Caln Nether v. BD. OF SUP'RS, THORNBURY

• Decision Date: 08 January 2004
• Citation: 840 A.2d 484
• Parties: CALN NETHER COMPANY, L.P., Appellant, v. BOARD OF SUPERVISORS OF THORNBURY TOWNSHIP, Chester County.
• Court: Pennsylvania Commonwealth Court

840 A.2d 484

CALN NETHER COMPANY, L.P., Appellant, v. BOARD OF SUPERVISORS OF THORNBURY TOWNSHIP, Chester County.

Commonwealth Court of Pennsylvania.

Argued November 3, 2003.

Decided January 8, 2004.

Joseph G. Riper, Kennett Square, for appellant.

Ronald M. Agulnick, West Chester, for appellee.

BEFORE: LEADBETTER, Judge, and SIMPSON, Judge, and FLAHERTY, Senior Judge.

OPINION BY Judge SIMPSON.

In this land use appeal, Caln Nether Company, L.P. (Landowner) challenged the Thornbury Zoning Ordinance of 1983, as amended, (Ordinance) as exclusionary, alleging it failed to provide for "new and used car dealership" use. The Thornbury Township Board of Supervisors (Supervisors) rejected Landowner's challenge and proposed curative amendment, concluding the Ordinance permitted a car dealership in the Township's "B" Business District under the undefined "retail store" use classification. The Chester County Court of Common Pleas (trial court) affirmed. This appeal by Landowner followed.

Landowner is the equitable owner of a 5.89-acre lot in Thornbury Township (Subject Property).¹ The Subject Property lies in an A Agricultural and Residential (A-R) zoning district. Permitted uses in the A-R district include single-family dwellings, agriculture and several accessory uses. Section 155-10(A)-(C) of the Ordinance.²

The Subject Property, currently unimproved, is bordered by Green Tree Drive, a township road which serves as the entrance to Thornbury Estates residential development; Wilmington Pike (U.S. Route 202); an automobile dealership in a neighboring township; and residential properties. Landowner seeks to erect a new and used car dealership on the Subject Property.

Landowner filed a curative amendment challenge with the Township pursuant to Section 609.1(a) of the Pennsylvania Municipalities Planning Code (MPC),³ asserting the Ordinance unlawfully excluded car dealership use; it proposed an amendment to cure the invalidity. The proposed amendment would create a "Highway Commercial" zoning district permitting "automobile dealership use" with no prohibition on outdoor storage or display of vehicles.

Landowner based its validity challenge on three grounds: (i) the use provisions in the Ordinance did not provide for a new and used car dealership; (ii) if prohibition on curbside display of merchandise rendered it impossible to conduct the proposed use; and (iii) if prohibition on outside storage had a de facto exclusionary effect on the use.

Following 18 hearings, the Supervisors, issued a 68-page opinion, which rejected Landowner's proposed amendment and denied relief. The Supervisors concluded car dealerships were not unlawfully excluded; rather, car dealership use fell within the Ordinance's undefined "retail store" category. See Section 155-35(1) of the Ordinance. Specifically, the Supervisors determined the principal function of a car dealership is the retail sale of automobiles, and a "store" is a "place where merchandise is offered for retail sale to consumers." Supervisors' Op. at 15-16. The Supervisors further noted the term "store" does not require the business be conducted entirely indoors.

The Supervisors rejected Landowner's arguments that business district limitations on front yard display of merchandise and outdoor storage of vehicles precluded car dealership use. The Supervisors determined some front yard display of vehicles is permitted, and there is no prohibition on parking vehicles outside so they may be viewed from the road. In addition, the Supervisors determined some outdoor storage of vehicles is permitted. As a result, the Supervisors rejected Landowner's claimed de facto exclusion. Landowner appealed to the trial court.

Following the appeal, Landowner filed a motion requesting the trial court take additional evidence, which was denied. Thereafter, the trial court issued an order affirming the Supervisors' decision. Landowner appealed to this Court,⁴ and the trial court ordered Landowner to file a Concise Statement of Matters Complained of on Appeal pursuant to Pa. R.A.P. 1925(b). Landowner filed an eight-page 1925(b) Statement raising 23 issues.

Thereafter, the trial court issued a 1925(a) opinion, in which it criticized Landowner's 1925(b) Statement. The trial court recommended this Court consider quashing the appeal because Landowner's 1925(b) Statement was too lengthy and unfocused to permit the trial court to formulate an adequate response.

I.

Before reviewing the merits, we address the Supervisors' motion to dismiss this appeal. The Supervisors argue dismissal is warranted here because Landowner's prolix 1925(b) Statement violates Pa. R.A.P.1925(b) (requiring a "concise" statement of matters complained of). Pa. R.A.P.1925(b) states:

Direction to file statement of matters complained of. The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.

Pa. R.A.P.1925(b). "Pa. R.A.P.1925 is intended to aid trial judges in identifying and focusing upon those issues which the parties plan to raise on appeal. Rule 1925 is thus a crucial component of the appellate process." Commonwealth v. Lemon, 804 A.2d 34, 36 (Pa.Super.2002) (citing Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998)). Pursuant to this Rule, issues are considered waived where no 1925(b) statement was filed or when an issue was not included in a filed statement.⁵

Further, our courts acknowledge a concise statement that is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no statement at all. Commonwealth v. Seibert, 799 A.2d 54 (Pa.Super.2002). When a trial court has to "guess" what issues an appellant is appealing, that is not enough for meaningful review. Commonwealth v. Dowling, 778 A.2d 683 (Pa.Super.2001). Moreover, when an appellant fails to address the issues pursued on appeal in a concise manner, the trial court is clearly impeded in its preparation of legal analysis. In re Estate of Daubert, 757 A.2d 962 (Pa.Super.2000).

Landowner's decision to raise 23 issues in its 1925(b) Statement hindered the trial court in its preparation of legal analysis. Raising 22 issues before this Court is equally problematic.⁶ The wisdom of the decision to address numerous issues, including those with obscure merit, is debatable; however, it does not serve as grounds for dismissal. Therefore, the Supervisors' motion to dismiss is denied.⁷

As to the merits, while Landowner's Brief raises an abundance of points, Landowner basically assigns five errors. It asserts: (i) the Supervisors erred in determining a car dealership is not de jure excluded on the basis it is permitted as a "retail store"; (ii) the Supervisors erred in failing to conclude the use is de facto excluded because of restrictions on outdoor storage and front yard display of vehicles; (iii) the Supervisors improperly excluded evidence; (iv) two Supervisors should have recused because they demonstrated bias; and (v) the trial court erred in denying its motion to take additional evidence.

Preliminarily, we note the Supervisors are the fact-finder here, with exclusive province over matters of credibility and weight to be afforded the evidence. Heritage Bldg. Group, Inc. v. Bedminster Township Bd. of Supervisors, 742 A.2d 708 (Pa.Cmwlth.1999). As such, the Supervisors may reject even uncontradicted testimony if they find it lacking credibility. Id. We will not engage in fact-finding or disturb the Supervisors' credibility determinations on appeal. In re Brickstone Realty Corp., 789 A.2d 333 (Pa.Cmwlth.2001).

II.

Landowner argues the Supervisors erred in failing to determine the Ordinance is invalid on the grounds car dealership use is de jure or de facto excluded throughout the Township.

Regarding the heavy burden associated with a validity challenge, our Supreme Court stated:

Zoning ordinances are presumed constitutional. Anyone challenging the constitutionality of such an ordinance bears a heavy burden of proof. Uncertainties in the interpretation of an ordinance are to be resolved in favor of a construction which renders the ordinance constitutional. In addition, zoning ordinances are to be liberally construed to allow the broadest possible use of land.

Upper Salford Township v. Collins, 542 Pa. 608, 610, 669 A.2d 335, 336 (1995).

A. De Jure

In a de jure challenge, the landowner alleges the ordinance totally excludes a proposed use. H.R. Miller Co., Inc. v. Bd. of Supervisors of Lancaster Township, 529 Pa. 478, 605 A.2d 321 (1992). The issue of whether a zoning ordinance is exclusionary is a question of law, reviewable by this Court. Cracas v. Bd. of Supervisors of W. Pikeland Township, 89 Pa.Cmwlth. 424, 492 A.2d 798 (1985). Here, Landowner alleged the Ordinance totally excludes car dealership use. The Supervisors determined car dealership use falls within the undefined "retail store" use category. Landowner contends the Supervisors erred in determining a car dealership falls within this category.

The fact that a zoning ordinance does not contain a specific provision addressing a proposed use is not, in and of itself, a basis for finding an unconstitutional exclusion of that use. Kratzer v. Bd. of Supervisors of Fermanagh Township, 148 Pa.Cmwlth. 454, 611 A.2d 809 (1992). Where an ordinance does not mention a specific use, we must determine whether the proposed use is included within another use specifically provided for. Id. When a proposed use can be considered within another zoning classification or, where a zoning ordinance is broad enough to encompass the proposed use, there is no de jure exclusion. Id.

The issue of whether a proposed use falls within...