In re Appeal of Thompson, 033006 PACCA, 266 CD 2005

Docket Nº:266 CD 2005
Party Name:In re Appeal of Thompson
Case Date:March 30, 2006
Court:Court of Appeals of Pennsylvania
 
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In Re: Appeal of Edwin R. Thompson and Karen J. Thompson from the decision dated January 2, 2004 of the Horsham Township Council

Appeal of: Orleans Corporation and Orleans Homebuilders, Inc.

No. 266 C.D. 2005

Court of Appeals of Pennsylvania

March 30, 2006

Argued: November 15, 2005

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION

JAMES R. KELLEY, Senior Judge

Before this Court is the appeal of Orleans Homebuilders, Inc. and Orleans Corporation (collectively, Appellants) from a decision of the Court of Common Pleas of Montgomery County (trial court), which sustained the appeal of Edwin R. Thompson and Karen J. Thompson (Thompsons) from the decision of the Horsham Township Council (Council) and reversed Council’s decision granting Appellants’ conditional use application. Also before the Court is an Application for Relief filed by Appellants seeking reimbursement for the cost of the reproduced record. We reverse the order of the trial court and deny Appellants’ application for relief.

Orleans Homebuilders, Inc. is the equitable owner of property located on the northwest corner of Welsh Road and Mann Road in Horsham Township, Montgomery County (Property). The Property is approximately 39.5 acres and is located in an R-2 zoning district (low density residential district) as established by the Horsham Township Zoning Ordinance (Ordinance), as amended.1] There exists on the Property a watercourse, which curves along the southeast boundary of the Property. A Riparian Corridor Conservation District (RCCD),2] runs on either side of the watercourse. The RCCD is divided into two zones. Zone One is the area within 25 feet of the watercourse; Zone Two begins at the outer edge of Zone One and occupies an additional width of 50 feet. Therefore, the entire RCCD encompasses a width of 75 feet on each side of the watercourse.

Appellants filed with Council an application for conditional use approval3] to permit disturbance within the RCCD to allow a roadway, utility crossings, stormwater discharge, and portions of detention basins. The relief was requested in connection with Appellants’ preliminary subdivision and land development plan (Subdivision Plan), filed pursuant to the “Horsham Township Subdivision and Land Development Ordinance of 1976, as amended” (SALDO), which proposes to subdivide the Property into 22 lots, 20 of which would be developed with single family houses, two of which, Lots 21 and 22, would be developed with three detention basins.

The Township Planning Commission reviewed the conditional use application and recommended that Council approve the same. A series of public hearings - 17 to be exact - on the application were held before Council. The Thompsons, who are owners and residents of a nearby property, appeared at the hearings before Council and presented testimony and evidence in opposition to the application.

On January 2, 2004, Council issued an adjudication granting Appellants’ application for conditional use of the Property subject to 17 conditions. On January 30, 2004, the Thompsons appealed Council’s decision to the trial court. Appellants intervened in the appeal. Without receiving additional evidence, the trial court made its own findings of fact and conclusions of law, and imparted its own interpretation of various Ordinance provisions. By order dated January 6, 2005, the trial court sustained the Thompsons’ appeal and reversed Council’s decision to grant the conditional use application. Appellants’ appeal now follows.4] Council has also filed a brief in this matter in support of Appellants’ appeal. Appellants present the following issues for our review:

1. Did the trial court commit an error of law and/or abuse of its discretion by substituting its judgment for Council and finding contrary to Council that the landowner failed to sustain the burden of proof required for the relief requested in the conditional use application?

2. Did the trial court commit an error of law and/or abuse of its discretion by substituting its judgment for Council and finding contrary to Council finding that the Thompsons had sustained the burden of proof required for Council to deny the application merely by pointing out alleged design deficiencies in the Subdivision Plan?

3. Did the trial court commit an error of law and/or abuse of its discretion by substituting its judgment for Council, which resulted in a finding that the decision was not supported by substantial evidence?

4. Did the trial court commit an error of law and/or abuse of its discretion by substituting its judgment for Council and making its own determinations concerning the weight of the evidence and the credibility of witnesses?

5. Did the trial court commit an error of law and/or abuse of its discretion by substituting its judgment for Council and finding that Council has made procedural and/or substantive errors of law in the decision, specifically but not limited to the attachment of conditions as were appropriate to clarify the Ordinance and/or to ensure that appropriate design changes would be made to the Subdivision Plan?

SCOPE OF REVIEW

Appellants contend that Council did not err or abuse its discretion in making determinations concerning the weight of evidence and credibility of witnesses and that the trial court exceeded its authority by substituting its judgment for that of Council. We agree.

The proper scope of review in this appeal is set forth in Section 754(b) of Local Agency Law, 2 Pa. C.S. §754(b); SSEN, Inc. v. Borough Council of Borough of Eddystone, 810 A.2d 200, 206 (Pa. Cmwlth. 2002). Section 754(b) provides:

(b) Complete record.--In the event a full and complete record of the proceedings before the local agency was made, the court shall hear the appeal without a jury on the record certified by the agency. After hearing the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter B of Chapter 5 (relating to practice and procedure of local agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may enter any order authorized by 42 Pa. C.S. §706 (relating to disposition of appeals).

2 Pa. C.S. §754(b). A “full and complete record” is defined as “a complete and accurate record of the testimony taken so that the appellant is given a base upon which he may appeal and, also, that the appellate court is given a sufficient record upon which to rule on the questions presented.” City of Philadelphia v. Board of License and Inspection Review, 590 A.2d 79, 86 (Pa. Cmwlth.) (quoting Springfield School District v. Shellem, 328 A.2d 535, 538 (Pa. Cmwlth. 1974)), petition for allowance of appeal denied, 529 Pa. 625, 600 A.2d 540 (1991). In the event a full and complete record of the proceedings before the local agency was not made, the court may hear the appeal de novo, or may remand the proceedings to the agency for the purpose of making a full and complete record or for further disposition in accordance with the order of the court. Section 754(a) of Local Agency Law, 2 Pa. C.S. §754(a).

Pursuant to Section 754(b), a reviewing court may properly reverse where it determines that constitutional rights were violated, an error of law was committed, the procedure before the agency was contrary to statute, or the necessary findings of fact were not supported by substantial evidence. SSEN; Sparacino v. Zoning Board of Adjustment, City of Philadelphia, 728 A.2d 445 (Pa. Cmwlth. 1999), petition for allowance of appeal denied, 565 Pa. 680, 775 A.2d 811 (2001). A reviewing court may look only to the evidence relied upon by the fact finder, in this case Council, to see if it is sufficiently substantial to support the findings. Section 754(b) of the Local Agency Law; SSEN; Kish v. Annville-Cleona School District, 645 A.2d 361, 363-364 (Pa. Cmwlth. 1994). “Nowhere in Section 754 is the reviewing court given general authority to make its own findings of fact and conclusions of law when the local agency has developed a full and complete record... .” Society Created to Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment of the City of Philadelphia, 804 A.2d 147, 150 (Pa. Cmwlth. 2002).

A reviewing court must accept the credibility determinations made by the municipal body which hears the testimony, evaluates the credibility of the witnesses and serves as fact finder. Young v. Pistorio, 715 A.2d 1230 (Pa. Cmwlth. 1998); Collier Stone Company v. Zoning Hearing Board for the Township of Collier, 710 A.2d 123 (Pa. Cmwlth. 1998). The reviewing court is not to substitute its judgment on the merits for that of the municipal body. East Torresdale Civic Association v. Zoning Board of Adjustment of Philadelphia County, 536 Pa. 322, 639 A.2d 446 (1994); Kish; Snyder v. Railroad Borough, 430 A.2d 339 (Pa. Cmwlth. 1981). Assuming the record demonstrates the existence of substantial evidence, the court is bound by the municipal body’s findings which are the result of resolutions of credibility and conflicting testimony. Snyder.

In this matter, Council conducted 17 evidentiary hearings and has developed a full and complete record. Because a full and complete record was made before the Council, it is that body and not the trial court which is the ultimate factfinder in these proceedings. Andras v. Wyalusing Borough, Wyalusing Borough Council, 796 A.2d 1047, 1049 (Pa. Cmwlth.), petition for allowance of appeal denied, 570 Pa. 688, 808 A.2d 573 (2002). As factfinder, Council properly made determinations...

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