Concerned Citizens v. Board of Supervisors

1 Pa. D. & C.5th 429
CourtPennsylvania Court of Common Pleas, Berks County
DecidedDecember 11, 2006
Docketno. 06-8733
StatusPublished

This text of 1 Pa. D. & C.5th 429 (Concerned Citizens v. Board of Supervisors) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Concerned Citizens v. Board of Supervisors, 1 Pa. D. & C.5th 429 (Pa. Super. Ct. 2006).

Opinion

LASH, J.,

The matter before this court is the land use appeal filed by Concerned Citizens of Exeter Township Inc., Jack Bertolet, James Focht and Linda Focht, and J. Kim Kolakowski from the written decision of the Board of Supervisors of Exeter Township, dated July 6, 2006, granting the application of Exeter Township School District for conditional use approval. The school district’s application requested conditional use approval for a public school within an Agricultural Preservation District. For reasons set forth herein, this court reverses the decision of the board and denies conditional use approval to the school district.

On or about December 20, 2005, the school district entered into an agreement of sale with Jordan L. and Elizabeth M. Bausher to purchase a portion of real property owned by Baushers and located on the eastern side of Ritter Lane, between Boyertown Pike and Oley Pike, in Exeter Township. The Baushers contemplate a subdivision of their property, with the school district to receive [431]*431approximately 110 acres, leaving a residue to the Baushers of approximately 40 acres, including a residence and other buildings. The property is located in the Agricultural Preservation District of Exeter Township.

On February 28, 2006, the school district filed an application for a conditional use to construct a school facility on the premises.1 A hearing was held on April 27,2006 and May 25, 2006. At the hearing, the school district submitted a plan which provided a rendering of the proposed school facility. Three buildings were identified, together with multiple driveways, an internal street system, parking compounds, and several play areas and sporting fields.

At a public meeting on July 6, 2006, the board, by a 3 to 2 vote, granted the school district’s application for a conditional use. A written decision was then issued, also dated July 6,2006, and mailed to the school district on July 10, 2006. The two dissenting board members also issued findings of fact, conclusions of law and a “minority decision.”

The board concluded that the school district did satisfy all conditions required by the Exeter Township Zoning Ordinance for conditional use approval, including but not limited to, “the specifics set forth in section 808 of the Exeter Township Zoning Ordinance.”2 This conclusion was buttressed by several findings of the [432]*432board, all of which addressed the sufficiency of the school district’s evidence regarding compliance with five standards listed in section 808(3)(A-E). However, with two exceptions relating to procedures,3 the board made no specific findings regarding satisfaction of any conditions required by the zoning ordinance other than those set forth in the five standards of section 808(3)(A-E).

The board also imposed additional conditions and safeguards upon the school district necessary for the granting of the conditional use:

“(A) No street can extend from the proposed school into Glen Oley Farms.
“(B) Any additional use of the subject premises must be agricultural in nature with crops being planted on the unused portions of said property not used by and for the school and/or its associated uses.
“(C) As many of the existing whole growth trees shall be retained, and a vegetation buffer shall be erected with coniferous trees 10 to 15 feet in height between an erected sound deterrent barrier and the adjoining residential areas with said planting to occur in the early portions of said development.
“(D) The external lighting on the school premises shall be erected and built so as to not shine upon adjoining residential properties in Glen Oley Farms and any other adjacent subdivisions.
“(E) There shall be no further subdivision of the premises unless this provision is declared illegal as provided by law.
[433]*433“(F) The school facilities shall not be leased to any third parties or entities for non-school functions, without prior written permission and approval of the Board of Supervisors of Exeter Township.
“(G) A traffic study shall be prepared and followed so as to minimize hazardous and congested traffic conditions as provided in all sections of the Exeter Township Zoning Ordinance.
“(H) Applicant shall comply with any and all historical area controls as more particularly set forth in section 625 of the Exeter Township Zoning Ordinance.
“(I) Applicant shall comply with any and all other ordinances and regulations of Exeter Township including, but not limited to those regarding development of the tract specifically testified to by applicant’s witnesses at the various public hearings including but not limited to the land development ordinances and requirements more particularly set forth therein.
“(J) One primary school, K-4 is presently allowed.
“(K) Spectator events will be scheduled so as to minimize impact of traffic on adjoining residential areas.
“(L) School spectator events shall be limited to daylight hours.
“(M) Bausher lot that remains must be a conforming lot.
“(N) There shall be no more than three recreational/ athletic fields, none of which shall be lighted.
“(O) The two private cemeteries currently on the site will be preserved and appropriately maintained.
“(P) The school district shall not apply for any variances or waivers.
[434]*434“(Q) No modular classrooms will be permitted.”

Citizens filed their appeal on August 1,2006. On August 21, 2006, the school district intervened. Argument was held before this court on November 6, 2006.

In the case of In re Thompson, 896 A.2d 659, 667-68 (Pa. Commw. 2006), the Pennsylvania Commonwealth Court provides a comprehensive statement on this court’s scope of review:

“The proper scope of review in this appeal is set forth in section 754(b) of Local Agency Law, 2 Pa.C.S. §754(b); SSEN Inc. v. Borough Council of Borough of Eddystone, 810 A.2d 200, 206 (Pa. Commw. 2002). Section 754(b) provides:

“(b) Complete record. — In the event a full and complete record of the proceedings before the local agency was made, the court shall hear the appeal without a jury on the record certified by the agency. After hearing, the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of subchapter B of chapter 5 (relating to practice and procedure of local agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may enter any order authorized by 42 Pa.C.S. §706 (relating to disposition of appeals) ....

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Bluebook (online)
1 Pa. D. & C.5th 429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/concerned-citizens-v-board-of-supervisors-pactcomplberks-2006.