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Yannone v. The Town of Bloomsburg Code Appeal Board

Commonwealth Court of Pennsylvania

October 2, 2019

Joseph Yannone, Appellant
The Town of Bloomsburg Code Appeal Board and The Town of Bloomsburg

          Argued: September 10, 2019




         Joseph Yannone (Landowner) appeals from the October 30, 2018 order of the Court of Common Pleas of the Twenty-Sixth Judicial District, Columbia County Branch (trial court), which held that the Shade Tree Commission (Commission) was permitted to plant a replacement tree along Landowner's frontage at a location of its choosing with costs to be assessed to Landowner.

         Facts and Procedural History

         The underlying facts of this case are not in dispute and are set forth in the record. Landowner is the owner of property located at 53-55 East Main Street, Bloomsburg, Columbia County, Pennsylvania, where he operates a restaurant. The Town of Bloomsburg Code Appeal Board (Board) is an agency of the Town of Bloomsburg (Bloomsburg). On April 13, 2017, Landowner filed a Shade Tree Permit Application with the Commission to remove a tree at his property pursuant to a local ordinance.[1] Landowner's petition was approved on April 21, 2017. The permit application was marked approved on the condition that a new tree be replanted within six months. (Reproduced Record (R.R.) at 2a-19a.)

         Despite this condition, Landowner failed to replant a tree within the six-month period as required. On December 28, 2017, 68 days after the initial six-month period to replant expired, Landowner appealed to the Board, challenging the requirement of replanting the tree. In his appeal, Landowner cited a litany of reasons as to why the tree should not be planted, including tripping hazards, insect infestations, financial harm to his business, harm to Bloomsburg, dangerous walkways, and damage to the sidewalk. The Board held hearings on March 27, 2018 regarding the appeal.

         Landowner testified on his own behalf before the Board, stating that following the tearing down of the tree, he placed tables and chairs in front of the building to increase his sales. (Notes of Testimony (N.T.), 3/27/18, at 15-16.) Landowner noted that the missing tree increased his business and, therefore, he did not want to replant it. (N.T. at 17.) Instead of planting a tree, the sidewalk was repaired and the tree pit was filled with cement, as the previous tree had caused damage to the sidewalk. (N.T. at 18.) Further, he indicated that he believed the tree would eventually be destroyed, that children would climb it, and that it could be damaged. (N.T. at 19.) Additionally, Landowner believed that the tree was a nuisance, that it attracted bugs and ants, that individuals would permit their animals to relieve themselves on the tree without picking it up, that it would destroy the sidewalk, and that it blocked his sign entirely. (N.T. at 21.)

         In regards to the damage that the tree was causing his business, Landowner testified that he needed the outside seating for his business to survive in the summer. (N.T. at 22.) He explained that if the tree was replanted in the space from which it was removed he could no longer have the outside seating because it would not be wide enough for individuals, or for those in wheelchairs to pass by. (N.T. at 22-23.) Landowner also admitted that he had knowledge of the tree when he purchased the business and, from 2013 to 2017, operated his business with the tree in front of it. (N.T. at 33.) However, he asserted that he was just "scraping [by]" before the tree was removed. (N.T. at 35.) He insisted that over the summer when students are gone from Bloomsburg, he loses half of his business and needs to put tables outside to compete with the other restaurants in Bloomsburg. (N.T. at 72.) Finally, Landowner testified that "[b]ut then once we was [sic] put the tables and chairs out there, [sic] found out that we did not have to replant it because there's laws protecting business owners, we decided not to replant it." (N.T. at 96.)

         The Board presented testimony from Arborist Joseph Mullen. He testified that the issue of not being able to see the business sign was a legitimate concern. (N.T. at 46.) He suggested that it was possible to put a narrow tree at another location on the property, and to prune it regularly, so as not to interfere with the signage. (N.T. at 46-47; 52.)

         Ultimately, by decision dated April 19, 2018, the Board concluded that Landowner's failure to replant a tree was a violation of the Ordinance and he was therefore ordered to replant a tree.[2] Subsequently, Landowner appealed the Board's decision to the trial court. (R.R. at 20a-35a.) Landowner argued before the trial court that the Ordinance provisions resulted in an unreasonable interference with his business and an "unconstitutional lack of criteria to guide the Township in determining whether to require planting of shade trees, leading to 'unbridled discretion' being vested with the Town's code officials, citing [Bassett v. Borough of Edgeworth Shade Tree Commission (Pa. Cmwlth., No. 145 C.D. 2016, filed January 24, 2017) (unreported)[3]." (Trial court op. at 7). Following briefing and oral argument, the trial court issued a decision on October 30, 2018, affirming the Board but modifying the order to allow the Commission to replace the tree at Landowner's cost. (Trial court op. at 1-15; R.R. at 101a-115a.)

         The trial court reasoned that section 25-201(E)[4] of the Ordinance requires that the replacement tree be planted in or near the original site. Although it considered Landowner's concerns, the trial court found that, because Landowner had not elected to plant a replacement tree, it was the prerogative of the Commission to replace the tree under section 25-108(3).[5] As a result of Landowner failing to replant the tree himself, the trial court found that he lost the right to choose the location of the new tree. The trial court rejected Landowner's argument that the tree resulted in an unreasonable interference with his business and that there was an unconstitutional lack of criteria to guide Bloomsburg's code officials in determining whether to replant the tree that gave the Township "unbridled discretion." (Trial court op. at 5-7.)

         In deciding the constitutional issue, the trial court discussed this Court's decision in Bassett, which was referenced by Landowner. The court reasoned that Bassett was inapplicable because, unlike Bassett, here, the Ordinance contained extensive criteria on the removal and replanting of shade trees. In deciding the business interference issue, the court found Landowner's claim lacked credibility, and that planting a tree was not an unreasonable interference with Landowner's business. (Trial court op. at 8-15.)


         On appeal, [6] Landowner raises two arguments. First, Landowner contends that the trial court[7] abused its discretion by affirming the decision of the Board because it misapplied section 10 of the Act of October 1, 1981, P.L. 279, 53 P.S. §53860. Second, Landowner contends that the trial court committed an error of law when it affirmed the decision of the Board by requiring the tree to be replanted at his cost.

         Whether the Ordinance Unreasonably Interfered with Landowner's Business

         In a zoning case, the decision of the board must be upheld unless the board committed an error of law or "a manifest abuse of discretion." Valley View Civic Association v. Zoning Board of Adjustment, 462 A.2d 637, 639 (Pa. 1983). Discretion is only abused where "findings are not supported by substantial evidence." Id. at 640. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id.

         As noted by the trial court, "[t]he Commission is granted 'exclusive custody and control of the shade trees in the incorporated town, and is authorized to plant, remove, maintain and protect shade trees . . . [53 P.S.] §53853." (Trial court op. at 3.) As further noted by the trial court, "[t]he cost of planting and removing shade trees, including sidewalk work is imposed upon abutting real estate owners . . . [53 P.S.] §53856 . . . ." (Trial court op. at 3.) Section 25-107(3)[8] of the Ordinance requires that a permit be obtained before removing a tree. Section 25-108(2)[9] states that "[a]s a condition for granting of a permit as required to remove a shade tree, the commission shall require that the permittee plant at his expense another tree in the place of the one removed." Section 25-108(3) further states that either the owner of the property can elect to plant the tree or require the Commission to replant it, and if he fails to do so within six months the Commission may complete the planting at the owner's cost. However, Section 25-201(E) clearly states that the tree shall be replaced in or near the site of the original tree.

         As correctly noted by the trial court, section 1 of the enabling statute, 53 P.S. §53851, [10] permits an incorporated town, by ordinance, to establish a shade tree commission which can require the planting and replanting of suitable shade trees. However, section 10 of the enabling statute includes the following limitation, "[t]his section shall not authorize any incorporated town to require the planting or replanting of trees at any point which may interfere with the necessary or reasonable use of any street or abutting property or unreasonably interfere with any business conducted thereon." 53 P.S. §53860.[11] Although this ...

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