IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clare M. Dorsey, Kris J. Waller, : Lisa Rhodes, Famira Investments : and Provco Pineville Fayette, L.P. :

:

v. : No. 1114 C.D. 2020

: S UBMITTED : November 15, 2021 Borough Council of Conshohocken : Borough :

:

: Appeal of: Kris J. Waller and : Lisa Rhodes :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE ELLEN CEISLER, Judge HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE CEISLER FILED: December 7, 2021

Kris J. Waller and Lisa Rhodes ( Appellants ) appeal from the October 2, 2020

O rder of the Court of Common Pleas of Montgomery County ( Trial Court ) denying

Appellants’ land use appeal and affirm ing the November 15, 2017 resolution

(Resolution) of the Borough Council of Conshohocken Borough (Borough Council)

. In its Resolution, Borough Council granted conditional preliminary and final land

development approval to Provco Pineville Fayette, L.P. (Provco) for the construction

of a retail convenience store with fuel pumps (Project) on real property located at

1109 and 1119 Fayette Street and 1201 Butler Pike (Property) in Conshohocken

Borough (Borough). For the reasons set forth below, we reverse the Trial Court’s

O rder.2

The Property is located in the Borough’s Residential Office Zoning District

(RO District) and is owned by Dennis and Timothy Moore

. On August 9, 2017

,
Provco , the equitable owner of the Property, submitte d a request to Borough Council

for an amendment to Section 27

- 1202 of the Borough’s Zoning Ordinance

(Ordinance) that would revise the permitted uses in the RO District to include

business offices, professional offices, retail establishments, restaurants, convenience

retail food stores, and parking lots or garages

. The next day , Provco filed a land

development application (Application) , seeking approval of its preliminary/final

lan d development plans for the Project. The Application was conditioned on

Borough Council’s approval of Provco’s request for an amendment to

Section 27

- 1202 of the Ordinance . In other words, the Project would not be

permitted in the RO District unless Boro ugh Council amended Section 27

- 1202 of

the Ordinance to include convenience retail food stores as a permitted use.

On November 15, 2017, at its public meeting, Borough Council enacted

Ordinance No. 08

- 2017 (Zoning Amendment), thereby amending Section 2 7

- 1202

of the Ordinance to include, inter alia , a “[c]onvenience retail food store[,] including

the sale of fue l [,] an ATM[,] and lottery sales.” Reproduced Record (R.R.) at 2a.

The Zoning Amendment provided, however, that it would not become effective u ntil

five business days after it had been adopted. Id. at 4a. Despite the delayed effective

date of the Zoning Amendment and the fact that the Application relied on the Zoning

Amendment for approval , Borough Council , on that same night, passed the

Resolu tion, approving Provco’s preliminary/final land development plans for the

Project subject to certain conditions an d granting six waivers of the Borough’s3

Subdivision and Land Development Ordinance (SALDO)

. Id. at 5a

- 7a. Appellants

appeale d Borough Counci l’s Resolution to the Trial Court

, 1 which affirmed.

On appeal to th is Court

, 2 Appellants have essentially raised three issues for

our consideration. First, Appellants contend that Borough Council committed an

error of law and/or abused its discretion by passing the Resolution because the

Zoning Amendment, on which Provco’s Application relie d , was not effective at the

time that Provco submitted the Application or at the time that Borough Council

passed the Resolution . Second, Appellants argu e that Borough Council committed

an error of law and/or abused its discretion by passing the Resolution without the

benefit of the Zoning Amendment, because, in doing so, Borough Council

effectively granted Provco a waiver/variance from the terms and condi tions of the

Ordinance

— i.e.

, approving a proposed use that was not permitted in the RO District

at the time that the Application was filed or at the time that Borough Council passed

the Resolution

— an action that only the ZHB is permitted to take . Third, A ppellants

claim that the Bo rough committed an error of law and/or abused its discretion by

1 Appellants also filed : (1) a substantive validity challenge to Borough Council’s enactment of the Zoning Amendment with the Conshohocken Borough Zoning Hearing Board (ZHB), alleging, inter alia

, that the Zoning Amendment constituted arbitrary spot zoning; and (2) an appeal to the Trial Court challenging Borough Council’s enactment of the Zoning Amendment on procedural grounds. While the outcome of Appellants’ substantive validity challenge to the Zoning Amendment ultimately impacts the resolution of this appeal, as discussed infra

, neither that challenge nor Appellants’ challenge to the Zoning Amendment on procedural grounds is part of th e matter presently before th is Court.

2 “[I]n a land use ap peal , where the trial court has not taken any additional evidence, our scope of review is limited to a determination of whether the governing body ( in this case [ Borough
Council ] ) has committed an error of law or abused its discretion

, and the governing bo dy abuses its discretion when its findings of fact are not supported by substantial evidence .” Herr v

. Lancaster Cnty. Plan ning Comm’ n , 625 A.2d 164, 167 (Pa. Cmwlth. 1993) (internal citation omitted)

.4

granting waivers from the SALDO’s requirements because Provco failed to

demonstrate any undue hardship that would entitle it to receive such waivers.

Before addressing the merits of Appellants’ arguments , however, we must

first consider the impact of this Court’s recent O pinion and Order in Conshohocken

Borough v. C onsho hocken Borough Zoning Hearing Board

, 261 A.3d 582 (Pa.

Cmwlth., No. 501 C.D. 2020, filed August 16, 2021), on th e present appeal.

Conshohocken Borough involved Appellants’ substantive validity challenge

to Borough Council’s enactment of the Zoning Am endment

. After conducting

numerous public hearings, the ZHB ultimately concluded that the Zoning

Amendment constituted arbitrary spot zoning and did not benefit the health, safety,

and welfare of the community. Provco and the Borough appealed to the Tria l Court

,
which reversed the ZHB’s decision

. The Trial Court conclud ed that

, because

Appellants failed to introduce evidence that clearly established that the Zoning

Amendment constituted spot zoning, they did not meet their heavy burden of

demonstrating t hat the Zoning Amendment is not constitutionally valid.

Appellants then appealed to this Court, which reversed the Trial Court

. We

concluded, inter alia , that the ZHB

, a ct ing within its discretion as the sole arbiter of

the credibility of witnesses and the weight to be afforded to their testimony, properly

determin ed that the Zoning Amendment constituted arbitrary spot zo ning.

Following this Court’s decision, Provco did not file a petition for all owance of

appeal with the Pennsylvania Supreme Court . T herefore, the Zoning Amendment

remains invalid.

In their supplemental briefs filed with this Court, the parties concede that

,
because the Resolution was based on the Zoning Amendment and the Zoning

Am endment has since been declared invalid

, the Resolution is similarly invalid. We5

agree. Borough Council’s conditional approval of Provco’s preliminary/final land

development plan s was premised on the Zoning Amendment’s inclusion of a retail

convenience s tore with fuel pumps as a permitted use in the RO District. Without

the Zoning Amendment

, however, there is no basis on which Borough Council could

have granted Provco land development approval for the Project because, under

Section 27

- 1202 of the Ordinance, a retail convenience store is not a permitted use

.
For these reasons

, we conclude that Borough Council erred in passing the

Resolution.

Accordingly, we reverse the Trial Court’s O rder.

ELLEN CEISLER

, Judge

Judges Cohn Jubelirer and Fizzano Cannon did not participate in the decision of this

case.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clare M. Dorsey, Kris J. Waller, : Lisa Rhodes, Famira Investments : and Provco Pineville Fayette, L.P. :

:

v. : No. 1114 C.D. 2020

: Borough Council of Conshohocken : Borough :

:

: Appeal of: Kris J. Waller and : Lisa Rhodes :

O R D E R

AND NOW, thi s 7 th day of December, 20 2 1

, the O rder of the Court of

Common Pleas of Montgomery County , dated October 2, 2020, is hereby

REVERSED.

ELLEN CEISLER , Judge