872 A.2d 206 (Pa.Cmwlth. 2005), Crystal Forest Associates, LP v. Buckingham Tp. Sup'rs
| Docket Number | . |
| Citation | 872 A.2d 206 |
| Date | 16 March 2005 |
| Parties | CRYSTAL FOREST ASSOCIATES, LP v. BUCKINGHAM TOWNSHIP SUPERVISORS. Appeal of: Buckingham Township. |
| Court | Pennsylvania Commonwealth Court |
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Argued Nov. 2, 2004.
Reargument Denied May 12, 2005.
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Craig A. Smith, Newtown, for appellant.
Marc B. Kaplin, Blue Bell, for appellees, Crystal Forest Associates, L.P. and Frank McKee, Jr., Trustee.
BEFORE: LEADBETTER, Judge, LEAVITT, Judge, and KELLEY, Senior Judge.
OPINION
KELLEY, Senior Judge.
Buckingham Township (Township) appeals from an order of the Court of Common Pleas of Bucks County (trial court) which: (1) reversed a decision of the Buckingham Township Board of Supervisors (Board) denying the challenge of Crystal Forest Associates, L.P. and Frank McKee, Jr. (collectively McKee) to the validity of the Buckingham Township Zoning Ordinance (Ordinance); (2) directed that McKee's petition in the form of a curative amendment be granted; and (3) directed that a permit be granted to McKee to develop a mobile home park as proposed subject only to the dimensional requirements that are set forth in Article 17 of the Ordinance as applied to mobile home parks. 1 We reverse.
McKee is the owner and operator of Buckingham Springs, a 645-unit mobile home park located in the Township's only Mobile Home Park Residential District (MHP District). 2 Buckingham Springs is the only property located in the MHP District and the only mobile home park in the Township. Nearly 100% of the residents are age 55 or older. R.R. at 14f. There is an average of 4.1 units per acre
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and the park has been completely built out since 1996. R.R. at 14c, 14f. McKee also owns two parcels of l comprised of 55.7 acres 24.9 acres (Property) that are contiguous to Buckingham Springs. 3 The Property is located in an Agricultural-1 (AG-1) District. 4 In 1995, McKee began an effort to have the Property rezoned so that he could extend Buckingham Springs in order to meet the increasing dem for lots homes in the park. Notwithsting a determination by the Township's Planning Commission that McKee's proposed development would benefit the community, 5 the Township denied his request.
McKee initiated his first action in 1996 in the form of a substantive challenge to the Ordinance with a proposed curative amendment. McKee alleged that the Ordinance was unconstitutionally de facto exclusionary with respect to mobile home parks and that the Township did not provide for its "fair share" of land on which mobile home parks could be developed. 6 McKee was unsuccessful at the Board level, at the trial court level and before this Court. Crystal Forest Associates, L.P. v. Buckingham Township Board of Supervisors (Pa.Cmwlth., No. 61 C.D.1998, filed November 2, 1998). 7 McKee's petition for allowance of appeal to the Pennsylvania
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Supreme Court was also denied. In re Crystal Forest Associates, L.P., 559 Pa. 707, 740 A.2d 235 (1999).
In 1998, McKee filed a second substantive challenge to the Ordinance with a proposed curative amendment, again alleging that the Ordinance was unconstitutionally de facto exclusionary with respect to mobile home parks. This second challenge was based on the allegation that no land in the Township was available for development of mobile home parks. This Court ultimately affirmed the trial court's dismissal of McKee's action pursuant to the doctrine of res judicata. Crystal Forest Associates, L.P.; Frank McKee and Helen McKee v. Zoning Hearing Board of Buckingham Township (Pa.Cmwlth., No. 1758 C.D.1999, filed April 3, 2000).
In 1996, while McKee's first fair share action was pending, the Township amended the Ordinance to allow the development of mobile home parks as a conditional use in an AG-1 District. Thus, as the Ordinance now stands, there are two zoning districts in which use B4, Mobile Home Park, is expressly permitted: in an AG-1 District as a permitted conditional use and in the MHP District as a use permitted by right. Ordinance §§ 501.B, 1701. As a result of the 1996 amendment, the Ordinance also provides, in pertinent part, as follows:
Use B4 when used in the AG-1 district shall not be subject to the requirements of Section 405.B4, Mobile Home Parks, but shall be subject instead to all of the following requirements:
* * *
b. Mobile home parks are permitted in accordance with the requirements for Use B2 Cluster with Transferable Development Rights, 8 as set forth in Section 502.A.4, with the exception that the requirements for minimum average lot area per site, minimum lot area, and minimum lot width at building setback line shall not be applicable to Mobile Home Parks in the AG-1 district.
Ordinance § 502.A.6, added by 96-01 (May 8, 1996). The 1996 amendment resulted in greater restrictions on mobile home parks in an AG-1 District than in an MHP District with respect to maximum density of units per acre, minimum open space, maximum impervious surface, and other dimensional requirements. Additionally, a landowner must purchase transferable development rights in order to develop a mobile home park in an AG-1 District, while no such requirement is imposed in the MHP District.
In December 2000, McKee initiated the present action challenging the Ordinance requirements as unduly restrictive because they make development of a mobile home park in an AG-1 District economically unfeasible. In conjunction with his substantive challenge, McKee proposed a curative amendment to the Ordinance pursuant to Section 609.1 of the Municipalities Planning Code (MPC). 9 McKee's curative
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amendment sought to make mobile home parks in an AG-1 District subject to the same density and dimensional restrictions applicable to mobile home parks in the MHP District. 10 The Board conducted nineteen public hearings from February 2001 through October 2002. Following the hearings, the Board issued a decision on February 26, 2003, denying McKee's challenge and upholding the validity of the challenged restrictions.
McKee appealed the Board's decision to the trial court. McKee also petitioned to supplement the record, arguing that the Board and the Township's solicitor displayed bias against him throughout the hearings by, inter alia, excluding relevant testimony and stifling cross-examination of the Township's witnesses. The trial court granted McKee's motion and began conducting de novo hearings on November 19, 2003. Following these hearings, the trial court issued an opinion and order setting forth its own independent findings of fact and conclusions of law. The trial court reversed the Board's decision and granted McKee's curative amendment application. The trial court further directed the Board to grant McKee a permit to develop the proposed mobile home park on the Property subject to the dimensional requirements set forth in the Ordinance pertaining to MHP Districts. The trial court retained jurisdiction for the purpose of implementing its order. This timely appeal by the Township followed.
On appeal, 11 the Township raises three issues which we have reordered for purposes of our discussion: (1) Whether the trial court erred in granting McKee's motion to supplement the record; (2)
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Whether the trial court erred or abused its discretion in making certain procedural and evidentiary rulings during the de novo hearing; and (3) the trial court erred in finding that the Ordinance was unduly restrictive and in granting McKee's curative amendment application on that basis.
The Township first argues that the trial court erred in reopening the record, on McKee's motion, and holding hearings de novo. Section 1005-A of the MPC provides, in relevant part, as follows:
If, upon motion, it is shown that proper consideration of the land use appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive additional evidence, may remand the case to the body, agency or officer whose decision or order has been brought up for review, or may refer the case to a referee to receive additional evidence.
53 P.S. § 11005-A (emphasis added). Whether the presentation of additional evidence is to be permitted under this provision is a matter within the discretion of the trial court. Eastern Consolidation and Distribution Services, Inc. v. Board of Commissioners of Hampden Township, 701 A.2d 621, 624 (1997). In making that determination,
[a] court of common pleas faces compulsion to hear additional evidence in a zoning case only where the party seeking the hearing demonstrates that the record is incomplete because the party was denied an opportunity to be heard fully, or because relevant testimony was offered and excluded.
Id. (quoting Appeal of Little Britain Township From Decision of Zoning Hearing Board of Little Britain Township, Lancaster County, Pa., 651 A.2d 606, 613 (Pa.Cmwlth.1994)) (emphasis in original).
In this case, the trial court reviewed the transcripts of the nineteen public hearings conducted by the Board. The trial court found that counsel for the Township, by interposing constant objections, effectively prevented McKee and his planning expert from offering complete testimony. By contrast, the trial court found that the Township's expert witnesses were allowed to testify at length on a number of topics that were only tangentially related to the issues at hand. In the trial court's opinion, the record reflected "a constant adversarial and biased spirit toward McKee's witnesses and disregard for the objections of McKee's counsel." Trial Court Opinion at 10. Indeed, the trial court found that the Township's counsel, and there were several, used the Board hearing to "filibuster," by making an objection to each question asked of McKee's witnesses that they followed with speeches on the merits of the objections. Trial Court Opinion at 4-5. Given...
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