Claremont Properties, Inc. v. Board of Tp. Sup'rs of Middlesex Tp.
| Decision Date | 12 August 1988 |
| Citation | 118 Pa.Cmwlth. 527,546 A.2d 712 |
| Parties | CLAREMONT PROPERTIES, INC., Appellant, v. BOARD OF TOWNSHIP SUPERVISORS OF MIDDLESEX TOWNSHIP, Appellee. |
| Court | Pennsylvania Commonwealth Court |
Charles B. Zwally, Paula J. Leicht, Shearer, Mette, Evans & Woodisde, Harrisburg, for appellant.
Richard E. Snelbaker, Charles D. Vance, Jr., Snelbaker, Elicker & Silver, Mechanicsburg, for Middlesex Tp. etc.
Charles E. Zaleski, Tive, Hetrick & Pierce, Harrisburg, for Richard J. Boyer, et al.
Before CRAIG, COLINS, JJ., and KALISH, Senior Judge.
Claremont Properties, Inc. (Claremont) appeals from an order of the Court of Common Pleas of Cumberland County that (1) denied Claremont's motion to take additional evidence in its appeal to the court from a denial of Claremont's subdivision application by the Board of Township Supervisors of Middlesex Township and (2) dismissed Claremont's appeal.
The principal issue involved is whether a trial court may dismiss a subdivision appeal in the course of ruling on a motion to take additional evidence based upon the judge's recollection that the applicant's counsel conceded at oral argument on that motion that the application did not meet the requirements of the ordinance.
On May 5, 1986, Claremont submitted to the township supervisors a subdivision application in the form of a land development plan and supporting documentation for 15.15 acres of a site that Claremont owns in Middlesex Township. The plan proposed the construction of a truck terminal, storage facilities and an office building. Claremont later submitted additional engineering data pursuant to a request by the township's engineer.
When Claremont filed the application, the property was located in an industrial district under the township's zoning ordinance, and the proposed uses were permitted in such a district. As the result of an amendment to the zoning ordinance adopted by the township supervisors after Claremont filed its application, only residential and agricultural uses are now permitted for this property.
After receiving planning commission recommendations, the township supervisors held a public meeting on July 2, 1986, and received unsworn comments both for and against the proposal. They then voted to deny approval of Claremont's application and issued a written decision on July 3, 1986. Claremont appealed to the court of common pleas. The court granted leave to intervene to a group of persons living near the proposed development who make up the Middlesex Action Committee.
On September 18, 1986, Claremont filed a Motion for a Hearing to Present Additional Evidence, answered by the appellee township supervisors and the intervenors. Counsel for Claremont and for the township supervisors argued the motion before the court of common pleas on December 10, 1986. On December 17, 1986, the court issued the order described above, both denying the motion for a hearing and dismissing the appeal. After discussing in detail the rationale for refusing to accept additional evidence, the opinion stated that because Claremont had conceded that its application did not meet the requirements of the township ordinance, there was no need to have the merits of the appeal listed and argued.
Claremont filed a petition for reconsideration on December 24, 1986, answered by the township supervisors and the intervenors. The petition averred, among other things, that Claremont had not conceded that its plan did not meet the requirements of the ordinance.
On January 15, 1987, Claremont filed a notice of appeal to the Commonwealth Court. The common pleas court judge who had dismissed the appeal issued a memorandum opinion on February 5, 1987, which stated that, although the judge specifically recalled Claremont's counsel's conceding at oral argument that Claremont's plan did not meet the requirements of the township's ordinance, the court would be willing to consider whether fairness required granting the petition for reconsideration to the extent of allowing counsel to brief and argue the merits of the initial appeal. However, the judge noted that he was precluded from acting further in the matter by Pa.R.A.P. 1701(b)(3)(ii), which permits the court to reconsider only if the court issues an order expressly granting reconsideration within the period prescribed for the filing of a notice of appeal, in this case, thirty days.
Where the common pleas court does not take additional evidence in a subdivision appeal, the scope of review of this court is to determine whether the governing body of the municipality abused its discretion or committed error of law. Brauns v. Borough of Swarthmore, 4 Pa.Commonwealth Ct. 627, 288 A.2d 830 (1972). Where the common pleas court does take additional evidence, it must decide the case de novo, and this court's scope of review is to decide whether the court, rather than the governing body, committed abuse of discretion or error of law. Harrisburg Fore Associates v. Board of Supervisors of Lower Paxton Township, 21 Pa.Commonwealth Ct. 137, 344 A.2d 277 (1975). Here, although the court declined to conduct a hearing to receive additional testimony, the court did purport to receive additional evidence in the form of the alleged concession by Claremont during the common pleas court proceedings. Therefore the latter scope of review applies.
Claremont first contends that the common pleas court abused its discretion and committed error of law by dismissing Claremont's entire appeal in the context of a ruling on a procedural motion for an additional hearing, because that dismissal violated both the Pennsylvania Municipalities Planning Code (MPC) 1 and due process of law.
Section 1006(1)(a) of the MPC, 53 P.S. § 11006(1)(a), permits a landowner to appeal directly to the court from a decision of the governing body under a subdivision ordinance. Where the municipality provides a procedure for the submission of preliminary or tentative plans, that section permits a landowner to elect to treat an adverse decision on such a plan as final and appealable. Section 1010 of the MPC, 53 P.S. § 11010, provides in part:
If upon motion it is shown that proper consideration of the zoning appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive additional evidence.... If the record below includes findings of fact made by the governing body, board or agency whose decision or action is brought up for review and the court does not take additional evidence ..., the findings of the governing body, board or agency shall not be disturbed by the court if supported by substantial evidence. If the record does not include findings of fact, or if additional evidence is taken by the court ..., the court may make its own findings of fact based on the record below as supplemented by the additional evidence, if any.
Claremont argues that its section 1006(1)(a) right to an appeal to the court is meaningless if the court precludes Claremont from presenting the substantive merits of its case. In Claremont's view, section 1010 contemplates a two-step process whereby (1) the court either grants or denies the request to hear additional evidence, and then (2) the court proceeds to decide the case on the record, which includes additional evidence from a hearing if the hearing request was granted. Claremont asserts that if the court denies the request for an additional hearing, then, in order to provide the appeal permitted by section 1006, the court must permit a subsequent argument to consider the merits on the basis of the record made before the governing body.
Here the common pleas court proceeded normally through the procedure described by Claremont, accepting briefs and hearing argument on a request for a hearing to take additional evidence and then denying that request in its order dated December 17, 1986. The opinion then stated, "Since Appellant concedes that its plan does not meet the requirements of the township ordinance, there is no need to have the merits of the appeal listed and argued." Reproduced Record 164a. Claremont notes that the opinion offered no explanation as to where Claremont made the alleged concession, although the court's later memorandum opinion refers to the judge's recollection that Claremont's counsel made the concession at oral argument on the motion to receive additional evidence.
The township supervisors and the intervenors respond to Claremont's argument based on the MPC by asserting that Claremont raised the merits of its appeal in the context of the motion for a hearing, thereby transforming that proceeding into something closer to a trial than to motion practice. However, the supervisors and intervenors do not point to anything in Claremont's motion itself in support of this contention. Our review of the motion shows that it confined itself to a listing of instances in which the township supervisors allegedly relied on information outside the record in reaching their decision or allegedly failed to explain the factual basis for the applicability of certain provisions of the township ordinance...
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