Oasis v. Zoning Hearing Bd. of S. Annville Twp.

• Decision Date: 18 June 2014
• Citation: 94 A.3d 457
• Parties: Servants OASIS, Appellant v. ZONING HEARING BOARD OF SOUTH ANNVILLE TOWNSHIP.
• Court: Pennsylvania Commonwealth Court

94 A.3d 457

Servants OASIS, Appellant

v.ZONING HEARING BOARD OF SOUTH ANNVILLE TOWNSHIP.

Commonwealth Court of Pennsylvania.

Argued March 10, 2014.

Decided June 18, 2014.

David J. Tshudy, Harrisburg, for appellant.

Josele Cleary, Lancaster, for appellee South Annville Township.

Michael H. Small, Palmyra, for appellee Zoning Hearing Board of South Annville Township.

BEFORE: BONNIE BRIGANCE LEADBETTER, Judge, and MARY HANNAH LEAVITT, Judge, and PATRICIA A. McCULLOUGH, Judge.

OPINION BY Judge LEAVITT.

Servants Oasis appeals an order of the Lebanon County Court of Common Pleas (trial court) rejecting its application for a special exception to develop a religious retreat on its land in South Annville Township. In doing so, the trial court affirmed the decision of the South Annville Township Zoning Hearing Board (Zoning Board). Because Servants Oasis satisfied the objective criteria for a special exception found in the South Annville Township Zoning Ordinance (Zoning Ordinance),¹ we reverse.

Servants Oasis, a 501(c)(3) non-profit organization,² proposes to develop a religious retreat on three contiguous parcels of land in Lebanon County (Property), of which approximately 153 acres are located in the Rural Residential District in South Annville Township. The Property is owned by Roy and Janice Smith and has been developed with a single-family home and several accessory buildings. The Smiths leased the Property to Servants Oasis in 1999 for a term of 20 years and have recently extended the lease for an additional 20 years.

The sole access to the Property is from Wild Apple Drive, which is a public road that intersects Route 322 and terminates in a cul-de-sac near the northeast corner of the Property. Gumtree Road is a private road on the Property that connects to Wild Apple Drive. The closest main road is Route 322, which is approximately 5,000 feet from the Property.

On March 4, 2011, Servants Oasis filed an application with the Zoning Board requesting a special exception to develop a religious retreat on the Property. ³ The application stated that the maximum occupancy of the Property would be 297 persons at full build-out. The application explained that Servants Oasis planned to construct a building with overnight facilities for up to 93 guests. The retreat would be operated by volunteers for the foreseeable future and built in phases, depending on the availability of funding.

Currently, the Property has an on-lot sewage treatment system with capacity to serve 40 overnight campers or 50 daytime visitors. In its application, Servants Oasis included a water and sewer feasibility study for construction of a single community on-lot sewage disposal system, such as an elevated sand bed, to accommodate the additional visitors expected for the full build-out phase. This study reported that a packaged wastewater treatment plant would be too costly.

In response to questions from the Township engineer about the feasibility of on-lot sewage treatment, Servants Oasis did additional testing and submitted a revised sewer feasibility study on February 23, 2012. The February study reported that site testing did not produce a suitable place on the Property for an on-lot treatment system, as proposed in the application. It went on to report that a packaged wastewater treatment facility would be feasible based upon the limits provided by the Pennsylvania Department of Environmental Protection (DEP) for discharge into Buckholder Run, a stream that runs through the Property. The February study also stated that the packaged wastewater treatment system would meet DEP's effluent discharge but not “the effluent mass loading limitations for Total Nitrogen and Total Phosphorus for this site.” Reproduced Record at 1103a (R.R. ––––). Accordingly, the February study acknowledged that Servants Oasis would need to purchase nutrient trading credits.⁴

On April 13, 2012, Servants Oasis submitted a final sewer feasibility study. In the April study, Servants Oasis indicated that there were several spots on the Property that “may be suitable for installation of several elevated sand mound beds.” R.R. 1155a. Consequently, Servants Oasis proposed to construct multiple on-lot sewage disposal systems instead of a single packaged treatment facility. In conclusion, the April study stated:

During the initial phase of the project the existing on-lot sewage treatment system can be utilized [to accommodate 40 to 50 visitors], as previously permitted and approved. Subsequent phases will require the construction of additional on-lot sewage treatment systems in order to accommodate the sewage flow from each development phase.

R.R. 1157a. Should multiple on-lot sewage treatment systems prove not feasible, the April study concluded that “the next most feasible and economical option for treating the sewage flows from this project is the construction of an on-site packaged wastewater treatment facility.” R.R. 1157a–58a. The April study concluded that “it is anticipated that the sanitary sewage flows from the proposed use can be safely treated on the project site.” R.R. 1158a.

Public hearings were held before the Board on May 21, 2011; August 18, 2011; October 13, 2011; March 22, 2012; April 26, 2012; May 31, 2012; July 12, 2012; August 23, 2012; and September 20, 2012.

At the April 26, 2012, hearing, Michael R. Swank, P.E., Servants Oasis' engineer, testified about the final April sewer feasibility study. Swank stated that in order to design, permit and obtain approval for an on-lot disposal system, Servants Oasis would need to do percolation tests and obtain the county planning department's approval. Swank also stated that in the event the on-lot systems could not be built, a packaged wastewater treatment plant would be constructed. Swank acknowledged that he was not certain that Servants Oasis would be able to obtain the necessary nutrient credits for such a system. However, at the next hearing on May 31, 2012, Swank testified that nutrient credits were available for purchase. At the July 12, 2012, hearing, Swank acknowledged that if Buckholder Run ran dry, DEP would establish different effluent discharge limits. Nevertheless, Swank noted that if DEP lowered the effluent discharge limits, the packaged wastewater treatment plant could be designed to meet those limits. At the September 20, 2012, hearing, Swank testified that the packaged wastewater treatment plant was a viable option, but he did not state that it was the plan that would be pursued. It depended on whether on-lot systems could be approved.

Jeffrey Sterner, Servants Oasis' president, testified at the September 20, 2012, hearing that “[o]ur preferred scenario and how we have approached this project is that at full build-out [the retreat] would use a package treatment plant.” R.R. 689a. Sterner stated that Servants Oasis acknowledged and accepted the risk that it may not be able to reach full build-out of the retreat, whether due to the unavailability of nutrient credits, DEP's denial of permits for a packaged wastewater treatment facility, or any other reason.

During the hearings, several adjacent landowners raised concerns about the proposed retreat. These concerns included the retreat's impact on property values and the character of the neighborhood; whether emergency responders would be able to assist persons at the retreat; the increase in traffic; and the fact that Buckholder Run has occasionally run dry. Regarding the safety concern, Paul E. Longenecker, Chief of the Annville Fire Department, testified that the existing single access road to the Property is narrow. Chief Longenecker opined that the Property should have two means of access based upon his experience during recent severe storms and considering that retreat guests will have multiple camp fires and limited access to water. An adjoining landowner also testified tornadoes in the area in 2004 and 2010 had blocked the access roads to the Property for two days.

On December 13, 2012, the Zoning Board denied Servants Oasis' application for a special exception for the stated reason that it did not satisfy the specific and objective requirements for a special exception. The Zoning Board also concluded that the proposed retreat would be detrimental to the public health, safety and welfare. Servants Oasis appealed the Zoning Board's decision to the trial court, which did not take additional evidence and affirmed the Zoning Board's decision.

On appeal,⁵ Servants Oasis presents three issues for our consideration. First, it argues that the Zoning Board erred in determining that Servants Oasis did not adequately identify the proposed method of sewage disposal for the retreat. Second, Servants Oasis argues that the Zoning Board erred in finding that it did not submit an adequate emergency plan of access. Third, Servants Oasis contends that the Zoning Board erred in finding that the proposed retreat would detrimentally affect the public health, safety and welfare on the basis of speculative testimony from the objectors.

We begin with a review of the special exception principles. A special exception use is a permitted use to which an applicant is entitled if it meets the objective standards in the zoning ordinance. Union Township v. Ethan Michael, Inc., 979 A.2d 431, 437 (Pa.Cmwlth.2009). The applicant bears the burden of production and persuasion to prove that the proposed use meets the special exception requirements. Greaton Properties, Inc. v. Lower Merion Township, 796 A.2d 1038, 1045 (Pa.Cmwlth.2002). Once the applicant's burden is satisfied, a presumption arises that the use is consistent with the health, safety and welfare of the community. Id. at 1045–46. The burden then shifts to the objectors to prove that the proposed use will have a generally detrimental effect on the public health, safety and welfare. Id. at 1046.

A retreat is one of the enumerated special exception uses that can be located in the Rural Residential District...