Opinion
No. 1186 C.D. 2013
03-27-2014
Harry and Marjorie Pote, William and Carol Ann Pruchnic, George and Rani Frem, and Samuel and Francine Glass, Appellants v. Pegasus Tower Co., Ltd., and Open Range Communications, Inc.
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Harry and Marjorie Pote, William and Carol Ann Pruchnic, George and Rani Frem, and Samuel and Francine Glass (collectively, Objectors) appeal the June 18, 2013 order of the Court of Common Pleas of Cambria County (trial court), denying their appeal from a deemed decision of the Upper Yoder Township Board of Commissioners (Board), which approved by operation of law the conditional use application of Pegasus Tower Co., Ltd. and Open Range Communications, Inc. (collectively, Pegasus) seeking to construct a cellular communications tower. We reverse.
Mr. and Mrs. Gary Platt leased part of their real property to Pegasus for the right to construct a communications tower. On April 8, 2011, Pegasus filed a conditional use application with the Board. The Board failed to hold a hearing within sixty days as required under section 908(1.2) of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10908(1.2). Thereafter, Pegasus filed an action in the trial court, seeking a determination that its application be deemed approved under section 908(9) of the MPC, 53 P.S. §10908(9). (Trial court op. at 1-2.)
According to a motion filed by Upper Yoder Township in the trial court, the Board "did not hold a formal hearing on the [c]onditional [u]se [a]pplication on the basis that it lacked jurisdiction under the terms of the Township Zoning Ordinance which did not authorize conditional uses in an 'S' Conservancy District." (Reproduced Record (R.R.) at 19a.)
In relevant part, this provision states that if a zoning hearing board "fails to commence, conduct or complete the required hearing . . . the decision shall be deemed to have been rendered in favor of the applicant. . . ." 53 P.S. §10908(9).
By order dated July 17, 2012, the trial court, sitting en banc with three judges participating, concluded that the conditional use application was deemed approved under section 908(9). The en banc court instructed the Board to provide public notice within ten days of its decision in accordance with sections 908(9) and 913.2(b)(2) of the MPC so that objections and an appeal could be filed. Afterwards, Upper Yoder Township issued notice of the deemed approval and Objectors filed a timely appeal with the trial court. (Trial court op. at 1-2). In their appeal, Objectors contended, among other things, that Pegasus is not entitled to a conditional use because the proposed site of the tower is located in an S Conservancy District and the applicable provisions of the Upper Yoder Township Zoning Ordinance (Ordinance) would only allow Pegasus to construct a communications tower by special exception in commercial districts and as a permitted use in a manufacturing district. (R.R. at 8a-10a.)
The pertinent portion of section 908(9) provides:
When a decision has been rendered in favor of the applicant because of the failure of the board to meet or render a decision as hereinabove provided, the board shall give public notice of said decision within ten days from the last day it could have met to render a decision in the same manner as provided in subsection (1) of this section. If the board shall fail to provide such notice, the applicant may do so. Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.53 P.S. §10908(9). Section 913.2(b)(2), entitled "Governing body's functions; conditional uses," contains nearly identical language. 53 P.S. §10913.2(b)(2), added by the Act of December 21, 1988, P.L. 1329.
Thereafter, the parties submitted memoranda of law concerning the applicable scope of review from a deemed approval. In their submission, Objectors contended that section 1505 of the Ordinance limited the grant of conditional uses to certain enumerated districts, which did not include an S Conservancy District. In response, Pegasus argued that the trial court's scope of review is limited to determining whether the factors listed in section 1505(1) through (5) of the Ordinance were met. (Certified Record, Item ##8-9.)
This provision states:
Section 1505 - Criteria for Conditional UsesOrdinance, §1505.
Conditional uses shall be permitted in C1, C2, C3, and Ml Zoning Districts, with the exception of specifically stated non-permitted uses, as long as the governing body utilizes the following criteria in permitting such conditional uses. A conditional use may be permitted as long as it does not negatively impact on the following:
1. Municipal infrastructure (water, sewer, streets, etc.)
2. Regional housing needs and effectiveness of the proposal to provide affordable housing (if the proposal is residential).
3. The physical suitability of the site for the intensity of its use.
4. The site's soils, slopes, woodlands, wetlands, floodplains, natural resources and natural features and any adverse environmental impact; and
5. The preservation of agricultural and other land uses which are essential to the public health and welfare.
In addition, section 107 of the Ordinance states:
Section 107 - Conditional Use -Ordinance, §107.
Any land use which is not specifically permitted in a particular zoning district may be permitted in such district if approved by the governing body of the municipality. Provision for conditional use is to be allowed or denied by the governing body of the municipality must be made pursuant to public notice and hearing and recommendations by the municipal planning commission and pursuant to expressed standards and criteria set forth in this ordinance. In allowing a conditional use, the governing body may attach such reasonable conditions and safeguards, in addition to those expressed in this ordinance, as it may deem necessary to implement the purposes of this ordinance.
On January 23, 2013, the trial court entered an order, which stated as follows:
. . . [T]he Court holds:
1. It does not have the right to reconsider the en banc Court's July 17, 2012 Deemed Decision and therefore it cannot take the next step [Objectors] desire and determine whether a conditional use is permitted in Upper Yoder Township in view of the municipality's Zoning Ordinance; and(R.R. at 25a; Trial court op. at 2.)
2. The scope of review of the Deemed Decision is limited to whether [Pegasus'] proposed tower satisfies the Zoning Ordinance's substantive requirements which are set forth in §1505(1)-(5).
In light of this holding, the Court schedules an Evidentiary Hearing for March 13, 2013 at 9:00 a.m.
At the hearing, it was established that Pegasus' proposed use is an unmanned cell tower occupying 0.21 acres of a nearly five-acre site. During the building of the tower, construction-type vehicles would use the roads leading to the property, and when the tower is completed, an SUV would use the roads every four to six weeks for maintenance. The proposal also includes a slope increase and the removal of trees for the placement of the tower, the tower complex, and a road. (Trial court op. at 2.)
Pegasus' expert, Mario Calbretta, P.E., testified that the proposed site is unmanned, and it would not require municipal water, sewer service, or other municipal infrastructure. (R.R. at 52a-53a, 63a.) He opined that Timson Drive, a public street, and Lauren Lane, a private lane, would in conjunction provide suitable access to the site for both the construction phase and the post-construction maintenance phase; specifically, Pegasus would build an "access drive" off Lauren Lane. (R.R. at 54a-56a, 63a-64a, 67a.) According to Calbretta, construction would involve only standard, construction-type vehicles and when construction was completed, the site would generate minimal traffic because a technician would have to visit the site once every four to six weeks. (R.R. at 55a, 64a.) Calbretta further testified that the proposed site is located in a heavily wooded area and that only those trees necessary to allow construction would be removed, approximately forty trees, which he opined was overall insignificant. (R.R. at 55a-56a, 109a.)
In addition, Calbretta presented a NEPA Report and a Phase I Environmental Report and testified that each of the reports concluded that the proposed use would not have a negative impact on the site and the surrounding area, including woodlands, wetlands, floodplains, natural resources, natural features, or endangered or concerned species. (R.R. at 69a-77a, 90a-91a.) Calbretta opined that the proposed site would not have a negative impact on the soil because the site would not generate waste and the soil composition is appropriate for the site and its construction; that the construction of the site would not be impeded by the surrounding slopes (which are currently at a 18% to 22% grade) and the slopes can be safely altered to accommodate the site; that only a relatively small or insignificant amount of trees would have to be removed to construct the site; and that the wetlands, natural resources, natural features, environment, agricultural resources, and the public health and welfare would not be adversely affected by the site. (R.R. at 78a-97a.) Finally, Calbretta testified that Pegasus' preliminary drawings offer only a general depiction of the site for zoning purposes and that the final plan will include all design elements, including but not limited to stormwater and erosion control measures. Calbretta added that a geotechnical survey, a tower design, and other plans will be performed and completed at a later date in accordance with the applicable laws and regulations. (R.R. at 85a-88a, 105a-12a, 125a.)
Objectors' expert, David R. Mills, P.E., testified that Pegasus' proposed use would necessitate transporting approximately 45 tri-axle trucks carrying an average of 25 tons of stone per load to complete the development and could possibly require the use of a crane to complete part of the construction. (R.R. at 158a-59a, 305a.) Mr. Glass testified that Pegasus' construction equipment would have to cross land owned by him and his wife and that Pegasus has no right of way or other legal basis to cross his land. (R.R. at 247a-48a.) Mr. Pruchnic testified that Pegasus' proposed use may require it to use Lauren Lane, which was created for the benefit of Objectors, maintained by Objectors, and is subject to an Easement Agreement that limits its width to 12 feet. (R.R. at 178a; 442a-44a.) Mr. Pruchnic stated that Pegasus has not offered to share in the costs of repair or maintenance of Lauren Lane and has not sought permission or an easement to use Lauren Lane. (R.R. at 177a-78a.)
Mills testified that in his opinion, it was impossible to provide access to the site without violating Pennsylvania law regarding sewage systems because the heavy construction equipment would have to pass over a septic field, thereby increasing the chance that a pipe would break, resulting in sewage malfunction. (R.R. at 311a-12a, 344a.) Similarly, Sewage Enforcement Officer Michael D'Arrigo testified that crossing the septic field would violate the regulations of the Pennsylvania Department of Environmental Protection (DEP) and that he believed the DEP would not grant a waiver in this case. (R.R. at 22a-24a.)
Mills also testified that Pegasus' proposal to support the tower site by constructing a compacted structural fill in a two-to-one slope would increase the slope below the tower site from approximately a 22% angle to a 30% angle. According to Mills, this creates concerns about slope stability because Pegasus did not conduct geotechnical testing, and he testified that if the slope fails, the entire tower could slide down the hill. (R.R. at 286a-89a, 298a.) Mills further testified that Pegasus' plan did not show any storm water controls, and he noted the possibility that heavy rain could cause slope failure and permit rainwater to travel to and damage new property areas. (R.R. at 314a-18a.)
By order dated June 18, 2013, the trial court denied Objectors' appeal. In its opinion, the trial court addressed the arguments raised by the parties in their post-hearing briefs. Objectors argued that Pegasus failed to prove that it satisfied the criteria set forth in section 1505(1) through (5) of the Ordinance; namely, that the proposed use will not negatively affect the property's woodlands, slopes, the municipality's streets, and sewage infrastructure. Objectors further asserted that the proposed use utilizes private roads, to which Pegasus does not have a legal right to use or cross. Finally, Objectors contended that Pegasus must comply with the general provisions of the Ordinance, including slope restrictions, per section 1002, before it may be granted a conditional use. In response, Pegasus argued that its evidence satisfied the elements in section 1505(1) through (5) and that it is not required to comply with general zoning requirements at this point of the process. Pegasus also asserted that Objectors failed to carry their shifting burden of proof and establish that the proposed use will substantially affect the health, safety, and welfare of the community. (Trial court op. at 2-3.)
The section provides:
Section 1002 - Slope Area Restrictions — The regulations set forth in this section apply in all instances and to all Districts where appropriate, and supplement the District regulations which appear elsewhere in this ordinance.Ordinance, §1002(A)-(B).
A. Slope Regulations Shall Apply When
1. The average cross slope of that portion of the parcel to be developed exceeds 20%. "Development Portion", for purposes of this article shall be interpreted to mean the building area on which the structure is situated, plus all required yard areas, parking lots or other required land area in conjunction with any site development.
2. The development of the property will unduly increase the danger of storm water, sewerage drainage, or other run-off and result in erosion or other damage to surrounding lands.
B. Lot Areas -The lot or parcel shall contain a minimum area of 3 acres for residential uses and a minimum area of 10 acres for all other uses.
In addressing these arguments, the trial court first stated that under In re Thompson., 896 A.2d 659 (Pa. Cmwlth. 2006), and Schatz v. New Britain Township Zoning Hearing Board of Adjustment, 596 A.2d 294 (Pa. Cmwlth. 1991), conditional use proceedings involve only the proposed use of the land and do not concern the particular details of the design of the proposed development; accordingly, "dimensional issues and other criteria, which all applicants must comply with when they develop property in a particular zoning district, are irrelevant to the conditional use process." (Trial court op. at 5.)
The trial court then concluded that Pegasus presented sufficient evidence to meet its burden of proof under section 1505(1) through (5) of the Ordinance. First, the trial court found that the proposed use does not negatively affect municipal infrastructure because the site requires minimal construction and maintenance. In making this finding, the trial court concluded that, pursuant to Thompson and Schatz, it need not determine at this stage of the process whether Pegasus may legally pass over Lauren Lane or Timson Drive or whether construction of the site would violate state or municipal sewage law. (Trial court op. at 5-6.)
The parties agree that subsection (2) does not apply in this case. (Trial court op. at 4 n.4.)
Next, the trial court found that Pegasus demonstrated that the site is physically suitable for the intensity of the use. In so determining, the trial court stated that the site will occupy a relatively small portion of land and will require the removal of a few trees. The trial court also noted that the site proposes to erect a few relatively unremarkable structures, will not require the addition of new streets, and will generate limited traffic after completion. (Trial court op. at 6.)
The trial court further found that the NEPA Report confirmed that Pegasus' proposed use does not negatively impact the site's soils, slopes, woodlands, wetlands, floodplains, natural resources and natural features, and the environment in general. The trial court rejected Objectors' argument that the proposed use would negatively impact the slopes of the site, stating: "An increase in slope, though, is not necessarily a negative impact. . . . While the increase in slope may violate other rules and regulations, which Pegasus must later comply with and which the Court does not need to address in this Opinion, the increase in slope does not violate [section] 1505(.4)." (Trial court op. at 6-7.)
In addition, the trial court found that the proposed use does not negatively affect the preservation of agricultural and other land uses that are essential to the public health and welfare. According to the trial court: "The site is located in a heavily wooded area that does not have an agricultural use. The proposed use does not obstruct any land use on the site or the adjoining properties that are essential to the public health and welfare. Since the site is unmanned, the impact on the site and the surrounding properties is minimal." (Trial court op. at 7.)
Turning to Objectors' shifting burden of proof, the trial court noted that even if Pegasus met all the specific criteria in section 1505(1) through (5) of the Ordinance, a conditional use application can still be denied if the objecting party shows, by a high degree of probability, that the proposed use will substantially affect the health, safety, and welfare of the community. The trial court concluded that Objectors failed in this regard, noting: "Any use - short of the leaving the land as is - would alter the slope and woodlands of the property to some degree. In order to create a level surface for the tower, Pegasus would be expected to cut down trees and alter the slope." (Trial court op. at 8.)
Finally, the trial court stated that although it was granting Pegasus' conditional use application, Pegasus must still comply with other requirements in the future. Particularly, Pegasus must abide by the laws concerning storm water, slope stabilization, erosion, and sediment control. Also, Pegasus must, among other things, obtain legal access to the property and acquire the necessary building and zoning permits before it can build the tower. (Trial court op. at 8 n.5.)
On appeal to this Court, Objectors contend that the trial court committed an error of law when, in its January 23, 2013 order, it precluded them from arguing that section 1505 of the Ordinance does not permit a conditional use in an S Conservancy District. Objectors assert that although they appealed from a deemed approval, case law establishes that they may raise all of the issues that they could have raised during proceedings before the Board and in an appeal from an actual decision. In addition, Objectors argue that on the merits, section 1505 of the Ordinance, considered alongside section 107, demonstrates that section 1505 is the more specific provision and trumps any irreconcilable language in section 107. Objectors assert that section 1505 therefore controls, and they argue that because an S Conservancy District is not one of the enumerated districts where a conditional use may be granted, the trial court further erred by failing to find that a conditional use is not permitted in an S Conservancy District. We agree.
Where, as here, the trial court reviews a deemed approval, the trial court is acting in a de novo capacity and must render its own factual findings and legal conclusions on the merits of the appeal. Gryshuk v. Kolb, 685 A.2d 629, 634 (Pa. Cmwlth. 1996), accord DeSantis v. Zoning Hearing Board of the City of Aliquippa, 53 A.3d 959, 962-63 (Pa. Cmwlth. 2012). We review the trial court's findings and legal conclusions for error of law or abuse of discretion. Borough of Jenkintown v. Board of Commissioners of Abington Township, 858 A.2d 136, 138-39 (Pa. Cmwlth. 2004); LHT Associates, LLC v. Township of Hampton, 809 A.2d 1072, 1075 n.1 (Pa. Cmwlth. 2002).
In their statement of the questions involved section of their brief, Objectors ask: "Did the [trial court] commit an error of law and abuse its discretion by ruling that Section 1505 of the [Ordinance] does not preclude the grant of a conditional use in an S-Conservancy zone?" (Objectors' brief at 5.) Although the trial court never issued a "ruling" to this effect, the contentions advanced in the argument section of Objectors' brief clarify the nature of their allegations of error; that is, whether the trial court erred in failing to consider whether a conditional use is permitted in an S Conservancy District and in failing to determine that it is not. Thus, we conclude that Objectors' arguments are fairly subsumed within their statement of the question involved. See Pa.R.A.P. 2116(a) (stating that a brief's statement of questions involved "will be deemed to include every subsidiary question fairly comprised therein").
Whether the Trial Court erred in Restricting the Scope of Arguments that Objectors
could Raise on Appeal from a Deemed Approval
Here, there is no dispute that the Board failed to act in a timely manner on Pegasus' land use application and that Pegasus' request for a conditional use was deemed approved by operation of law. This Court has stated that "a deemed zoning board approval no more cuts off the right to an appeal on the merits than would a timely board decision approving an application." Gryshuk v. Kolb, 685 A.2d 629, 631 (Pa. Cmwlth. 1996). In Gryshuk, we explained why an opposing party must be permitted to contest the merits of a land use application in an appeal from a deemed approval, cautioning that if no review of the merits were allowed:
[A] zoning board need never act whenever it determines to grant the relief applied for, secure in the belief that its decision can never be overturned. The resulting anomalous conclusion is obvious. If the board [complies with the MPC's time requirements regarding hearings and the issuance of a decision], all aggrieved parties have standing and would have the opportunity to appeal that decision and test its merits in a court of law. However, by waiting until the [day after the time limitations have passed], the zoning hearing board would be able to cut off such rights of review. It is inconceivable to us that the legislature could have contemplated or intended such a result.Id. at 632 (citation omitted).
The obvious purpose of the "deemed approval" provisions of the [MPC] was to compel zoning hearing boards to act in a timely manner so that the rights of property owners not be prejudiced by delay. . . .
We do not believe that it was ever intended by the legislature to give the applicant a windfall in the form of protection from review of the merits of the application, merely because the zoning hearing board was dilatory.
In addition, with respect to a deemed approval, "[s]ection 908(9) of the MPC provides that '[n]othing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.'" Ulsh v. Zoning Hearing Board of Lower Paxton, 22 A.3d 244, 251 (Pa. Cmwlth. 2011) (quoting 53 P.S. §10908(9)). "Accordingly, the timely appeal of a deemed approval is an appeal of the merits of [the] approval in the same manner as an appeal of a timely board decision approving [the] application." Ulsh, 22 A.3d at 251.
Based upon the foregoing, we conclude that the trial court erred in restricting the scope of arguments that Objectors could raise in their appeal from the deemed approval. In an appeal from a deemed approval, a trial court acts in a de novo capacity, DeSantis v. Zoning Hearing Board of the City of Aliquippa, 53 A.3d 959, 962-63 (Pa. Cmwlth. 2012), and must address any and all arguments that could have been presented to a zoning hearing board regarding a land use application. Ulsh, 22 A.3d at 251; Gryshuk, 685 A.2d at 631. Moreover, it is beyond cavil that statutory construction arguments related to the interpretation of an ordinance, like the one Objectors sought to present in this case, are routinely raised and often determine the substantive merits and outcome of a land use application. See, e.g., Keener v. Rapho Township Zoning Hearing Board, 79 A.3d 1205, 1214 (Pa. Cmwlth. 2013) (interpreting an ordinance's phrase, "on a commercial basis," in an appeal from the denial of a landowner's application for a special exception); In re Holtz, 8 A.3d 374, 378-79 (Pa. Cmwlth. 2010) (determining whether there is an irreconcilable conflict between provisions in an ordinance in an appeal from the grant of a special exception and variance). Consequently, the trial court erred in failing to address Objectors' argument concerning the interplay between sections 107 and 1505 of the Ordinance and in failing to determine whether a conditional use is allowed in an S Conservancy District. We now turn to the merits of that argument.
Whether a Conditional Use is Permitted in an S Conservancy District
"The rules of statutory construction apply to ordinances as well as statutes." In re Holtz, 8 A.3d at 378. The interpretation of a statute presents this Court with a pure question of law, which is subject to plenary review. Simko v. County of Allegheny, 869 A.2d 571, 573 n.3 (Pa. Cmwlth. 2005). See Northampton Area School District v. Zoning Hearing Board of Township of Lehigh, 64 A.3d 1152, 1157 (Pa. Cmwlth. 2013) ("The interpretation of a zoning ordinance is a question of law.").
While this Court typically affords deference to a zoning hearing board's interpretation of a zoning ordinance, Smith v. Zoning Hearing Board of Huntington, 734 A.2d 55, 57-58 (Pa. Cmwlth. 1999), in this case the Board surrendered its opportunity to interpret the applicable provisions of the Ordinance by failing to hold a hearing on Pegasus' application. Nonetheless, we note, again, that in a motion to the trial court, Upper Yoder Township stated that the Board "did not hold a formal hearing on the [c]onditional [u]se [a]pplication on the basis that it lacked jurisdiction under the terms of the [Ordinance] which did not authorize conditional uses in an 'S' Conservancy District." (R.R. at 19a.)
The primary objective of statutory interpretation is to determine the intent of the enacting legislation. Section 1921 of the Statutory Construction Act of 1972 (Act), 1 Pa.C.S. §1921. In pursuing that end, we are mindful that a statute's plain language generally provides the best indication of legislative intent and, thus, statutory construction begins with examination of the text itself. Malt Beverages Distribution Association v. Liquor Control Board, 918 A.2d 171, 176 (Pa. Cmwlth. 2007) (en banc), aff'd, 601 Pa. 449, 974 A.2d 1144 (2009).
In reading the plain language of a statute, "[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage." Section 1903(a) of the Act, 1 Pa.C.S. §1903(a). Where the words in a statute are free from all ambiguity, the letter of the statute may not be disregarded under the pretext of pursuing its spirit. Section 1921 of the Act, 1 Pa.C.S. §1921. Further, every statute shall be construed, if possible, to give effect to all its provisions so that no provision is reduced to "mere surplusage." Section 1921(a) of the Act, 1 Pa.C.S. §1921(a). Whenever a general provision in a statute shall be in conflict with a special provision in the same statute, the two shall be construed, if possible, so that effect may be given to both. Section 1933 of the Act, 1 Pa.C.S. §1933. However, when the conflict is irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision. Id. Finally, it is presumed that the legislative body does not intend an absurd result. Section 1922(1) of the Act, 1 Pa.C.S. §1922(1).
Located under "Article I - Preliminary provisions," section 107 of the Ordinance states:
Section 107 - Conditional Use -Ordinance, §107 (emphasis added).
Any land use which is not specifically permitted in a particular zoning district may be permitted in such district if approved by the governing body of the municipality. Provision for conditional use is to be allowed or denied by the governing body of the municipality [and] must be made pursuant to public notice and hearing and recommendations by the municipal planning commission and pursuant to expressed standards and criteria set forth in this ordinance. In allowing a conditional use, the governing body may attach such reasonable conditions and safeguards, in addition to those expressed in this ordinance, as it may deem necessary to implement the purposes of this ordinance.
Situated in "Article XV - Administration," section 1505 reads:
Section 1505 - Criteria for Conditional UsesOrdinance, §1505 (emphasis added).
Conditional uses shall be permitted in C1, C2, C3, and M1 Zoning Districts, with the exception of specifically stated non-permitted uses, as long as the governing body utilizes the following criteria in permitting such conditional uses. A conditional use may be permitted as long as it does not negatively impact on the following:
1. Municipal infrastructure (water, sewer, streets, etc.)
2. Regional housing needs and effectiveness of the proposal to provide affordable housing (if the proposal is residential).
3. The physical suitability of the site for the intensity of its use.
4. The site's soils, slopes, woodlands, wetlands, floodplains, natural resources and natural features and any adverse environmental impact; and
5. The preservation of agricultural and other land uses which are essential to the public health and welfare.
In pertinent part, section 301 of the Ordinance delineates the classification of districts as follows: C-1 District = C-1 General Business District; C-2 District = C-2 Planned Shopping District; C-3 District = C-3 Research-Office District; M-1 District = M-1 Manufacturing District; and S District = S Conservancy District. Ordinance, §301.
Finally, located under "Article IX - Provisions Governing Conservancy," section 901(A) of the Ordinance provides:
Section 901 - "S" Conservancy District -Ordinance, §901(A).
The "S" Conservancy District is intended to preserve the scenic and ecological values or the township's steep hillside lands, waterways, environmentally sensitive forest lands and soil types through the prohibition or restriction of commercial, industrial and most residential development. The Conservancy District allows for low density "single-family" residential development, and the continuation of existing farming operations.
A. Permitted Uses:
Scenic or natural preservation;
Single Family detached;
Farming;
Forestry;
Lodges or clubs for hunting, fishing, gunning or other similar recreational purposes;
Resort-type residential establishment when associated with recreation or group-oriented activities on the premises; and Open Recreational Use when operated by a non-profit organization (hiking trails, fishing and boating, picnicking camps).
By special exception
Surface Mining; and
Deep Mining Operations (provided all disturbed land is properly backfilled and/or returned to its original contours).
In conducting our textual analysis, we begin with the first sentence of section 1505 of the Ordinance. Pursuant to this language, conditional uses are permitted in C1, C2, C3, and M1 zoning districts. "Where some things are specifically designated in a statute, things omitted should be understood as having been excluded; this principle is that expressed by the maxim 'expressio unius est exclusio alterius.'" Samilo v. Pennsylvania Insurance Department, 510 A.2d 412, 415 (Pa. Cmwlth. 1986). See also Chiconella v. Workers' Compensation Appeal Board (Century Steel Erectors, Inc.), 845 A.2d 932, 935 (Pa. Cmwlth. 2004) ("The maxim of expressio unius est exclusio alterius provides that where certain items are specifically included in a statute, items which have been omitted are understood to be excluded."). Because an S District or S Conservancy District is not listed as one of the districts where conditional uses are permitted, the doctrine of expressio unius est exclusio alterius compels our conclusion that a conditional use may not be granted in an S Conservancy District. Considering that an S Conservancy District is designed to preserve the pristine nature of the existing environment, see Ordinance, §901(A), the legislative body had an apparent and legitimate reason to omit this district, and our interpretation of section 1505 does not lead to an absurd result.
Section 107 of the Ordinance does not undermine our conclusion. While the prefatory clause states that "[a]ny land use which is not specifically permitted in a particular zoning district may be permitted in such district," the phrase "a particular zoning district" is conceptual and abstract in terms of delineating specific districts. Nonetheless, the word "particular," by its common and approved definition, denotes a specific and definitive sub-class of things as opposed to a whole class of things. See Webster's Third New International Dictionary, 1646 (Gove, ed. 1986) (defining "particular" in relevant part to mean "of, relating to, or being a single definite person or thing as distinguished from some or all others -- opposed to general). When viewing section 107 in pari materia with section 1505, see section 1932 of the Act, 1 Pa.C.S. §1932(a), the most natural construction -- one that would give effect to all provisions while maintaining congruity within the Ordinance -- is to construe section 1505 as merely expounding upon and listing which "particular districts" are allowed to have conditional uses, namely C1, C2, C3, and M1 zoning districts. Consequently, sections 1505 and 107 can be interpreted in a consistent manner, and conditional uses are only permitted in those districts that are specifically enumerated in section 1505. Since an S Conservancy District is not listed in section 1505, we conclude that a conditional use is not permitted in an S Conservancy District.
Moreover, even assuming, arguendo, that the first sentence of section 107 can reasonably be interpreted to encompass "each and every" district, this would evince an irreconcilable conflict between section 107 and section 1505. In such a situation, section 107 must give way to section 1505. By its construction, section 107 is the more general provision: it is located in "Article I -- Preliminary provisions" and its main subject matter concerns the authority and ability of the governing body to grant conditional uses and impose reasonable safeguards on those conditional uses. In contrast, section 1505 is the more special or specific provision: it explicitly itemizes the districts where conditional uses are permitted, so long as the governing body employs a certain test, and it sets forth in detail the criteria to be used to grant a conditional use. As a result, to the extent the provisions are irreconcilable, section 1505 must prevail and be construed as an exception to section 107. See 1 Pa.C.S. §1933. Under section 1505, conditional uses may be granted only in C1, C2, C3, and M1 zoning districts and not an S Conservancy district. Therefore, with there being no dispute that Pegasus' proposed use is located in an S Conservancy district, we conclude that the trial court erred in granting Pegasus a conditional use.
Due to our disposition, we need not address Objectors' remaining arguments. --------
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 27th day of March, 2014, the June 18, 2013 order of the Court of Common Pleas of Cambria County is reversed.
/s/_________
PATRICIA A. McCULLOUGH, Judge