Opinion
No. 556 C.D. 2011
02-07-2012
Radnor Development Company, LP, Appellant v. Board of Supervisors of Hereford Township
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
Radnor Development Company, LP (Radnor) appeals an order of the Court of Common Pleas of Berks County (common pleas court) denying Radnor's appeal from a decision of the Board of Supervisors of Hereford Township (Board) to deny Radnor's application for a curative amendment to the Hereford Township Zoning Ordinance 2007-01 (the Ordinance). In denying Radnor's application, the Board determined that Radnor lost its equitable interest in the subject property when its option to purchase expired in August 2009, and that it no longer had standing as a "landowner" to challenge the validity of the Ordinance thereafter. The Board, therefore, concluded that the application was moot. We agree and affirm common pleas' denial of Radnor's appeal.
Section 107 of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10107, in pertinent part, defines a "landowner" as "the legal or beneficial owner or owners of land including the holder of an option or contract to purchase . . . ." (Emphasis added). Section 916.1(a)(2) of the MPC, added by Section 99 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10916.1(a)(2), under which Radnor proceeded, provides a landowner desiring to challenge the validity of an ordinance with the right to request a curative amendment.
As gleaned from the Board's decision, the relevant facts are as follows. In October 2007, Radnor was the equitable owner of the subject property, consisting of an approximately ninety-nine acre parcel of land owned by K&K Clayton Enterprises, Inc. and located in Hereford Township at the intersection of Pennsylvania State Route 100 and Kutztown Road. The subject property has an agricultural zoning designation and has been used as farm land for at least the last sixty years. Notwithstanding the subject property's location in Hereford Township, it is subject to the Multi-Municipal Comprehensive Plan adopted by Hereford and Washington Townships. The plan proposes very little change for Hereford Township and encourages future development and growth in Washington Township. It specifically provides for agricultural preservation of the subject property.
In June 2008, Radnor requested a curative amendment to the Ordinance, asserting that it did not appear to allow for a continuing care community (CCRC) and that the failure to include it in the Ordinance could be construed as excluding a type of senior housing in Hereford Township. The Board held the first of four hearings on Radnor's application in September 2009. Notwithstanding its determination that Radnor's equitable interest had expired in August 2009, the Board proceeded to decide the merits of Radnor's application for a curative amendment. Common pleas court affirmed the Board's decision on the merits and also determined that Radnor's standing argument was specious, stating:
No hearing was held immediately due to Radnor's failure to include in its application the required proposed amendment to the Ordinance, the required township application form and the required fee. Although Radnor submitted these items by July 8, 2008, the Township had already commenced a separate municipal curative amendment by adopting two resolutions. Upon Radnor's appeal at Berks County Docket No. 08-12629, common pleas court held the municipal curative amendment to be invalid and directed the Township to proceed with Radnor's curative amendment proceeding before July 17, 2009. A hearing was scheduled for July 14, 2009, but it was cancelled at Radnor's request. Radnor's curative amendment application, the subject of the present appeal, is at Berks County Docket No. 10-2261.
In determining that a CCRC was not a discrete use that had to be covered in the Ordinance, the Board accepted as credible the testimony of the Township's expert, John Snook. Snook testified that all of the component uses contained within a CCRC were enumerated in the Washington Zoning Ordinance as uses permitted by right and that, therefore, such a community could be developed regardless of whether a specific use called a CCRC was specified. Further, Snook testified that a CCRC was "a use of regional impact that [was] not required to be planned for in each municipality as a discrete use." Board's January 4, 2010 Decision, Finding of Fact No. 96. Accordingly, determining that CCRCs were permitted and able to be developed under both the Hereford and Washington Township Zoning Ordinances, the Board concluded that Radnor failed to sustain its burden of proving that those ordinances were unconstitutionally exclusionary.
Radnor blames Township for its own deficiencies in presenting its case. Radnor attempted to have a stipulation that it was the equitable owner of the Property, but Special Counsel for Township refused to stipulate to it. Radnor did not present any witnesses to prove that it was the equitable owner. It simply relied on an exhibit that showed that its equitable ownership had ended. Moreover, Board had no duty to raise the issue of standing at the hearing or allow Radnor to reopen the hearing to prove standing. Board did not know that Radnor's standing was questionable until it studied the exhibits at the close of the hearings.Common Pleas Court's Decision at 10-11. Radnor's appeal to this Court followed.
Where the common pleas court has taken no additional evidence, we are limited to determining whether the zoning hearing board committed an error of law, or whether its findings are supported by substantial evidence. Tennyson v. Zoning Hearing Bd. of West Bradford Twp., 952 A.2d 739 (Pa. Cmwlth. 2008).
We turn first to the issue of whether the Board erred in determining that Radnor lacked standing during the relevant timeframe. It is undisputed that Radnor proceeded as a "landowner" with an equitable interest in the subject property due to its status as "the holder of an option or contract to purchase." 53 P.S. § 10107. The Board based its determination that Radnor lost that status on Radnor's agreement of sale, the only evidence it presented to support its status as a "landowner." As Radnor acknowledges, "[t]he standing issue arose only because the document making [it] the equitable owner terminated before the curative amendment was ruled upon by the Township." Radnor's Brief at 19. Radnor nonetheless argues that the Board erred in determining that Radnor lacked standing because the parties made a relevant stipulation of facts and the Township waived standing by not raising it at the hearing. We reject Radnor's arguments.
A review of the record indicates that a stipulation discussion between the attorneys took place regarding Radnor's exhibits R-1 through R-20, which included the agreement of sale as R-8. Although counsel for Radnor stated on record that all of the attorneys stipulated to Radnor's status as equitable owner, counsel for the Township clearly limited any stipulation to the authenticity of the evidence, not to its probative value or to any characterization that could be placed on it. Pursuant to that limitation, the Township's attorney reserved his right "to argue on whether they [the exhibits] mean anything or not." September 14, 2009 Hearing, Notes of Testimony (N.T.) 15; Reproduced Record (R.R.) 803a. Further, while parties' stipulations of fact are binding, conclusions of law are solely for the tribunal to determine. As the Board noted, Radnor never offered any evidence supplementing those exhibits, such as any documentation or testimony that there had been an extension of the agreement of sale. Accordingly, as the Board determined, it had only the unexplained and expired agreement of sale to rely upon in determining Radnor's standing.
Counsel for the Wolfgangs, who are now proceeding pro se, echoed the comments of counsel for the Township.
In its failed motion for leave to present additional evidence to common pleas under Section 1005-A of the MPC, added by Section 101 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 11005-A, Radnor alleged that in reliance upon what it characterized as the parties' stipulation that it was the equitable owner of the property, it "admitted the Agreement of Sale and all existing extension [sic] into evidence [before the Board], but did not present any additional testimony or other documentation concerning [its] continuing interest in the property." Radnor's Motion for Leave to Present Additional Evidence, ¶18; R.R. 472a. The decision not to submit additional evidence was totally within Radnor's control, and as described above, the record does not reflect that Radnor was misled or that it could reasonably have relied on the stipulations to have established its ongoing standing after August of 2009. It is within the discretion of the trial court to determine whether supplementation of the record is appropriate. Moreover, this Court has held that Section 1005-A of the MPC should come into play only when the party seeking to supplement the record establishes that it is incomplete because the party was denied an opportunity to be heard fully or because relevant testimony was offered and excluded. E. Consolid. & Distrib. Servs., Inc. v. Bd. of Comm'rs of Hampden, 701 A.2d 621 (Pa. Cmwlth. Ct. 1997). Accordingly, common pleas did not abuse its discretion in denying Radnor's request to supplement the record.
Finally, we reject Radnor's argument that the Township waived its right to object to standing by not raising any concerns at the hearings before the Board. While it is true that standing may be waived when not raised before a zoning hearing board, Collier Stone Co. v. Township of Collier Board of Commissioners, 735 A.2d 768 (Pa. Cmwlth. 1999), it was Radnor's burden to establish that it was an equitable owner with sufficient interest to seek zoning relief. See Borough of Braddock v. Allegheny County Planning Dep't, 687 A.2d 407 (Pa. Cmwlth. 1996) (railroad presented sufficient indicia of ownership to establish standing). As the Board and common pleas concluded, the evidence that Radnor chose to rely upon, an admittedly expired agreement of sale, simply did not meet this burden.
Accordingly, we affirm common pleas' denial of Radnor's appeal.
We note that were it appropriate for us to decide the merits, we would agree with the well-reasoned analysis of the Honorable Jeffrey K. Sprecher. --------
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge ORDER
AND NOW, this 7th day of February, 2012, the order of the Court of Common Pleas of Berks County in the above-captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge