S.E. Crivellaro v. Williams Twp. ZHB ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Susan E. Crivellaro :
:
v. : No. 1047 C.D. 2015
: Argued: December 10, 2015
Williams Township Zoning Hearing :
Board :
:
Appeal of: Board of Supervisors of :
Williams Township :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE MARY HANNAH LEAVITT, Judge2
HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI FILED: January 6, 2016
The Board of Supervisors (Supervisors) of Williams Township
(Township) appeals from an order of the Court of Common Pleas of Northampton
County (trial court) overruling Williams Township Zoning Hearing Board’s (Board)
grant of enforcement notices and denial of Susan E. Crivellaro’s (Crivellaro) request
for a variance to maintain a certain height of a billboard on her property. We vacate
and remand.
1
This matter was assigned to this panel before January 1, 2016, when President Judge
Pellegrini assumed the status of senior judge.
2
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
I.
A.
Since 1993, Crivellaro has owned a piece of property situated in the
Township, Northampton County, adjacent to Route 78. The property is located in an
area zoned Light Industrial/Business Zone and is approximately one acre in size,
improved with a single-family residential dwelling and associated structures, as well
as a double-sided monopole billboard. Crivellaro lives on the property with her
husband, Salvatore Crivellaro (Mr. Crivellaro, collectively, Crivellaros), and their
children. Prior to the construction of the billboard at issue, the property was
improved in 1987 by a single-sided monopole billboard (Outdoor billboard), owned
by Adams Outdoor Advertising (Outdoor Advertising). The Outdoor billboard was
removed from the property in 2008.
In early 2009, Mr. Crivellaro met with Richard Adams (Adams),3 the
Township’s Zoning Officer, to discuss the erection of the billboard on the property to
replace the Outdoor billboard. Subsequently, in May 2009, Crivellaro filed an
application for zoning/building permit (application) to erect the billboard, and
submitted a building plan (plan) prepared by Outdoor Specialists, a company that
specializes in the erection of outdoor advertising signs. The billboard’s use was
described on the application as, “Replacement of advertising structure as removed
June 30, 2008. Replacement being 30 ft [sic] high, double sided board, dimensions of
14 ft [sic] x 48 ft [sic], neutral in color. Shall consist of a monopole, lighted at the
bottom, and no other support structures. Replacement expense estimated at
3
Richard Adams is a certified building code official and has been the Township’s Zoning
Officer since 1999.
2
$55,000.00[.]” (Reproduced Record (R.R.) at 379a). The plan depicted the top of the
billboard as 30 feet above grade.4
Base Engineering, the third-party inspection service for the Township,
received the plan in June 2009. Upon reviewing the plan, Base Engineering stamped
on the plan that it was “approved as submitted,” offering no comments.
Subsequently, Adams issued a permit for the billboard’s construction, which was
extended on June 17, 2010, and allowed for the “[c]onstruction/replacement of an
existing monopole [b]illboard in compliance with the Williams Township Zoning
Ordinance of 1990 [(Zoning Ordinance)] as amended specifically Article XVII,
Section 1719, Off-Premise Signs (Billboards) A., B., C., D., E. & F.”5 (Id. at 381a.)
As Crivellaro did not begin construction before the original permit expired, she
applied for and received a six-month extension to the original permit, which stated
the same information as the original permit.
Outdoor Specialists then constructed the billboard in accordance with the
plan and received approximately $55,000.00 from Crivellaro upon completion. After
the billboard’s erection, Mr. Crivellaro erected a block wall around the monopole and
backfilled behind the wall. In October 2010, Base Engineering visited the site to
inspect the completed billboard and prepared a report, raising no issues with the block
wall or backfilling.
4
Mr. Crivellaro testified that crosshatching on the plan indicated the erection of a block wall
and placement of ten feet of backfill behind the wall in order to increase the grade. (R.R. at 163a).
5
With regard to billboards, the Zoning Ordinance states, “In no event shall these signs
exceed a vertical dimension of 30 feet above the grade of the lot.” Zoning Ordinance §1719(B)(4);
see (R.R at 412a).
3
After receiving complaints from a neighbor that Mr. Crivellaro removed
trees along Route 78, Adams conducted a site visit during which it appeared to him
that the billboard was too high. Adams then asked Timothy Edinger (Edinger), the
Township Engineer, to measure the height of the billboard and the wall constructed
beneath it. In November 2010, Edinger and Maynard Barthol, Edinger’s assistant,
conducted a site visit and measured the height to be an average of 43.9 feet from the
preexisting grade, excluding the backfill, to the top of the billboard, approximately 14
feet above the 30 foot height limitation imposed by the Zoning Ordinance and what
was represented to the Township as the height of the billboard. During the site visit,
Adams also noticed what he characterized as “earth disturbance” on the property,
including the construction of a wall approximately eight feet tall at the base of the
billboard, the infilling of earth behind the wall (backfilling), and the construction of a
driveway to the billboard.
Adams informed Mr. Crivellaro that a permit was required for the
construction of a wall over four feet in height. Mr. Crivellaro then removed some of
the wall’s building blocks so that the height of the wall did not exceed four feet.
Adams also determined that the “earth disturbance” required a grading permit per the
Township’s Grading Ordinance (Grading Ordinance), which regulates and requires
permits for “[e]arth moving and grading, soil disturbance, excavation, and any
activity incidental to construction, including, but not limited to addition to existing
principal structures, but not limited to, removal of vegetation and/or changes in
topography….” (R.R. at 428a).
4
B.
On December 2, 2010, Adams issued Crivellaro two enforcement notices
and a cease and desist order. One notice informed her that she is in violation of the
Zoning Ordinance as her billboard is 43.9 feet from the prior grade where the Zoning
Ordinance allows a maximum height of 30 feet. The other notice informed Crivellaro
that she is in violation of the Grading Ordinance due to the “large amount” of earth
disturbance around the base of her newly constructed billboard, coupled with the fact
that she did not apply for and was not issued a grading permit. The second notice
instructed Crivellaro to stop all earth moving/grading immediately and comply with
the Grading Ordinance. Both notices informed Crivellaro of her appeal rights and
notified her that failure to comply or failure to appeal will constitute a violation of the
Zoning Ordinance and Grading Ordinance and subject her and her husband to civil
penalties. On January 3, 2011, Crivellaro appealed both notices and the cease and
desist order with the Board, asking that the Board overturn the notices or, in the
alternative, grant variance relief to allow the billboard to remain on the property.
The Board first held a hearing on March 2, 2011, during which
Crivellaro argued that the Board failed to hold the hearing within the 60 days as
required by Section 908(1.2) of the Pennsylvania Municipalities Planning Code
(MPC)6 and, therefore, there was an automatic deemed approval of her appeal. No
evidence was presented regarding the merits of the appeal at both this and a
subsequent hearing on October 24, 2011. The Township filed a land use appeal on
6
Act of July 31, 1968, P.L. 805, reenacted and amended by the Act of December 27, 1988,
P.L. 1329, as amended, 53 P.S. §10908(1.2).
5
June 27, 2011, from a public advertisement by Crivellaro of a deemed approval.7 On
September 12, 2011, the trial court granted the Township’s motion to open the record
and ordered a remand to the Board for a hearing to present evidence and testimony
relevant to Crivellaro’s alleged deemed approval. On October 21, 2013, the trial
court denied and dismissed Crivellaro’s claim of a deemed approval and remanded to
the Board. The Board then held hearings on the merits of the appeal on January 22,
February 26, and April 23, 2014.
C.
Before the Board, Adams testified that based on the plan submitted by
Crivellaro that he reviewed, there was no indication that the grade was going to
change or that any additional support structure or wall was going to be built around
the billboard, and that he did not receive any other zoning- or grading-related plans to
review. Adams testified that Mr. Crivellaro’s explanation as to why he was building
the wall was “[t]o comply with the 30 feet in height. In his opinion, by building the
wall up, from the top of the wall to the top of the sign, that would be 30 feet.” (R.R.
at 19a). Adams explained that during his conversation with Mr. Crivellaro, he had
informed him that he did not need a grading permit to dig the hole for the monopole,
but would need one if he was going to disturb a “large area” in connection with the
billboard’s construction or put in a driveway,8 in which Mr. Crivellaro was interested.
7
The Township acknowledged that the Board is not the proper body with which to appeal
the cease and desist order because the Board does not have jurisdiction on that matter.
8
Adams explained what he would consider as disturbing a large area on cross-examination:
He is replacing the pole. You’ve got to give him credit for what was
there and was disturbed. That’s the way I interpret the [Grading
Ordinance]. In other words, if you have a structure that let’s say is
(Footnote continued on next page…)
6
He explained that in order for Mr. Crivellaro to put in a driveway or build the type of
wall that he had built, he would have had to submit certain information in order to
receive permits from the Township, which he never submitted.
On cross-examination, Adams testified that he believed that the plan
depicted the same grade as existed when the Outdoor billboard was located on the
property. He testified that he did not know what the pre-existing grade was. Adams
acknowledged that there were no caveats listed on the permit except that the
undertaking would have to comply with the relevant section of the Zoning Ordinance
and the description of the work depicted in the application, and that a permit is
authorized provided that it does not violate the Zoning Ordinance. However, Adams
added, “[Mr. Crivellaro and I] talked about using a driveway. He stated he wasn’t
going to be using that driveway and he wasn’t going to be disturbing any extra area.
That’s why he got a permit.” (R.R. at 43a).
Adams stated that he did not know what the crosshatches on the plan
depicted and did not ask for clarification, but he did not think it could be a wall
“because there is no wall on there.” (R.R. at 45a). He also explained that although
the Crivellaros checked off a box on the application indicating that they wanted a
(continued…)
1,000 square feet and you want to demolish it and build something
2,000 square feet, then the 1,000 square feet would be your earth
disturbance because there is already 1,000 feet of earth disturbance.
So what was in the ground would not be considered earth disturbance
if [Mr. Crivellaro] pulled it out and wanted to put something new in.
(R.R. at 47a).
7
driveway, and although the Crivellaros used an area on their property to access the
property, they never had a valid driveway permit, and he never received the monies
or plans required to issue a driveway permit. Adams testified that when he spoke
with Mr. Crivellaro about putting in a driveway, “I told him what he needed, and…
he said that he was not going to put a driveway in. Therefore, he didn’t have to pay
all his fees. But he eventually did put a driveway in.” (Id. at 54a).
Next, Maynard Barthol (Barthol) testified that he and Edinger visited the
Crivellaros’ property to determine the height of the sign and they measured it from
the grade as it existed on the date of the survey, which included the disturbance that
was there at the time.9 He stated that while he was at the property, he saw a wall
being built and also evidence of a new billboard’s construction, which included
“earth disturbance around the sign and around [the] partially constructed wall… [and]
bare earth as opposed to lawn vegetation outside of the area….” (R.R. at 57a). He
testified that the average sign height was taken by averaging the pre-existing grade
and the top of the billboard grade, which was 43.9 feet.10 Barthol also stated that the
crosshatching on the plan could represent either the pre-existing grade or the finished
grade.
9
“We did that by setting up the instrument and taking a measurement from the instrument’s
location to the bottom of the sign. We measured the distance from the survey instrument to the
bottom of the sign and also took a vertical angle from that survey position to the top of the
billboard. While we were there we also did numerous filed shots to determine the grade and
prepared a site plan for the area of the sign.” (R.R. at 56a-57a).
10
Barthol added that the equipment used to measure the billboard’s height was checked to
insure accuracy.
8
Edinger testified that the grades were estimated as best as possible,
“based on an extrapolation of our basis of [pre-]existing grades, undisturbed grades at
the time of the survey.” (R.R. at 63a). He added that he had not researched
Township records as to topography records from the Outdoor billboard prior to
visiting the property. He stated that while he had had an opportunity to examine the
plan, the plan did not depict the pre-existing grade and he did not take it with him on
his site visit. Edinger further explained that he saw a driveway, next to which a good
portion of the area was disturbed, but he could not tell whether the driveway was new
or whether it was there before. With regard to the crosshatching on the plan, Edinger
explained that crosshatching could be concrete, modified stone or backfill material,
but generally not undisturbed earth around the drilling of the hole.11 He stated that
the plan depicts the placement of concrete or backfill over the excavation for the
monopole and that the grade line depicts the finished top cover.
Mr. Crivellaro testified that the grade line on the plan represented to him
a finished grade line with backfill and it depicted where his 30 feet are. He testified
that a 2011 amendment to the Grading Ordinance provided that more than 2,000
square feet could not be disturbed, and, as such, he went out and measured the area
11
Edinger opined about the crosshatching:
[I]f you look at the bottom of the pole where the foundation is, you
will see that that was poured with concrete. So you’re going to have
to excavate a hole at least with the diameter of the caisson or the
concrete tube going in, and what they put there is the crosshatching.
By the way, there is no legend to indicate what exactly it is. But a
logical assumption would be that that is either backfilled or maybe
even concrete to fill in the top of the excavation.
(R.R. at 65a).
9
that he disturbed where he built the wall and found that he disturbed 720 square feet.
He stated that after he was notified by Adams that his wall was too high and that he
needed a variance to go higher, he volunteered to stop the construction and took
down some of the building blocks to bring the wall into compliance. Mr. Crivellaro
acknowledged that the plan makes no mention of the construction of a wall or
backfilling in conjunction with the erection of the billboard, but thought of it as “gray
area,” reasoning that there was nothing else to do with the dirt that comes out of the
hole other than to use it as backfill.
Finally, Gregory Ritter and Raymond Ulmer, neighbors of the
Crivellaros, testified that the billboard and the wall do not affect their living situations
nor does it alter or devalue the neighborhood in any way.
II.
A.
The Board upheld the height enforcement notice, finding that because
the billboard is an average of 43.9 feet above grade, it exceeds the maximum height
permitted by the Zoning Ordinance. The Board reasoned that the Zoning Ordinance’s
requirement that the maximum height of the billboard be 30 feet above the grade of
the lot “must and clearly does refer to pre-existing grade.” (Board’s Decision, 7/3/14,
at 10). Moreover, the Board explained that, “If this Board were to interpret otherwise
it would produce a ludicrous result. Specifically, one could avoid the 30 foot height
requirement by creating an artificial berm of 20 feet above pre-existing grade and
effectively get the sign height to 50 feet above existing grade rather than 30 feet.”
(Id.).
10
The Board likewise upheld the grading enforcement notice, finding that
additional grading was undertaken on the property on top of the pre-existing grade;
however, no grading permit was obtained prior to commencing the grading activities.
Finally, regarding the Crivellaros’ request for a variance under Section
111.E.3.b of the Zoning Ordinance and Section 910.2(a) of the MPC,12 the Board
found that the Crivellaros failed to establish that they cannot develop the property in
strict conformity with the Zoning Ordinance and that variance relief is necessary.
The Board noted that there is no evidence that the property has unique physical
characteristics preventing it from being developed to comply with the Zoning
Ordinance. Specifically, the Board reasoned that the Crivellaros failed to
demonstrate why the former billboard was inadequate or why the property’s current
residential use is inadequate to the point of creating the necessary legal hardship.
B.
Crivellaro appealed to the trial court and subsequently filed a motion
asking the trial court to hold a de novo hearing or remand the case to the Board for
another evidentiary hearing on the theory of vested rights and/or equitable estoppel,
an issue not raised before the Board, and to present additional testimony in support of
the request for a variance. The trial court granted this motion for the evidentiary
hearing in order to consider Crivellaro’s equitable estoppel arguments. In March
2015, the trial court held a hearing where additional evidence on the variance and
vested rights and equitable estoppel was presented. The parties stipulated that the
12
Added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10910.2(a).
11
certified record of the proceedings before the Board would be incorporated into the
record of the trial court’s proceeding.
C.
Before the trial court judge, James Richard Hardin (Hardin), the installer
of the billboard, a principal and part owner of Outdoor Specialist and owner of
Hardin Construction, which specializes in the erection of billboards, testified as an
expert with regard to the placement and height of billboards. Hardin testified that the
topography of the property is hilly with undergrowth, which affects the viewing
ability of the billboard, and that lowering the billboard even by a foot would affect its
visibility on the westbound road, blocking it from a vehicle’s visibility due to the
rolling hill and affecting the billboard’s marketability.13 He further stated that
lowering the billboard by ten feet would totally obscure the billboard. With regard to
the topography of the land around the billboard from an eastbound road, Hardin
testified, again, that while eastbound was not as bad, there is still undergrowth and
that if the billboard were any lower, the view would be blocked from the road. He
13
Hardin had done a driving-range distance of the billboard and taken pictures upon which
he relied. The pictures were taken 1,400 feet, 14 seconds away and 1,000 feet, 10 seconds away
from the billboard. In order to take the pictures, Hardin, at 5’10” height, had pulled in the
emergency lane and had gotten out of his truck. His description of what he saw westbound was as
follows:
Well, you can see the undergrowth below it and the trees beside it.
And there’s not any foliage in them this time of year either. And as
you can see, it’s already the upper part is what you read, the
sheetmetal [sic] above the blue is the portion, forty-eight area that you
would read. And it is just -- just where you can see it.
(R.R. at 278a).
12
stated that the sign would be better taller from both directions and that as it is, it is
very close to being unmarketable.
Hardin also testified about a billboard across Route 78 from the subject
billboard with the exact same size face and estimated that that billboard is 55 feet
high and, unlike Crivellaro’s billboard, which is in the valley, that billboard is
elevated on a hill. He also testified that other billboards in the vicinity of the subject
billboard all have the same size face but are at different heights based on the
topography.
Next, Adams testified that there are no billboards over 30 feet high
located in the Township, and that the billboards Hardin testified about are located in
the Borough of Glendon. He also testified that the Township has never granted a
variance for any off-premise billboard to be over 30 feet high.14 He testified that the
visibility of the billboard, when travelling eastbound, could be seen “very well,” and
coming westbound, the sign could be seen “pretty well.” (R.R. at 310a). He
acknowledged that from westbound, if the billboard were to be lowered, its visibility
“would probably be obliterated somewhat.” (Id. at 311a). Adams explained that the
Outdoor billboard, which was 30 feet, faced west for eastbound traffic and was
readable. He stated that Outdoor Advertising had also applied for a variance to build
its billboard higher, which the Board denied. He further stated that the old billboard
was in generally the same location as the subject billboard.
14
It was later established during the hearing that, contrary to Adams’ recollection, about 14
years ago, a building permit was issued to Outdoor Advertising pursuant to a variance which
allowed the erection of a 57 foot high billboard in the Township.
13
D.
The trial court reversed the Board’s upholding of the Township’s
enforcement notices and denial of Crivellaro’s variance request and granted
Crivellaro’s land use appeal. The trial court found that although the billboard has an
average height of 43.9 feet from the pre-existing grade, for which the Township
appropriately issued the height enforcement notice, the testimony of Hardin
established that given the topographical characteristics of the property and the
visibility issues that may arise if the billboard is lowered, a variance is necessary to
afford relief. The trial court further explained that the Zoning Ordinance designates a
billboard as a second principal use, which presupposes that a property already has a
principal use; as such, denying Crivellaro the permitted use of a billboard on her
property on the basis that it is already being used as a residence is contrary to the
intent of the Zoning Ordinance. The trial court also found that there are a couple of
other billboards constructed at heights of 55 feet and over within one-half mile of the
subject billboard, and allowing the subject billboard to remain at an average height of
43.9 feet will not adversely affect the surrounding area.
With respect to the grading enforcement notice, the trial court found that
the soil used to grade around the base of the billboard came from the excavation for
the monopole and from stockpiles of dirt elsewhere on the property. The trial court
explained that the issuance of the grading enforcement notice was patently unfair as
the majority of the earth moving was incidental to the erection of the monopole and
Adams had advised Mr. Crivellaro that a permit would not be needed unless a large
area was disturbed.
14
Finally, the trial court chose not to address Crivellaro’s equitable
arguments because it already found that she is entitled to a dimensional variance.
This appeal by the Township followed.15
III.
At the outset, the Township contends that the trial court erred in granting
Crivellaro’s motion to hold an evidentiary hearing pursuant to Section 1005-A of the
MPC which provides:16
If, upon motion, it is shown that proper consideration of the
land use appeal requires the presentation of additional
evidence, a judge of the court may hold a hearing to receive
additional evidence, may remand the case to the body,
agency or officer whose decision or order has been brought
up for review, or may refer the case to a referee to receive
additional evidence…. If the record does not include
findings of fact or if additional evidence is taken by the
court or by a referee, the court shall make its own findings
of fact based on the record below as supplemented by the
additional evidence, if any. (Emphasis added.)
Under this provision, it is within the trial court’s discretion whether to
take additional evidence. McGrath Construction, Inc. v. Upper Saucon Township
Board of Supervisors, 952 A.2d 718, 729 (Pa. Cmwlth. 2008). This is not just a
change in who decides the matter because it takes away from the Board the power to
15
When the trial court takes additional evidence in an appeal from a Board decision, our
standard of review is to determine whether the trial court’s decision is supported by the evidence
and is free from legal error. Wilson v. Plumstead Township Zoning Hearing Board, 936 A.2d 1061
(Pa. 2007).
16
Added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §11005–A.
15
hear zoning appeals involving a local zoning ordinance and to render zoning
decisions that it was entrusted to make under Section 909.1 of the MPC.17
However, just like in other areas, a trial court’s discretion in this regard
is not absolute. A trial court may be reversed on an abuse of discretion standard18 if it
refused to or allowed additional evidence if the facts show that there was no basis to
deny the request to present additional evidence or to allow additional evidence.
For example, it is an abuse of discretion for a trial court to not allow
additional evidence (1) where the record is incomplete because a party was denied an
opportunity to be heard fully by the zoning board; or (2) where relevant testimony
was offered and excluded. Eastern Consolidation and Distribution Services, Inc. v.
Board of Commissioners of Hampden Township, 701 A.2d 621, 624 (Pa. Cmwlth.
1997).
Conversely, while Section 1005-A of the MPC permits the trial court to
make its own findings of fact based on the record below as supplemented by
additional evidence, we have held that was an abuse of discretion for the trial court to
make such findings where the Board made detailed findings. In Koutrakos v. Zoning
17
Added by the Act of December 21, 1988, as amended, 53 P.S. §10909.1.
18
As this Court has explained, “[a]n abuse of discretion is not merely an error of judgment,
but, if in reaching a conclusion, the law is overridden or misapplied, or judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by evidence
of record, discretion is abused.” Crystal Forest Associates, LP v. Buckingham Township.
Supervisors, 872 A.2d 206, 214 (Pa. Cmwlth. 2005), appeal denied, 895 A.2d 551 (Pa. 2006)
(citation omitted).
16
Hearing Board of Newtown Township, Delaware County, 685 A.2d 639 (Pa. Cmwlth.
1996), we considered what is meant by a record without findings of fact. We
explained that it refers to instances where there is an order but no decision, or where
there has been a deemed approval, “which normally implies an absence of board
findings.” Id. at 641-42. Otherwise, the trial court is “precluded from making its
own findings.” Id. at 642.
In this case, the basis for Crivellaro’s motion for evidentiary hearing or
remand to the zoning board petition sought for a hearing stated that:
a) [Crivellaro] has retained Attorneys Backenstoe and
Caffrey to prosecute the within land use appeal on her
behalf.
b) [Crivellaro] may be entitled to relief on the basis of the
theory of vested rights and/or equitable estoppel, but these
theories of relief were not raised in the Application for
Relief, in the proceedings before the Board, or in the notice
of appeal.
c) The billboard was erected in a different location than the
prior billboard on the subject property, and in order for the
billboard to be observed by drivers proceeding in both
directions on Route 78, it was necessary to erect the
billboard at a height which exceeds the maximum height
limitation in the WTZO [Whitehall Township Zoning
Ordinance]. However, these facts, which may demonstrate
the existence of an unnecessary hardship justifying the
granting of a variance from the maximum height limitation,
were not elicited in the proceedings before the Board.
d) It is well settled Pennsylvania law that facts and theories
of relief not presented to a zoning hearing board may not be
raised for the first time on appeal. Therefore, in the event
that Appellant is not afforded the opportunity to supplement
the record and raise the theories of vested rights and
equitable estoppel and introduce important facts in support
17
of her request for a dimensional variance, Appellant will be
forever barred from doing so.
(Crivellaro’s 12/24/14 Motion for Court to Hold Evidentiary Hearing at 3-4).
In its order granting the motion, the trial court explained that it was not
remanding the matter to the Board and allowing additional evidence to be entered
because:
Given the attenuated history of this case over the past five
years, we find it prudent to hold an evidentiary hearing
because a remand to the ZHB will likely further protract an
adjudication of this matter. Additionally, present counsel of
record entered their respective appearance on behalf of
Crivellaro on December 24, 2014 and aver that, after a
review of the record, there are meritorious issues pursuant
to a vested rights theory and topographical issues regarding
the grading of the land in question where a record was not
developed by prior counsel. Crivellaro contends that she
will be prejudiced if not permitted to develop a record of all
theories. Williams Township and the ZHB are unified in
opposition to permitting a further record. However, we find
no harm to the parties in permitting this landowner the
opportunity to fully develop all theories. This rationale is
appropriate since there are no other intervenors or parties.
See 53 PA. STAT. §10908(3).
(Trial Court’s 1/14/15 Order at 4-5).
What essentially Crivellaro asked for and what the trial court granted
was to add a new theory of relief that was not raised before the Board and allowed
Crivellaro a “do over” because she failed to raise facts that were known and could
18
have been presented to the Board. Neither basis is grounds to allow additional
evidence to be presented under Section 1005-A of the MPC.
First, as acknowledged by Crivellaro, it is well settled that in zoning
cases, issues must be preserved before the zoning board in order for an appellant to
pursue on appeal. Leoni v. Whitpain Township Zoning Hearing Board, 709 A.2d 999,
1001 (Pa. Cmwlth. 1998). And, as Crivellaro has acknowledged, this issue was not
raised below. While Section 1005-A of the MPC may allow additional evidence to
be presented where warranted, it does not allow additional issues or facts in support
of those issues to be raised. For a trial court to allow additional evidence to support
equitable estoppel or vested rights arguments, issues not raised before the Board is an
abuse of discretion.
Second, as to allowing the additional testimony of Hardin, the installer
of the billboard, there was no showing that he was precluded from testifying before
the Board. The only basis appears to be that he should have been called to testify but
was not. The Board conducted a number of hearings where Hardin’s testimony could
have been presented. Failure to present testimony that was available at the time of
the Board hearing is not a basis for allowing additional testimony under Section
1005-A, thereby removing from the Board its jurisdiction to render a decision on the
requested variance and rendering its decision a nullity. The trial court’s findings of
fact must be supported by substantial evidence or such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. Eastern
Consolidation, 701 A.2d at 623.
19
Based on the foregoing, we vacate and remand to the trial court to issue
a new decision based solely on the record made and the issues raised before the
Board.19
____________________________________
DAN PELLEGRINI, President Judge
19
Based on our disposition of this matter, we will not at this time address the Township’s
arguments on the merits.
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Susan E. Crivellaro :
:
v. : No. 1047 C.D. 2015
:
Williams Township Zoning Hearing :
Board :
:
Appeal of: Board of Supervisors of :
Williams Township :
ORDER
AND NOW, this 6th day of January, 2016, the order of the Court of
Common Pleas of Northampton County dated May 22, 2015, at No. C-48-CV-2014-
07039, is vacated and the matter is remanded to the trial court for a new decision
containing the appropriate factual findings and legal conclusions consistent with this
opinion.
Jurisdiction relinquished.
____________________________________
DAN PELLEGRINI, President Judge