Stroudsburg Municipal Water Authority v. Versatile Investment Projects, Inc.

480 A.2d 352, 84 Pa. Commw. 434, 1984 Pa. Commw. LEXIS 2137
CourtCommonwealth Court of Pennsylvania
DecidedAugust 13, 1984
DocketAppeal, No. 2022 C.D. 1982
StatusPublished
Cited by1 cases

This text of 480 A.2d 352 (Stroudsburg Municipal Water Authority v. Versatile Investment Projects, Inc.) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stroudsburg Municipal Water Authority v. Versatile Investment Projects, Inc., 480 A.2d 352, 84 Pa. Commw. 434, 1984 Pa. Commw. LEXIS 2137 (Pa. Ct. App. 1984).

Opinion

Opinion by

Judge Barbieri,

The Stroudsburg Municipal Water Authority (Authority) appeals here from an order of the Court of Common Pleas of the Forty-Third Judicial District directing the Supervisors of Stroud Township (Supervisors) to issue a conditional use permit to Versatile Investment Projects, Inc. (Versatile). We will remand.

Stroud Township’s (Township) zoning ordinance (Ordinance) defines twenty-three “use classes” which are allowed in some or all of the Township’s zoning districts; nine of these use classes are characterized by the Ordinance as “Permitted Uses” which require no prior approval by the Township Zoning Hearing Board (Board) or Supervisors, seven are defined as “Special Uses” which must receive prior approval from the Board, and the remaining seven are defined as “Conditional Uses” which must be approved by the Supervisors. In addition, .Section 5.902 of the Ordinance provides that any use proposed for a site with “special environmental or hazardous conditions” is a “Special Use” requiring prior approval from the Board.

[436]*436In 1980, Versatile submitted a conditional use application to the Supervisors seeking permission to locate a commercial picnic and bathing area on a 15.8 acre tract of land adjacent to Brodhead Creek in an area of the Township zoned S-l. Since the Township zoning authorities were apparently unsure which use class the proposed project fell within, however, Versatile was advised to also file a special use application with the Board. Versatile subsequently did so, and after a preliminary hearing on this application the Board concluded (1) that Versatile’s project fell within the ambit of Section 5.902 of the Ordinance, and hence needed prior approval from the Board, and (2) that the proposed project also fell within the definition of two use classes deemed to be conditional uses in the Ordinance,1 and thus also needed prior approval from the Supervisors. Versatile’s application [437]*437for a special use was subsequently conditionally granted by the Board,2 but after a hearing before the Supervisors its application for a conditional use was denied for the following reasons:

2. Applicant has failed to demonstrate that a sufficient market exists for the type, size and character of the development proposed.
3. Applicant has failed to demonstrate or adequately justify that the proposed site alterations to the subject property will not adversely effect (sic) the existing environment, including, but not limited to the Brodhead Creek.
4. Applicant has failed to demonstrate that the proposed site alterations will not cause substantial injury to existing water conveyance strips, which exist on the subject property, thereby jeopardizing the public health, safety, welfare and convenience.

The Supervisors also apparently found an additional reason for denying the conditional use application by indicating in its finding of fact that “Applicant has not demonstrated that the proposed site alterations to the subject property are consistent with the Township storm water runoff and drainage plan.”

In response, Versatile appealed to the common pleas court, and the Authority, which had been an objector at the hearing before the Supervisors, formally intervened in the proceeding. Before the court [438]*438Versatile asserted, inter alia, that it had presented sufficient evidence to establish (1) that there was a sufficient market for the services it proposed to offer and (2) that its project would not adversely affect the environment. The Supervisors and the Authority, for their part, asserted, inter alia, for the first time, that Versatile had not satisfied the Ordinance’s requirement that “ [ljarge site alterations and alterations in or near fragile environmental areas shall be required to be justified by a thorough, written, environmental effects statement in a form acceptable to the Supervisors.” The common pleas court subsequently concluded, however, without taking any additional evidence, that the Ordinance’s requirement of a written environmental effects statement was “ambiguous,” that the Supervisors erred by finding that Versatile had not proved that there is a market tor its proposed project, and that the objectors had failed to establish that Versatile’s project would adversely affect Brodhead Creek or any water conveyance strips.3 Neither the court nor the parties addressed the fact that the Supervisors found that Versatile’s proposed site alterations did not comply with the Township storm water runoff and drainage plan. The present appeal followed.

Before this Court the Authority alleges that the common pleas court erred as a matter of law by deeming the Ordinance’s requirement of a “thorough, written, environmental effects statement” to be invalid, and asserts that the court should have affirmed the Supervisor’s denial of Versatile’s conditional use application since Versatile failed to establish compliance with this “objective” requirement of the Ordinance. Alternatively, the Authority maintains that the court, in reversing, should have remanded the [439]*439matter so that the Supervisors could be afforded the opportunity to exercise their right under the terms of the Ordinance to impose “any additional (Conditions and safeguards . . . which may be warranted by the character of the areas in which such uses are proposed or by other special factors and which are necessary to implement the purposes of the Ordinance.” We shall address these issues seriatim.

Initially we note that we do not believe that there was any need for the common pleas court to address itself to the question of whether the Ordinance’s requirement of a written environmental effects statement is constitutional since this issue was neither raised by the parties below, nor was the resolution of this issue necessary for a proper disposition of the case. The issue which the objectors raised before the common pleas court, and the issue the Authority attempts to raise here, is whether Versatile is entitled to a conditional use since it allegedly failed to file a “thorough, written, environmental effects statement in a form acceptable to the Supervisors. ’ ’

The record shows that Versatile submitted a detailed plan of its proposed development to the Supervisors and presented evidence concerning the various permits it had received from state and local environmental officials, and that it answered all questions concerning the environmental effects of the proposed project that were submitted by the objectors at the hearing before the Supervisors. Neither the Supervisors nor the objectors raised any objection to this method of presenting evidence, and the lack of a written environmental effects statement was not mentioned by the Supervisors in their decision. Since the record shows that the objectors did not cross appeal from the Supervisors’ decision we believe that they were precluded from raising the issue before the com[440]*440mon pleas court, and that the Authority is similarly precluded from raising this issue here.

Turning to the Authority’s second argument we note that Section 4.403 of the Ordinance provides in pertinent part that:

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Bluebook (online)
480 A.2d 352, 84 Pa. Commw. 434, 1984 Pa. Commw. LEXIS 2137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stroudsburg-municipal-water-authority-v-versatile-investment-projects-pacommwct-1984.