicant initially bears the burden of establishing that the application complies with the objective standards and criteria of the particular ordinance. Visionquest National, Ltd. v. Board of Supervisors of Honey Brook Township, Chester County, 524 Pa. 107, 112, 569 A.2d 915, 917 (1990); City of Hope v. Sadsbury Township Zoning Hearing Board, 890 A.2d 1137, 1147 (Pa. Cmwlth. 2006). Satisfaction of the applicant's burden establishes a legislative presumption that the use is consistent with the health, safety, and welfare of the community. Id.; Susquehanna Township, 430 A.2d at 369. Once the applicant has satisfied this initial burden, the burden shifts to the objectors to rebut this presumption by establishing that the use will have a detrimental impact on the surrounding community. Joseph v. North Whitehall Township Board of Supervisors, 16 A.3d 1209, 1215 (Pa. Cmwlth. 2011); Sheetz v. Phoenixville Borough Council, 804 A.2d 113, 115 (Pa. Cmwlth. 2002).

Here, the shopping center proposed by Richboro included a large brand-named supermarket and four smaller accessory stores located at the northwest corner of the intersection of Second Street and Bustleton Pike. The Board denied conditional use approval in a lengthy decision

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containing 178 findings of fact, 12 conclusions of law, and a detailed discussion. The Trial Court affirmed the Board's denial of the conditional use application based on the record before the Board.[1] The basis for denial of Richboro's application for conditional use approval included: (i) supermarkets are not permitted in the C-2 District, unless they are developed as a conditional use in accordance with the VOD[2] requirements; (ii) the VOD plan submitted by Richboro failed to satisfy the requirements of the subdivision and land development ordinance (SALDO); (iii) the development plan submitted by Richboro exceeded the maximum permitted impervious surface coverage; and (iv) the traffic impact from the proposed development would be detrimental to the public health, safety, and welfare of the community.[3]

On appeal, Richboro raises four issues for our review. First, Richboro contends that the Board and the Trial Court erred in concluding that a supermarket is not a permitted use in a shopping center within the C-2 District. Second, Richboro contends that the Board and the Trial Court erred in concluding that it was required to demonstrate that its VOD plan complied with the SALDO in order to obtain conditional use approval. Third, Richboro argues that the Board and the Trial Court erred in calculating the maximum impervious surface area coverage permitted on the site. Lastly, Richboro argues that the Board and the Trial Court erred in concluding that the traffic impact of the proposed shopping center would be detrimental to the public health, safety, and welfare of the surrounding community.[4]

I.

Richboro contends that a supermarket is a permitted use in a shopping center within the C-2 District, because a supermarket is a " general merchandise store" or a " retail store," which the Ordinance specifically identifies as a permissible

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use within a shopping center. The Township argues that the Board and the Trial Court correctly determined that a shopping center containing a supermarket is not a permitted use within the C-2 District, unless the supermarket is developed in the VOD and in accordance with the VOD requirements.[5]

Whether a proposed use falls within a given category of a zoning ordinance is a question of law subject to this Court's plenary review. Aldridge v. Jackson Township, 983 A.2d 247, 253 (Pa. Cmwlth. 2009); Tennyson v. Zoning Hearing Board of West Bradford Township, 952 A.2d 739, 745 (Pa. Cmwlth. 2008). Although a municipal legislative body is entitled to deference in its interpretation of the zoning ordinance, it is axiomatic that an undefined term must be interpreted in accordance with the common and approved usage and that any doubt concerning the meaning of an undefined term should be resolved in favor of the landowner and the least restrictive use. In re Arnold, 984 A.2d 1, 10 (Pa. Cmwlth. 2009)[6]; Diocese of Altoona-Johnstown v. Zoning Hearing Board of Borough of State College, 899 A.2d 399, 402 (Pa. Cmwlth. 2006); Pittsburgh Cellular Telephone Co. v. Board of Supervisors of Marshall Township, 704 A.2d 192, 194 (Pa. Cmwlth. 1997). Where possible, an ordinance must be construed to give effect to all of its provisions. In re Thompson, 896 A.2d 659, 669 (Pa. Cmwlth. 2006); Mann v. Lower Makefield Township, 160 Pa.Cmwlth. 208, 634 A.2d 768, 772 (Pa. Cmwlth. 1993); Appeal of Neshaminy Auto Villa Ltd, 25 Pa.Cmwlth. 129, 358 A.2d 433, 435 (Pa. Cmwlth. 1976); see also Section 1921 of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921.

The Ordinance contains a definitions section for terms used throughout the Ordinance, including the term " Shopping ...


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