*1 431 based on each solicitation fíne for priate violations this Court determinations Secretary’s Or- affirm the We
affirms.18 respects. in all other
der
ORDER 2009, 8,
NOW, the Order July in the the Commonwealth
Secretary of (1) RE- hereby: matter is
above-captioned PART, as it deter- IN insofar
VERSED violated Section Petitioner
mined that the (2)
13(b)(1) Act; IN VACATED of the administra- to the amount
PART as RE- Secretary, and by the
tive fine levied Secretary for reconsider-
MANDED to light fine the amount of the
ation of opinion; in this upheld
the violations
(3) respects. in all other AFFIRMED relinquished.
Jurisdiction and Union TOWNSHIP
UNION Zoning Hearing
v. INC., MICHAEL, Sophia
ETHAN
Ariana, and Louis J. Inc.
Mascaro, Appellants. Pennsylvania.
Commonwealth Court 10, 2009.
Argued June 23, July
Decided and Clarification
Reconsideration Sept.
Denied power," Court will not interfere ap- abuse of remand for reconsideration of 18. Our Secretary's of such discre does not nec- exercise propriate amount of such fines tion, levy long accordance with the Secretary so is in essarily imply that the must Edu against law. v. State Board Medical fine each Solici- Slawek lower administrative 316, 322, Licensure, 526 Pa. 586 violated the Act cation and tation. Each Solicitation still (1991); v. State Board Secretary’s A.2d Zook discretion and it is within (Pa.Cmwlth. Dentistry, 683 A.2d levy "In the ab- a fine for such violations. faith, fraud, capricious action sence of bad *2 Highway area zoned as a Jr., ground in an Fox, and Wil- Audubon F. William Chester, Lamb, appel- were lo- District. The areas liam H. West Commercial lants. on the northern and southern sides cated *3 724, in highway a state Union of Route Lancaster, appellee, Cleary,
Josele County, Pennsylvania. Township, Berks Township. Union Zoning Ordinance Township The Union SIMPSON, Judge, BEFORE: Ordinance) (the by special allows both uses FRIEDMAN, Judge, and Senior exception. McCLOSKEY, Judge. Senior from hearings were conducted Sixteen Judge BY Senior OPINION 22, 28, 2001, through January November McCLOSKEY. However, then hearings were Ariana, Inc., Michael, Inc., Sophia Ethan a of time due to two civil stayed period (hereafter collectively Mascaro and Louis EMI; in initiated one proceedings EMI) for review petition referred to sought disqualifica- it a recusal and which Pleas of of the Court Common an order a Board member who had been tion of (trial court), reversing the County Berks in and one which it made newly appointed Township and order of the Union decision pro- denied allegation an had been (the Board), which Hearing Board Zoning Eventually, forty- process.2 due cedural special ex- application for granted were held from eight hearings additional now reverse. ception. We 2005, 3, 2007, 15, January through March 14, 2001, appli- EMI filed an August On by the hearing appointed a officer before the Board exception with special cation for Board. motor develop a recreational seeking to 23, 2007, July hearing officer On and a commercial sports park/racetrack page report, noting seventy-seven issued a a sought develop EMI campground.1 participated sixty-two he had hear- area park an motor recreational more than 100 exhibits and ings, admitted Preservation Zon- Agricultural an zoned as reports in the expert received numerous District; camp- a commercial grounds declined to hold exception pro- of bias. The Board special parties to the 1. The Township ceedings evidentiary hearing Board of either were the Union on the bias of an Township Plan- Supervisors February and the Union Subsequently, on Board member. Commission, ning participated who as inter- 2003, 4, petition a with the trial EMI filed venors, organization Union known as and an prohibit- requesting that Mr. Cuesta be court United, group citizens who 3, serving April the Board. On ed from on lands near the sub- resided owned and/or 2003, the recusal of the trial court ordered party property, participated as ject who rights EMI also filed a civil Mr. Cuesta. protestant. Court for action in the United States District (federal Pennsylvania the Eastern District of hearings, the commencement of 2. At court) temporary restraining requesting a or- Druzba, Na- Paul Cuthbert Board consisted of prevent preliminary injunction to der and 2003, rin, January In Jacobs. III and Donald holding hearings. from further On expiration a member's term and due 23, 2003, the federal court issued June were Mr. resignation, the Board members staying proceedings in the order all Board Jacobs, Christopher Cuesta and Richard J. pending resolution of the action. Ulti- matter Stevens, hearing before the Board Jr. At the by the feder- mately, the action was dismissed challenged January held on subsequently affirmed al court participate in the hear- right of Mr. Cuesta Appeals Third Court of for the United States challenged Township United ing and Union August Circuit on on the participation of Mr. Jacobs report, hearing matter. In the officer tion for the commercial campground be- approval special recommended of EMI’s joined cause it had not Schuylkill River exception application for both motor Greenways Association (Greenways Asso- sports park camp- and the commercial ciation) party as a to the action. The trial However, ground. officer rec- court noted that Association ommended that the exception ap- public was the owner of a walking trail proval subject to certain conditions as which traversed the entire east-west width contained in Annex “C” and Annex “D.” and, thus, of EMI’s the trail had Specifically, Annex “C” was a recitation of to be points' gain crossed at certain imposed respect conditions to be *4 access to the camp- commercial approval to the for the camp- commercial Thus, ground. the trial court concluded ground, while Annex “D” the referred to that Association was an indis- imposed conditions to be with respect to pensable party. the motor sports park. Moreover, the trial court concluded that 22, 2007, Subsequently, August the although the motor sports park was includ- adopted hearing the report officer’s ed within the definition of recreation area as its final decision. The Board made pursuant Ordinance, hearing the some modifications to the conditions and officer and the Board had not considered modifications, incorporated the changes circumstances, the “contextual including and additions into documents entitled use, the intensity size and of the and the ‘C,’ “Substitute Annex Substitute Annex ‘D,’ impact surrounding on the neighborhood.” and Revisions and Classifications.” (EMI’s (EMI’s A). B, Brief at Brief at Exhibit Exhibit Trial Septem- On Court 18, 2007, (the 18). ber Opinion at Township Union Town- The trial court noted that ship) filed a notice of appeal land use with Section 401.4 of the provided Ordinance the trial court.3 EMI participated as special exception uses were also sub- intervenor in the land appeal. to, ject with, and had to be in accordance provisions contained in Section 1105.2 11, 2008, court,
On December
the trial
Thus,
of the Ordinance.4
the trial court
evidence,
without taking additional
issued
“[gjermane
noted that
application”
to this
opinion
its
reversing the Board’s order and
1105.2(C)
was the consideration of Sections
denying
special exception
applica-
1105.2(F)
and
tion for both the
Ordinance which
sports
pro-
motor
park vide that
campground.
adversely
commercial
the use shall not
The trial
affect
court concluded that
general
EMI did not have
character of the
neighborhood
standing
to file a
exception applica-
and must be consistent with the Town-
Later,
14, 2007,
Township
participation
on December
appeal.
the land use
After
seeking
present
filed a motion
additional
argument,
oral
Township appropriated
evidence
concerning
to the trial court
a state-
Board,
suggested by
lower sum to the
hearing
ment made Mr. Jacobs that the
court,
litigation
trial
to be used for
costs.
persons
had
officer
contacted
outside of the
hearings to
July
obtain information. On
provides
Section 401.4 of the Ordinance
2008, the trial court
Township's
denied the
permitted by special exception
that uses
in an
1, 2008,
May
motion. On
while the land use
district,
agricultural preservation
spe-
when a
appeal
pending,
was still
the Board filed a
exception
granted subject
cial
to and in
petition
declaratory judgment
and manda-
Ordinance,
accordance with Article XI of the
requesting
mus
that the trial court direct the
uses, subject
shall include “Recreation
to Sec-
budget
to amend its
and allocate
(R.R.
208a).
tion 906 of this Ordinance.”
at
$100,000 to the Board to be used for its
(EMI’s
agricultural
preserve
and not to
ground
Brief
Plan.
Comprehensive
ship’s
so,
lands,
if
was allowed to do
and EMI
B,
Opinion at
Trial Court
Exhibit
agricul-
would never be available
lands
that the hear-
concluded
trial court
The
park
unless the motor
again
ture
therefore,
and,
ruling,
ing officer’s
abandoned.
campground
and the
were
offi-
adopting
Board’s decision
was, “in essence a statement
report,
cer’s
that EMI’s
The trial court concluded
1105.2(F)
Ordinance]
that [Section
adversely affect the
uses would
little or no effect” because
given
should
quiet
character of the rural
no limita-
that “there
presumed
[were]
area,
in the
increase traffic
neighborhood,
a recreation use”
tions whatsoever
the noise and forev-
substantially increase
district other
preservation
agricultural
community.
er transform the nature of
requirements.
certain dimensional
than
Thus,
order of
trial court reversed the
B,
(EMI’s
Trial
at Exhibit
Court
Brief
responded by filing
then
the Board. EMI
21-22).
trial court noted
Opinion at
with the trial court.
appeal
a notice of
the Ordi-
set
“parameters”
*5
preserva-
an
regarding
agricultural
nance
that the
argues
EMI
appeal,5
On
pur-
its
were established
tion district
scope
appel
of its
trial court exceeded
for an
purpose”
the “sole
pose clause and
considering
authority by
sponte
late
sua
agri-
district was
preservation
agricultural
or briefed
that were not raised
issues
(EMI’s
Ex-
Brief at
preservation.
cultural
and, thus, had been waived.
Township
22-23).
B,
at
Opinion
Trial
hibit
Court
argues
EMI
that
the trial
Specifically,
it
However,
recognized that
the trial court
improperly
court
considered the issue of
not in-
Township
did
“clear that
was
1105.2(C) of
compliance
its
with Section
preserva-
[agricultural
in an
tend all land
Ordinance, regarding adversity with
exclusively reserved for
to be
district]
tion
neighborhood,
the character of the
(EMI’s Brief
preservation.”
agricultural
1105.2(F)
Ordinance,
of the
and Section
B,
Opinion
Trial Court
at Exhibit
consistency
Township’s
with the
regarding
Plan because the Town
Comprehensive
Next,
court considered
the trial
EMI
preserve this issue.
ship failed to
nonagricultural
of EMI’s
“scale”
with it
agree
that
this Court
it encom-
asserts
should
that because
use and concluded
issue,
'and third issues
on this
its second
agricul-
large percentage
passed
considered,
in the alterna
district,
need not be
but
cause
it would
preservation
tural
tive,
Board did not
argues
that the
portion
of a substantial
the loss
special exception appli
its
sought
pre-
approving
err
Township
lands that
requirements
it met the
for
Further,
reasoned
cation because
the trial court
serve.
argues that
Finally, EMI
approval.
was to
purpose
proposal
of EMI’s
that
it
finding
err in
had
Board did not
park
camp-
a motor
build
may
appeal,
that the Board abused its discretion
land
sion
scope of review in a
5. Our
findings
sup-
only
are not
reached
if its
taken additional
the trial court has not
where
evidence,
ported by
evidence. Centre Lime
determining whether
substantial
is limited
Company,
Spring
Inc. v.
body
an
and Stone
governing
committed
error
the local
(Pa.
Supervisors,
A.2d 1105
findings
787
necessary
of
whether the
of law or
of
Cmwlth.2001),
ap-
petition
allowance
supported by
evidence.
substantial
fact were
for
of
denied,
740,
437
court,
findings
unsupported by
were
trial
the Board’s
in its brief to the
note that
we
Therefore, EMI
a different sub-
substantial evidence.
ar-
Township referenced
However, evi-
improperly
the Ordinance.
that the trial court
raised
gues
of
section
minimal,
exist,
support
albeit
concerns about the size and inten-
dence does
its own
not
allegation that
it did
Township’s
proposed
park
recreational
sity of
meaningful
allow
the issue and to
agricultural
poli-
waive
district and the
within
lengthy
after a
dis-
example,
For
agree.
review.
We
cy
agricultural preservation.
of
the noise levels which
cussion about
not
special exception
A
an ex
generated by the motor
would be
ordinance,
zoning
to a
but rather it
ception
before
park,
asserted
is entitled if
applicant
is a use to which the
the trial court as follows:
in the
objective
it meets the
standards
any provisions Even in the absence of
exception
zoning
ap
ordinance for
Zoning
providing stan-
Ordinance
Thompson,
In Re
Section 1105.2F of the Ordinance pro- applicant vides that the The ordinance requires pro- shall also demon- that granting Special posed strate that adversely “[t]he use will not affect the Exception shall be consistent with the character of the general neighborhood. (R.R. Township Comprehensive Plan.” things There are two that this sentence 215a). not any does mean. It is not directed to property, individual but rather officer’s decision sets forth neighborhood Secondly, as whole. following regarding its consideration of not mean does that there will be no application as it relates to the re- impact use, presence from the but quirements of Section 1105 of the Ordi- rather the overall character of the nance: neighborhood will be adversely not af- Supervisors, The Board of in legis- their fected. The character of neighbor- function, lative a legislative made deci- hood envisioned enactment of this sion that ‘Recreation were to Uses’ provision is a neighborhood developed permitted in the Agricultural Preserva- consistently with permitted un- uses tion Zoning District when authorized as der the ordinance. Special Exception. I have previously determined that the sports park] [motor Use,’ so,
is a ‘Recreation in doing use, form, became a generic its But say, suffice it to the routine opera- permitted would be zoning dis- tions application envisioned will trict. The use comes all beauty its *8 adversely not affect the character of the and all of its warts. application The can general neighborhood and there is no only be presents defeated when it an evidence property whatsoever that val- impact substantially quan- different and adversely ues would be affected. titatively more intense than would be (EMI’s A, Brief at Hearing Exhibit Offi- anticipated for the generic use. No tes- 63-65). cer’s Decision at timony presented has been to demon- strate that In further consideration of the park] [motor consis- tency substantially would be different with from uses the com- any prehensive other sports park]. plan, hearing [motor the officer noted Most nearby the “perhaps land is farmland and the that the most nebulous of the applicant presented system has standards set forth in Section 1105.2 [of berms and noise barriers to reduce requirement the the is the Ordinance] that the with Town- Association. EMI that the [application argues be consistent (EMI’s Comprehensive Plan.” Brief at title ship considered its as landowner and de- A, at Hearing Exhibit Officer’s Decision that it standing termined had to file such 68). that, therefore, hearing The officer noted that application Green- the Plan” to “overall tenor of was assumed ways necessary par- Association was not a with the Ordinance which be consistent ty- such recreational uses in- contemplated EMI does admit that the Board condi- special cluding exceptions. such uses as special exception approval tioned its on
Id. EMI’s successful obtaining legal access hearing appli- The officer stated that the voluntary (by agreement judicial deter- demonstrating cant the burden of had mination) across the trail Green- owned requirements through with the compliance ways Association before the issuance of the “absence of substantial evidence of vio- building permits or permits use and required lation” and was not to “affirma- occupancy. EMI argues that the Board (EMI’s tively prove negative.” Brief correctly found that the demonstration of a A, Hearing at Exhibit Officer’s Decision at right to cross the Association’s officer noted trail was not one of objective require- requirement that the use was not ments for campground special exception general neigh- adverse to the nature of the approval, but could be a prece- condition impact borhood did not mean that the on dent for the granting building permit. of a property an individual had to be consid- Finally, argues that it is not seeking any impact ered or whether there was special exception approval operate all, rather, proper but consideration campground any portion Greenways impact neigh- was if there was an on the Association’s and that it is the borhood as a whole or if the overall charac- undisputed owner property upon neighborhood ter of the would changed. be sought operate which it a camp- such Further, he noted that the “character of ground. neighborhood” to be was considered rejected The trial court the conclusion neighborhood as it developed was con- that access over Greenways Association’s with permitted sistent uses under the property was a reaching means of the use (EMI’s A, Ordinance. Brief at Exhibit rather than a part of the use because 65). Thus, Hearing Officer’s Decision at access over trail would serve and bene- granting as we determine that and, therefore, fit the campground it had special exception application EMI’s was part considered a of or an accessory supported by substantial evidence of rec- it. The trial court noted EMI’s the necessary requirements, ord and met excuses for not first obtaining legal access we conclude that the trial court erred in over Greenways Association’s property reaching contrary conclusion. could not be the for ignoring bases Green-
Finally, regard ways to the issue Association’s legal rights, provi- regarding standing to file a sions of the Ordinance and the applicable *9 Thus, exception application for a commercial law. the trial court concluded that campground, argues that it required because EMI was to have ob- driveway emergency a main access and an approval Greenways tained for access over owns, driveway access on land that it but a Association’s property prior seeking to a portion driveway special exception small of each would have campground, for the by the trail Greenways improperly cross owned Board acted in granting the 440 Greenways a condition some access over the exception imposing and Absent
special
land,
campground
area
Association
noted
approval.
such
It also
requiring
essentially
Potentially,
is
landlocked.
because with-
rejected
approval
that it
(i)
by
such access could be obtained
driveway,
campground
would
out the
(a
Greenways
consent of the
Association
landlocked,
ex-
approving
and
a
(ii)
(iii)
license),
easement,
an
express
an
prop-
for a landlocked
ception application
(iv)
by implication,
an ease-
easement
erty violated the Ordinance.
(v)
a
by necessity
by
ment
or
access
rule
that an in
The
proceeding under the Private Road Act.
rights are
party is one whose
dispensable
None of these remedies exist under
being litigat
with the claims
connected
so
MPC,
agree-
an
by
but must be obtained
a
to the lawsuit
party
ed that he must be
Association,
Greenways
ment with
rights
his
and that no decree
protect
equity
by
private
a
in
or
a
decree
impairing
made without
those
can be
juris-
condemnation. The Board has no
Transmission
rights. Columbia Gas
Cor
adjudicate
rights
such
and
diction to
poration
Company,
v. Diamond Fuel
agency
remedies. Nor could a court or
(1975).
If all parties
Pa.
[EMI]
to construct and
Special
campground
use on the
As-
campground.
ate a commercial
It is not
land,
only proposed
driveway.
sociation
but rather
Such
for the construction
Trail
gain
application
require
Spe-
to cross the
access to the
would not
cial
and hence the interest
Exception
area where the use will be conducted.
*10
Greenways
clarify
Association land is not a
a point
which caused some confu-
precedent
give standing
for
officer,
condition
sion both to the
Board’s
filing
sought
of the relief
absent a
Agulnick,
Ronald
Esq., and to the trial
specific provision in the ordinance mak-
point
court. The
of confusion centers on
driveway
express
1105.2(F)
requirement
such
stan-
in Section
grant.
zoning
dard or criteria for such
ordinance that “The granting of
the Special Exception shall be consistent
(EMI’s
46, quoting
Brief at
Board’s Deci-
with the Comprehensive Plan.”
22-23).
sion at
Although
Township correctly
sets We construed similar language in 41
general principle
only
forth the
a Valley Associates v. Board
Supervisors
relief,
standing
apply
landowner has
London Grove Township,
ORDER map of future uses for the property. Ulti NOW, AND day July, 23rd mately, we concluded the governing body the order of the Court of Common Pleas of departed erred when it analyzing from dis County hereby Berks reversed and the objective crete and relating criteria decision of the Township Zoning Union current and zoning future Hearing Board is reinstated. and focused goals instead on the comprehensive plan. Id. CONCURRING OPINION BY Judge SIMPSON. Here, the proposed motorsports park is
I thoughtful concur in the majority currently in an Agricultural Preservation District, opinion which reverses the order of the re- permits which recreation uses spected Moreover, trial court and reinstates the special exception. deci- in the certi- record, sion of the Township Zoning Union Hear- fied attached to the Union Town- (Board). ing Board I separately ship Comprehensive write Update, April Plan 30, 1981, amended, Agricultural Act of June P.L. Security Section 7 of the Area Law, 907(a)(2). §§ § 3 P.S. 901-915. 3 P.S. *11 10, “Future Land Use 1994, Figure is the land in future use for
Map-2010.” motorsports park is
the area of Preservation.
mapped Agricultural short, in the nothing is Com-
In there fu- indicating possible
prehensive Plan would affect zoning which change
ture motorsports park.
the area circumstances, error is no these
Under determi- in the officer’s
discerned a re- motorsports park
nation that are that recreation uses
creation use and Plan. Comprehensive
consistent with Pennsylvania,
COMMONWEALTH
Petitioner
v. STATE TROOPERS
PENNSYLVANIA
ASSOCIATION, Respondent. Pennsylvania.
Commonwealth Court
Argued June 2009. July
Decided on Reconsideration
As Amended
Sept.