72 Pa. Commw. 237 | Pa. Commw. Ct. | 1983
Opinion by
These consolidated appeals concern two orders of the Court of Common Pleas of Montgomery County which directed the posting of security in the appeal of two decisions of the Cheltenham Township Zoning Hearing Board (Board), and dismissed those appeals when Appellants failed to post the required security. We affirm both orders of the court of common pleas.
Appellants are landowners whose property abuts the property of the Crestview Convalescent Home (Crestview) located on Church Boad in Cheltenham Township. Crestview has been operated as a state licensed skilled nursing care facility since 1954. Crestview seeks to expand its facility and Appellants are opposed to its expansion. The dispute over Crestview’s expansion dates back to 1974, although the instant litigation does not. Examination of relevant facts since that time, however, will place in proper perspective the common pleas court’s decision to require the posting of security.
In March of 1974, the Cheltenham Township Commissioners enacted ordinance No. 1318 which permitted special exceptions for the “expansion and/or replacement • of an existing non-conforming nursing home” whenever the existing structure did not comply with the township, state, or federal regulations regarding size, capacity, safety or type of construction. Special exceptions were also permitted whenever reconstruction, addition or replacement was desirable to meet capacity standards specified in town
In 1977, the court of common pleas dismissed the appeals and modified the decision of the Zoning Hearing Board reducing the number of beds permitted under the special exception to 153. The landowners appealed to this Court and we affirmed, finding no abuse of discretion or error of law. Appeal of Kates, 38 Pa. Commonwealth Ct. 145, 393 A.2d 499 (1978) :
■'On October 21, 1980, the Cheltenham Township Commissioners amended Ordinance No. 1318 by enT acting Ordinance No. 1490. That enactment reduced the square footage of lot area required per bed and eliminated the requirement that the facility must first fail to comply with township, state or federal, size,
Crestview and the Township of Cheltenham intervened in each of the appeals and Crestview filed a petition for bond pursuant to Section 1008(4) of the Pennsylvania Municipalities Planning Code (Code), Act of July 31, 1968, P.L. 805, added by Act of June 1, 1972, P.L. 333, as amended, 53 P.S. §11008(4), asserting that both appeals were frivolous and were taken solely for the purpose of delay. A hearing was held on March 18 and 19, 1982 at which Crestview presented evidence regarding the damages it would suffer in operating losses during the pendency of the appeals. The court of common pleas found both appeals to be frivolous and taken solely for purposes of delay, and on May 10, 1982, directed Appellants to file security in the amount of $32,000.00 within five
Section 1008(4) of the Code provides clear statutory authority for the order requiring Appellants to post the bond. The section provides, in pertinent part:
If the appellants are persons who are seeking to prevent a use or development of the land of another, whether or not a stay is sought by them, the landowner whose use or development is in question may petition the court to order the appellants to post bond as a condition to proceeding with the appeal. After the petition is presented the court shall hold a hearing to determine if the filing of the appeal is frivolous and is for the purpose of delay. At the hearing evidence may be presented on the merits of the case. After consideration of all evidence presented, if the court determines that the appeal is frivolous and is for the purpose of delay it shall grant the petition. . . . The question of the amount of the bond shall be within the sound discretion of the court.
Our review of the action of the court of common pleas under this section is limited to a determination of whether the court abused its discretion. See Anthony Appeal, 25 Pa. Commonwealth Ct. 41, 358 A.2d 874 (1976).
In light of the protracted history of this dispute over Crestview’s expansion, we cannot say that the trial court abused its discretion in finding Appellants’ appeal of the grant of the special exception frivolous and taken solely for purpose of delay. Assuming arguendo that Ordinance No. 1490 was invalid, the record shows that the application submitted
We similarly find no abuse of discretion in the conclusion by the court of common pleas that Appellants’ challenge to Ordinance 1490 was frivolous and
Finding no abuse of discretion in the order requiring Appellants to post security, we find none in the order dismissing the appeals when no security was posted.
Order
Now, February 22, 1983, the orders of the Court of Common Pleas of Montgomery County in the above referenced matter, dated May 10 and May 20, 1982 are hereby affirmed.
Appellants, Kates, Leonard, Mayer and Zaslow.
Tlie case was argued before President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Judge Blatt authored tbe Court’s opinion.
The reduction in the number of proposed beds reflected the parliat modification by the court of common pleas.
Appellants argue that the court of common pleas committed an error of law in. failing to consider the merits of the appeal de novo and in failing to make adequate findings of fact on the merits, and urge that we remand for a proper proceeding in the court of common pleas. We point out that it is Appellants who have committed an error of law, not the court. The proceeding before the court of common pleas was a hearing on Crestview’s petition for the requirement of security under §1008(4). At such a hearing the court is permitted by statute to take evidence on the merits. The court does not, however, decide the merits of the case, and is not held to the standards applied when the court hears the appeal.