Millersville University v. Millersville Borough Zoning Hearing Board

82 Pa. D. & C.4th 297, 2006 Pa. Dist. & Cnty. Dec. LEXIS 474
CourtPennsylvania Court of Common Pleas, Lancaster County
DecidedAugust 18, 2006
Docketno. CI-05-05950
StatusPublished

This text of 82 Pa. D. & C.4th 297 (Millersville University v. Millersville Borough Zoning Hearing Board) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lancaster County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Millersville University v. Millersville Borough Zoning Hearing Board, 82 Pa. D. & C.4th 297, 2006 Pa. Dist. & Cnty. Dec. LEXIS 474 (Pa. Super. Ct. 2006).

Opinion

CULLEN, J.,

On July 13, 2006, Millersville University filed a notice of appeal to the Commonwealth Court from this court’s order of June 29, 2006, denying the university’s request for a variance and a special exception. Accordingly, this opinion is filed pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure. The relevant procedural background is set out in the court’s opinion and order of June 29, 2006.

DISCUSSION

In its statement of matters complained of on appeal, the university raises three primary issues: (1) whether certain findings of fact made by the court constitute an [299]*299abuse of discretion or an error of law; (2) whether the court erred in denying the university’s request for a variance; and (3) whether the court erred in denying the university’s request for a special exception. The standard of review applicable to these claims is as follows.

Where a trial court does not take additional evidence as permitted by 53 P.S. §11005-A, an appellate court normally reviews the zoning hearing board’s decision to determine if it committed an error of law or abused its discretion. Eastern Consolidation & Distribution Services v. Board of Commissioners, 701 A.2d 621, 623 (Pa. Commw. 1997) (citing Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 554, 462 A.2d 637, 639 (1983)).

Where the trial court does not take additional evidence but makes its own findings of fact based on the record before the zoning hearing board pursuant to 53 P.S. §11005-A, an appellate court must examine the trial court’s decision, not the board’s, for evidentiary support. Id. (citing Koutrakos v. Zoning Hearing Board, 685 A.2d 639, 642 (Pa. Commw. 1996)). The scope of review then becomes “whether the trial court committed an abuse of discretion or an error of law.” Id. (citing Faulkner v. Board of Adjustment, 154 Pa. Commw. 616, 619, 624 A.2d 677,679 (1993)). An appellate court may determine that the trial court abused its discretion “only if its findings are not supported by substantial evidence, which is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citing Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983)). If the record demonstrates such substantial evidence, then the appellate court is bound by the findings of fact made by the [300]*300trial court. Macioce v. Zoning Hearing Board, 850 A.2d 882, 887 n.9 (Pa. Commw. 2004).

1. Whether Certain Findings of Fact Made by the Court Constitute an Abuse of Discretion or an Error of Law

The university raises 13 issues regarding the court’s findings of fact. These issues are labeled by the university as letters “a” through “m.”

In its issue labeled “a,” the university argues that findings of fact numbers 31, 32, 36 and 38 are deficient because baseball fields are a permitted use under the zoning ordinance and the university’s application was not for a baseball field, but rather to remove buildings. This argument, however, fails to raise a claim that the findings of fact are not supported by substantial evidence. On the contrary, an examination of the record reveals that the findings of fact correctly state that the application did not contain all of the information required by the ordinance.

Further, the ordinance classifies the area including the houses at issue as a Historic Preservation Overlay District. Zoning Ordinance, September 23, 2003 at §309; Zoning Map, September 23, 2003 at 1-2. In order to demolish a building within this district, the university must demonstrate compliance with section 309(D) of the ordinance. Zoning Ordinance, September 23, 2003 at §309(D). Section 309(D)(2) specifies that an application for demolition of a historic building must comply with the requirements of section 103(D). Id. at section 309(D) (2). Neither section 309 nor section 103 exempts from its requirements applicants whose proposed structures [301]*301would otherwise be permitted by the underlying R1A Residential/University District. The findings of fact at issue merely state that the university failed to fully meet the requirements of section 103 of the ordinance.

The university’s contention that it did not have to comply with all of the provisions of the ordinance because its application was only to demolish buildings and not to construct a baseball field is undercut by the language in its application. On page 1 of its application, the university designates that its proposed use is “Houses to be removed for new baseball field.” Zoning Hearing Board application, March 31, 2005 at exhibit A-2. Similarly, on page 1 of its supplemental form, the university states: “The four properties are vacant buildings that were previously used as single family dwellings. We request permission to demolish all four to construct a baseball field along N. Prince Street on several parcels that include these four.” Id. On page 3 of the supplemental form, the university describes that the “intended use of the properties on which these houses sit is a baseball field,” that the character of the structure to be constructed is a “baseball field and grandstands,” and that an “outfield fence will be on the southern part of the property.” Id. The university also submitted site plans that depict a baseball field.

Numerous witnesses for the university testified before the Millersville Borough Zoning Hearing Board as to the construction of a baseball field, and the language of the zoning ordinance specifically requires consideration of proposed structures. Id. at exhibit A-29; N.T., May 11, 2005 at 77, 91, 95-121, 123, 125-29, 132-33, 137-38, 142, 154-58, 156-68; Zoning Ordinance, September 23, 2003 at sections 309(D)(4)(e), 103(D). Under these cir[302]*302cumstances, the court could not view the application without properly considering the planned use as a baseball field.

As the university’s application did not comply with sections 103(D)(4)(b)(l), 103(D)(4)(b)(2), 103(D)(4)(f), and 103(D)(4)(h), the court correctly noted these deficiencies in its findings of fact.

In its issue labeled “b,” the university states: “Finding of fact number 46 suggests that the university’s structural engineer’s reports did not comply with the requirements of the ordinance because they did not contain a ‘structural analysis.’” Concise statement of matters complained of on appeal at 2.

This issue fails to assert a claim that the finding of fact is not supported by substantial evidence, but rather demonstrates that the university merely disapproves of the language that the court used to frame the finding of fact. While the university may not view the language favorably, its disapproval does not make the finding of fact erroneous.

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Related

Taliaferro v. Darby Tp. Zoning Hearing Bd.
873 A.2d 807 (Commonwealth Court of Pennsylvania, 2005)
MacIoce v. Zoning Hearing Board
850 A.2d 882 (Commonwealth Court of Pennsylvania, 2004)
Valley View Civic Ass'n v. Zoning Board of Adjustment
462 A.2d 637 (Supreme Court of Pennsylvania, 1983)
Koutrakos v. Zoning Hearing Board
685 A.2d 639 (Commonwealth Court of Pennsylvania, 1996)
Eastern Consolidation & Distribution Services, Inc. v. Board of Commissioners
701 A.2d 621 (Commonwealth Court of Pennsylvania, 1997)
Bray v. Zoning Board of Adjustment
410 A.2d 909 (Commonwealth Court of Pennsylvania, 1980)
Faulkner v. Board of Adjustment
624 A.2d 677 (Commonwealth Court of Pennsylvania, 1993)

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Bluebook (online)
82 Pa. D. & C.4th 297, 2006 Pa. Dist. & Cnty. Dec. LEXIS 474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/millersville-university-v-millersville-borough-zoning-hearing-board-pactcompllancas-2006.