Martin vs. Heidelberg Township Zoning Hearing Board v. Heidelberg Township No. 2016-01293

Civil Action-Law-Land Use-Zoning-Variance-Recreational Retreat-Collector Street-Decisional Ambiguity-Additional Hearing

Appellants Richard L. Martin and Twila J. Martin and Martin and Marlene B. Martin (“the Martins”) sought a special exemption to enable them to use a 101 acre property in a zoned agricultural district that they purchased as a recreational weekend retreat that could accommodate up to seventy (70) people after Heidelberg Township issued various land use violation letters to them for using the property as a recreational retreat venue. In pursuit of the same, the Martins requested exemption from Section 1924.A of the Heidelberg Township Zoning Ordinance requiring that recreational facilities be located on a collector street, as the road abutting the property is not a collector street. The Heidelberg Township Zoning Hearing Board granted the Martins’ request for a special exemption with certain conditions, including that the Martins were required to meet township standards to upgrade the road abutting the property to a collector street at their expense after conducting a traffic study. The Martins appealed the decision of the Heidelberg Township Zoning Hearing Board, asserting that the conditions in the decision requiring the upgrading of the road abutting the Martins’ property renders the use of the property as a recreational retreat essentially impossible.

1. Title 53 P.S. § 11006-A(d) of the Municipalities Planning Code provides that the judge of the court may hold a hearing to receive additional evidence or to employ experts to aid the court to frame an appropriate order.

2. A decision as to whether to permit additional testimony is within the discretion of the trial court.

3. Even when a landowner has been afforded a full opportunity to present his or her case, the court still has the discretion to receive additional testimony deemed appropriate for a fair determination of the case.

4. When the court receives additional evidence, the court thereafter must render a determination de novo.

5. The decision of the Heidelberg Township Zoning Hearing Board is ambiguous as to the reason the Martins’ request for a collector road variance was denied and the record is insufficient to explain the ambiguity, as the decision fails to set forth the standards for the required traffic study, how the results of that study would impact the obligation upon the Martins to upgrade the road to a collector road or any information about the dimensions and character of the road in question. As such, additional hearing is required for testimony and evidence on those issues.

L.C.C.C.P. No. 2016-01293, Opinion by Bradford H. Charles, Judge, December 19, 2016.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL ACTION – LAW NO. 2016-01293

RICHARD L. MARTIN and TWILA J. MARTIN and MARTIN and MARLENE B. MARTIN

Appellants

v.

HEIDELBERG TOWNSHIP ZONING HEARING BOARD

Appellee

v.

HEIDELBERG TOWNSHIP

Intervenor

ORDER OF COURT

AND NOW, to wit, this 19^th day of December, 2016, in accordance with the attached Opinion, this Court determines that additional testimony and evidence will be required regarding the issues that are in dispute between the parties. Accordingly, a hearing is to be conducted in the above-referenced case on the 2^nd day of March, 2017 at 1:30 p.m. in Courtroom No. 3. One-half day has been set aside for this hearing. At a minimum, and without limiting the parties, the Court directs that the questions articulated in the attached Opinion should be addressed at the upcoming hearing.

To prepare for the above hearing, both counsel are directed to appear at a Prehearing Conference that will be conducted on the 24^th day of January, 2017 at 3:00 p.m. in the Chambers of the undersigned.

BY THE COURT,

BRADFORD H. CHARLES, J.

APPEARANCES:

James H. Thomas, Esq. FOR APPELLANTS

BLAKINGER THOMAS, PC

Keith L. Kilgore, Esq. FOR APPELLEE

SPITLER, KILGORE & ENCK, PC

Frederick S. Wolf, Esq. FOR INTERVENOR

Amy B. Leonard, Esq.

HENRY & BEAVER, LLP

Opinion, Charles, J., December 19, 2016

The concept of “giving with one hand and taking away with the other” is not one that is favored by the law. In this case, Appellants Richard L. Martin, Twila J. Martin, Marlin Martin and Marlene Martin (hereafter “MARTIN”) allege that Appellee Heidelberg Township Zoning Hearing Board (hereafter “ZONING BOARD”) has attempted to do just that. Specifically, MARTIN alleges that ZONING BOARD awarded a special exception that permits the use of MARTIN’s property as a weekend retreat. However, MARTIN complains that conditions attached to ZONING BOARD’s decision effectively preclude MARTIN’s property from being used as authorized. Because we find that additional factual information is necessary for us to properly evaluate the above issue, we will be deferring a final decision until after we have conducted a factual hearing.

I. FACTS

In January of 2015, MARTIN purchased property located at 443 Sunnyside Road, Newmanstown, Heidelberg Township, Pennsylvania (hereafter “PROPERTY”). PROPERTY encompassed 101 acres of land and a large structure with accompanying outbuildings. At all times pertinent hereto, PROPERTY was located in the agricultural zoning district of Heidelberg Township.

Following the purchase of PROPERTY, MARTIN effectuated extensive renovations to the interior of the home, creating eleven total bedrooms in the process. Beginning in July of 2015, MARTIN began to rent PROPERTY as a recreational retreat venue. As modified, PROPERTY could accommodate a total of seventy people.

After MARTIN began to use PROPERTY as a residential retreat, various land use violation letters were sent by the Lebanon County Planning Department, the Commonwealth Code Inspection Services and the Heidelberg Township Zoning Officer. Shortly thereafter, MARTIN filed appeals regarding the communicated violations. Pending resolution of the appeals, MARTIN agreed that they would not use PROPERTY as a weekend retreat.

A hearing was conducted before ZONING BOARD on June 22, 2016. At that hearing, MARTIN sought a special exception that would enable them to use PROPERTY as a weekend retreat. (N.T. 13). In the process, MARTIN verbally agreed to abide by all state and local regulations that would accompany their requested use. (N.T. 36). However, one of MARTIN’s requests was for relief from Section 1924.A of the Heidelberg Township Zoning Ordinance that required recreational facilities to be located on a “collector street.” Sunnyside Road was not and has never been a collector street.

Heidelberg Township Supervisor William Cromleigh testified at the zoning hearing. He explained that a collector street is one into which traffic flows. Under the applicable zoning regulation, a collector street must have a width of 80 feet. Sunnyside Road is only 33 feet wide. (N.T. 49). In his testimony, Mr. Cromleigh testified that in his “personal view” the requirement that a recreational facility be located on a collector road “just applies to the frontage of the property.” (N.T. 52). In his testimony, Mr. Cromleigh acknowledged that other high-traffic permitted uses such as schools, hospitals and convalescent homes are not required to be on collector roads. (N.T. 54).

Following the testimony of Mr. Cromleigh, other residents of Heidelberg Township provided input. Three residents specifically expressed concern about traffic associated with MARTIN’s proposed use. (See testimony of Mary Jo Hess (N.T. 57), testimony of Mary Herr (N.T. 58) and testimony of Betty Mauger (N.T. 66)). In part to address these concerns by residents, MARTIN agreed that no weddings would occur at PROPERTY, no buses would be permitted and the maximum number of visitors at any one time would be 40. (N.T. 68).

At the conclusion of the hearing, ZONING BOARD granted MARTIN’s request for a special exception and attached certain conditions. Two months later, on August 2, 2016, ZONING BOARD issued a written opinion in support of its decision. Within the report, ZONING BOARD wrote:

Pursuant to Section 603.A of the Zoning Ordinance, a special exception is permitted in the A zoning district for semi-public and private recreational areas subject to conditions listed in Section 1917 and Section 1924 of the ordinance. The Board finds Petitioners have met the provisions of Section 1917 and Section 1924 except the issue of a collector street which is discussed hereinafter.

(ZONING BOARD’s Opinion at 9). With respect to the collector road issue, ZONING BOARD stated: “The Petitioners have agreed to comply with all township regulations. The petitioners are to meet township standards to upgrade Sunnyside Road to a collector street at their expense in order for them to use the property pursuant to a special exception.” (ZONING BOARD’s Opinion at 11-12). Thereafter, ZONING BOARD included as special conditions to its decision the following:

That [MARTIN] pay for the cost to make Sunnyside Road a collector street, and they must perform a traffic study to determine if Sunnyside Road and other connection township roads can take the traffic from the vehicles and buses for the premises, and if not that they perform the work necessary . . .

Following ZONING BOARD’s official decision, MARTIN filed a timely appeal. We conducted oral argument on October 28, 2016. At oral argument, MARTIN’s counsel emphasized that the conditions placed upon the special condition awarded by ZONING BOARD effectively rendered impossible the use of MARTIN’s PROPERTY as a weekend recreational retreat. We issue this Opinion to address the issues that were presented to us.

II. ISSUES

In their appeal notice, the MARTIN submitted a plethora of issues. However, those issues were refined via briefs and oral argument to the following:

(1) Whether ZONING BOARD erred by considering the MARTIN’s request to be a special exception related to use of PROPERTY rather than dimensions of PROPERTY?

(2) Whether ZONING BOARD erred by imposing a near impossible condition that Sunnyside Road be transformed into a collector road?

III. DISCUSSION

In the spirit of candor, we confess that we were somewhat confused by the arguments proffered by MARTIN. What was submitted in the written Brief did not mirror what was set forth in the land use appeal itself, and the focus of counsel’s position at oral argument differed from what was set forth in the Brief. Today, we will address the two issues outlined in II. above. The first of these issues we will reject as a matter of law. The second will cause us to order a factual hearing.

A. Use v. Dimensional Variance

In their Brief, MARTIN alleges that ZONING BOARD erred by considering the requested relief to be a “use variance.” MARTIN alleges:

A dimensional variance involves a request to adjust zoning regulations to use the property in a manner consistent with regulations, whereas a use variance involves a request to use property in a manner that is wholly outside the zoning regulations. Thus, a dimensional variance is of lesser moment than a use variance because a dimensional variance involves a use already contemplated by the zoning ordinance.

(MARTIN’s Brief at 8-9). Employing this logic, MARTIN asserts that ZONING BOARD erred by using the standard for a use variance rather than the one applicable to a dimensional variance. (Pg. 10 of MARTIN’s Brief).

Candidly, we were confused by the argument contained in MARTIN’s Brief. There are numerous reasons for our confusion, including the following:

(1) The original request for relief submitted by MARTIN to ZONING BOARD sought a special exception designed to permit MARTIN to use PROPERTY as a “private recreational area.” (See Exh. 2).

(2) At the outset of the hearing before ZONING BOARD, MARTIN’s counsel framed the zoning issue as “the request for a special exception under the Ag district regulations for a private recreation area . . .” (N.T. 13).

(3) The entire focus of the lengthy hearing before ZONING BOARD was upon the question of whether MARTIN should be permitted to use PROPERTY as a part-time recreational facility. During the hearing, counsel focused upon this question, as did each and every witness who testified.

(4) The use issue was resolved by ZONING BOARD in MARTIN’s favor. The request for a special exception to use PROPERTY as a weekend recreational facility was unanimously approved by ZONING BOARD.

(5) As it relates to the dimensions of the proposed use, ZONING BOARD also found in favor of MARTIN. At page 10 of its decision, ZONING BOARD found: “The 10 foot variance from 100 feet to 90 feet is de minimis.”

Try as we might, we simply could not apprehend why MARTIN attempted in their Brief to characterize this dispute as one involving a dimensional variance, and we especially had difficulty understanding MARTIN’s position given that MARTIN prevailed on the use issue and on the dimensional variance question before ZONING BOARD. For purposes of the appeal now before us, we accept the premise that ZONING BOARD believed MARTIN should be able to use PROPERTY as a weekend recreational facility. Given this conclusion, we do not understand and will reject MARTIN’s effort to impugn the analytical standard employed by ZONING BOARD.

B. Collector Road

Notwithstanding the confusion we have acknowledged above, it is clear to this Court that the issue involving the “collector road” requirement represents the primary “rub” between the parties to this litigation. ZONING BOARD obviously believes that Sunnyside Road should be transformed into an 80-foot-wide “collector road.” MARTIN obviously has reached the conclusion that such transformation would be prohibitively expensive and therefore inconsistent with ZONING BOARD’s decision to grant its request that PROPERTY be used as a recreational facility. At oral argument, both counsel acknowledged that the salient question triggered by MARTIN’s appeal is whether it would be practically feasible to transform Sunnyside Road into a “collector road.”

In its decision, ZONING BOARD clearly expressed its preference that Sunnyside Road be transformed into a collector road; its decision to deny MARTIN’s request for a collector road variance can be viewed as little else. Nevertheless, we do not understand why the ZONING BOARD reached this preference. More important, we perceive ambiguity in ZONING BOARD’s decision.

Section 11006-A of the Municipal Planning Code provides: “Upon motion by any of the parties or upon motion by the Court, the Judge of the Court may hold a hearing or hearings to receive additional evidence or employ experts to aid the Court to frame an appropriate order.” 53 P.S. § 11006-A(d). A decision as to whether to permit additional testimony is within the discretion of the Trial Court. See Crystal Forrest Assoc., L.P. v. Buckingham Township Supervisors, 872 A.2d 206 (Pa.Cmwlth. 2005). Even where the landowner was afforded a “full opportunity to present its case, the Court still has the discretion to receive additional testimony deemed appropriate to a fair determination of the case. See Wilson v. Plumstead Township Zoning Hearing Board, 894 A.2d 845 (Pa.Cmwlth. 2006). Of course, when a Trial Court receives additional evidence, the Court must thereafter render a determination de novo. See Ken-Med Assoc. v. Board of Supervisors of Kennedy Township, 900 A.2d 460 (Pa.Cmwlth. 2006).

In this case, the record as it currently stands does not come close to answering questions we have about ZONING BOARD’s collector road decision. Some of the questions we have identified include the following:

What is a “traffic study?” Who is to perform it? What is its goal? What are the metrics by which the study is to be governed? How much will a study cost?

Nothing was set forth in ZONING BOARD’s decision about the results of a traffic study. How will those results affect ZONING BOARD’s collector road decision? If the traffic study reveals that vehicular traffic to PROPERTY would not in any way impact Sunnyside Road, would that obviate the necessity for widening the road? On the other hand, if the ZONING BOARD believes that Sunnyside Road should be widened without regard to the traffic study, why was the study ordered in the first place?

Supervisor Cromleigh testified that in his “personal view,” MARTIN should be required to widen Sunnyside Road only where it abuts PROPERTY. Is this the view of ZONING BOARD as well? ZONING BOARD’s decision could well be interpreted as requiring MARTIN to widen the entire length of Sunnyside Road. Was this ZONING BOARD’s intent?

Very little has been presented about Sunnyside Road where it does not abut PROPERTY. How long is the road? How many access roads intersect with Sunnyside Road? Why is it deemed advantageous to make Sunnyside Road into a collector road? Would there be any purpose to widening Sunnyside Road only where it abuts PROPERTY without widening it elsewhere? Are there plans for the township to widen Sunnyside Road throughout its length? Would widening Sunnyside Road to 80 feet even be possible given applicable rights-of-way and setbacks?

Because the record in this case does not enable us to fairly address any of the above questions, we need additional evidence. Therefore, we will be directing that another hearing take place at which we can learn more about the collector road issue.

IV. CONCLUSION

As we read ZONING BOARD’s decision, we came away with the distinct impression that ZONING BOARD was trying to fashion a compromise that would please everyone. While we certainly recognize and respect the value of compromise, sometimes it is simply not possible to please all sides in a dispute. Had ZONING BOARD decided that a weekend retreat is not a use it wanted along Sunnyside Road, it could have denied MARTIN’s request for a special exception. On the other hand, if ZONING BOARD believed that MARTIN’s requested use – with agreed upon conditions – was generally compatible with the area, then it could have granted the special exception without appending onerous and financially prohibitive conditions.

Given the record before us, we do not know whether it is possible to reconcile MARTIN’s proposed use with Supervisor Cromleigh’s collector road request. We simply do not have enough information to discern whether or not the granting of the special exception is logically consistent with the collector road requirement. Additional evidence and information will have to be presented on this topic.

We hope that the Opinion we have drafted affords the parties with some insight into our thought process to date. We are well aware that the de novo hearing we have directed will require us to take a new look at MARTIN’s proposal and the parties’ substantive arguments . . . and we are prepared to do just that. However, the questions articulated in this Opinion are important to the Court, and we expect the parties to address them when we conduct the upcoming hearing.

An Order consistent with the above decision will be entered today’s date.

1) We found ZONING BOARD’s reference to “buses” in this section curious, because use of buses to transport people to PROPERTY was a hotly contested issue at the zoning hearing and special condition 10 of ZONING BOARD’s decision required that there be “no buses” used to transport people to PROPERTY. (See pgs. 12-13 of ZONING BOARD’S Decision).

2) Curiously, this last issue was addressed extensively at oral argument but hardly at all within MARTIN’s Brief.

3) We have a great deal of respect for both counsel in this case. Both counsel addressed the differences between dimensional and use variances in their Briefs. This caused us to pause and twice reevaluate whether or how the distinction between use and dimensional variances could be important in this case. At the risk of acknowledging our own ignorance, we simply could not discern how or why MARTIN would want to challenge ZONING BOARD’s decision regarding use of PROPERTY.