D.K. Cook v. Riegelsville Borough Council and The Borough of Riegelsville ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Daniel K. Cook, :
:
Appellant :
:
v. : No. 322 C.D. 2015
: Argued: December 7, 2015
Riegelsville Borough Council and :
The Borough of Riegelsville :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: May 6, 2016
This matter is an appeal by Daniel K. Cook from an order of the Court
of Common Pleas of Bucks County (Trial Court) affirming the Final Decision by
the Council of the Borough of Riegelsville (Council) that denied a Petition for
Curative Amendment filed by Cook. In the Petition, Cook sought to change the
zoning district for four adjoining parcels he owns (Property) within the Borough of
Riegelsville (Borough) that were partly R-1 Residential and Commercial to
entirely Commercial, asserting that the Borough’s Zoning Ordinance (Ordinance)
unlawfully excludes commercial uses and that the Borough fails to provide for its
“fair share” of commercial uses. For the reasons that follow, we affirm the Trial
Court’s order.
The Borough is situated in Bucks County along the Delaware River
and the Delaware Canal with a total land area of 650 acres (.99 square miles).
(Final Decision, Finding of Fact (F.F.) ¶8.) The Commercial (or “C”) District
consists of one contiguous area of 12.13 acres of which 8.21 acres is currently
residential use while 3.92 acres is currently commercial and other non-residential
land uses. (Id., F.F. ¶10.) While some nearby municipalities have grown in recent
decades, the Borough’s population declined from 912 in 1990 to 863 in 2000 with
an expectation of an increase in population in 2010 to 881, which is still below the
1990 level. (Id., F.F. ¶9; Cook Ex. A-22: Riegelsville Borough Population
Projections, Reproduced Record (R.R.) at 384a.)
The Property consists of four undeveloped parcels of land within the
Borough with Tax Map Parcel Numbers 38-006-077-1 (Lot 77-1), 38-006-077 (Lot
77), 38-006-076 (Lot 76), and 38-002-061-1 (Lot 61-1). (Final Decision, F.F. ¶3.)
Lot 77-1 falls entirely within the Commercial District, Lot 77 is partly within the
Commercial District and partly in the R-1 Residential District, and Lots 76 and 61-
1 fall entirely within the R-1 District. (Id., F.F. ¶4.) The Property is 12 acres in
total with 1.5 acres within the Commercial District and 10.5 acres in the R-1
District. (Id.) Lots 77, 76 and 61-1 front onto State Route 611 with the rear of the
properties facing the Delaware Canal; Lot 77-1, the only one of the lots entirely in
the Commercial District, does not front onto Route 611 or any of the other
principal roads in the Borough. (Cook Ex. A-2: Zoning Overlay on Tax Map;
Cook Ex. A-3: Zoning Overlay on Aerial Image.)
Cook filed the Petition for Curative Amendment on August 16, 2007.
(Petition, R.R. at 8a-14a.) Attached as an exhibit to the Petition was the proposed
curative amendment to Section 106 of the Ordinance which amends the Borough’s
2
official zoning map to change the zoning classification of the Property to be
entirely within the Commercial District. (Id., Exs. A, C, R.R. at 9a-10a, 13a-14a.)
Cook also attached to the Petition a narrative impact statement pursuant to Section
609.1(c) of the Municipalities Planning Code (MPC),1 which addresses the impact
of the proposal on the infrastructure, natural resources, natural features and other
land uses of the Borough. (Id., Ex. B, R.R. at 11a-12a.)
Hearings were held before the Council on March 12, April 2, May 7
and June 11, 2009. Cook presented the testimony of Mark Bahnick, a partner in a
civil engineering, surveying and land planning consulting firm, who prepared a
“Curative Amendment Plan,” which showed the intended commercial development
of the Property of two 25,000 square foot retail buildings fronting onto Route 611.
(Cook Ex. A-1.) According to the plan, the proposed retail buildings would be
separated by a drive aisle leading to a large parking area in the rear towards the
Delaware Canal; also in the rear would be an area for septic facilities on the Lot
77-1 portion of the Property. (Id.)
Bahnick testified that there are several “ancillary regulations” of the
Ordinance, including minimum lot area (15,000 square feet), minimum lot width
(100 feet) and minimum setbacks (40 feet in the front, 30 feet in the rear and 15
feet on the sides), that severely hinder new commercial developments on the 52
parcels in the Commercial District. (Mar. 12, 2009 Hearing Transcript (3/12/09
H.T.) at 38-50, R.R. at 79a-91a; Ordinance §§ 702, 901, 903-904.) Bahnick
testified that there are 27 commercial uses and 3 office uses set forth in the
Ordinance and 15 of these uses can only be built in the Commercial District;
1
Act of July 31, 1968, P.L. 805, added by Act of June 1, 1972, P.L. 333, as amended, 53 P.S. §
10609.1(c).
3
Bahnick stated that, of these 30 commercial and office uses, only 13 can be built
on 3 parcels in the Commercial District. (Apr. 2, 2009 Hearing Transcript (4/2/09
H.T.) at 15-16, 21, 29, R.R. at 147a-148a, 153a, 161a; Cook Ex. A-16: Table of
Summary of Allowable Uses, R.R. at 364a-365a; Ordinance §§ 303(D)-(E), 305,
701.) Bahnick further stated that 3 of the commercial and office uses (Day Care
Center, Drive-ins or Other Eating Establishments, Lawn Mower Repair Service)
can only be built on 1 lot in the Commercial District; Cook also owns this lot, but
it serves as his primary residence, and he has not included it in his proposed
commercial development. (4/2/09 H.T. at 21, 29-30, R.R. at 153a, 161a-162a;
Cook Ex. A-16: Table of Summary of Allowable Uses, R.R. at 364a-365a.)
Bahnick testified that there is 1 additional commercial use, Guest House, Bed and
Breakfast, that cannot be built on any lot in the Commercial District because there
is a minimum lot requirement of 2 acres for this use.2 (4/2/09 H.T. at 20-21, R.R.
at 152a-153a; Cook Ex. A-16: Table of Summary of Allowable Uses, R.R. at
365a; Ordinance § 303(E)(18)(a).) Bahnick’s analysis showed that Lot 77-1, the
portion of the Property that is entirely in the Commercial District, would permit all
but 4 of the 30 commercial and office uses; however, Bahnick testified that Lot 77-
1 does not face an “active” street and is not easily accessible from the Borough’s
main streets. (3/12/09 H.T. at 48, 51, R.R. at 89a, 92a; Cook Ex. A-16: Table of
Summary of Allowable Uses, R.R. at 364a-365a.)
Bahnick described additional restrictions in the Ordinance that could
substantially limit many new, by-right commercial uses, including buffer zones
(which, for example, would require a 25 foot buffer in cases of new commercial
2
The Guest House, Bed and Breakfast use is also permitted by special exception in the Resource
Protection District and R-1 Residential District. (Ordinance §§ 303(E), 401(c), 501(c).)
4
uses next to existing residential buildings) and parking requirements (such as a
requirement of one parking spot for every 200 square feet of space in retail stores).
(3/12/09 H.T. at 53-57, R.R. at 94a-98a; 4/2/09 H.T. at 12, R.R. at 144a; Ordinance
§§ 303(E), 1106.) Finally, Bahnick testified that any new commercial use in the
Borough would require approval from the Bucks County Department of Health for
its waste disposal system, which Bahnick opined would be cost prohibitive, and
that 43 of the 52 lots in the Commercial District fall within the 100-year floodplain
and thus any new finished floor in a new building on these lots would have to be
built 1.5 feet above the elevation of the 100-year flood. (3/12/09 H.T. at 57-67,
R.R. at 98a-108a; Cook Ex. A-8: Zoning and Floodplain Overlay on Tax Map;
Ordinance §§ 1100-1101, 1103, 1503(a)(8).)
Cook also offered the testimony of Carter van Dyke, a landscape
architect and planner, who testified that the proposed reclassification of the
Property is consistent with the growth management and redevelopment goals of the
Bucks County Comprehensive Plan, the Commercial District Plan for the Borough
prepared by the Bucks County Planning Commission, and the Statement of
Community Objectives and Goals in the Ordinance. (May 7, 2009 Hearing
Transcript (5/7/09 H.T.) at 13-45, R.R. at 210a-242a; Cook Ex. A-20: Bucks
County Comprehensive Plan, R.R. at 374a-379a; Cook Ex. A-23: Riegelsville
Borough Commercial District Plan, R.R. at 386a-400a; Ordinance: Statement of
Community Goals and Objectives.) Van Dyke presented an analysis of the market
demand for new retail establishments in the Borough and surrounding area,
concluding that the Borough supplied a low percentage of retail establishments
relative to the overall market and that between 65,000 and 81,000 square feet of
retail space was required in the area to satisfy demand. (5/7/09 H.T. at 45-77, R.R.
5
at 242a-274a; Cook Ex. A-33: Table of Reasonable New Store Space, R.R. at
423a-424a; Cook Ex. A-34: Retail Development Opportunities and Land
Requirements for Needed Retail, R.R. at 426a.) Van Dyke also analyzed the
commercial viability of the lots within the Borough’s Commercial District, taking
into account traffic counts, visibility, road access and lot size, and concluded that
the Property would be among the most viable for commercial uses. (5/7/09 H.T. at
77-97, R.R. at 274a-294a; Cook Ex. A-37: Table of Riegelsville Commercial
District Marketability Assessment, R.R. at 433a-434a.)
The Borough did not present any witnesses in response to the Petition,
but did admit into evidence a review letter from the Bucks County Planning
Commission in accordance with Section 609.1(a) of the MPC. (5/7/09 H.T. at 104,
R.R. at 301a; Borough Ex. 4: Oct. 3, 2007 Letter of Bucks County Planning
Commission, R.R. at 332a-336a.) The Planning Commission provided the
following comments; (i) Cook’s proposal may lead to development not compatible
with the Borough’s goal of maintaining its “small-town character and sense of
place”; (ii) the proposal was generally compatible with surrounding uses so long as
adequate buffers are in place: (iii) the proposal would double the amount of
commercially zoned land in the Borough and could inhibit the revitalization of the
existing commercial district; (iv) if the exclusionary arguments are found to have
merit, the Borough should impose additional zoning regulations to ensure the
establishment of a “village type of commercial district”; (v) Cook’s narrative
impact statement was insufficiently detailed; (vi) any new buildings in the
floodplain should be discouraged3; and (vii) a fair share analysis is inappropriate
3
Cook’s proposed buildings would be built at least partly within the 100-year floodplain. (Cook
Ex. A-8: Zoning and Floodplain Overlay on Tax Map.)
6
when there already is an existing commercial district. (Borough Ex. 4: Oct. 3,
2007 Letter of Bucks County Planning Commission at 3-5, R.R. at 334a-336a.)
On June 19, 2009, the Council issued the Final Decision denying the
Petition. In the Final Decision, the Council accepted Cook’s assertion that the
ancillary regulations of the Ordinance made it impossible to build new, by-right
commercial uses on nearly all of the lots that fell within the Commercial District.
(Final Decision, F.F. ¶12, C.L. ¶11.) The Council concluded, however, that there
was no de facto exclusion of commercial uses in the Borough because Cook had
not shown that properties presently zoned commercial are not being used for
commercial uses because of the ancillary regulations in the Ordinance or that a
determined developer would be unable to develop a commercial property in the
Commercial District. (Id., C.L. ¶¶12, 14.) The Council noted that Cook’s
argument was premised almost entirely on the difficulty of building new
commercial buildings on existing lots when case law holds that site suitability is
not a relevant consideration in determining the validity of a zoning ordinance. (Id.,
C.L. ¶15.) The Council also rejected Cook’s fair share argument, finding van
Dyke’s testimony regarding the present commercial conditions in the Borough and
the expected demand for commercial development in the future as not credible and
concluding that Claimant had not shown that the Borough was a logical area for
growth or that the existing commercial area was insufficient to satisfy the projected
demand.4 (Id., F.F. ¶16, C.L. ¶13.)
Cook appealed, and the Trial Court affirmed the Final Decision
without taking additional evidence. The Trial Court concluded that the Council did
4
The Council also concluded that Cook lacked standing to bring his curative amendment
challenge to the Ordinance because he had not introduced any evidence that any of the ancillary
regulations specifically affected the Property. (Final Decision, C.L. ¶16.)
7
not commit an abuse of discretion because its findings of fact were amply
supported by evidence of record. (Jan. 13, 2015 Memorandum Opinion at 3-5;
Apr. 27, 2015 Rule 1925 Opinion at 9-11.) The Trial Court determined that the
Council did not err when it concluded that Cook had not proven a de facto
exclusion or a violation of the fair share principle because Cook had not shown
that the Borough was a logical area for population growth and that the percentage
of land in the Borough zoned commercial could not accommodate expected
demand.5 (Memorandum Opinion at 5-7; Rule 1925 Opinion at 5-7.) Cook
thereafter filed a timely notice of appeal from the Trial Court’s decision.6
The procedure for a curative amendment petition is set forth in
Sections 609.1 and 916.1 of the MPC.7 Pursuant to Section 609.1(a), “[a]
landowner who desires to challenge on substantive grounds the validity of a zoning
ordinance or map or any provision thereof, which prohibits or restricts the use or
development of land in which he has an interest may submit a curative amendment
to the governing body with a written request that his challenge and proposed
amendment be heard and decided as provided in” Section 916.1. 53 P.S. §
10609.1(a). The landowner must include site-specific plans with the curative
amendment petition. Section 916.1(c)(2) of the MPC, 53 P.S. § 10916.1(c)(2);
5
The Trial Court also took judicial notice of a March 9, 2012 amendment to the Ordinance that
addressed many of the issues raised by Cook in the Petition. (Memorandum Opinion at 7.)
Because the amendment to the Ordinance postdated the Final Decision and has not been made a
part of the record in this case, we do not address this amendment in this opinion.
6
Where, as here, the trial court has not taken additional evidence, our review of an appeal of a
denial of a curative amendment petition is limited to determining whether the governing body of
the municipality abused its discretion or committed an error of law. LaRock v. Board of
Supervisors of Sugarloaf Township, 866 A.2d 1208, 1211 n.7 (Pa. Cmwlth. 2005).
7
Added by the Act of June 1, 1972, P.L. 333, 53 P.S. § 10609.1; added by the Act of Dec. 21,
1988, P.L. 1329, 53 P.S. § 10916.1.
8
Piper Group, Inc. v. Bedminster Township Board of Supervisors, 30 A.3d 1083,
1097 (Pa. 2011). The governing body of the municipality has exclusive
jurisdiction to hear curative amendment petitions. Section 909.1(b)(4) of the MPC,
added by the Act of Dec. 21, 1988, P.L. 1329, 53 P.S. § 10909.1(b)(4).
Following public notice, the governing body shall hold hearings on
the curative amendment petition and provide notice to the planning agency of the
municipality to submit its recommendations. Section 609(c) of the MPC, 53 P.S. §
10609(c); 53 P.S. § 10609.1(a), (b). If the governing body determines that the
curative amendment petition has merit, the governing body shall then consider the
site-specific plans submitted by the landowner and shall also consider the impact
of the proposed amendment on the natural resources and natural features of the
municipality, other land uses within the municipality and the public resources of
the municipality, including roads and sewer facilities. 53 P.S. §§ 10609.1(c),
10916.1(c)(5); Piper Group, 30 A.3d at 1097. The governing body “may accept a
landowner’s curative amendment, with or without revision, or may adopt an
alternative amendment which will cure the challenged defects.” 53 P.S. §
10609.1(c); see also Piper Group, 30 A.3d at 1097 (“[W]hile the governing body
must cure the defect, it need not provide carte blanche development rights.”). If a
court overturns a municipality’s decision denying a curative amendment, the
court’s decision does not invalidate the entire zoning ordinance or map, but only
the portion that specifically relates to the petition. 53 P.S. § 10609.1(b).
Cook raises two interrelated arguments that the Ordinance is
exclusionary and that his Petition should be granted. First, Cook contends that,
while the Ordinance sets forth various permitted commercial uses, the ancillary
regulations in the Ordinance related to lot area, lot width, setbacks, buffers,
9
parking and septic systems have created a de facto exclusion of commercial uses
within the Borough. Second, Cook argues that the Borough is in a growth area
without sufficient existing commercial properties and that the Ordinance does not
allow the Borough to accept its fair share of commercial use development in the
future. Upon review, we agree with the Trial Court that Council did not abuse its
discretion or commit an error of law when it denied the Petition.
A party that challenges a zoning ordinance on the basis that it
unconstitutionally excludes a certain use may argue either a de jure exclusion on
the basis that the ordinance totally excludes the use on its face or a de facto
exclusion wherein “the challenger alleges that an ordinance appears to permit a
use, but under such conditions that the use cannot in fact be accomplished.”
Township of Exeter v. Zoning Hearing Board of Exeter Township, 962 A.2d 653,
659 (Pa. 2009). In a de facto challenge case, the party challenging the ordinance
has the burden of proof to overcome the presumption of validity that attaches to
zoning ordinances. Id. at 661; Smith v. Hanover Zoning Hearing Board, 78 A.3d
1212, 1218 (Pa. Cmwlth. 2013). If the challenger has shown that the ordinance is
in fact exclusionary, the court must “then consider whether the municipality has
salvaged the ordinance by presenting evidence to show that the exclusionary
regulation bears a substantial relationship to the public health, safety, morality, or
welfare.” Township of Exeter, 962 A.2d at 661; Smith, 78 A.3d at 1218.
Here, it is undisputed that the evidence presented by Cook showed
that the ancillary regulations of the Ordinance, including minimum lot area, lot
width, setbacks and buffer requirements, preclude new commercial uses from
being built on a large majority of the parcels in the Borough’s Commercial
District. However, Cook did not show that all commercial uses are effectively
10
barred from all sites within the Commercial District. Indeed, Lot-77-1, which is
the only one of the parcels in the Property that is located entirely in the
Commercial District, would permit the Retail Store use that Cook proposes, but
Cook does not seek to place either of his proposed commercial buildings on Lot
77-1 and instead only seeks to use this lot to house the septic facility for his larger
50,000 square foot commercial development. (Ordinance § 303(E)(3); Cook Ex.
A-1: Curative Amendment Plan.) The fact that Cook could not place his desired
retail development on Lot 77-1 because it does not face an active street does not
make the Ordinance exclusionary.
Furthermore, the Petition is not seeking the rescission of any of the
ancillary regulations in the Ordinance but rather only to expand the Commercial
District to include other parcels of land owned by Cook that are currently in the R-
1 Residential District. At its core then, Cook is not objecting to the exclusionary
nature of the Ordinance but instead to the boundaries of the Commercial District so
that he can combine parcels to build a bigger commercial development on a more
well-traveled street. As this Court has explained, “[g]enerally, courts will not
sustain challenges brought to the location of zoning boundaries since the location
of such boundaries is largely a matter within the legislative discretion of the
municipalities.” Appeal of Izes, 462 A.2d 920, 922 (Pa. Cmwlth. 1983); see also
Namcorp, Inc. v. Zoning Hearing Board of Horsham Township, 558 A.2d 898, 902
(Pa. Cmwlth. 1989). Moreover, this Court has held that the fact that a
municipality’s zoning will not allow for a retail property in the dimensions that the
petitioner has proposed does not suffice to show that the zoning ordinance is
exclusionary. See Montgomery Crossing Associates v. Township of Lower
Gwynedd, 758 A.2d 285, 289 (Pa. Cmwlth. 2000) (holding that an ordinance that
11
limited retail stores to 6,500 square feet within the township’s business district did
not render it exclusionary); see also Cambridge Land Co. v. Township of Marshall,
560 A.2d 253, 260 (Pa. Cmwlth. 1989) (en banc) (“[W]e have found no authority
for requiring that every municipality’s zoning ordinance must make provision for
every planning variation or combination which has been conceived, nor have the
landowners cited any such authority.”). Accordingly, we conclude that Cook did
not show that the Ordinance created a de facto exclusion of commercial properties
in the Borough.
Cook also failed to show that the Borough did not account for its fair
share of commercial uses. The “fair share” principle was adopted by the
Pennsylvania Supreme Court to ensure that “[w]here a municipal subdivision is a
logical place for development to occur, it must assume its rightful part of the
burdens associated with development, neither isolating itself nor ignoring the
housing needs of the larger region.” BAC, Inc. v. Board of Supervisors of
Millcreek Township, 633 A.2d 144, 146 (Pa. 1993); see also Surrick v. Zoning
Hearing Board of the Township of Upper Providence, 382 A.2d 105, 108 (Pa.
1977). This principle requires that municipalities “plan for and provide land-use
regulations which meet the legitimate needs of all categories of people who may
desire to live within its boundaries.” Surrick, 382 A.2d at 108.
In Surrick, the Supreme Court set forth a three-part test to determine
whether a municipality is accepting its fair share of a particular use: first, the court
must determine whether the community is in a logical area for population growth
and development. Id. at 110. If the community is determined to be in an area of
growth, the court must then review the present level of development. Id. Finally,
if the court determines that the community is in an area of growth and is not highly
12
developed, the court must determine whether the ordinance has an exclusionary
impact. Id. at 110-11. In cases where the fair share principle has been applied to
commercial uses, this Court has also observed that “it is not sufficient, absent a
showing of total prohibition, for a developer to merely point out that a relatively
small area of the municipality is zoned for commercial use without any proof that
the needs of the community’s residents are not being adequately served.” Smith,
78 A.3d at 1221 (quoting Sullivan v. Board of Supervisors of Lower Makefield
Township, 348 A.2d 464, 467 (Pa. Cmwlth. 1975) (en banc)); see also Macioce v.
Zoning Hearing Board of the Borough of Baldwin, 850 A.2d 882, 889 (Pa.
Cmwlth. 2004); Montgomery Crossing, 758 A.2d at 289.
Cook argues on appeal that the evidence of record would support the
conclusion that the Borough was not accepting its fair share of commercial uses for
its surrounding area was. However, Cook’s argument was premised on the
testimony of his expert, van Dyke, and Council rejected his testimony as not
credible. As the governing body responsible for making a determination on the
Petition, Council had authority to reject even uncontradicted testimony that it finds
to be not credible, and this Court is bound by those credibility determinations.
Nettleton v. Zoning Board of Adjustment of City of Pittsburgh, 828 A.2d 1033,
1041 n.10 (Pa. 2003); Piper Group, Inc. v. Bedminster Township Board of
Supervisors, 992 A.2d 224, 240 (Pa. Cmwlth. 2010) aff’d, 30 A.3d 1083 (Pa.
2011). Accordingly, we cannot say that Council’s determination that Cook
presented no evidence that the Borough was in a logical area for growth or that the
area in the Borough available for commercial use cannot accommodate its
economic burden was in error. Furthermore, even if we were to consider the
evidence presented by van Dyke, we would agree with Council’s conclusion that
13
there was no showing of a fair share violation. While the population estimates
provided by van Dyke showed population growth in neighboring communities in
Northampton County and across the Delaware River in New Jersey, these
estimates showed only modest anticipated population gains from 2000 to 2010 in
the Borough and neighboring Durham Township and a small absolute population
in this corner of Bucks County.8 (Cook Ex. A-22: Riegelsville Borough
Population Projections, R.R. at 384a; Cook Ex. A-28: Table of Riegelsville Area
Trade Area Population Projections, R.R. at 412a.) Thus, rather than showing that
the Borough was a logical area for population growth, Cook demonstrated only
that a small area of population was zoned for commercial growth. Such a showing
is insufficient to invalidate an ordinance under our fair share precedent. Cf. Smith,
78 A.3d at 1221; Macioce, 850 A.2d at 889.
Accordingly, we affirm the order of the Trial Court.
____________________________________
JAMES GARDNER COLINS, Senior Judge
8
The population estimates presented by van Dyke showed that the estimated population of the
Borough and Durham Township in 2010 was 2,227, an increase of only 106 people from 1990
and 51 people from 2000. (Cook Ex. A-22: Riegelsville Borough Population Projections, R.R. at
384a; Cook Ex. A-28: Table of Riegelsville Area Trade Area Population Projections, R.R. at
412a.)
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Daniel K. Cook, :
:
Appellant :
:
v. : No. 322 C.D. 2015
:
Riegelsville Borough Council and :
The Borough of Riegelsville :
ORDER
AND NOW, this 6th day of May, 2016, the order of the Court of
Common Pleas of Bucks County in the above-captioned matter is AFFIRMED.
____________________________________
JAMES GARDNER COLINS, Senior Judge