Baublitz v. CHANCEFORD TP. BD.

• Decision Date: 07 January 2005
• Citation: 865 A.2d 975
• Parties: Loretta BAUBLITZ t/a Baublitz Airport, v. CHANCEFORD TOWNSHIP BOARD OF SUPERVISORS, Appellant.
• Court: Pennsylvania Commonwealth Court

865 A.2d 975

Loretta BAUBLITZ t/a Baublitz Airport, v. CHANCEFORD TOWNSHIP BOARD OF SUPERVISORS, Appellant.

Commonwealth Court of Pennsylvania.

Argued December 7, 2004.

Decided January 7, 2005.

Timothy J. Bupp, York, for appellant.

Michael W. Flannelly, York, for appellee.

BEFORE: LEADBETTER, J., JUBELIRER, J., and JIULIANTE, Senior Judge.

OPINION BY Judge COHN JUBELIRER.

The Chanceford Township Board of Supervisors (Township) appeals an order of the Court of Common Pleas of York County that granted summary judgment in favor of Loretta Baublitz t/a Baublitz Airport (Baublitz), denied the Township's cross motion for summary judgment and issued a writ of mandamus to compel the Township "to enact appropriate airport hazard zoning."

This case centers on a private citizen's attempt to compel the Township to adopt a model airport hazard zoning ordinance to benefit her public airport. The airport relevant to this case is located on a five-acre parcel zoned as an agricultural district in Chanceford Township, York County. Loretta Baublitz's late husband operated the airport as a private airport on that property prior to the Township's adoption of a zoning ordinance in 1979, thus making the private airport a pre-existing non-conforming use. In the 1980's Mr. Baublitz applied for and received from the Pennsylvania Department of Transportation, Bureau of Aviation (DOT) a public airport license. The airport did not meet DOT's requirements for a public airport but, due to the pre-existing non-conformity, Mr. Baublitz was nonetheless permitted to operate it as a public airport. Among the airport's deficiencies were lack of runway length and width, improper slope of the runway and intrusion into the required air surface of land-based structures such as telephone poles and buildings.

In 1984 the legislature enacted the Airport Zoning Act, (AZA), 74 Pa.C.S. §§ 5911-5920. Beginning in 1991, Mr. Baublitz sought to persuade the Township to adopt a model airport hazard zoning ordinance, which he believed was required under the AZA.

Mr. Baublitz died in 2000 and the license, which was in his name only, expired. Under DOT's rules, a new license cannot be issued until the airport is fully compliant with Federal Aviation Agency (FAA) requirements. However, DOT issued a "letter of temporary operation" to Loretta Baublitz, and it continues to "extend" that letter pending compliance with FAA regulations.

Expensive and extensive renovations are needed to bring the airport into compliance. Baublitz has applied for and received a conditional state grant of funding but, before releasing the funds, DOT has required that she increase control over the runways and surrounding airspace and will not grant a license until she does so and until the Township enacts an airport hazard zoning ordinance.¹

Beginning in 2001, Baublitz sought to have the Township amend its zoning ordinance to include airport hazard zoning. The matter was discussed at Township meetings and, in addition, the Township commissioned a study. The study showed that the requested ordinance would put height restrictions on hundreds of landowners and thousands of acres, including the entire village of Brogue, the Township's largest residential area, as well as the entire business and commercial zones of the Township.² The Township has not acted definitively on the request to amend the zoning ordinance.

In 2003, Baublitz filed this mandamus action seeking to compel the Township to amend its ordinance to include airport hazard zoning. She based her lawsuit on Section 5912(a) of the AZA, which states:

Power to adopt airport zoning regulations

(a) GENERAL RULE. — In order to prevent the creation or establishment of airport hazards, every municipality having an airport hazard area within its territorial limits shall adopt, administer and enforce, under the police power and in the manner and upon the conditions prescribed in this subchapter and in applicable zoning law unless clearly inconsistent with this subchapter, airport zoning regulations for such airport hazard area. The regulations may divide the area into zones and, within the zones, specify the land uses permitted and regulate and restrict the height to which structures may be erected or objects of natural growth may be allowed to grow. A municipality which includes an airport hazard area created by the location of a public airport is required to adopt, administer and enforce zoning ordinances pursuant to this subchapter if the existing comprehensive zoning ordinance for the municipality does not provide for the land uses permitted and regulate and restrict the height to which structures may be erected or objects of natural growth may be allowed to grow in an airport hazard area.[³]

74 Pa.C.S. § 5912(a) (emphasis added).

After the parties engaged in discovery, they filed cross motions for summary judgment. The trial court granted Baublitz's motion and denied the Township's cross motion. This appeal followed.⁴

On appeal, the Township contends that the language in Section 5912(a) of the AZA is directory, not mandatory, and that common pleas erred in granting summary judgment⁵ and ordering it to adopt a model airport hazard zoning ordinance.⁶

The question of whether a statutory provision is directory or mandatory is ascertained from considering the entire act, its nature, its objective and the resultant consequences of a particular construction. Dubin v. County of Northumberland, 847 A.2d 769, 772 (Pa.Cmwlth.2004), petition for allowance of appeal denied, ___ Pa. ___, 863 A.2d 1149, 439 MAL 2004 (December 2, 2004) (quoting from the late Judge Woodside's opinion in Borough of Pleasant Hills v. Carroll, 182 Pa.Super. 102, 125 A.2d 466, 469 (1956)). Language is regarded as "mandatory" when it is the "essence of the thing required." Dubin, 847 A.2d at 772 (quoting Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 789 A.2d 858, 862 n. 3 (Pa.Cmwlth.2002)).⁷ In this case, the essence of the thing required is to "prevent the creation or establishment of airport hazards." 74 Pa.C.S. § 5912(a).

In considering the entire Act, we note, first, that the title of Section 5912 is "Power to adopt airport zoning regulations." This provision, thus, concerns a grant of power, not a legislative mandate. Furthermore, we observe that under Section 5915(c) of the AZA, which is the only provision that governs the actual content of an airport zoning ordinance, the legislature states that a municipality "shall adopt either in full or by reference any provision of any model zoning ordinance or other similar guidelines suggested or published by the [FAA] regarding airport hazard areas." 74 Pa.C.S. § 5915(c) (emphasis added). Section 411 of the Township's Zoning Ordinance (Ordinance) currently contains an airport zoning provision that prohibits flight obstructions, such as towers or chimneys, and limits building heights in approach zones "to provide a clear guide path from the end of the usable landing strip." In addition, this Ordinance provision incorporates, by reference, the standards of the FAA and DOT. We, therefore, conclude that Section 411 of the Ordinance is sufficient to comply with the AZA mandate appearing in Section 5915(c) because it incorporates FAA guidelines.

We also note that this existing Ordinance fulfills the "essence of the thing to be done" by the AZA, i....