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BOARD OF COMMISSIONERS OF THE TOWNSHIP OF LOWER MERION Defendant Land Use Appeal and BRIDGEHEAD & FOOTBRIDGE, LP Intervenors
FACTUAL AND PROCEDURAL mSTORY
Righters Ferry Associates, LP ("RF A") owns the property at issue at 600 Righters Ferry Road, Bala Cynwyd, located in the Manufacturing Lower Merion Township. Schuylkill River. and Industrial District ("M- District") of
This property is also located along the floodway fringe of the
Both Bridgehead, LP and Footbridge, LP ("BHFB") own the surrounding On April
properties at 615-620 Righters Ferry Road and 601 Righters Ferry Road, respectively.
30, 2008, Lower Merion Township ("Township") amended the Lower Merion Township Code ("Code") to permit apartment development on parcels in the M-District located adjacent to the Schuylkill River by conditional use. On July 11, 2008, RF A filed a conditional use application ("application") under Code § 155-,89(D) to allow for development of 580 apartment units on its property. Due to its location, an apartment complex at 600 Righters Ferry Road would be
subject to both the M-District and floodplain conditional use criteria (Code §§ 155-90.1 and 155160). From April 7, 2009 until December 9, 2009, the Lower Merion Zoning Hearing Board ("Board") held hearings on RFA's conditional use application. approved the application subject to thirty four (34) conditions. On January 20, 2010, the Board RFA filed a notice of appeal on 11-16, 17-18,21,23,26-30,
February 19,2010 regarding the imposition of conditions 1,2,4-9,
32 and 34. RFA subsequently filed a motion to present additional evidence on March 4, 2010
but withdrew said motion on April 19, 2012. intervene in this matter.
On March 19, 2010, BHFB filed a petition to
This unopposed motion was granted on April 6, 2010. On June 15,
2011, RFA filed a motion to enforce an alleged settlement agreement between itself and the Township but withdrew that motion on June 26,2012. The parties appeared before the undersigned for argument on April 20, 2012. During this argument, RFA focused on the contested conditions, claiming certain conditions imposed by the Township exceeded its authority and were possibly illegal. In response, the Township argued
that the conditions imposed were based on the requirements of the Code. BHFB's position was that the Board committed reversible error in failing to deny the application where the Board properly concluded that RFA's conditional use application failed to comply with numerous objective standards contained within the Code. After the two-hour hearing, the Court took the matter under advisement. This Opinion addresses all issues raised before the Court.
CONCLUSIONS OF LAW
This Court must first question whether RF A met the specific M-District and floodplain conditional use criteria. Kotzin v. Plymouth Township Zoning Board of Adjustment, 149 A.2d
116 (Pa. 1959) (when a landlord applies to municipal authorities for a special exception, the zoning board's function is to determine whether the specific facts, circumstances and conditions exist which comply with the standard of the ordinance which merit the granting of the exception). Only if RF A met the basic criteria of the pertinent Codes and ordinances, can we
then analyze the specific conditions and question whether the Board had the authority to impose such requirements. The Court recognizes that a Township has the right to impose conditions it
believes are necessary to implement the purposes of the Pennsylvania Municipalities Planning Code and the zoning ordinance. MPC § 603(c)(2). However, in its brief, the Board concedes
that compliance with the general criteria within the Code was not demonstrated but it chose to give RF A the chance to amend these deficiencies at the land development stage. See, Decision, p. 54, Finding, 20. It is well-settled caselaw that, in order to obtain a special exception or conditional use, it is the applicant's burden to demonstrate full compliance with the standards and criteria in the ordinance.
v. New Britain
976, 977 (Pa.Cmwlth.
appeal at docket number 2010-03821 was subsequently consolidated into this case.
Code § 155-141.2(B)
standards) provides, in pertinent part: (6) The applicant shall provide sufficient plans, studies or other data to demonstrate compliance with the regulations for the permitted use or other such regulations, as may be the subject of consideration for a conditional use approval. (emphasis added). The term "shall" in common legal usage has been defined as follows: Shall. As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary
parlance, and in its ordinary signification, the term "shall" is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation.
Commonwealth v. Ferguson, 552 A.2d 1075, 1079 (pa. Super. 1988). When a zoning ordinance contains specific requirements for a special exception, an applicant's plans must depict how the proposed development will comply with those requirements, even if compliance is to be accomplished in the future. In re Appeal of SW Land Associates, LLC, 2010 WL 5943277 (Pa.Com.PI. 2010). The Edgemont court, for example, did not suggest that the proposed land and building alterations had to be performed before a special exception could issue; rather, so long as the plan included these provisions in a satisfactory manner, approval could be given conditioned upon full compliance with the plan at a later date. Id. citing Broussard v. Zontng Board of Adjustment of the City of Pittsburgh, 907 A.2d 494, 501 (Pa. 2006) ... The Pennsylvania Supreme Court has squarely addressed the issue, holding that an applicant for a special exception can obtain approval conditioned, on future compliance with zoning requirements, but only as long as detailed plans are submitted on which a zoning board can base its approval. (emphasis added) Id. citing Broussard at 501-502.
In the present case, RF A submitted an application which the Board found to have both substantial and minor deficiencies that did not meet the general criteria for a special exception. We will not address all of the deficiencies; however, for purposes of illustrating the Court's determination individually. that the application was defective, we will address several of the deficiencies For example, the application called for 870 parking spaces, 502 that were outside The Board concluded that RF A failed to comply with § 155-160(A) of the
of the floodplain.
Code, which provides, in pertinent part, "the following uses may be permitted within the Floodplain District as special exceptions ... paved roads, driveways and parking areas, provided
that no alternative nonfloodplain locations are feasible."
Because there was ample area outside
of the floodplain for additional parking, the applicant failed to establish that it met the requirements for the special exception on parking in the floodplain. Regardless, the Township
imposed a condition mandating compliance with the requirements of § 155-160(A) at the land development stage. Next, the Board determined that RFA's application violated Code § 155-97, which required that "[i]n addition to the parking spaces[s] required above, sufficient area shall be provided inside or outside the principal building for the loading and unloading of vehicles." The Board concluded that RF A's application (with submitted plans), included no designated loading areas; however, it approved the Application with a caveat that this requirement can be
"addressed during the land development process." See, Decision, p. 29, Findings, 121, 124. The Board also found that RFA's plan violated § 155-160(D)(4) which mandates that all structures in the floodway fringe "shall be constructed with all portions of all rooms, including basements, at least 24 inches above the base flood level"). RF A's submitted plan clearly
reflected that various rooms were located at ground level despite the language of the code which prohibits such construction. it comply with this section. Additionally, the Board determined that RFA failed to comply with Code § 155The Board thereafter granted RFA's application with the caveat that
141.2(B)(4), which provides that "the peak traffic generated by the subject of the [conditional use] approval shall be accommodated in a safe and efficient manner or improvements made in order to effect the same." The Board determined that the five-way intersection proposed by RFA was unsafe but then approved the application subject to the reconfiguration of the intersection. Furthermore, the Board concluded that RF A also failed to comply with Code § 155141.2(B)(5), which provides that "the applicant shall establish by credible evidence that the proposed use or other subject of consideration for approval is properly designed with regard to internal circulation, parking, buffering and all other elements of proper land planning." After the conditional use hearings, the Board determined that RF A's plans, as submitted, contained
problems with internal circulation. See, Decision, p. 43, Finding, 183, 185. However, the Board concluded that these issues could be addressed during the land development phase, as determined by the Township engineer and staff.
Finally, Code § lOl-lO(C)
mandates that ''the locations, dimensions, and spacing of
required plantings be adequate for their proper growth and maintenance, taking into account the sizes of such plantings at maturity." Testimony at the conditional use hearings revealed RFA's Instead of rejecting the plan, the Board authorized
failure to comply with the requirement.
compliance at the land development stage. See, Decision, p. 47, Finding, 203. In the present case, it is clear that deficient plans were presented to the Board. The plans submitted by RFA did not depict how the proposed development of 600 Righters Ferry Road complied and/or how they could or would comply with the requirements subsequent phases. of the Code in
While Pennsylvania case law holds that detailed plans outlining future
compliance with Code may be acceptable for purposes of granting special conditions; it is not acceptable for the Board to grant an application replete with substantial deficiencies and permit the applicant to revise its plan and cure its defects in the future. rejected. (See, Elizabethtown/Mount A defective plan must be
Joy Associates, LP v. Mount Joy Township Zoning Hearing
Board, 934 A.2d 759, 764 (Pa.Cmwlth. 2007), holding where the applicant fails to meet all of the ordinance requirements for a special exception, the Board properly denies the application.)
After an analysis of the applicable caselaw, this Court deems the Board erred when it granted RF A's application under the above circumstances. REVERSE the Board's decision. We are therefore constrained to
Copies mailed July 18,2012 to: Marc Kaplan, Esquire for Plaintiff Gilbert High, Esquire for Defendant William Kerr, Esquire for Defendant Fred Fromhold, Esquire for Intervenors Jo Vanluvanee, Esquire for Intervenors /