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Marshall v. Charlestown Township Board of Supervisors

Commonwealth Court of Pennsylvania

August 29, 2017

Paul Marshall and Julie Marshall
v.
Charlestown Township Board of Supervisors and Cameron J. Cloeter and Nancy H. Cloeter Appeal of: Charlestown Township Board of Supervisors

          ARGUED: June 8, 2017

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JULIA K. HEARTHWAY, Judge, HONORABLE DAN PELLEGRINI, Senior Judge.

          OPINION

          JULIA K. HEARTHWAY, JUDGE.

         Charlestown Township Board of Supervisors (Board) appeals from the final order of the Court of Common Pleas of Chester County (trial court), entered August 22, 2016, which reversed the Board's decision denying Paul Marshall's and Julie Marshall's (together, Marshalls) conditional use application proposing to use their property for farm-to-table activities at nighttime. The trial court also imposed conditions on the nighttime use. We reverse.

         The Marshalls own a 12.6 acre parcel of land located at 12 Alexis Lane (also known as 2226 Charlestown Road) (Property) in Charlestown Township (Township). (Board's Findings of Fact (F.F.) No. 1.) The Property is located in the FR-Farm Residential zoning district and is improved with a historic farmhouse and a historic bank barn. (F.F. Nos. 6-7.) The Marshalls reside in the farmhouse. (F.F. No. 9.) The Property shares a private residential driveway, Alexis Lane, with two adjacent properties pursuant to a common driveway easement contained in a 2005 subdivision plan. (F.F. Nos. 15-16, 128.) Both of those adjacent properties, 15 and 17 Alexis Lane, are owned by Cameron Cloeter and Nancy Cloeter (together, Cloeters), who reside in a single-family dwelling at 15 Alexis Lane. (F.F. Nos. 10-11, see F.F. No. 15.)

         On November 18, 2013, the Marshalls filed a conditional use application with the Board, seeking approval for farm-to-table educational culinary workshops to be conducted on the Property in the barn, with children's workshops during the day and adult workshops at night. (F.F. Nos. 24, 37.) The application sought conditional use approval pursuant to section 27-402.C(4) of the Township's zoning ordinance for a "cultural, educational, religious, charitable or philanthropic use, " and pursuant to sections 27-402.C(9) and 27-1619.2(A)(5) of the Township's zoning ordinance for the adaptive reuse of a historic resource as a "museum, nature center, public garden, or other similar educational and cultural facility." (Board's decision at 1.) Several individuals and entities appeared at the hearings before the Board and were granted party status, including the Township, which was represented by counsel separate from the Board's counsel, and the Cloeters, who had their own counsel.

         After multiple hearings, the Board issued a decision and order on March 15, 2015. The Board denied the application as to the adult nighttime workshops, finding that the proposed evening use was more similar to a restaurant use rather than a true educational use. The Board approved the daytime use with conditions. The Marshalls timely appealed the Board's decision and order to the trial court, arguing, among other things, that the Board erred in denying the nighttime use. The Marshalls named the Board as appellee. The Cloeters intervened. The Township did not seek to intervene. The Board's status as a party was noted on the trial court's docket. (See R.R. at 1a-4a.) Further, the Board participated in all aspects of the proceedings before the trial court, including oral argument on the Marshall's land use appeal and filing various pleadings, including a brief in opposition to the appeal. (See R.R. at 1a-4a, trial court 4/1/16 opinion at 1.)

         On April 1, 2016, the trial court issued an order, which, among other things, sustained the Marshalls' appeal and thereby allowed the proposed nighttime use (adult workshops), subject to the trial court's subsequent imposition of conditions. The Board then filed an Application for Reconsideration, asking the trial court to remand the matter back to the Board for the imposition of new conditions. The trial court denied the Application for Reconsideration. Subsequently, on August 22, 2016, the trial court issued a final order, imposing eight new conditions on the nighttime use and incorporating by reference its prior orders. The Board then appealed from the trial court's August 22, 2016, final order to this Court.

         Before we can address the issues raised by the Board, we must address the Marshalls' challenge to the Board's standing to appeal from the trial court's order to this Court. The Marshalls argue that because the Board was the adjudicative body below, it lacks standing to appeal the trial court's order reversing its decision. The Marshalls admit they are not aware of any case law directly on point. Nonetheless, they analogize this situation to a special exception decided by a zoning hearing board, and Pennsylvania law generally concerning zoning hearing boards, in which it is well-settled that a zoning hearing board has no standing to appeal from a final order of a court of common pleas to this Court. See Appeal of Lansdowne Borough Board of Adjustment, 170 A. 867 (Pa. 1934). Additionally, relying on Gilbert v. Montgomery Township Zoning Hearing Board, 427 A.2d 776 (Pa. Cmwlth. 1981), and Brendel v. Zoning Enforcement Officer of Borough of Ridgway, 780 A.2d 750 (Pa. Cmwlth. 2001), the Marshalls state the law is clear that a municipality has to appear as an appellant or intervenor before the trial court in order to have standing to appeal to this Court. Finally, the Marshalls maintain that Section 913.2 of the Pennsylvania Municipalities Planning Code[1] (MPC) (concerning conditional uses and the governing body's function) and case law recognize a distinction between the Board and the Township and that this distinction must be maintained throughout the appeal in order to avoid any conflict of interest.

         On the other hand, the Board agrees that a zoning hearing board does not have standing to appeal a decision of a court of common pleas to this Court; however, the Board contends that a "governing body" such as itself is not so constrained. The Board points out that it was noted as a party on the trial court's docket, and therefore it had no reason to file a notice of intervention, which would have been redundant. The Board also argues that the Marshalls should be estopped from making their argument because the Board participated in all aspects of the proceedings before the trial court without objection.

         We disagree with the Marshalls that the Board does not have standing. While we recognize there are similarities between a special exception and conditional use application, we refuse to extend case law applicable to zoning hearing boards to the situation here because of fundamental distinctions between a zoning hearing board and a board of supervisors. Significantly, unlike a zoning hearing board, whose only role is to act as an adjudicatory body, [2] a board of supervisors is in a unique position in that it has dual roles. A board of supervisors serves as an adjudicatory body when deciding a conditional use application, [3] and as the governing body of the municipality.[4] As the governing body, the Board represents the Township. Indeed, "a second class township can only operate through its governing body, a board of supervisors." Mollick v. Township of Worcester, 32 A.3d 859, 872 (Pa. Cmwlth. 2011). Thus, in its role as the governing body of the municipality, the interests of the Board and the Township are effectively one and the same. This is unlike a zoning hearing board, which, while it is a municipal agency, it has no authority to act on behalf of the municipality itself. Therefore, a municipality necessarily must intervene in an appeal from a zoning board's decision. See National Development Corporation v. Township of Harrison, 438 A.2d 1053 (Pa. Cmwlth. 1982).

         We recognize that in the context of a conditional use hearing, Section 913.2 of the MPC and case law treat the governing board and the municipality as separate entities. This is necessary, however, in the context of a conditional use hearing before the board of supervisors, because at that level, the board cannot simultaneously fulfill both of its roles as an adjudicator and as the governing body representing the municipality. At that level, the board and the municipality must be treated as separate entities, because the board must avoid even the appearance of bias or impropriety. See Newtown Township Board of Supervisors v. Greater Media Radio Company, 587 A.2d 841 (Pa. Cmwlth. 1991) (holding that township solicitor should not have been permitted to act as both legal advisor to the board and as adversary to oppose a conditional use application). Once an appeal is taken to other adjudicatory bodies, however, it is not necessary for that distinction to be maintained. In that situation, the board of supervisors no longer has a role as an adjudicatory body and now can fulfill its role as the governing body; the only body through which the township can operate. See Mollick. This, too, is unlike land use appeals from zoning hearing board decisions. In that situation, although the zoning hearing board is no longer actually adjudicating the dispute, the municipality must still intervene because it cannot operate through its zoning hearing board.

         Accordingly, we refuse to extend cases involving zoning hearing boards or zoning officials, such as Lansdowne, Gilbert and Brendel, to the situation here.[5] Although we decline to extend our express holding in Gilbert, our conclusion under the circumstances here is consistent with our reasoning in Gilbert. In Gilbert, the township did not participate before the zoning hearing board and did not appear or intervene before the trial court. Gilbert, 427 A.2d at 777. In ruling that the municipality would have standing to bring a zoning appeal to this court only if the municipality had been a party before the trial court, we reasoned that "[o]ur conclusion is consistent with sound judicial administration principles; for consistency, the party pursuing appellate review should be one of the parties who developed the record and decision to be reviewed." Id. at 779. Here, the Township participated in the proceedings before the Board, and because the Township operates through the Board, see Mollick, effectively fully participated before the trial court.

         There was no surprise to anyone here as to the roles being played by the parties before the trial court. The Board was named as a party and participated in argument before the trial court and filed various pleadings, including a brief in opposition to the Marshalls' land use appeal and an Application for Reconsideration of the trial court's order. (See R.R. at 1a-4a; trial court 4/1/16 opinion at 1.) The purpose of a motion to intervene is to have a role as a party. Here, the Board already had that role before the trial ...


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