D. Bassett v. The Borough of Edgeworth Shade Tree Commission and Borough of Edgeworth ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dolores Bassett :
:
v. : No. 145 C.D. 2016
: Argued: November 14, 2016
The Borough of Edgeworth :
Shade Tree Commission :
and Borough of Edgeworth, :
Appellants :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE JOSEPH M. COSGROVE, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: January 24, 2017
The Borough of Edgeworth Shade Tree Commission (Commission)
and the Borough of Edgeworth (Borough, collectively Appellants) appeal from a
January 4, 2016 order of the Court of Common Pleas of Allegheny County (Trial
Court) that reversed the decision of the Commission denying Appellee Dolores
Bassett a permit to remove three pin oak trees from her property. For the reasons
that follow, we affirm the Trial Court.
Bassett is a long-time resident of the Borough who resides in a house
at 432 Oliver Road. A sidewalk runs on Bassett’s property adjacent to Oliver
Road, and the three pin oak trees at issue in this appeal are located in the four-to-
five foot grassy strip between the sidewalk and the curb, referred to as the “curb
lawn.”
Bassett filed the tree removal application at issue here on May 4,
2015, but the history between Bassett and the Borough regarding her sidewalk and
the trees in her curb lawn begins several years earlier. In July 2013, the Borough
sent Bassett a “Sidewalk Repair Notice” informing her that several of the concrete
slabs of her sidewalk were a dangerous “trip hazard” that required replacement.
(Reproduced Record (R.R.) 344a-346a.) The notice advised that if Bassett did not
replace the defective slabs, the Borough would do it for her, bill her for the work
and file a lien against her property if the bill was not paid. (R.R. 344a.) Bassett
made the repair shortly after the notice was issued. (Testimony of Borough
Manager, Trial Court Hearing Transcript (H.T.) at 5, R.R. 215a.)
On September 16, 2013, Robert Crusan, the Borough’s professional
arborist consultant, visited Bassett’s property and performed an inspection of the
five trees in her curb lawn at the request of the Borough Manager, Martin
McDaniel. (Sept. 17, 2013 Report at 1, R.R. 348a.) In his report on the visit,
Crusan rated the three pin oak trees as being in good condition with trunk
diameters of approximately 26 to 28 inches and height of 55 to 65 feet. (Id.)
Crusan noted that the pin oaks did contain some deadwood branches with
diameters up to 2 inches, but he did not see any evidence of root decay or decay or
weakness in the main stems that would indicate a high potential for failure. (Id. at
1-2, R.R. 348a-349a.) However, Crusan stated in his report that he had observed
that there were surface roots greater than 2 inches in diameter that had migrated
under the sidewalk into Bassett’s front lawn and that several of the older sidewalk
slabs would likely be required to be replaced within a few years because of root
damage. (Id.) Crusan stated that pin oaks are now rarely planted as street trees as
a result of their large trunks and root flares and aggressive roots, and he advised
2
that should any underground utility or curb replacement work be required, the three
pin oaks would have to be removed. (Id. at 2-3, R.R. 349a-350a.) In addition to
the pin oaks, Crusan examined two additional trees in Bassett’s curb lawn, a silver
maple, which was rated as being in poor condition, and a red maple, rated as being
in fair condition but later downgraded to poor following a subsequent inspection.
(Id. at 1, R.R. 348a; Testimony of Borough Manager, Trial Court H.T. at 40, R.R.
250a.) Bassett eventually removed the two maple trees after the Borough sent her
notices that these trees were at “‘high risk’ for failure during high winds, and
heavy snow and ice conditions.” (May 7, 2014 Letter from Borough Manager,
R.R. 365a; Testimony of Borough Manager, Trial Court H.T. at 47, R.R. 257a;
Nov. 6, 2013 Letter from Borough Manager, R.R. 387a-388a.)
In January 2014, Crusan sent the Borough Manager another letter in
which he indicated that he had met with Bassett and examined the three pin oaks
again and he concluded that the trees were still healthy and structurally sound,
although he reiterated that he observed roots approximately two inches in diameter
that had migrated under her sidewalk into her front lawn. (R.R. 357a.) At a public
meeting the following month, the Commission considered a written request by
Bassett that she be given permission to remove the three pin oaks. (Minutes of
Feb. 14, 2014 Commission Meeting, R.R. 359a.) According to the minutes of the
meeting, the Commission determined that the trees were healthy, mature trees that
“enhance the community’s beauty by providing a fully canopy effect” and that any
problems caused by the roots “are a nuisance that must be dealt with by means
other than by tree removal.” (Id.)
On May 4, 2015, Bassett filed a formal application with the
Commission for permission to remove the three pin oak trees, citing her need to
3
continually replace sidewalk slabs, her increased liability insurance, the damage
caused by the roots to her front lawn and the fact that other property owners had
been permitted by the Commission to take down healthy trees on their curb lawns.
(R.R. 4a-8a.) A public hearing was held on the application on June 18, 2015.
Bassett did not personally appear at the hearing, but her attorney appeared and
testified on her behalf,1 and Crusan testified that the trees remained in healthy
condition. (Commission H.T. at 12-27, R.R. 51a-66a.).
At the outset of the hearing, the Commission Chairman explained the
subject of the hearing as follows:
Our rule tonight is to understand the issue at hand. The
issue at hand, [Bassett’s attorney] is a representative of
our neighbor at 432 Oliver regarding three pin oaks that
are in question. The resident is requesting removal of
those three trees. I would ask that our discussion focus
on that particular issue. Not sidewalks, not trees in the
park, not trees around the Borough, but the three specific
trees at our neighbor’s house at 432 Oliver; okay?
(Commission H.T. at 3, R.R. 43a.) The Chairman further stated that the
Commission would be analyzing the application under the standard of Section 95-
5(G) of the Borough of Edgeworth Code (Edgeworth Code), which relates to the
required removal of “afflicted” trees in the public right-of-way where those trees
are harmful to public safety and welfare, threaten other trees, plants and shrubs in
the Borough or have negative impact on the aesthetic qualities elsewhere along
such right-of-way. (Id. at 4, R.R. 44a; Edgeworth Code § 95-5(G), R.R. 375a.)
In a July 23, 2015 written decision, the Commission denied the
application, finding that the overwhelming evidence demonstrated that the three
1
After a discussion of the propriety of an attorney testifying in his client’s case, Bassett’s
attorney was sworn in by the Commission. (Commission H.T. at 5-10, R.R. 45a-50a.)
4
pin oak trees are healthy and sound. (Commission Decision, Findings of Fact ¶¶9-
13.) The Commission concluded that Bassett therefore did not establish under
Section 95-5(G) of the Edgeworth Code that the three pin oak trees are “afflicted,”
that the trees threaten other plants, trees or shrubs or that the trees are harmful to
the public safety and welfare, and the Commission declined to grant Bassett a
permit to remove the trees. (Id. at 2.)
Bassett appealed to the Trial Court, requesting that the Commission’s
decision be reversed or, in the alternative, that a de novo hearing be held. On
October 27, 2015, the Trial Court issued an order directing that a de novo hearing
be conducted on December 15, 2015. At the de novo hearing, the Borough
Manager testified that Bassett’s sidewalk was currently in satisfactory condition
and did not require replacement. (Trial Court H.T. at 39, R.R. 249a.) The
Borough’s arborist consultant, Crusan, testified as an expert that the three pin oaks
were in the same healthy condition as when he first inspected them in September
2013. (Id. at 91-93, R.R. 301a-303a.) Crusan stated that while the trees are not
planted at the suggested 40-foot spacing and he would not advise planting the trees
in their current location today, he would not recommend removal of the trees as
long as they are healthy. (Id. at 93-95, 103-04, R.R. 303a-305a, 313a-314a.)
Bassett presented as an expert Michael Tomana, a Borough resident,
environmental lawyer, president of the local historical society and consultant to a
landscape design company on native trees, who opined that the pin oak trees were
planted too closely together and in too narrow of a curb lawn so that the sidewalk
slabs will continue to buckle and the sidewalk will “disappear” eventually as the
trees age. (Id. at 70-77, 81, 86, R.R. 280a-287a, 291a, 296a.)
5
On January 4, 2016, the Trial Court issued an order reversing the
Commission and ordering the Commission to issue a permit to remove the three
pin oak trees. The Trial Court held that neither Section 95-5(G) of the Edgeworth
Code, which the Commission applied in its decision, nor subsection (D) of that
same section, which Bassett contended was applicable to her application, provides
any criteria for the Commission to consider when faced with a request by a
Borough resident to remove a healthy tree. (Jan. 4, 2016 Order ¶¶1-3; March 24,
2016 Rule 1925 Opinion at 3-4.) However, the Trial Court found that Bassett
would satisfy subsection (G) of Section 95-5 because the sidewalk was damaged
and thus harmful to the public safety and welfare. (Jan. 4, 2016 Order ¶¶6-9;
March 24, 2016 Rule 1925 Opinion at 6.) Furthermore, the Trial Court found that
Bassett would also satisfy the standard of subsection (D) relating to permits for
planting trees in the public right-of-way because the trees were planted too close
together contrary to “generally acceptable land development and arboricultural
principles.” (Jan. 4, 2016 Order ¶¶4-5, 9; March 24, 2016 Rule 1925 Opinion at 5-
6; Edgeworth Code § 95-5(D), R.R. 374a.)
At the heart of this appeal is the issue of whether the Commission
applied the proper standard of the Edgeworth Code to Bassett’s application.2 The
rules of statutory construction employed by the courts of the Commonwealth are
equally applicable to local ordinances as well as statutes enacted by the General
Assembly. Kohl v. New Sewickley Township Zoning Hearing Board, 108 A.3d
961, 968 (Pa. Cmwlth. 2015); In re Holtz, 8 A.3d 374, 378 (Pa. Cmwlth. 2010).
2
This Court’s scope of review when the trial court has conducted a de novo review of a local
agency appeal is limited to a determination of whether the lower court committed an error of law
or abused its discretion. Park Home v. City of Williamsport, 680 A.2d 835, 837 (Pa. 1996);
Taylor v. Harmony Township Board of Commissioners, 851 A.2d 1020, 1024 n.3 (Pa. Cmwlth.
2004).
6
The primary intent of statutory interpretation is to determine the intent of the
enacting body. 1 Pa. C.S. § 1921(a); Kohl, 108 A.3d at 968. A regulation’s plain
language generally provides the best indication of legislative intent, and, thus,
statutory construction begins with the examination of the text of the regulation.
Kohl, 108 A.3d at 968; Malt Beverages Distributors Association v. Pennsylvania
Liquor Control Board, 918 A.2d 171, 176 (Pa. Cmwlth. 2007) (en banc), aff’d 974
A.2d 1144 (Pa. 2009).
The Commission’s authority to regulate shade trees in the Borough
arises from the Borough Code, which provides that a borough council may, by
ordinance, “establish a shade tree commission and delegate to the shade tree
commission the exclusive care, custody and control of shade trees and
authorization to plant, transplant, remove, maintain and protect shade trees on the
streets and highways in the borough.” 8 Pa. C.S. § 2721(a). A shade tree
commission “may make and enforce regulations for the care and protection of
shade trees,” provided that “[n]o regulation may be in force until it has been
approved by the council and enacted as an ordinance.” 8 Pa. C.S. § 2721(b).
Chapter 95 of the Edgeworth Code sets forth that the Borough
Manager and the Commission, which consists of three uncompensated citizens of
the Borough, have the power to enter property to maintain plants, shrubs and trees,
to require the planting or removal of trees within the public right-of-way and to
assess costs to property owners for work done by the Borough. (R.R. 372a-376a.)
Section 95-5 of the Edgeworth Code relates to the maintenance of plantings along
7
public rights-of-way3 in the Borough; most relevant to this case are subsections (D)
and (G) of this provision, which provide that:
D. Permit. No tree shall be planted, transplanted or
removed in or from any public right-of-way without a
written permit from the Commission, such permit to
designate the type of tree and place where such tree is to
be planted or the place from which it is to be removed.
No such permit shall be granted unless written
application is made to the Commission on a form
acceptable to the Commission. In determining whether
to grant a permit for the planting of a tree, the
Commission shall follow generally acceptable land
development and arboricultural principles and shall apply
such principles in a fair and uniform manner throughout
the Borough.
...
G. Required removal. The Commission may require the
removal of any afflicted tree in any public right-of-way
in the Borough upon its determination that such tree
threatens other plants, shrubs or trees in the Borough, is
harmful to public safety or welfare or has a negative
impact on the aesthetic qualities elsewhere along such
right-of-way. The expense of this removal shall be borne
by abutting property owners in accordance with
Subsection C hereof.
(R.R. 374a-375a.)
We agree with the conclusion of the Trial Court that neither of these
two provisions clearly sets standards applicable to Bassett’s tree removal
application. Section 95-5(D) sets forth a permit requirement for the removal,
planting and transplanting of trees in the public right-of-way and requires that
applications for these permits be made in writing. However, the only standard set
3
The Edgeworth Code defines the public right-of-way to include any easement area along the
cartway of a street or highway in the Borough and the area between the cartway and the nearest
parallel public sidewalk. (Edgeworth Code § 95-5(A), R.R. 374a.)
8
forth in this subsection, requiring the Commission to follow “generally acceptable
land development and arboricultural principles” and to apply “such principles in a
fair and uniform manner throughout the Borough,” relates only to the
Commission’s consideration of a permit for the planting of a tree. (R.R. 374a.)
These criteria are not extended to the consideration of an application for a permit
by a property owner for the removal of a tree.
Section 95-5(G) does contain criteria for the Commission to consider
in determining whether trees should be removed from a public right-of-way, but
subsection (G) applies only by its plain text to situations where the Commission
may “require the removal of any afflicted tree in the public right-of-way.” (R.R.
375a) (emphasis added.) In this matter, the Commission did not initiate the
removal process of the three pin oaks, but instead Bassett made the request to
remove the three trees. Furthermore, Bassett’s application was not based on the
fact that the trees were “afflicted” in any way and instead was based on the damage
that was being done to the sidewalk, which presented a threat to public safety and
which threat Bassett was financially responsible in ameliorating.
The Commission applied Section 95-5(G) to Bassett’s case even
though it did not fall within that provision. This violates the “fundamental rule”
enunciated by our Supreme Court “that an ordinance must establish a standard to
operate uniformly and govern its administration and enforcement in all cases, and
that an ordinance is invalid where it leaves its interpretation, administration or
enforcement to the unbridled or ungoverned discretion, caprice or arbitrary action
of the municipal legislative body or of administrative bodies or officials.” Appeal
of O’Hara, 131 A.2d 587, 593-94 (Pa. 1957); see also Kohl, 108 A.3d at 971;
Orwell Township Board of Supervisors v. Jewett, 571 A.2d 1100, 1103 (Pa.
9
Cmwlth. 1990). The Commission here did not follow a uniform standard that
applies to all permits for removal of a tree, but instead imposed a standard that
applied only to the very different situation of requiring removal of a tree.
Appellants nevertheless argue that the Commission, as the agency
responsible for regulating the plants, trees and shrubs in the Borough, is entitled to
deference in determining what portion of the Edgeworth Code was applicable to
Bassett’s application, citing the well-established rule that zoning hearing boards
are entitled to great weight and deference as a result of their knowledge and
experience in interpreting local zoning ordinances. See, e.g., Smith v. Zoning
Hearing Board of Huntingdon Borough, 734 A.2d 55, 57-58 (Pa. Cmwlth. 1999).
However, this deference does not permit a local agency to stray from the plain text
of the ordinance, which the Commission has done here. As this Court has
explained, such bodies “must not impose their concept of” the ordinance and must
apply the terms of the regulation “as written rather than deviating from those terms
based on an expressed policy.” Riverfront Development Group, LLC v. City of
Harrisburg Zoning Hearing Board, 109 A.3d 358, 364 (Pa. Cmwlth. 2015)
(quoting Greth Development Group, Inc. v. Zoning Hearing Board of Lower
Heidelberg Township, 918 A.2d 181, 187 (Pa. Cmwlth. 2006)). Moreover, the
Commission’s application of the gap in the Edgeworth Ordinance to deny Bassett’s
application runs counter to the well-established principle in land use cases that
ambiguity in an ordinance must be construed in favor of the landowner. Kohl, 108
A.3d at 968.
Appellants further argue that the Trial Court improperly engaged in a
de novo review of Bassett’s appeal from the Commission’s decision and that if the
Trial Court had applied the traditional deferential appellate standard under the
10
Local Agency Law it would have found that Bassett had waived her challenge to
the Commission’s application of Section 95-5(G) of the Edgeworth Code to her
case.4 Appellants argue that the Trial Court’s order granting a de novo hearing was
improper because the Commission permitted Bassett to admit all 38 exhibits
attached to her application and did not limit testimony or argument related to the
health of the three pin oak trees, the damage done by the trees’ roots to Bassett’s
sidewalk and the Commission’s authorization for the removal of healthy trees by
another Borough property owner. We do not agree.
Pursuant to Section 754 of the Local Agency Law, 2 Pa. C.S. § 754,
where a full and complete record was made before the agency, the court must limit
its review to determining whether constitutional rights were violated, the agency
complied with the procedures set forth in the Local Agency Law, an error of law
was committed, or the findings by the local agency are supported by substantial
evidence. 2 Pa. C.S. § 754(b); Johnson v. Lansdale Borough, 146 A.3d 696, 711
(Pa. 2016). On the other hand, where a full and complete record was not made
before the local agency, the court of common pleas may hear the appeal de novo or
may remand to the agency for further fact-finding. 2 Pa. C.S. § 754(a); Johnson,
146 A.3d at 711.
A “full and complete record” has been defined by this Court as “a
complete and accurate record of the testimony taken so that the appellant is given a
4
Section 753(a) of the Local Agency Law, 2 Pa. C.S. § 753(a), provides that all legal questions,
except constitutional challenges, which may be raised in the first instance in the court of
common pleas, must be raised at the agency level or deemed waived. Id.; Boron v. Pulaski
Township Board of Supervisors, 960 A.2d 880, 885 (Pa. Cmwlth. 2008) (en banc). Under
Section 753(a), however, a court of common pleas may entertain a legal issue that was not raised
below “upon due cause shown.” 2 Pa. C.S. § 753(a); Lower Providence Township v. Nagle, 469
A.2d 338, 342 (Pa. Cmwlth. 1984).
11
base upon which he may appeal and, also, that the appellate court is given a
sufficient record upon which to rule on the questions presented.” Kuziak v.
Borough of Danville, 125 A.3d 470, 475 (Pa. Cmwlth. 2015) (quoting In re
Thompson, 896 A.2d 659, 668 (Pa. Cmwlth. 2006)). A record may not be
“considered incomplete based solely on a party’s failure to present evidence
available at the hearing,” and remand is not proper to allow a party “another
opportunity to prove what he or she should have proved in the first place.” Kuziak,
125 A.3d at 475-76 (quoting Retirement Board of Allegheny County v. Colville,
852 A.2d 445, 451 (Pa. Cmwlth. 2004)). The determination of whether a local
agency’s record is adequate is a matter committed to the discretion of the court of
common pleas.5 Kuziak, 125 A.3d at 475 n.3; City of Philadelphia v. Murphy, 320
A.2d 411, 414 (Pa. Cmwlth. 1974).
We conclude that the Trial Court’s order to conduct a de novo hearing
was not an abuse of discretion. The Trial Court based its decision to order a de
novo hearing on the fact that the Commission Chairman had limited evidence to
“the three specific trees at our neighbor’s house” and “[n]ot sidewalks, not trees in
the park, not trees around the Borough” and later admonished Bassett’s attorney
“let’s talk about Mrs. Bassett’s trees” and not the regulation of shade trees in a
neighboring municipality.6 (March 24, 2016 Rule 1925 Opinion at 2-3 (citing
5
An abuse of discretion is shown where the trial court misapplies the law or its decision is
manifestly unreasonable, arbitrary or capricious, or was motivated by partiality, prejudice, bias
or ill will. James Corp. v. North Allegheny School District, 938 A.2d 474, 483 n.7 (Pa. Cmwlth.
2007).
6
The Trial Court ruled that the Commission’s decision denying Bassett’s applications would
also be defective under the deferential appellate standard of Section 754 of the Local Agency
Law because the Commission analyzed Bassett’s application under the clearly inapplicable
Section 95-5(G) of the Edgeworth Code and therefore the Commission’s decision was “not in
accordance with law.” (March 24, 2016 Rule 1925 Opinion at 3-4 (quoting 2 Pa. C.S. § 754(b).)
The Trial Court additionally found that the Commission was only nominally applying Section
12
Commission H.T. at 3, 13, R.R. 43a, 53a).) The Trial Court concluded that the
Commission excluded evidence from at least three relevant topics: evidence
related to Bassett’s sidewalk, trees of the same size with equally aggressive roots
that had been permitted to be removed and evidence related to the authorization of
removal of other trees in the Borough that were not “afflicted.” (Id.) While
Bassett was able to present a substantial amount of evidence before the
Commission, the Trial Court did not err in holding that the Commission did not
permit development of a full and fair record.
Because the Trial Court’s de novo review of Bassett’s appeal from the
Commission’s determination was proper, Appellants’ argument that Bassett
waived her argument regarding the application of Section 95-5(G) to her permit
application is unavailing because the Trial Court was authorized to undertake an
independent analysis of the legal issues applicable to Bassett’s application,
including a consideration of the propriety of the standards in the Edgeworth Code
regardless of whether they were litigated before the Commission. See Medical
Shoppe, Ltd. v. Wayne Memorial Hospital, 866 A.2d 455, 464 (Pa. Cmwlth. 2005)
(reviewing tribunal undertaking de novo review has discretion “to admit additional
evidence that it deems relevant and necessary to make its own findings of fact and
conclusions of law”); see also Manor v. Department of Public Welfare, 796 A.2d
95-5(G) to Bassett’s application based on the testimony of the Borough Manager at the Trial
Court hearing that the Commission looks at each case on its own merits, considering such factors
as the type of tree and the location of the tree on the property. (Id. at 4-5 (citing Trial Court H.T.
at 19, R.R. 229a).) The Trial Court found that the consideration of the tree species and location
of planting constituted an error of law by the Commission, violating the Borough Code’s
proscription that “[n]o regulation [of a shade tree commission] may be in force until it has been
approved by the council and enacted as an ordinance.” (Id. at 5 (quoting 8 Pa. C.S. § 2721(b).)
Because we hold that the Trial Court did not abuse its discretion by holding a de novo hearing,
we do not address the Trial Court’s alternate reasoning as to why the Commission’s decision was
erroneous as a matter of law.
13
1020, 1029 n.12 (Pa. Cmwlth. 2002); Codorus Stone & Supply Co., Inc. v.
Kingston, 711 A.2d 563, 566–67 (Pa. Cmwlth. 1998).
Accordingly, because Section 95-5(G) does not apply to Bassett’s
application for permission to remove the trees, the Trial Court correctly held that
the Commission erred in denying Bassett a permit to remove the three pin oak trees
from her curb lawn. We consequently affirm the order of the Trial Court reversing
the decision of the Commission to deny her permission to remove the three trees.
____________________________________
JAMES GARDNER COLINS, Senior Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dolores Bassett :
:
v. : No. 145 C.D. 2016
:
The Borough of Edgeworth :
Shade Tree Commission :
and Borough of Edgeworth, :
Appellants :
ORDER
AND NOW, this 24th day of January, 2017, the order of the Court of
Common Pleas of Allegheny County in the above-captioned matter is AFFIRMED.
____________________________________
JAMES GARDNER COLINS, Senior Judge