Joseph v. NORTH WHITEHALL TP. BD. OF SUP'RS
16 A.3d 1209
| Pa. Commw. Ct. | 2011Background
- Wal-Mart sought conditional use approval for a planned commercial development on ~40 acres in North Whitehall Township; ~1.7 acres lie in AR zone, remainder in PC zone.
- Zoning Ordinance allows PC conditional use with standards, including traffic and other performance criteria; PC development may include the same non-residential uses as right, subject to conditional approval.
- Board granted Wal-Mart conditional use with four conditions (traffic improvements security, subdivision approvals, landscaping, building permit condition on public safety impact).
- Objectors alleged improper burden of proof, challenged traffic findings, and argued the Township’s traffic engineer should testify; Wal-Mart argued uses are reviewed at a higher-level PC conditional-use stage, not for specific tenants.
- Trial court remanded to address a drafting error and whether the 2001 conditional use approval authorize the 2008 plan; Board corrected drafting error and rejected 2001 approval as authority for the 2008 plan.
- Court of appeals affirmed, holding that conditional use focuses on proposed use under Section 308, not individual tenants, and that the Board’s traffic conclusions were supported by credible evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Burden of proof for conditional use | Objectors: Board misapplied burden of proof for conditional use. | Wal-Mart: burden appropriately rests on meeting Section 118/119 criteria; uses review occurs at PC level, not tenant specifics. | Board properly allocated burden; evidence supports compliance with PC standards. |
| Traffic impact findings | Objectors: testimony is credible; development will significantly impact traffic. | Wal-Mart: expert testimony and traffic improvements show no significant hazard or congestion. | Board’s traffic conclusions upheld; not a significant traffic hazard or congestion. |
| Subpoena of Township traffic engineer | Objectors: engineer testimony is relevant to credibility and traffic impact. | Wal-Mart: Board may exclude speculative, preliminary testimony; testimony already adequately tested. | No abuse; exclusion within Board’s discretion; credibility determinations properly weight witness testimony. |
| Recusal of Board/solicitor due to intervention | Objectors: appearance of impropriety requires recusal or independent hearing officer. | Wal-Mart/ Township: MPC allows intervention; no demonstrated bias; ultimate decision rests with the Board. | No reversible bias; no reason to remand; decision affirmed. |
Key Cases Cited
- In re Thompson, 896 A.2d 659 (Pa.Cmwlth. 2006) (conditional use burden mirrors special exception; evidence standard)
- In re Cutler Group, Inc., 880 A.2d 39 (Pa. Cmwlth. 2005) (burden of proof on applicant; standards applicable to conditional uses)
- K. Hovnanian Pa. Acquisitions, LLC v. Newtown Twp. Bd. of Supervisors, 954 A.2d 718 (Pa.Cmwlth.2008) (burden and standard of proof for conditional uses; discretion of board)
- Manor Healthcare Corp. v. Lower Moreland Twp. Zoning Hearing Bd., 139 Pa.Cmwlth. 206 (1991) (limits on shifting burden to show detrimental effects)
- Bray v. Zoning Bd. of Adjustment, 48 Pa.Cmwlth. 523 (1980) (evidence standards for conditional uses; health and welfare focus)
- Orthodox Minyan of Elkins Park v. Cheltenham Twp. Zoning Hearing Bd., 123 Pa.Cmwlth. 29 (1989) (traffic considerations and conditional use analysis)
- Snyder v. R.R. Borough, 59 Pa.Cmwlth. 385 (1981) ( credibility and weighing evidence in land-use decisions)
- Nettleton v. Zoning Bd. of Adjustment of the City of Pittsburgh, 574 Pa. 45 (2003) (board as ultimate fact-finder; credibility determinations)
- Weiser v. Latimore Twp., 960 A.2d 924 (Pa.Cmwlth.2008) (abuse of discretion standard; substantial evidence review)
- Chruby v. Dep't of Corr., 4 A.3d 764 (Pa.Cmwlth.2010) (remand and procedural aspects in administrative review)
- Horn v. Twp. of Hilltown, 461 Pa. 745 (1975) (appearance of bias; due process in adjudicatory proceedings)
- Caln Nether Co. v. Bd. of Supervisors of Thornbury Twp., 840 A.2d 484 (Pa.Cmwlth.2004) (bias and recusals; standards for impartial tribunal)
- Appeal of Miller & Son Paving, Inc., 161 Pa.Cmwlth. 138 (1993) (traditional appeals of zoning decisions; evidentiary review)
- D.Z. v. Bethlehem Area Sch. Dist., 2 A.3d 712 (Pa.Cmwlth.2010) (admissibility of evidence in administrative hearings)