D. Bassett v. The Borough of Edgeworth Shade Tree Commission and Borough of Edgeworth
145 C.D. 2016
| Pa. Commw. Ct. | Jan 24, 2017Background
- Dolores Bassett owns a house on Oliver Road; three mature pin oak trees sit in the curb lawn (the strip between sidewalk and curb). She applied to the Borough Shade Tree Commission to remove them because roots damaged sidewalk slabs and she was bearing repair costs/liability.
- Borough arborist (Crusan) inspected the trees multiple times and consistently found them healthy and structurally sound, though with surface roots that had migrated under sidewalk slabs and would likely cause future slab replacement.
- The Commission held a hearing and denied Bassett’s May 4, 2015 removal application, concluding the trees were not “afflicted” and did not meet removal criteria under Edgeworth Code § 95-5(G).
- Bassett appealed to the Court of Common Pleas; the trial court ordered and held a de novo hearing, found the Commission applied the wrong ordinance standard, and reversed—ordering issuance of a removal permit.
- On appeal to the Commonwealth Court, the central legal question was whether the Commission properly applied Edgeworth Code § 95-5(G) (which authorizes required removal of “afflicted” trees) to a property owner’s request to remove healthy trees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 95-5(G) governs a property owner’s permit request to remove healthy trees in the public right-of-way | Bassett: Commission misapplied § 95-5(G); that subsection governs forced removal of "afflicted" trees, not owner-initiated removal for sidewalk damage; ordinance lacks standards for such owner removal | Borough/Commission: Commission reasonably applied § 95-5(G) and its expertise in deciding removal requests; deference should be given to the Commission’s interpretation | Court: § 95-5(G) applies only to Commission-initiated removal of "afflicted" trees; Commission misapplied the ordinance and acted without a governing standard, so its denial was erroneous; trial court reversal affirmed |
| Whether the ordinance provides standards for owner-initiated removal permits (§ 95-5(D)) | Bassett: § 95-5(D) contains no removal criteria (its land-development/arboricultural standard applies only to planting), leaving a regulatory gap | Borough: Commission discretion and expertise justify applying available provisions to removal requests | Court: § 95-5(D)’s explicit standard applies to tree planting only; the ordinance does not supply standards for owner-initiated removal, so the Commission improperly relied on § 95-5(G) |
| Whether the Commission is entitled to deference in interpreting the ordinance | Borough: Agency expertise warrants deference similar to zoning boards | Bassett: Commission cannot override plain text; ambiguity favors landowner | Court: Deference does not allow deviation from plain text; the Commission exceeded its authority by applying an inapplicable subsection |
| Whether trial court properly ordered a de novo hearing | Borough: Trial court should have applied deferential appellate review; Bassett waived certain arguments at agency level | Bassett: Record before Commission was incomplete due to restrictions; trial court discretion supports de novo hearing | Court: Trial court did not abuse discretion; record before Commission was not full/complete because relevant evidence was limited, so de novo hearing was proper |
Key Cases Cited
- Kohl v. New Sewickley Township Zoning Hearing Board, 108 A.3d 961 (Pa. Cmwlth. 2015) (ordinarily interpret ordinances by plain text; ambiguity construed for landowner)
- In re Holtz, 8 A.3d 374 (Pa. Cmwlth. 2010) (statutory/ordinance interpretation principles apply to municipal ordinances)
- Malt Beverages Distributors Ass'n v. Pa. Liquor Control Bd., 918 A.2d 171 (Pa. Cmwlth. 2007) (plain language of statute/regulation governs)
- Appeal of O'Hara, 131 A.2d 587 (Pa. 1957) (ordinance invalid if it vests unbridled discretion in officials)
- Smith v. Zoning Hearing Bd. of Huntingdon Borough, 734 A.2d 55 (Pa. Cmwlth. 1999) (zoning boards/administrative bodies receive deference for expertise)
- Riverfront Dev. Group, LLC v. City of Harrisburg Zoning Hearing Bd., 109 A.3d 358 (Pa. Cmwlth. 2015) (administrative bodies must apply ordinance terms as written, not impose their own policies)
- Kuziak v. Borough of Danville, 125 A.3d 470 (Pa. Cmwlth. 2015) (definition and consequences of a "full and complete record" before an agency)
- Johnson v. Lansdale Borough, 146 A.3d 696 (Pa. 2016) (distinguishing de novo review and limited appellate review under the Local Agency Law)