IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Red Lion Borough

, :

Appellant :

:

v. :

:

Red Lion Borough Zoning : No. 55 C.D. 2017

Hearing Board and ArthurLee

, LLC : Argu ed: September 11, 2017

BEFORE: HONORABLE REN É E COHN JUBELIRER, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

HONORABLE JAMES GARDNER COLINS, S enior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COSGROVE FILED: October 20, 2017

Before this Court is the zoning appeal of Red Lion Borough ( Borough )

from the December 14, 2016 order of the Court of Common Pleas of York County

( trial court ), which upheld the June 14, 2016 d ecision of the Red Lion Borough

Zoning Hearing Board ( Board ) ap prov ing the special exception and variance request

of ArthurLee, LLC. (AL ) Upon review, we affirm.

AL is the owner of real property located at 84

- 90 North Main Street,

Red Lion, Pennsylvania, 14356, York County Tract Nos. 82

- 03

- 167B, 82

- 03

- 167A,

82

- 03

- 167 (Property). ( R.R. at 5a

- 11a. ) AL permits a neighboring used car lot to

park used car inventory on t he Property.

On March 15, 2016, AL received a zoning enforcement letter from the

Borough zoning and codes enforcement officer alerting AL it needed a special

exception to park extra used cars on the Property

. Id

. at 13a

- 14a. On or about March2

29, 2016, AL filed an application for a special exception for automobile sales lot as

well as a variance to wai ve the requirement for a 1600 square foot display building.

Id.

On May 17, 2016, the Board held a hearing on the zoning application.

At the conclusion of the hearing, the Board orally granted the special exception and

variance, finding that AL me t all requirements of the z oning o rdinance (Ordinance)

except Section 27

- 605.C. 1 The Board also granted a variance from the requirements

of Subsection 27

- 605.C. Thereafter

, on June 14, 2016, the Board issued its written

decision approving the special exception and variance. ( B oar d Op inion

, 6/14/16, at

6. )

On July 13, 2016, the Borough filed an appeal with the t rial court

arguing that AL did not meet all relevant requirements of the O rdinance for the

special exception, specifically failing to present evidence it could meet the 80

- foot

minimum lot width requirement of Section 27

- 605.B. 2 By order filed December 14,

2016, the t

rial court dismissed the Borough ’s appeal

, holding that “ [ t ] he issue of

whether the lot in question met the [80

- foot minimum lot] width re quirements was

1 The variance from Subsection 27

- 605.C involved square footage requirements for an

indoor display area for the cars. Appellee has since removed this subsection from the Ordinance

by amendment approved on January 9, 2017.

2 Section 27

- 605(B) of the O rdinance (pertaining to automobile and/or trailer sales;

automobile body shop and/or automobile garages) states:

...

B. Lot width shall be 80 feet, minimum

.

Certified Record (C.R.), It em #14 at 27

- 64; Ordinance, §27

- 605(B). (Emphasis added.)3

never placed squarely before the [Board].” Tr ial C our t Op inion

, 12/14/16

, at 2

- 3.

This appeal followed. 3

Discussion

The Borough argues the t rial court erred in dismissing its appeal,

thereby affirming the Board’s grant of a special exception

, on the basis that the

Borough did not attend the zoning hearing. The Borough maintains it has statutory

standing to appeal any decision of its Board pursuant to Section 90 8(3) of the

Pennsylvania Municipalities Planning Code (MPC)

. 4

Section 908(3) of the MPC provides:

(3) The parties to the hearing shall be the

municipality

, any person affected by the application who

has made timely appearance of record before the boar d,

and any other person including civic or community

organizations permitted to appear by the board. The board

shall have power to require that all persons who wish to be

considered parties enter appearances in writing on forms

provided by the board for th at purpose.

53 P

. S. §10908(3). (Emphasis added.)

Citing West Manchester T ownship v. Zoning Hearing B oard of West

Manchester T

ownship

, 403 A.2d 234 (Pa. Cmwlth. 1979), the Borough asserts it has

the authority to appeal a decision by the Board even if it did not participate in the

proceedings before the Board or otherwise object. “[T]he municipality is made a

3 This Court's scope of review when no additional evidence is taken following the

determination of a zoning hearing board is limited to determining whether the board c ommitted a

manifest abuse of discretion or an error of law. Slice of Life, LLC v. Hamilton T ownship Zoning

Hearing B oard

, 164 A.3d 633 (Pa. Cmwlth. 2017).

4 Act of July 31, 1968, P.L. 805, as amended

, 53 P

. S. § 10908(3).4

party to all zoning board proceedings whether or not the municipality appears at the

hearings or otherwise objects and thus has standing to appeal an adverse decision of

the zoning board .” Id

. at 234

- 35.

T he legislature’s purpose for providing the municipality with this

statutory standing

, argues the Borough, was “succinctly and eloquently stated” 5 in

the nearly identic al fac tual situation presented by Lower Paxton Townshi p v.

Fies e ler Neon Signs

, 391 A.2d 720 (Pa. Cmwlth. 1978). “To impose the burden of

requiring a municipality to participate in every hearing for a variance lest it waive

its right to challenge the zoning board’s action would be unreasonable.” Id. at 723.

The Borough contends the only difference between the facts presented in Lower

Paxton and th e case sub judice is the applicant in Lower Paxton requested a variance,

whereas

, here, AL requested a special exception. 6

Relying on Elizabethtown/Mt. Joy Assoc iates

, L.P. v Mt. Joy T ownship

Zoning Hearing Board

, 9 3 4 A.2d 759 (Pa. Cmwlth. 2007), the Borough further

argues the Board may only grant a special exception if the applicant complies with

the specific ordinance requirement at the time the application is presented to the

Board. Because the applicant must meet all specific requirements of the O rdinance

relative to the use of the property

, the Borough contends AL has the duty to present

evidence and the burden of persuading the Board that the proposed use satisfies the

specific and objective requirements of the O rdinance for the proposed use. Greaton

Prop erties

, Inc. v. Lower Merion T ownship

, 796 A.2d 1038 (Pa. Cmwlth. 2002).

According to the Borough, since Section 27

- 605.B of the z oning o rdinance requires

a minimum lot width of 80 feet for the proposed use (i n connection with an

5 Appellant’s Br ief at 7.

6 The variance in Lower Paxton and the special exception here each require the applicant

to meet specific criteria in order to receive the relief requested.5

automobile sales lot)

, the issue of compliance with the lot width requirement was

not and could not be waived because it is part of the specific requirements of the

O rdinance which AL was required to meet, and the Borough could appeal the

Board’s decision “because the proper criteria for the relief requested was not met by

[AL].” 7

AL count ers that the Board did not abuse its discretion or commit an

error of law when it granted a special exception permitting it to use the Property as

an automobile sales lot pursuant to Section 27

- 605(B) of the Ordinance. AL asserts

the Borough never raised the issue o f the 80

- foot minimum lot width before the

Board a nd

, consequently

, the issue is waived. AL maintains the Board hearing

transcript is “clearly devoid” 8 of any mention of lot width and a review of the

transcript p roves the Board solicitor asked AL if it wished to amend its application

to ask for a varianc e only from the 12,000 minimum square footage requirement.

[Board member/solicitor Markey] ...The special

exception obviously is a permitted use. And provided that

[AL] can satisfy each of those criteria, which they’ve set

out in their application as well as in their testimony here

tonight and at the planning commission minutes, subject

to the showroom, the only other issue then remaining

would be the 12,000 square feet, which they appear to be

over even considering maybe [Nevin] Horne’s [ 9 ]

suggestion or at least raising it to our attention.

What I would recommend, because I think the [B]oard is

inclined to approve this, I would recommend to [AL] that

to be safe you request in the alternative a variance from

7 Appellant’s Br ief at 10.

8 Appellee’s Br ief at 4.

9 Nevin Horne is identified as a councilman and “ chair of planning, zoni ng and

redevelopment.” (R.R. at 18a.)6 the 12,000 square feet [minimum square foota ge

requirement]. So it would appear the [B]oard is inclined

to approve the request, so [the Board] would approve a

variance then for the showroom and they would approve a

variance just in the event that you would be shy of the

12,000 square feet for some reason. That would give you

then an approval of the special exception and the two

variances which would give what [the Board] desire[s].

R.R. at 25a

- 26a.

AL points out the zoning officer for the Borough

, an officer and agent

of Borough who attended the hearing, could have raised the issue of the lot width on

behalf of the Borough and failed to do so. Therefore, AL argues, the Borough ’s

failure to raise the issue of lot width before the Board effectuated a waiver and

precluded the t rial court from co nsidering the issue on appeal. Citing 813 Associates

v. Zoning Hearing B oard of Springfield T ownship

, 479 A.2d 677, 680 (Pa. Cmwlth.

1984)

, AL maintains it is well

- established in the C ommonwealth that an issue not

raised before a zoning hearing board may not be raised and considered for the first

time on appeal. We agree.

The Borough’s suggestion that the trial court dismissed its appeal

, at

least in part, “ because the [Borough] did not attend” 10 the hearing before the Board

completely misstates the trial court’s actions. In fact, the trial court recognizes the

presence and participation of the Borough at the Board hearing, but rejects the notion

that the issue of lot size was properly presented: 

### “ A fair reading of the transcript [of

the Board hearing]

... reveals that the reference to lot width was purely incidental to

a discussion regarding requirements for square footage. ” ( Tr ial C our t Op inion

,

12/14/16

, at 2. ) Explaining its reasoning further

, the trial court, in its opinion issued

10 Appellant ’s Brief at 7.7

pursuant to Rule 1925 (a) (1925 Opinion)

, Pa.R.A.P. 1925(a)

, stated that while it

found :

[T] he 80 foot requirement had been raised at various times

[by the Borough] during the hearing it was ‘ purely

incidental to a discussion regarding requirements for

square footage. ’ Specifically, the trial c ourt found that the

issue of whether or not the lot in question met the size

requirements of the zoning ordinance was ‘ never place [d]

square [ ly ] before the [Board] ’ and therefo re had been

waived.

(1925 Opinion, 2/28/17, at 2). (Internal citation s omitted.) Against this backdrop,

it is clear the Borough’s claim that the trial court found its claim “waived by the

failure 

### of the Borough to attend the zoning hearing ” 11 is completely without merit.

We further reject the Borough’s interpretations of Lower Paxton

Township and West Manchester Township a s those decisions are readily

distinguishable from the case sub judice

. In Lower Paxton Township

, the township’s

s tand ing to appeal was the specific issue before this Court. The initial hearing before

the Board of Supervisors of Lower Paxton Township (township board) concerned

the denial of a building permit by the township zoning officer. But for the testimony

of the z oning officer as to the reasons for his denial, the township did not participate

in the hearing. The township board granted the variance and the township appealed.

Exxon, as intervenor, filed a motion to quash the appeal, which the Court of

Common Pleas of Dauphin County denied.

It was t his denial which was appealed

. As such, this Court initially

noted that the “appeal is improperly before us and should, therefore, be quashed.”

11 Appellant’s Brief at 11.8

Lower Paxton Township

, 391 A.2d at 722. However, “in the interests of judicial

economy,” 12 the Court addressed the merits.

Exxon argued the township lacked standing because it was never a party

before the board and, consequently, it was not aggrieved by the board’s decision.

This Court concluded the to wnship’s standing was made clear by the legislature.

In designating a municipality as a party to all zoning board

hearings, it is clear that the legislature intended that it be

the collective representative of all residents and property

owners, and, as such, interested in the proper enforcement

and application of its zoning ordinance. In the instant

case, the Township claims that the [b] oard abused its

discretion in granting the variance and that the decision

was contrary to the law applying to variance s. In our view,

the legislature has declared that a township has such an

interest as would cause it to be aggrieved, for purposes of

appeal, by a decision of the Zoning Hearing Board which

it considered to be adverse to its best interests. Since the

Town ship is a “party aggrieved”, it may appeal the zoning

board decision to the lower court, even though it did not

participate in the hearing before the zoning hearing

board

...

...To impose the burden of requiring a municipality to

participate in every hearing for a variance lest it waive its

right to challenge the zoning board’s action would be

unreasonable.

Lower Paxton Township

, 391 A.2d at 723. (Emphasis added.) 13

Further distinguishing Lower Paxton Township is the fact that in the

present case, the tri al court specifically recognized the Borough’s right to appeal an

adverse decision of the Board: “ [The] Borough has statutory standing to appeal any

12 Lower Paxton Township

, 391 A.2d at 722.

13 The brief decision in West Manchester Township merely re affirmed the underlying

holding of Lower Paxton Township

.9

decision of its zoning hearing board pursuant to Section 908(3) of the Pennsylvania

Municipalities Plannin g Code [53 P .S. § 10 908(3)]. ” ( Tr ial C our t Op inion

,

12/14/16

, at 2. ) What the Borough seems to argue, however, is that its right to appeal

somehow exempts it from preserving issues on appeal. Although it participated in

the hearing before the Board, it failed to raise the issue of lot size at that hearing.

Moreover, on appeal from the Board’s decision, the Borough did not request the

opportunity to present additional evidence before the trial court as is statutorily

allowed. See 53 P.S. § 11005

- A of the MPC, added by the Act of December 21,

1988, P.L. 1329, 53 P.S. § 11 05

- A

. This left the trial court (and us) with a record

created at the Board level. There is nothing in the law which gives special license

to the Borough to avoid the peril of waiver when it fails to take appropriate steps to

preserve the issues it seeks to present on appeal.

For these reasons, the order of the t rial c ourt is affirmed

.

___________________________ JOSEPH M. COSGROVE, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Red Lion Borough, :

Appellant :

:

v. :

:

Red Lion Borough Zoning : No. 55 C.D. 2017

Hearing Board and ArthurLee, LLC :

O R D E R

AND NOW, this 20 th day of October

, 201 7

, the order of the Court of

Common Pleas of York County is affirmed

.

___________________________ JOSEPH M. COSGROVE, Judge