Zoning – Land Use Appeal – Review by Court – Error of Law or Abuse of Discretion – Substantial Evidence – Credibility of Witnesses – Special Exception – Burden of Proof – Sewer Disposal System.

1. When the Court has taken no evidence in the land use appeal, the Court is limited to a determination of whether the zoning hearing board committed an error of law or abused its discretion.
2. A Zoning Board abuses its discretion only if its findings are not supported by substantial evidence.
3. Substantial evidence is relevant evidence such that a reasonable mind might accept it as adequate to support a conclusion.
4. The Zoning Board, as fact-finder, judges the credibility of witnesses and the weight of the testimony and is free to accept or reject the testimony of any witness, in whole or in part.
5. A special exception is a use that is expressly permitted by the zoning ordinance, subject to the satisfaction of the requirements and standards set forth in the Act.
6. The applicant has the burden to prove that the proposed use is of the type permitted by special exception and that the proposed use complies with the specific and objective criteria in the zoning ordinance.
7.  The Court found that Appellant never specifically addressed a feasible sewer disposal system that would be approved for the Property.  Therefore, it determined that the Board did not abuse its discretion in denying Appellant’s application.

Land Use Appeal.  C.P. of Lebanon County, Civil Action-Law, No. 2013-00051.

David J. Tshudy, Esquire, for Appellant

Michael H. Small, Esquire, for Appellee

Josele Cleary, Esquire, for Intervenor South Annville Township

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL DIVISION

 

SERVANTS OASIS,                                 :

Appellant                                                   :

                                                                   :

          v.                                                       :                            No. 2013-00051

                                                                   :

ZONING HEARING BOARD OF           :

SOUTH ANNVILLE TOWNSHIP,                   :

Appellee                                                     :

                                                                   :

 

ORDER

 

AND NOW, this 22^nd day of July, 2013, after careful consideration of the record, Appellant’s Land Use Appeal is DENIED. 

 

BY THE COURT:

____________________________, J.

CHARLES T. JONES, JR.

 

 

 

Cc:    David J. Tshudy, Esquire

Josele Cleary, Esquire

Michael H. Small, Esquire

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

 

SERVANTS OASIS,                                 :

Appellant                                                   :

                                                                   :

          v.                                                       :                            No. 2013-00051

                                                                   :

ZONING HEARING BOARD OF           :

SOUTH ANNVILLE TOWNSHIP,                   :

Appellee                                                     :

                                                                    :

 

APPEARANCES:

 

David J. Tshudy, Esquire                         For Appellant

Pepper Hamilton LLP

 

Michael H. Small, Esquire                        For Appellee

 

Josele Cleary, Esquire                               For Intervenor South Annville

South Annville Township Solicitor           Township           

 

OPINION BY JONES, JR., J.:

 

Before this Court is a land use appeal.  For the reasons set forth herein, we affirm the decision of the Zoning Hearing Board of South Annville Township (hereinafter the “Board”) and dismiss Servants Oasis’ (hereinafter “Appellant”) Appeal.

 

I.                  FACTUAL HISTORY

 

Servants Oasis proposes to develop a retreat for use by ministers, church leaders, and, as temporary lodging for missionaries, at 303 Gumtree Road, 328 Gumtree Road, and 400 Valley Road (hereinafter the “Property”), all located in Annville, Lebanon County, Pennsylvania.  The Property contains approximately 153 acres within South Annville Township (hereinafter the “Township”).  The property is presently developed with a single family detached dwelling and accessory structures.  The sole access to the Property is from Wild Apple Drive, a public street which terminates in a cul-de-sac at the northeast corner of the Property.  The closest main road is Route 322, which is approximately 5000 feet from the property, through a series of narrow, residential streets.  There is only one point of access on the Property to Route 322.            Appellant proposed that the Retreat may have a maximum of 297 persons on the Property at any one time.  Servants Oasis has a Board of Directors, but no paid staff; the Retreat would be run by volunteers.

 

1. II.               PROCEDURAL HISTORY

 

On March 4, 2011, Appellant filed an application with the Board requesting a special exception pursuant to Section 502 of the South Annville Township Zoning Ordinance.  Appellant amended the Petition to request four (4) variances from the Zoning Ordinance.  Public hearings were held before the Board on the following dates: May 12, 2011; August 18, 2011; October 13, 2011; March 22, 2012; April 26, 2012; May 31, 2012; July 12, 2012; August 23, 2012; and September 20, 2012.

On December 13, 2012, the Board denied Appellant’s Petition after determining Appellant failed to demonstrate compliance with the specific and objective requirements of the Zoning Ordinance for the requested special exception, and that the proposed retreat would create a situation detrimental to the public health, safety, and welfare.  Appellant filed the instant appeal on January 11, 2013.  In accordance with Section 1004-A of the Pennsylvania Municipalities Planning Code (hereinafter “MPC”) South Annville Township (hereinafter “Township”) filed a Notice of Intervention.  This matter was listed for Argument Court held on April 26, 2013. All parties attended oral argument and submitted briefs in support of their respective positions. The matter is now ripe for disposition.

 

1. III.           STANDARD OF REVIEW

 

When the Court has taken no evidence in the land use appeal, the Court is limited to a determination of whether the zoning hearing board committed an error of law or abused its discretion See Hawk v. City of  Pittsburgh Zoning Board of Adjustment, 38 A.3d.1061 (Pa. Cmwlth. 2012).  A Zoning Board abuses its discretion only if its findings are not supported by substantial evidence.  Atiyeh v. Board of Commissioners of Bethlehem Township, 41 A.3d 232, 236 (Pa. Cmwlth. 2012.)  Substantial evidence is relevant evidence such that  a reasonable mind might accept it as adequate to support a conclusion.  Whitehall Fiduciary, LLC v. Zoning Hearing Board of the Township of Whitehall, 49 A.3d 945, 948 (Pa. Cmwlth. 2012).  The Zoning Board, as fact-finder, judges the credibility of witnesses and the weight of the testimony and is free to accept or reject the testimony of any witness, in whole or in part.  Hawk at 1065.

1. IV.           DISCUSSION

 

A special exception is a use that is expressly permitted by the zoning ordinance, subject to the satisfaction of the requirements and standards set forth in the Act.    The applicant for a special exception has the burden to demonstrate that the proposed use satisfies the objective requirements of the ordinance.  Morrell v. Zoning Hearing Board of Shrewsburg Township.  The applicant has the burden to prove that the proposed use is of the type permitted by special exception and that the proposed use complies with the specific and objective criteria in the zoning ordinance.  Pennsy Supply, Inc. v. Zoning Hearing Board of Dorrance Township, 987 A.2d. 1243 (Pa. Cmwlth. 2009).

The standards for special exception applications under the Zoning Ordinance that is at issue here are set forth in Section 502.8.B.  The Applicant is required to submit a water and sewer feasibility study which identifies “estimated sewage flows, method of sewage disposal, and other relevant information.”  Additional standards for the granting of a special exception set forth in Section 1904.2 are: (1) Applicant must present a detailed site plan and supporting information, (2) the Applicant shall specifically address provisions to be made for the treatment and disposal of sewage; and (3) the applicant shall provide the board with sufficient plans, studies, or other data to demonstrate compliance with all applicable regulations.

The Zoning Ordinance requires that an applicant for a special exception to develop a retreat present evidence identifying the method of sewage disposal.  Although Appellant submitted its application in March of 2011 and the hearings concluded eighteen (18) months later, as a result of numerous continuance requests by Appellant, they did not identify the method of sewage disposal for the Retreat.  Appellant presented hopes that it could use on-lot sewage disposal systems for at least a portion of the build-out, even though it failed during this eighteen (18) month period to identify locations where such facilities could be developed.  Appellant has also indicated a desire to use a package wastewater treatment plant; however testimony revealed that the stream, to which effluent from the treatment plant would discharge, occasionally runs dry, thus making this type of disposal impracticable.

As part of the application process, Appellant provided a 2011 Sewer Study to the Board.  The Township’s Engineer had questions concerning the feasibility of providing on-lot sewer service and on-lot water service for the Retreat and requested additional data.  The hearing was continued to allow Appellant to address the Engineer’s concerns.  A February 2012 Sanitary Sewer Feasibility Study stated an on-lot disposal system could not be constructed on the Property and that disposal would need to be done using a package wastewater treatment plant.  However, the February 2012 Sewer Study also stated that the Treatment Plant “will not meet the effluent mass loading limitations for Total Nitrogen and Total Phosphorus for this site.”  Therefore, Appellant would have to purchase nutrient trading credits to meet the effluent limitations for this project.  There was no evidence provided to show if Appellant would be able to purchase these annual credits.

Another Sanitary Sewer Feasibility Study, revised April 13, 2012, indicated that some areas on the Property may be suitable for installation of several elevated sand mound beds, but additional percolation testing need to be done to demonstrate that this on-lot sewage disposal system can be safely used without impacting groundwater withdrawals.  At the April hearing, Appellant’s consultant admitted that it was possible that no area on the Property would pass the necessary percolation tests.  Prior to the record closing in September 2012, Appellant never provided any evidence that it conducted the required percolation testing.  We find that Appellant never specifically addressed a feasible sewer disposal system that would be approved for the Property.  Therefore, the Board did not abuse its discretion in denying Appellant’s application.

Another concern the Board had with Appellant’s application was the emergency evacuation plan.  Appellant proposes a Retreat with up to 297 people served by a single point of access, approximately 5,000 feet from the nearest main road.  The path to reach the main road is a narrow road, with no shoulders, that has a history of being closed after severe weather.  The Board found the testimony of the Fire Chief to be credible when he testified that the single point of access to the Property could create delays in accessing the Property if the road was blocked. Appellant’s Emergency Plan of Access stated that Appellant would provide fire protection and alarm systems as required by law, would provide a suitable access, and would improve the current roadway/access.  Appellant provided no specifics on how or when these improvements would be completed.  Appellant’s emergency management plan proposes staffing with unpaid volunteers and set forth an emergency plan that proposes that, at some point in the future, Appellant will develop and institute an emergency evacuation plan.

Appellant failed to meet the specific and objective criteria for a special exception for its proposed Retreat.  The Board has also deemed the testimony, concerning the unique conditions of the Property that would result in the Retreat being detrimental to public health, safety, and welfare, to be credible.  Therefore, we find that the Board did not err or abuse its discretion when it denied Appellant’s application for special exception.