In re Campbell

250 A.3d 1263

APPEAL OF: Ian CAMPBELL and Jean Campbell from the Decision Dated May 16, 2019 of the Whitpain Township Zoning Hearing Board

Appeal of: Ian Campbell and Jean Campbell

No. 349 C.D. 2020

Commonwealth Court of Pennsylvania.

Argued March 15, 2021

Decided April 13, 2021

Catherine M. Harper, Ft. Washington, for Appellants.

Andrew R. Freimuth, Blue Bell, for Appellee Whitpain Township Zoning Hearing Board.

Craig R. Lewis, Blue Bell, for Appellee CA Senior Living Holdings, LLC.

BEFORE: HONORABLE P. KEVIN BROBSON, President Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY JUDGE WOJCIK

Ian Campbell and Jean Campbell (Objectors) appeal from an order of the Montgomery County Court of Common Pleas (trial court), which affirmed the decision of the Whitpain Township (Township) Zoning Hearing Board (Board) granting the variance application (Application) of CA Senior Living Holdings LLC (CA), and denied Objectors’ appeal of that Board decision. We vacate and remand.

The following facts may be gleaned from the Board's decision.¹ CA is the equitable owner of property located at 435 Skippack Pike in the Township's IN-Institutional District (Property). Reproduced Record (R.R.) at 3a, 4a. CA is proposing the construction of 90 parking spaces and holding 45% of those spaces in reserve on the Property. However, Section 160-192.B and 160-192.B(1)(f) of the Township's Zoning Ordinance, relating to Required Off-Street Parking Facilities, require a minimum of 160 spaces and holding 25% of those spaces in reserve.² Id. To that end, CA filed the Application for a variance from the foregoing requirements. Id.

On May 16, 2019, the Board conducted a hearing on the Application. R.R. at 4a. Objectors, of 453 Skippack Pike, were granted party status in opposition to the Application. Id. Additionally, a number of non-party residents appeared and made statements in opposition to the Application. Id. CA's engineer, John Alejnikov, P.E.; principal, Ryan Cardin; and traffic engineer, John Harter, also appeared and testified in support of the Application. Id. at 5a.

Further, the Board entered the following exhibits into evidence: (1) the Application; (2) Proof of Publication; (3) CA's Plan; and (4) the Township Board of Supervisors’ Position Statement and the Township Planning Commission's Position Statement. R.R. at 4a-5a. The exhibits attached to CA's Application were also made part of the record by incorporation. Id. at 5a.

Based on the foregoing evidence, the Board granted the Application at the conclusion of the hearing and mailed that decision to Applicant on May 17, 2019 (Same-Night Decision). R.R. at 1a-2a, 5a. On June 20, 2019, the Board issued a Formal Decision and Order in furtherance of its Same-Night Decision,³ which contains the following Findings of Fact supporting the grant of a variance:

12. The Board found the testimony of each witness for [CA] offered in support of the Application to be credible.

13. The testimony offered in support of the Application demonstrated, among other things, that the [p]roposal will not have an adverse effect upon the public health, safety, and welfare. The testimony also demonstrated that the requested relief is the minimum relief necessary to effect the Applicant's proposed improvement.

14. The complete hearing transcript and exhibits are incorporated by reference as though fully set forth here as Findings of Fact in support of this Board's granting of the Application.

R.R. at 5a.

In light of these findings, the Board set forth the following Conclusions of Law:

1. Pursuant to Section 909.1 of the Pennsylvania Municipalities Planning Code ("MPC"),^[4] this Board has exclusive jurisdiction to hear and render a final adjudication relative to this Application.

2. The requirements for a variance in Pennsylvania are clear and are specifically stated in Section 910.2[(a)] of the MPC.^[5] It states, in pertinent part, as follows:

* * *

(a) The [b]oard shall hear requests for variances where it is alleged that the provisions of the zoning ordinance inflict unnecessary hardship upon the applicant. The [b]oard may by rule prescribe the form of application and may require preliminary application to the zoning officer. The [b ]oard may grant a variance, provided that all of the following findings are made where relevant in a given case :

(1) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located[.]

(2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property[.]

(3) That such unnecessary hardship has not been created by the [appellant.]

(4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare[.]

(5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue[.]

* * *

3. Given the testimony presented at the hearing, a careful review of the evidentiary record evidence offered in support of the requested variance relief, and with no substantive proof offered to the contrary, this Board finds that [CA] has established an entitlement to its requested variance relief.

4. Particularly noteworthy, this Board concludes that [CA's] requested variance relief will not be adverse to the public health, safety, and welfare and is the minimum relief necessary to effect the [p]roposal.

R.R. at 5a-7a (emphasis added).

On June 17, 2019, Objectors appealed the Board's Formal Decision and Order to the trial court.⁶ On February 11, 2020, following argument and without taking additional evidence, the trial court issued the instant order affirming the Board's Formal Decision and Order and denying Objectors’ appeal. Objectors then filed this appeal of the trial court's order.⁷

On appeal, Objectors allege, inter alia , that the trial court erred in not requiring the Board to issue its decision granting the variance with sufficient findings of fact and conclusions of law demonstrating that all of the requirements of Section 910.2 of the MPC are supported by substantial record evidence.⁸ We agree.

As this Court has previously observed in a similar circumstance:

[The objector] contends that the [b]oard's adjudication is of no effect because the [b]oard failed to make the findings required by [the prior version of Section 912.1] of the [MPC] supporting the applicant's allegation that the provisions of the zoning ordinance inflict unnecessary hardship. The statute just cited provides that zoning hearing boards must in granting a variance make the following findings where relevant: (1) that there are unique physical circumstances or characteristics peculiar to the property in question causing the unnecessary hardship, (2) that because of such physical circumstances or conditions there is no possibility that the property can be developed in strict conformity with the ordinance and that the variance is necessary to enable a reasonable use of the property, (3) that the unnecessary hardship has not been created by the applicant, (4) that the variance will not alter the character of the neighborhood or other property, nor impair the use or development of adjacent land, (5) that the variance represents the minimum variance that will afford relief and the least modification possible of the regulation in issue. In Lando v. Springettsbury Township Zoning Board of Adjustment , [4 Pa.Cmwlth. 312, 286 A.2d 924, 927 (Pa. Cmwlth. 1972) ], we held that these findings are essential to the validity of grants of variance and that reviewing courts should remand adjudications in which they are not supplied.^{[9 ]}

Independent Fire Company No. 1 v. Borough of South Williamsport Zoning Hearing Board , 98 Pa.Cmwlth. 153, 510 A.2d 410, 411 (1986). See also Upper Saucon Township v. Zoning Hearing Board , 136 Pa.Cmwlth. 370, 583 A.2d 45, 48 (1990) ("Appellate courts cannot properly and efficiently exercise even a limited function of judicial review without the [b]oard's necessary findings of fact and conclusions of law together with reasons for its decision, even when the record contains complete testimony presented to the board. [ Lando ].").

In this regard, we have also explained:

Independently dispositive, the [zoning hearing board (ZHB)] has failed to address all five of the factors required by Section 910.2 of the MPC as a prerequisite to a grant of a variance. Section 910.2 plainly states, prior to listing the five factors, that "[the ZHB] may grant a variance, provided that all of the following findings are made where relevant in a given case ." 53 P.S. § 10910.2 (emphasis added). In the entirety of its opinion, the ZHB clearly has not made findings in regard to a minimum of two of those factors, and possibly as many as four of those factors .... As such, again, effective appellate review of this matter is precluded. We note that nothing in the record to this matter indicates that any of Section 910.2's five factors would not be relevant in this case, under Section 910.2's plain language.

Accordingly, we vacate the [Common Pleas] Court's Decision, and remand this matter to [that court] with instructions for further remand to the ZHB for the sole and limited purpose of producing a decision that

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