934 A.2d 759

ELIZABETHTOWN/MT. JOY ASSOCIATES, L.P., Appellant v. MOUNT JOY TOWNSHIP ZONING HEARING BOARD.

Commonwealth Court of Pennsylvania.

Argued Sept. 4, 2007.

Decided Oct. 1, 2007.

Reargument Denied Nov. 19, 2007.

*761Susan J. Smith, Camp Hill, for appellant.

Josele Cleary, Lancaster, for appellee.

BEFORE: LEADBETTER, President Judge, and FRIEDMAN, Judge, and KELLEY, Senior Judge.

OPINION BY

Judge FRIEDMAN.

Elizabethtown/Mt. Joy Associates, L.P., (Developer) appeals from the February 21, 2007, order of the Court of Common Pleas of Lancaster County (trial court) affirming the decision of the Mount Joy Township Zoning Hearing Board (ZHB) to deny Developer’s application for a special exception. We affirm.

Developer owns approximately twenty-two acres (Property) in Mount Joy Township (Township) situated at the northeast corner of the intersection of Cloverleaf Road and Route 230, both state highways under the jurisdiction of the Pennsylvania Department of Transportation (DOT). The Property consists of two adjoining tracts, Tract A and Tract B, located in the Limited Commercial District (C-l) under the Township Zoning Ordinance (Ordinance). Surrounding properties include two adjacent tracts, Tracts C and D, that also are owned by Developer and intended for future commercial development.1 (Findings of Fact, Nos. 1-4, 10-12, 20; ex. ZHB-1, R.R. at 1126a.)

Developer filed an application with the ZHB (Application) for a special exception to construct a shopping center on the Property, a use permitted by special exception in the C-l District pursuant to section 135-122.C of the Ordinance.2 Dur*762ing the Application process, it was discovered that the proposed floor area of the shopping center exceeded that allowed by the Ordinance, and Developer submitted a revised site plan (Plan).3 (Ex. A-17, R.R. at 1144a.) The revised Plan was not signed or certified by its preparers, and Developer’s signature was dated before the date of the revised Plan. Both the initial and revised plans depicted the Property with six building pads, three of which were to be occupied by a convenience store with self-service fueling stations, a pharmacy, and a bank with a drive-thru facility. Developer identified the three other uses generally as retail uses, which are permitted by right in the C-l District under section 135-121.D of the Ordinance. (Findings of Fact, Nos. 13, 23-25, 29-30.)

The ZHB held eight hearings on the Application between October 19, 2005, and March 21, 2006, during which Developer presented six witnesses in support of the Application. Thomas Matteson, Christopher Cañero and Dennis Gehringer each testified generally regarding the site Plan and Ordinance compliance; Tony Schiavo testified regarding signage; Robert Ba-shore testified regarding traffic; and Joseph Turnowchyk testified regarding architecture.

Based on the evidence presented, the ZHB made ninety-eight findings of fact, from which it concluded that Developer’s Plan; failed to meet the specific requirements for shopping centers set forth in section 135-122.C of the Ordinance; failed to demonstrate compliance with the general requirements for special exceptions set forth in Ordinance sections 135-187.D and 135-283.D; and failed to satisfy the requirements of 135-284.A of the Ordinance.4

*763The ZHB acknowledged that applications presented at this early stage often changed during the land development process. However, the ZHB recognized that the Ordinance requires that an applicant for a special exception provide a sufficiently detailed plan, containing necessary studies or other data, so that the ZHB can honestly conclude that compliance has been demonstrated. Ordinance section 135-283.D(4). The ZHB determined that Developer had not done this, citing inadequacies in overall transportation planning and numerous other deficiencies, including insufficient evidence with respect to the architectural style, signage and fighting requirements of the Ordinance. In addition, Developer’s revised Plan, the only one that met the square footage requirement of Ordinance section 135-122.0(9), was not properly certified and signed, in violation of sections 135-284.A(14) and (15) of the Ordinance. The ZHB noted that some of these deficiencies, taken in isolation, might lead it to approve the Application subject to conditions that the deficiencies be corrected. However, the ZHB declined to do so in light of the overall number of deficiencies and inconsistencies.

On May 3, 2006, the ZHB issued an opinion and order denying Developer’s Application. Developer filed an appeal with the trial court, and the Township filed a Notice of Intervention. Following the submission of briefs, the trial court affirmed the ZHB, concluding that the record supported the ZHB’s findings with respect to the deficiencies in Developer’s Application. Developer now appeals to this court.5

*764Initially, we recognize that a special exception is not an exception to a zoning ordinance but, rather, is a conditionally permitted use, allowed by the legislature if specifically listed standards are met. Bray v. Zoning Board of Adjustment, 48 Pa.Cmwlth. 523, 410 A.2d 909 (1980). Application for a special exception is to be granted or denied by the ZHB pursuant to the express standards and criteria set forth in the applicable zoning ordinance. In re Brickstone Realty Corp., 789 A.2d 333 (Pa.Cmwlth.2001), appeal denied, 569 Pa. 723, 806 A.2d 863 (2002). Thus, what an applicant must demonstrate to obtain a special exception is determined on a case-by-case basis and will vary among municipalities based upon the use requested and the language in the ordinance. In re Thompson, 896 A.2d 659 (Pa.Cmwlth.2006), appeal denied, 591 Pa. 669, 916 A.2d 636 (2007). Once the applicant for a special exception meets his initial burden of showing compliance with all the objective requirements of the zoning ordinance, it is presumed that the proposed use is consistent with the promotion of local concerns relating to general health, safety and welfare, Brickstone, and, normally, the burden then shifts to any objectors to prove that the proposed use is, in fact, detrimental to the health, safety and general welfare of the community.6 Id. In the present case, the ZHB concluded that Developer failed to meet its initial burden to demonstrate compliance with all of the Ordinance’s requirements, and Developer contends that this was error.

Developer first argues that its Application satisfies all the informational and objective requirements of the Ordinance for a special exception shopping center use, and the ZHB’s contrary conclusion was unsupported by the record. We disagree.

In denying the Application, the ZHB identified numerous deficiencies in the Application and accompanying Plan, but it focused on Developer’s failure to meet the Ordinance requirements regarding architectural style, signage, traffic and road improvements and lighting. We will address each of these concerns in order.

Ordinance Section 135-122.0(5) requires that a development be constructed in accordance with an overall plan and be designed in a single architectural style with appropriate landscaping. According to Developer, a single architectural style, identified by Turnowchyk as mission/colonial, was proposed for the shopping center, and Turnowchyk also described the style’s features through testimony and an illustration. Developer contends that any findings by the ZHB suggesting that Developer has not complied with Ordinance section 135-122.0(5) are unsupported by the evidence.

The ZHB recognized that evidence of an architectural style was named and submit*765ted in an artist’s rendering. (Ex. A-6, R.R. at 1112a.) However, the ZHB found that the illustration depicted a single strip mall facility rather than the separate building pads shown in the Plan. The ZHB also found that Turnowchyk’s testimony essentially described what could be done with the buildings, not what would be done,7 and, consequently, there was no real plan presented demonstrating the intended design for the building. (Findings of Fact, Nos. 95-97.) Indeed, the Application itself states that “final architectural features shall be established during the land development phase.” (R.R. at 1086a.)

The standard to be observed by the ZHB is whether the plan as submitted complies with specific ordinance requirements at the time the plan comes before it. Edgmont Township v. Springton Lake Montessori School, Inc., 154 Pa.Cmwlth. 76, 622 A.2d 418 (1993). Based on the record before it at the time of the hearing, (see e.g., N.T. at 141-53, 162, R.R. at 359a-69a, 380a), we conclude that the ZHB did not err or abuse its discretion in concluding that the Application and materials submitted with the Application failed to demonstrate full compliance with section 135-122.C(5).

Similarly, the ZHB’s findings with respect to Ordinance section 135-284.A(7) (signage) are supported by the record.8 Although the Plan’s general notes promise that signage for the shopping center “shall” conform to Ordinance requirements, the Plan clearly states that “signage for this project has not yet been designed.” (R.R. at 1144a.) Under these circumstances, the ZHB did not err in concluding that Developer failed to satisfy the Ordinance’s signage requirement.

As to traffic and road improvements, the ZHB addressed at length Developer’s failure to satisfy Ordinance section 135-283.D(2), which requires Developer to establish by credible evidence that the proposed shopping center is properly serviced by existing public service systems9 and that the peak traffic generated by the shopping center will be accommodated in a safe and efficient manner. In response, Developer argues extensively that the ZHB erred in finding that Developer had not complied with this Ordinance requirement.10 *766However, we need address this issue only briefly.

The ZHB found that Developer’s evidence with respect to “overall transportation planning” suffered from a variety of problems. Through its findings, the ZHB observed that: the opinions of Bashore, Developer’s traffic expert, often were premised on erroneous data and unfounded assumptions, (Findings of Fact, Nos. 59, 68, 70, 75, 77, 88, 89); the Plan either did not depict some of the assumptions made by Bashore or depicted them incorrectly, (Findings of Fact, Nos. 60, 62, 69, 79-80, 83, 91, 93-94); and Bashore identified many “necessary improvements” for the safe and efficient management of shopping center traffic, without providing information as to whether or when these could or would be installed or funded, (Findings of Fact, Nos. 63-64, 76-78, 81, 83). Again, these findings are supported by the record.11 Indeed, when it came to access drives, Bashore described his traffic study as a “concept plan.” (N.T. at 281, R.R. at 500a.)

Ordinance section 135-122.0(7) requires that lighting facilities be provided *767and arranged in a manner that protects the highway and neighboring properties from any direct glare or hazardous interference. In addition, section 135-284.A(7) requires that an application to the ZHB seeking approval for a nonresidential use include a plan showing the dimensions (numbers shown), location and methods of illumination for signs and exterior lighting. Finally, section 135-187.D of the Ordinance requires that an applicant for a use authorized by special exception submit, as part of the initial application for the special exception, an exterior lighting plan, including

a detailed grid of illumination levels, a calculation as to the average illumination levels, the number of lighting fixtures, the height and location of the mounting fixtures, including the underside of any canopies, details as to how lighting will be recessed and required details of how lighting will be shielded and the angle of the shielding when required, and details of any building or canopy-mounted lighting to show that the outline and roofline provisions have been met.

Ordinance sections 135-187.D(1) and (2). Developer maintains that the Application, supported by the testimony and exhibits, contains sufficient information to demonstrate compliance with the lighting requirements in the Ordinance because the Plan shows that lighting is arranged to eliminate the possibility of glare on the highway and neighboring properties and contains information sufficient to constitute a “lighting plan.”

The ZHB found that Developer failed to submit an exterior lighting plan which demonstrated compliance with the Ordinance requirements, and, upon review, we agree that Developer’s Plan does not address the requirements of sections 135-187.D(1) and (2). To the contrary, while the Plan’s general notes state that the fighting plan “utilizes .a 24' high pole with metal halide fixtures fully shielded to prevent glare on adjacent properties and roadways,” (ex. A-17, R.R. at 1144a), the notes also state that the fighting proposed is merely “conceptual in nature,” and the Plan fails to address or include any of the other requirements of section 135-187.D(2), promising only that “the final fighting plan developed during the land development plan approval process shall conform to the requirements of section 135-187.” (R.R. at 1144a.) Similarly, the narrative in support of the Application specifically states that it only includes a “conceptual exteri- or fighting plan,” indicating that the fighting “will” comply with the requirements of section 135-187 and that “final building fighting details will be established during land development plan approval.” (R.R. at 1087a; see also R.R. at 1089a.)

During his testimony on behalf of Developer, Matteson only confirmed the preliminary nature of the fighting proposed for the shopping center. He agreed that the entirety of the information on Developer’s lighting was contained in two pages of the Plan, (N.T. at 69, R.R. at 286a), each containing identical information. Although Matteson testified that the Plan provides for adequate illumination that would not adversely affect neighbors, he testified further that the Plan does not provide any details for building and canopy fights and that such have yet to be developed because that lighting plan would be submitted to the Township based on the requirements of tenants who moved into the facilities. (Findings of Fact, Nos. 31-37; N.T. at 38-39, R.R. at 255a-56a.) Thus, the ZHB did not err in concluding that Developer failed to satisfy the fighting provisions of the Ordinance, and, under the express language in the Ordinance, the fighting details omitted from the Plan are information *768that is not properly provided at a later stage of the proceedings. Accordingly, the ZHB would not err or abuse its discretion in denying Developer’s Application on this basis alone.12

Finally, Developer argues that the ZHB erred and abused its discretion by denying the Application outright rather than issuing an approval with conditions imposed. We disagree.

Ordinarily, many of the types of details required for a special exception by the Ordinance here are addressed further along the permitting and approval process because zoning only regulates the use of land and not the particulars of development and construction. Schatz v. New Britain Township Zoning Hearing Board of Adjustment, 141 Pa.Cmwlth. 525, 596 A.2d 294 (1991). But where more stringent requirements are a part of a township’s special exception requirements, it is proper for the ZHB to consider them. East Manchester Township Zoning Hearing Board v. Dallmeyer, 147 Pa.Cmwlth. 671, 609 A.2d 604 (1992). Even if an applicant demonstrates that it can comply with the ordinance requirements and promises to do so, the ZHB does not err in denying the application. Simply put, a concept plan is insufficient to warrant the granting of a special exception; rather, to be entitled to receive a special exception, the applicant must come forward with evidence detailing its compliance with the necessary requirements. “Evidence is not a ‘promise’ that the applicant will comply because that is a legal conclusion the [ZHB] makes once it hears what the applicant intends to do and then determines whether it matches the requirements set forth in the ordinance.” Edgmont Township, 622 A.2d at 419.

Thus, there simply is no duty on a zoning hearing board to grant a special exception with conditions.13 The proper function of conditions is to reduce the adverse impact of a use allowed under a special exception, not to enable the applicant to meet his burden of showing that the use which he seeks is one allowed by the special exception. Lafayette College v. Zoning Hearing Board of Easton, 138 Pa.Cmwlth. 579, 588 A.2d 1323 (1991); In re Appeal of Baird, 113 Pa.Cmwlth. 637, 537 A.2d 976 (1988),14 appeal denied, 521 Pa. 613, 557 A.2d 344 (1989). Where, as here, the applicant fails to meet all of the ordinance requirements for a special exception, we have long held that the ZHB properly denies the application. Sheetz, Inc. v. Phoenixville Borough Council, 804 A.2d 113 (Pa.Cmwlth.2002), appeal denied, 573 *769Pa. 669, 820 A.2d 706 (2003); In re Appeal of Neill, 160 Pa.Cmwlth. 169, 634 A.2d 749 (1993); Edgmont Township; Lafayette; Baird.

Accordingly, we affirm.

President Judge LEADBETTER dissents.

ORDER

AND NOW, this 1st day of October, 2007, the order of the Court of Common Pleas of Lancaster County, dated February 21, 2007, is hereby affirmed.

Elizabethtown/Mt. Joy Associates, L.P. v. Mount Joy Township Zoning Hearing Board
934 A.2d 759

Case Details

Name
Elizabethtown/Mt. Joy Associates, L.P. v. Mount Joy Township Zoning Hearing Board
Decision Date
Oct 1, 2007
Citations

934 A.2d 759

Jurisdiction
Pennsylvania

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