J.H. Ferguson v. City Council of the City of Erie ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Janet H. Ferguson, :
Appellant :
:
v. :
: No. 436 C.D. 2022
City Council of the City of Erie : Submitted: December 30, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: June 16, 2023
Janet H. Ferguson (Ferguson) appeals from the April 7, 2022, order of
the Court of Common Pleas of Erie County (trial court). The trial court denied
Ferguson’s appeal of the February 17, 2021, decision of the City Council of the City
of Erie (Council), which approved the application of PE Real Estate Holdings, LLC
(PERE) for a conditional use.1 Upon review, we vacate and remand.
I. Factual & Procedural Background
In November 2020, PERE filed a request for waterfront conditional use
approval for its plan to construct a nine-unit, three-story rental apartment building
on vacant lots at 824 and 828 West 2nd Street, which is in Erie’s Waterfront
Residential (WR) district. Reproduced Record (R.R.) at 5a & 18a. The application
1
PERE, the equitable owner of the property at issue, has not intervened in this matter.
was first considered by Erie’s Design Committee on December 2, 2020. Id. at 18a.
The Committee’s meeting minutes state that the project was presented by Philip
Gesue (Gesue), the project developer, and Brian Weber (Weber), the project
architect. Id. Gesue and Weber explained that they had first proposed the project in
August 2020, but after neighborhood meetings, had redesigned and modified it from
12 to 9 units and added additional off-street parking. Id. A front yard setback
variance was also being sought through Erie’s zoning hearing board in order to best
accommodate the off-street parking.2 Id. The Committee voted unanimously (with
two abstentions) to approve the project and forward it to Erie’s Planning
Commission. Id. at 19a.
On December 15, 2020, Gesue and Weber presented the project to the
Planning Commission. R.R. at 21a-23a. The Commission was also presented with
a report from Erie’s Department of Planning and Neighborhood Resources, which
recommended approval of the project based on the following factors: multiple-
family dwellings are a conditional use in the WR district; the Design Committee had
approved the project; the Zoning Hearing Board (Board) had granted the front yard
setback variance; and the project was consistent with the Erie Refocused
Comprehensive Plan and Community Decision-Making Guide’s3 future land use
map and goal of creating “housing options for a wide variety of household types.”
Id. The Commission voted unanimously (with one abstention) to recommend
approval of the project and forward the matter to Council. Id. at 23a & 25a.
2
The variance is the subject matter of the companion case to this matter, Ferguson v.
Zoning Hearing Board of the City of Erie (Pa. Cmwlth., No. 437 C.D. 2022).
3
Erie Refocused is a comprehensive plan for future development coordinated by Erie’s
Planning Department. See https://cityof.erie.pa.us/government/departments/city-planning/ (last
visited June 15, 2023).
2
Council held a hearing on January 20, 2021. R.R. at 38a. Edward Betza
(Betza), Erie’s solicitor, advised at the outset that this hearing did not pertain to the
front yard setback variance aspect of the project, which was before the Board. Id. at
41a. Gesue testified generally about the characteristics of this project as well as a
similar property he is working on a block away. Id. at 42a. The designs were
intended to be a modernized version of architectural styles in the neighborhood and
region with amenities for convenience and security. Id. at 43a & 46a-47a. He
expected the tenants to be young urban professionals and retirees interested in living
downtown and near the waterfront. Id. at 46a-49a. Rents would be $1,000-$1,500
per month, which he acknowledged is high for Erie, but he hoped the advantages of
new construction in this location would bring in tenants willing to pay more, which
in turn would uplift the neighborhood. Id. at 50a, 59a, 62a & 70a-73a. He believed
the off-street parking would be sufficient due to a belief that people interested in
living downtown may be less likely to need cars. Id. at 52a. He acknowledged that
Erie’s real estate tax abatement program is instrumental in making the projects
financially feasible to develop and promised as much participation by minority
contractors and workers as possible. Id. at 67a-68a.
Gesue stated that he lives in New York City now and has done similar
projects elsewhere, but he grew up in Erie and wanted to do something productive
and interesting with long-vacant lots in the waterfront area of his hometown. R.R.
at 48a-49a. These are the smallest projects he has ever done, and he was not doing
them principally for personal gain, although he hoped to recover his costs. Id. at
48a-49a, 56a & 60a. He acknowledged local resistance when he first proposed the
projects in August 2020 but noted that he conducted more outreach and received
input at multiple meetings, then reworked the projects to conform with what he
3
learned. Id. at 57a-58a. He recalled about a dozen meetings with individual
residents as well as with local neighborhood associations. Id. at 109a-10a.
Weber testified that the project would have one and a half parking
spaces per apartment unit, which exceeds the requirement of one space per unit. R.R.
at 86a. He explained changes to the plans that were made after community meetings,
including conforming the roof style and lines with existing building heights,
adjusting the exterior color palette, and exterior landscaping. Id. at 86a-88a.
Dan Dahlkemper (Dahlkemper), a member of the Design Committee,
owns the lots at issue and abstained from the Committee vote. He testified that he
hoped Council would consider the need for some flexibility for these projects. R.R.
at 79a. Most of what he had seen on the Committee in terms of new construction
might comply with zoning and other requirements but was often cheap, standard,
and uninspired. Id. at 80a. He appreciated PERE’s efforts at making these projects
in a new and interesting style while also being sensitive to community concerns. Id.
He stated that he lives in the neighborhood, has enjoyed the urban lifestyle with less
driving, and has not experienced significant issues with parking. Id. at 79a-81a.
Ferguson testified that the project could be reconfigured to comply with
the Erie Zoning Ordinance (Ordinance)4 and preserve the views, sunlight, fresh air,
parking, and quality of life of existing neighboring property owners. R.R. at 96a.
She stated that those who would benefit from the project have a financial interest in
it and those opposed are neighborhood taxpayers, many of whom have had their
properties in their families for as long as 100 years or more. Id. at 97a.
Pete Frisina (Frisina), a realtor representing Dahlkemper as the seller
of the property at issue, testified in favor of the project. R.R. at 98a. He recalled an
4
City of Erie, Pa., Zoning Ordinance (2021), No. 80-2005, as amended.
4
event in 2019 inviting outside investors to invest in Erie and stated that Gesue has
tried to make that happen and has been cooperative in resolving every obstacle so
far. Id. at 99a-100a. Frisina seconded Weber’s testimony that the off-street parking
actually exceeds that required by the Ordinance and that objectors are trying to
“change the rules halfway through the game” by critiquing the project’s parking
proposal. Id. Susan Dey, Gesue’s realtor, acknowledged her financial interest in the
project, but testified that the project represents an exciting potential development for
Erie and should be considered on its own merits. Id. at 106a-07a.
Laurie Edwards (Edwards), who lives adjacent to the project site,
testified that it is inharmonious with the area and “invasive.” R.R. at 102a & 104a.
She stated that the project will block her water view, which has been there since her
grandfather built the house. Id. at 102a-03a. She recalled Gesue stating at a meeting
that neighbors’ views would be respected; she felt that promise had been broken. Id.
She believed the impact on local parking would be significant. Id. at 104a. Robert
Sprickman (Sprickman), who also lives adjacent to the property at issue, testified
that the project was out of scale with the existing buildings and that the impact on
street parking would be significant given that it is already a “circus” to get spaces,
particularly in winter. Id. at 106a.
Donald Calabrese (Calabrese), who lives next door to the project site,
testified that his house has been in his family for over 100 years and that he was not
against development, but felt the project “just doesn’t fit in” with the neighborhood.
R.R. at 107a-08a. He had spoken to many other neighbors, and they felt the same.
Id. at 108a. Carrie Dechurch (Dechurch), who lives just west of the project and had
attended some of the community meetings, testified that she and other neighbors had
5
hoped the project would be like another one nearby that was smaller in scale and did
not block their views. R.R. at 111a-12a.
After Dechurch’s testimony, the public portion of the January 20, 2021,
Council hearing was closed. R.R. at 112a. Council’s minutes from its subsequent
February 17, 2021, meeting indicate that PERE’s conditional use request was
approved by a 4-3 voice vote. Id. at 135a. The record contains a written record of
the decision, but Council did not issue written findings of fact or conclusions of law
in support of its determination. R.R. at 159a.
Ferguson appealed to the trial court. On April 28, 2021, she filed a
“motion for additional evidence.” Original Record (O.R.) #12. In the motion,
Ferguson stated that before the January 2021 Council hearing, she had asked for the
opportunity to cross-examine PERE’s witnesses but had been told by the City Clerk
that the hearing would be for testimony only. Id. She stated this violated her due
process rights and asked the trial court to hold a hearing “to take additional evidence
through the cross-examination of all witnesses who testified on behalf of PERE
before Council, and that the [trial court] then issue its own findings” on PERE’s
conditional use application. Id. After argument, the trial court granted Ferguson’s
motion in a June 24, 2021, order directing that Council’s hearing be “reconvened”
and that all witnesses who previously appeared were to return and be subject to
cross-examination by Ferguson’s counsel. R.R. at 297a.
The trial court had issued a similar order in the companion zoning
matter; therefore, on July 21, 2021, the Board and Council held a joint supplemental
hearing on both matters. R.R. at 160a. At the outset, the city’s deputy solicitor,
Catherine Doyle (Doyle), stated: “The trial court has not remanded the case but has
opened up the hearing to hear additional evidence, limited evidence regarding cross-
6
examination of [PERE’s] witnesses.” Id. at 164a. Doyle also stated that “both of
the boards have made a final decision, and the case is currently before the trial court.
This is merely to hear additional testimony as provided in the [trial] court order, and
there will be no further deliberations or decisions by either board.” Id. at 166a.
During cross-examination by Ferguson’s counsel, Weber stated that he
learned there had previously been houses on the lots. R.R. at 169a. He added that
when PERE met with community members and neighbors, interference with their
views was not among the concerns raised,5 so that was not a consideration when the
project was being redesigned. R.R. at 172a-74a. He did not recall discussions with
Gesue about further reducing the number of apartments after the first reduction from
12 to 9 units. Id. at 176a. He stated that Ferguson’s proposal to situate parking in
the rear and place the building closer to 2nd Street would be unfeasible. R.R. at
177a-90a. This was because placing a driveway either through the building as a
tunnel or on the sides of the building would make the project prohibitively
expensive, and create issues with the project’s height, sloping, grading, stormwater
management, buffering with neighboring lots, and emergency vehicle access. Id.
Next, during cross-examination by Ferguson’s counsel, Gesue
acknowledged that waterfront views from the apartments will make them more
attractive and enhance the economic feasibility of the project. R.R. at 192a. He
added that having nine apartments is more economically feasible due to the marginal
and incremental costs of each unit within the overall project; having fewer units will
make each one more expensive to build and given the economic challenges in Erie,
rents can only be so high to offset the break-even cost of acquiring and developing
5
PERE’s documentation from those meetings indicated concerns were expressed over the
proposed building size and height, aesthetic conformity with the neighborhood, and privacy of
nearby buildings’ windows. R.R. at 29a-36a.
7
the site. Id. at 192a-93a. He did not believe he could make it work with only six
units, even if that approach might comply with the Ordinance. Id. at 194a.
Objectors presented Patrick Cooper (Cooper), a civil engineer with real
estate development and zoning experience. R.R. at 195a. His firm created the
exhibits presented to Weber during his testimony. Id. at 198a. He believed his
designs would not violate the Ordinance and disputed Weber’s opinions that they
would not be feasible due to buffering, drainage, grading, and emergency access
issues. Id. at 199a-202a.
After the July 2021 supplemental hearing, Council did not change its
February 2021 decision to grant PERE’s conditional use application and again did
not issue written findings of fact and conclusions of law. The matter returned to the
trial court, which took no further evidence and held argument in December 2021, at
which Ferguson’s counsel and Doyle appeared along with Arthur Martinucci
(Martinucci), who is the newly appointed solicitor and counsel for Council in the
companion matter. R.R. at 236a. The parties addressed the merits, but also disputed
the nature and purpose of the July 2021 supplemental hearing.
Ferguson’s counsel explained that because the trial court’s order for the
supplemental hearing in the companion zoning matter expressly allowed Ferguson
to present evidence, Cooper was permitted to testify at the joint hearing as
Ferguson’s expert and in rebuttal to PERE’s witnesses even though he had not been
part of the original proceedings before Council. R.R. at 250a-51a & 271a.
Martinucci disagreed, referring to the trial court order’s express statement that the
supplemental hearing was for cross-examination of the witnesses from the initial
hearing and the fact that the order did not formally remand the case or direct the
Board or Council to reconsider the matter based on the substance of the supplemental
8
hearing. Id. at 261-62a. Martinucci did not believe Council had jurisdiction to
consider Cooper’s testimony or reconsider its approval of PERE’s conditional use
application. Id. at 267a-68a. Martinucci acknowledged, however, that he did not
recall counsel for either the Board or Council objecting to Cooper’s testimony at the
supplemental hearing. Id. at 262a. Doyle added that the trial court could treat
Cooper’s testimony as permissible rebuttal evidence or as new testimony, but she
would object to the latter. Id. at 283a. The trial court expressed an inclination that
Cooper’s testimony as an expert at the supplemental hearing was permissible but
averred that its decision on that issue was not final at that time. Id. at 263a.
On April 7, 2022, the trial court issued a decision and order denying
Ferguson’s appeal. Trial Ct. Op.; O.R. #23. The court referenced its June 2021
order directing Council to “conduct a supplemental hearing to permit Ferguson to
cross-examine witnesses and present evidence” and noted that Ferguson had
presented Cooper’s testimony at the July 2021 supplemental hearing, which was held
jointly between Council and the Board. Id. at 4-5. The court noted that Council had
not issued written findings of fact and conclusions of law in association with its
February 2021 decision to grant the conditional use, but concluded the record was
sufficient to undertake review.6 Id. at 8-9. The court then reviewed the record under
the deferential standard of review for substantial evidence, which is applicable where
a court has taken no new evidence.7 Id. at 5-6.
6
The court stated in its procedural background that Council “made no additional findings”
following the July 2021 supplemental hearing. Trial Ct. Op.; O.R. #23, at 5. However, given that
Council did not issue written findings in support of its original February 2021 decision, it is unclear
why the trial court characterized Council’s inaction after the July 2021 supplemental hearing as a
failure to make any “additional” findings.
7
Where the trial court takes no additional evidence in a conditional use matter, our review
is limited to considering whether the local governing body erred as a matter of law or abused its
9
The trial court found Council’s grant of PERE’s conditional use
application was supported by substantial evidence. First, the court noted that multi-
family residential buildings are allowed as a conditional use in the WR district. Trial
Ct. Op. at 9. The court also noted record evidence that the project would bring a net
positive effect on the neighborhood, that it conformed with the neighborhood in
scale and aesthetics, and that while some existing views would be negatively
impacted, the Ordinance required protection of existing views only to the extent
feasible and in a dense neighborhood, views would be disrupted regardless of where
the building was situated on the currently vacant lots. Id. at 9-11. By contrast, the
court concluded that Ferguson had not shown “other evidence of harm to the public
welfare in a way not normally expected from this type of residential use.” Id. at 11.
The trial court concluded that Council therefore had not committed either legal error
or an abuse of discretion in granting the conditional use. Id. at 11-12. Ferguson
appealed to this Court.
II. Discussion
Ferguson first argues that the trial court erred in applying a “substantial
evidence” or quasi-appellate standard of review rather than a de novo standard to the
testimony and evidence from the July 2021 supplemental hearing. Ferguson also
argues that, on the merits, Council and the trial court both erred in concluding that
PERE met the conditional use requirements in the Ordinance.
discretion, which occurs when the body’s findings of fact are not supported by substantial
evidence. Williams Holding Grp., LLC v. Bd. of Supervisors of W. Hanover Twp., 101 A.3d 1202,
1212 n.8 (Pa. Cmwlth. 2014).
10
Section 1005-A of the Pennsylvania Municipalities Planning Code
(MPC)8 states:
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 below
includes findings of fact made by the governing body,
board or agency whose decision or action is brought up for
review and the court does not take additional evidence or
appoint a referee to take additional evidence, the findings
of the governing body, board or agency shall not be
disturbed by the court if supported by substantial 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.
53 P.S. § 11005-A (emphasis added). This section is applicable to matters before
supervisors and council members as well as matters before zoning hearing boards.
See Bd. of Supervisors of E. Rockhill Twp. v. Mager, 855 A.2d 917 (Pa. Cmwlth.
2004) (concerning remand to board of supervisors); Ford v. Zoning Hearing Bd. of
Caernarvon Twp., 616 A.2d 1089 (Pa. Cmwlth. 1992) (concerning remand to zoning
hearing board).
Section 913.2(b) of the MPC, added by the Act of December 21, 1988,
P.L. 1329, also states the following specifically with regard to conditional use
determinations made by supervisors or council members:
(b)(1) The governing body shall render a written decision
or, when no decision is called for, make written findings
8
Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L.
1329.
11
on the conditional use application within 45 days after the
last hearing before the governing body. Where the
application is contested or denied, each decision shall be
accompanied by findings of fact or conclusions based
thereon, together with any reasons therefor. Conclusions
based on any provisions of this act or of any ordinance,
rule or regulation shall contain a reference to the provision
relied on and the reasons why the conclusion is deemed
appropriate in the light of the facts found.
(2) Where the governing body fails to render the decision
within the period required by this subsection or fails to
commence, conduct or complete the required hearing as
provided in section 908(1.2), the decision shall be deemed
to have been rendered in favor of the applicant unless the
applicant has agreed in writing or on the record to an
extension of time. When a decision has been rendered in
favor of the applicant because of the failure of the
governing body to meet or render a decision as
hereinabove provided, the governing body shall give
public notice of the decision within ten days from the last
day it could have met to render a decision in the same
manner as required by the public notice requirements of
this act. If the governing body shall fail to provide such
notice, the applicant may do so.
(3) Nothing in this subsection shall prejudice the right of
any party opposing the application to appeal the decision
to a court of competent jurisdiction. A copy of the final
decision or, where no decision is called for, of the findings
shall be delivered to the applicant personally or mailed to
him no later than the day following its date.
53 P.S. § 10913.2(b) (emphasis added).
In Sowich v. Zoning Hearing Board of Brown Township, 214 A.3d 775(Pa. Cmwlth. 2019), a common pleas court granted a landowner’s “motion to present
additional evidence” and remanded the case to the zoning board to supplement the
record on specific factual matters that had not been before the board in prior
proceedings. Id. at 780-81. At the remand proceeding, numerous witnesses who
12
had not previously appeared testified on the specific subject matter. Id. at 782. After
the remand proceeding, the board did not make additional findings or conclusions or
alter its decision against the landowner; it simply indicated that the record was to
return to the common pleas court for further proceedings. Id. at 782.
When the matter returned to the common pleas court, that court applied
the deferential substantial evidence standard to the post-remand record and affirmed
the board’s decision. Id. at 782-83. On the landowner’s appeal, we concluded that
because the zoning board failed after remand proceedings to account for the new
substantive evidence, under Section 1005-A, the common pleas court was able and
required to make de novo findings of fact on that specific evidence; we therefore
remanded to the common pleas court for that purpose. Id. at 785 & 790.
Ferguson, relying on Sowich, argues that this case must be remanded to
the trial court for it to apply a de novo rather than deferential standard to the record
from the supplemental hearing and to produce a new opinion with factual and
credibility determinations based on the supplemental hearing. Ferguson’s Br. at 10-
13. Council responds that both Ferguson’s motion and the trial court’s order
directing the supplemental hearing emphasized that its purpose was not for the
introduction of substantively new evidence, but simply to allow Ferguson to cross-
examine PERE’s witnesses from the December 2020 hearing. Council’s Br. at 11.
Therefore, according to Council, the trial court did not actually receive any new
evidence and was not required to make de novo findings or determinations. Id.
Ferguson’s “motion for additional evidence” to the trial court and the
trial court’s order granting that motion focused primarily on cross-examination of
PERE’s witnesses from the previous proceeding. See O.R. #12 at 5; R.R. at 297a.
Unlike in the companion variance case before the Board, the trial court’s order here
13
did not indicate that Ferguson could provide “additional” evidence other than the
PERE witnesses’ cross-examination testimony. However, cross-examination
testimony is itself substantive evidence. Black’s Law Dictionary (11th ed. 2019)
(defining “testimony” as “[e]vidence that a competent witness under oath or
affirmation gives in a [legal proceeding]”). The ensuing July 2021 supplemental
hearing was a joint proceeding of both Council and the Board and the testimony of
Cooper, who did not previously testify before either entity, pertained to both matters:
preservation of views, which was part of Council’s waterfront conditional use
consideration,9 and the loss of Ferguson’s view, which was the basis of her objection
to the variance in the companion zoning matter. R.R. at 198a-202a.
There are similarities between this case and Sowich. There, the
common pleas court’s formal remand was to secure additional substantive evidence.
214 A.3d at 781-82. Here, the trial court did not expressly remand the matter, instead
characterizing the proceeding as a “reconvening” of the February 2021 hearing to
cross-examine PERE’s witnesses. R.R. at 297a. However, as noted, cross-
examination testimony is itself substantive evidence. Therefore, even in the absence
of a formal remand, the practical result here was the same as in Sowich: new
evidence was added to the record, specifically the cross-examination testimony of
Gesue and Weber and Cooper’s “new” testimony and renderings. See id. at 198a-
202a. As in Sowich, Council here did not consider or comment on the new evidence,
likely because of Doyle’s prefatory statement that, in the absence of a formal remand
or direct order by the trial court to incorporate and reconsider the evidence after the
9
Subsection 306.40 of the Ordinance, which is part of Section 306 (titled
“CONDITIONAL USES – WATERFRONT DISTRICTS”), states: “Careful consideration shall
be given to the preservation of natural vistas and to the future development of vistas which open
into undeveloped areas. Of importance is the Bluff area. To the extent feasible, Bluff views shall
be preserved.” Ordinance § 306.40.
14
supplemental hearing, Council was authorized only to conduct the hearing and return
the matter to the trial court. R.R. at 164a, 166a & 206a.
However, Sowich is ultimately distinguishable. There, the remand by
the court of common pleas was for new evidence on a discrete issue; the court of
common pleas was able to conduct a de novo review of that evidence from the post-
remand record. 214 A.3d at 784-85. Here, however, unlike in Sowich, the cross-
examination and rebuttal evidence from the July 2021 supplemental proceedings
pertained directly to and could not be separated from the evidence taken at the earlier
Council proceedings.
The MPC states in Section 1005-A that the common pleas court “shall
make its own findings of fact based on the record below as supplemented by the
additional evidence, if any,” when the “record does not include findings of fact or if
additional evidence is taken by the court or by a referee[.]” 53 P.S. § 11005-A.
Here, the additional evidence was not taken by either the court or a referee, but by
Council; therefore, the latter part of the provision is inapplicable. Although the trial
court could have reviewed the July 2021 supplemental proceeding evidence anew
under the first part of the provision because the record before it “[did] not include
findings of fact,” the interconnectedness of the supplemental and original evidence
would have made that determination unwieldy and perhaps inconsistent. This case
is therefore unlike Sowich.
This matter is also complicated by the fact that Council failed to issue
written findings of fact and conclusions of law in support of its February 2021
decision to grant the conditional use. As noted, the MPC requires that when local
governing bodies decide contested conditional use matters, as is the case here, they
must produce written findings and conclusions. 53 P.S. § 10913.2(b)(1) (“Where
15
the application is contested or denied, each decision shall be accompanied by
findings of fact or conclusions based thereon, together with any reasons therefor.”).
Council failed to do so.
III. Conclusion
Due to the combination of Council’s failure to issue written findings of
fact and conclusions of law, the trial court’s determination to review the matter
without written findings and conclusions from Council, and the trial court’s further
determination to review the matter using a deferential standard of review, this Court
is left without a decisional foundation from either tribunal providing a factfinding
evaluation of the evidence from the initial and supplemental hearings. We therefore
remand the matter to the trial court for further remand to Council to consider all of
the evidence from both proceedings and produce written findings of fact and
conclusions of law in compliance with Section 913.2(b)(1) of the MPC. Thereafter
the matter may return to the trial court, at which time that court will be able to
properly consider the matter under the deferential standard of review.10
__________________________________
CHRISTINE FIZZANO CANNON, Judge
10
In light of our disposition to remand this matter, we do not reach the merits of Ferguson’s
appeal.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Janet H. Ferguson, :
Appellant :
:
v. :
: No. 436 C.D. 2022
City Council of the City of Erie :
ORDER
AND NOW, this 16th day of June, 2023, the April 7, 2022, order of the
Court of Common Pleas of Erie County (trial court), which denied Janet H.
Ferguson’s appeal of the February 17, 2021, decision of the City Council of the City
of Erie (Council), granting a conditional use application filed by PE Real Estate
Holdings, LLC, is VACATED. This matter is REMANDED to the trial court for
further remand to Council to issue written findings of fact and conclusions of law in
accordance with this opinion.
Jurisdiction relinquished.
__________________________________
CHRISTINE FIZZANO CANNON, Judge