In re Norristown Area Sch. Dist.

1

In Re: Appeal of Norristown Area School District from the Decision Dated September 23, 2020 of the Municipality of Norristown Zoning Hearing Board Appeal of: Norristown Area School District

No. 614 C.D. 2021

Commonwealth Court of Pennsylvania

August 28, 2023

OPINION NOT REPORTED

Submitted: June 24, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE MARY HANNAH LEAVITT, Senior Judge

MEMORANDUM OPINION

RENÉE COHN JUBELIRER, PRESIDENT JUDGE

Norristown Area School District (District) appeals from the May 4, 2021 Order of the Court of Common Pleas of Montgomery County (common pleas) that denied District's appeal and affirmed the decision of the Municipality of Norristown (Norristown) Zoning Hearing Board (Board) denying District's application for a special exception seeking to change a preexisting, nonconforming use to another nonconforming use (Application). District argues common pleas erred because District met its burden of proof under Section 320-291.A.3. (a).[3] of the Borough of Norristown Zoning Code (2016) (Code) and precedent and the Board's interpretation of those provisions and the law was unduly narrow and improperly based on extrinsic matters. Upon review, we affirm.

I. BACKGROUND

District owns property that is zoned R-2 Residential (Property), upon which is located the Roosevelt School for ninth through twelfth grades (School), an adjacent parking lot, and Roosevelt Field (Field), District's former athletic field. (Board Findings of Fact (FOF) ¶¶ 12, 34; Conclusions of Law (COL) ¶ 7.^[1]) Both the School and the Field are preexisting, nonconforming uses. (FOF ¶ 13.) District filed the Application in August 2020 seeking a special exception to alter its nonconforming use of the Field by allowing District to lease the Field to First Student, Inc. (First Student), a private company to which District had outsourced its transportation services, to park up to 83 vans. (Id. ¶¶ 14, 17, 29, 30-32; COL ¶ 7.) First Student also would place a temporary trailer at the site to serve as an office at which the vans' drivers would check in and pick up/drop off keys. (Reproduced Record (R.R.) at 25a.)

Section 320-291.A.3. (a).[3] of the Code authorizes the change of one preexisting, nonconforming use to another nonconforming use as a special exception so long as certain conditions are met. That section provides:

(a) Changes.

. . . .

[3] A nonconforming use may be changed to another nonconforming use only if permitted by special exception granted by the . . . Board in accordance with Article XXI, Special Exceptions, and after the following conditions are met:

[a] The applicant shall show that the nonconforming use cannot reasonably be changed to a conforming use.

[b] The applicant shall show that the proposed change will be equally or less objectionable in external effects than the existing nonconforming use with regard to:

[i] Traffic generation and congestion, including truck, passenger car, bicycle and pedestrian traffic.

[ii] Noise, smoke, dust, fumes, vapors, gases, heat, odor, glare or vibration.

[iii] Storage and waste disposal.

[iv] Appearance.

Code, § 320-291.A.3. (a).[3].^[2]

The Board held a virtual public hearing on the Application beginning at 12:36 a.m. on September 22, 2020, and concluding at 1:10 a.m. (R.R. at 29a, 63a; FOF ¶ 40.) Before beginning the hearing, the Board asked District if it would agree to continue the matter due to the time, and District would not agree. (FOF ¶ 40.) District introduced the evidence of its expert, Christopher Fazio, PE, CME (Engineer), and Robert Malkowski, its Director of Operations (Director), as well as photographs of the Property and the surrounding area. One resident participated in the hearing; others had been waiting to participate but, due to the lateness of the proceeding, disconnected from the virtual hearing before it began. (Id.; COL ¶ 19.)

Engineer testified as follows about the proposed use and the Code's requirements for obtaining a special exception, which he indicated, generally, were met by the Application. Changes would be made to the grassy field to accommodate the storage of a maximum of 83 vans, but these changes would not be permanent or affect water runoff. (FOF ¶¶ 16-17, 20; COL ¶ 8.) No buses would be permitted to be parked on the Field, nor would any maintenance or fueling of the vans be allowed there. (FOF ¶¶ 18-19; COL ¶ 9.) The traffic impact would be minor, and if the guidelines developed by the Pennsylvania Department of Transportation (DOT) for its projects were used, the proposed use would not require a formal traffic study. (FOF ¶¶ 21-22; COL ¶ 12.) First Student drivers would arrive at the Field in their personal vehicles in the morning, swap those vehicles with a van, leave the Field to perform their student runs, return to the Field, and leave in their personal vehicles. (FOF ¶¶ 21, 37; R.R. at 56a.) They would repeat the same pattern in the afternoon. (FOF ¶ 37; COL ¶ 13.) This would result in an additional 664 vehicle trips every school day, which Engineer described as "miniscule." (FOF ¶¶ 21-22; COL ¶ 12.) All traffic would access the Field through the adjacent parking lot and "via Sterigere Street[,] which then connects with Markley Street," an arterial roadway that had been recently improved and had a daily traffic load of 20,420 vehicles, making the proposed increase of 664 trips "not a significant increase in traffic." (FOF ¶ 23; COL ¶¶ 13-14.) Engineer noted that the

previous use for [the] Field was rather intense when it was fully functioning. There were a lot of vehicles, and a lot of traffic going into and out of that area. Now that that's been removed, the additional 664 travel movements per day really will not increase traffic dramatically to that area at all.

(R.R. at 42a.) He agreed that the traffic generation and congestion would be significantly less than the prior use. (Id. at 43a.) Although Engineer offered testimony regarding the effects of the increased traffic on Markley Street, he provided no specific testimony as to the surrounding neighborhood not on Markley Street, which is where the Field is located, including Sterigere Street, which is a small residential street. (COL ¶ 22.)

As for the remaining Code requirements, Engineer testified as follows.

Q. . . . . So do you have an opinion on whether [the] Field can be used for a conforming use in the R-2 or not?

A. I think what the . . . [D]istrict is proposing is permissible, based on how the . . . [C]ode is written, and based on the release that can require.

. . . .

Q. . . . [T]he noise, smoke, dust, fumes, vapors, gases, heat, odor, vibration will be less?

A. Yes, it will.

Q. The storage and waste disposal will be less?

A. Absolutely, it will be.

Q. And issues with appearance will be less?

A. Correct.

Q. Because the vehicles actually park behind the stadium walls, correct?

A. That is correct.

Q. So they won't be on the street? You won't see them on the screen [sic]?

A. No, they will all be contained on the site itself.

(R.R. at 42a-43a; see FOF ¶¶ 25-28.) Engineer provided no additional detail as to these requirements.

Director testified as follows. The vans would be used to transport District students to primarily non-public schools. (FOF ¶¶ 29, 31; COL ¶ 10.) District expected the lease with First Student to result in a financial benefit to District, as it should result in reducing District's costs. (FOF ¶ 35.) The surface being placed on the Field could be removed, and the Field returned to its prior condition. (Id. ¶ 36; COL ¶ 18.)

District had no current plans for the long-term use of the Field, and the proposed use was temporary in nature. (FOF ¶ 39.) At the time of the hearing, no First Student vans were parked on the Field. (Id. ¶ 42.) District had no direct communication with the neighboring property owners about the proposed change in use. (Id. ¶ 43; COL ¶ 23.) Director characterized the change as being "adjacent to a current parking lot that's already been used to park vehicles" so District "consider[ed] it an addition to what's already there." (R.R. at 60a.)

At the end of the hearing, it was noted on the record that there had been neighboring property owners that attended the proceedings earlier, but had left because they did not know if the Board was going to reach the Application. (Id. at 57a.) A Board member asked whether there was an issue due to there being people who wanted to comment, but logged off due to the time, and whether the matter should be continued so that those people could comment. (Id. at 58a, 60a.) District's counsel responded District was "interested in moving forward with this" as there was "an important financial benefit to [] [D]istrict." (Id. at 59a.) Ultimately, because none of the neighbors had specifically asked to continue the matter, the Board proceeded and voted 3-2 to deny the Application. (Id. at 61a-63a.)

In its written decision, the Board cited the provisions of Section 320-291.A.3. (a).[3] and concluded:

21. The [] [P]roperty[] is a legal non[]conforming use [and] is located in the R-2, Residential Zoning District in the Municipality. [Code] Section 320-40, Legislative Intent specifically states "that the standards contained herein are intended to protect the public's health, safety and general welfare by mitigating the adverse impact of overcrowding on a dense urban landscape. Such negative impacts include, but are not limited to, loss of urban green space, reduced residential on-street parking, and an infringement on personal privacy."

In the instant matter, [District] offered the testimony of [Engineer] that the amount of traffic generation and congestion will be equal or less objectionable than previous uses. Further, [District]

...