IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wayne Property Acquisition, Inc. : CASES CONSOLIDATED
:
v. : No. 254 C.D. 2020
:
Board of Commissioners of the :
Township of Radnor and Bradley :
Mortensen, Susan Stern, Warren Ayres :
and Susan Ayres :
:
Appeal of: Radnor Township Board :
of Commissioners :
:
Wayne Property Acquisition, Inc. :
:
v. : No. 279 C.D. 2020
:
Board of Commissioners of Radnor :
Township and Bradley Mortensen, :
Susan Stern, Warren Ayres and :
Susan Ayres :
:
Appeal of: Bradley Mortensen, :
Susan Stern, Warren Ayres and :
Susan Ayres : Argued: June 23, 2022
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: August 7, 2023
In these consolidated zoning cases, the Radnor Township Board of
Commissioners (Board) and Bradley Mortensen, Susan Stern, Warren Ayres, and
Susan Ayres (Intervenors) (collectively, Appellants) appeal from the January 30, 2020 1
order of the Court of Common Pleas of Delaware County (trial court), which sustained
the land use appeal of Appellee Wayne Property Acquisition, Inc. (Wayne).
Wayne initially sought the Board’s approval of a preliminary land
development plan (Preliminary Plan or Plan) pursuant to which it sought to remove the
existing buildings from two parcels of property in Radnor Township (Township),
consolidate the parcels, and construct a new Wawa convenience store with
accompanying gasoline sales. The Board denied approval of the Preliminary Plan,
citing Wayne’s non-compliance with multiple provisions of the Township’s zoning
ordinance (Zoning Ordinance)2 and Subdivision and Land Development Ordinance
(SALDO).3 Wayne appealed the Board’s decision to the trial court, which sustained
the appeal. On appeal to this Court, Appellants argue that the trial court erred and
abused its discretion in multiple respects. Upon review, we affirm in part, reverse in
part, and remand for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
The trial court did not supplement the record from the Board. The facts
material to the instant appeals are not disputed and may be summarized as follows.
1
The trial court’s order is dated January 30, 2020, and was entered on the docket on January
31, 2020. (Reproduced Record at 0330a.) Citations to the Reproduced Record (R.R.) throughout this
opinion omit the first two zeros from the cited page numbers.
2
Township of Radnor, Delaware County, Pa. Zoning Ordinance, Ord. No. 1564 (1974), as
amended, now codified at Chapter 280 of the Code of the Township of Radnor, §§ 280-1-280-168,
available at https://ecode360.com/11078356 (last visited August 7, 2023).
3
Township of Radnor, Delaware County, Pa. Subdivision and Land Development Ordinance,
Ord. No. 83-19 (1983), as amended, now codified at Chapter 255 of the Code of the Township of
Radnor, §§ 255-1-255-103, available at https://ecode360.com/11075882 (last visited August 7, 2023).
2
Wayne is a private company owned by the Karakelian Family. Wayne
owns two adjacent parcels of property in the Township located at 302 and 306 East
Lancaster Avenue, Wayne, Pennsylvania (the Property).4 (R.R. at 0016a-18a.) The
302 East Lancaster Avenue parcel currently houses a Sunoco fuel station and
automobile repair shop. Id. at 0017a. The 306 East Lancaster Avenue parcel houses a
gasoline station and car wash. Id. The businesses on both parcels were developed in
the 1950s or prior. Id. The Property is located in the Township’s C-2 General
Commercial zoning district (C-2 District). Id. at 0019a; 0153a. Wayne proposes to
merge the two parcels into a single 1.71-acre parcel, remove all current structures, and
construct and lease to Wawa a new retail convenience store with gasoline sales. Id. at
0129a-49a. The repair and car wash businesses will end. Id. at 0154a.
On April 6, 2018, Wayne’s representatives met with the Township’s
Director of Community Development and Zoning Officer, Kevin Kochinski (Zoning
Officer), and the Township’s solicitor (Solicitor) to discuss Wayne’s proposal and its
compliance with the Zoning Ordinance. Id. at 0017a-18a. On April 16, 2018, Wayne’s
counsel sent a letter (Request Letter) to the Zoning Officer in which counsel requested
“a determination letter indicating the compliance of the attached [Preliminary] Plan
with the provisions of the [Zoning Ordinance].” Id. at 0152a. Counsel further
requested that the Zoning Officer “provide what relief, if any, including the type of
relief, is required from the provisions of the Zoning [Ordinance].” Id.5
4
Wayne owns the 306 East Lancaster Avenue parcel. Gary and Connie Karakelian own the
302 East Lancaster Avenue parcel. (R.R. at 0016a-17a.) Because Wayne operates the businesses on
both parcels and submitted the Preliminary Plan at issue, we refer to Wayne throughout as the owner
and operator of the entire Property.
5
The Request Letter briefly described Wayne’s proposed Preliminary Plan as follows:
(Footnote continued on next page…)
3
On April 27, 2018, the Zoning Officer issued a letter replying to Wayne’s
request (Zoning Letter). Id. at 0153a. The Zoning Letter advised as follows:
1. The subject site is located in the C-2 [District].
2. Retail uses are permitted [by right] in the C-2 [D]istrict.
3. The [u]se provisions of [Zoning Ordinance] [s]ection 280-
49.A requiring all uses to be completely enclosed within a
building is an existing non-conformity[,] which is
proposed to [be] reduced. Currently, the two (2) sites
maintain[] 20 retail gas pumps. The proposed [Property]
would contain 12 retail gas pumps.
4. The [u]se provision of [Zoning Ordinance] [s]ection 280-
49.D requiring [that] no goods shall be displayed or
offered for sale beyond the front lines of a building is an
existing non-conformity[,] which is proposed to be
reduced.
A thorough zoning review has not been completed. This
opinion applies only to the issue noted above. [Wayne] is
responsible for securing all other necessary permits and
approvals[] as well as compliance with all applicable
302 E[ast] Lancaster Avenue and 306 E[ast] Lancaster Avenue are
adjacent parcels located on the south side of Lancaster Avenue. 302
E[ast] Lancaster currently houses a full-service motor vehicle repair
shop and the retail sale of gasoline.
306 E[ast] Lancaster Avenue is operated as a car wash and also includes
the retail sale of gasoline. The owner of the lots intends to combine the
lots into one lot and maintain a retail convenience store together with
the retail sale of gasoline. The motor vehicle repair use and the car wash
use will be discontinued.
....
(R.R. at 0152a.)
4
[m]unicipal [c]odes/[r]egulations. If you have any questions
regarding this determination, please contact me.
Id. at 0153a. It is undisputed that the Zoning Letter was not published to the public.
After receiving the Zoning Letter, Wayne proceeded through the
Preliminary Plan approval process. Wayne engaged professional engineers, held
public meetings with neighbors and Township officials, prepared revised Plans, and
obtained a traffic impact study. Id. at 0021a; 0258a. Wayne submitted the Preliminary
Plan for approval on August 31, 2018. Id. at 0201a. Thereafter, during the review
process, Wayne received numerous review letters from the Township and the Delaware
County Planning Commission (County Planning Commission), none of which advised
that the Preliminary Plan did not comply with the Zoning Ordinance. Id. at 0023a;
0155a-58a; 0168a-206a.6 Wayne, through its engineer, sent letters to the Township
addressing the issues raised in the review letters and submitted Plan revisions to
eliminate the need for certain substantive waivers to the Township’s SALDO. Id. at
0211a; 0224a; 0242a. The Board scheduled an approval hearing for June 4, 2019.
Prior to the hearing, on March 28, 2019, Solicitor issued a memorandum
to the Radnor Township Planning Commission (Township Planning Commission) in
which it advised that the Zoning Officer’s opinion in the Zoning Letter was erroneous
and that the Preliminary Plan would require relief from the Township’s Zoning Hearing
Board (ZHB). Id. at 0265a.7 In pertinent part, the memorandum advised as follows:
6
The County Planning Commission, after reviewing the proposed Preliminary Plan,
concluded that the Plan “appear[ed] to comply with the C-2 [D]istrict [Zoning Ordinance]” provisions
and recommended that the Plan “proceed to final” preparation. (R.R. at 0156a; 0157a.)
7
Counsel for several neighboring landowners submitted a letter to the Zoning Officer in which
counsel advised that the Preliminary Plan would require relief from the ZHB, namely, a special
exception to permit gasoline sales and a variance from the Zoning Ordinance’s rear yard requirements
for corner lots. (R.R. at 0262a-64a.)
5
In his preliminary review, the [Z]oning [O]fficer stated the
following:
a. Retail uses are permitted in the C-2 [District];
b. The [Z]oning [O]rdinance requires all uses in the C-2
[D]istrict to be located completely within an enclosed
structure, but the outdoor gas pumps are an existing
nonconformity which is being reduced; and
c. The [Z]oning [O]rdinance requires that no goods shall
be displayed or offered for sale beyond the front lines
of a building, but this, too, is an existing non-
conformity.
The [Zoning O]rdinance does not address convenience stores,
with or without gasoline sales, but we agree with the [Z]oning
[O]fficer’s classification of a convenience store as a retail use.
[The Zoning Officer] correctly notes that all uses in the C-2 [
] District must be located within an enclosed building
([Zoning Ordinance] § 280-49.A and § 280-53) so we know
that a convenience store with gas pumps would not be
permitted by right in the C-2 [ ]District.
Nonconformities
The question then becomes the role that nonconformities play
in an analysis of this [P]lan. Township records show that the
property at 302 [East] Lancaster Avenue registered as a
nonconforming use in 1956, in this case, an ESSO station.
[Zoning Ordinance] Article XX, § 280-101 is the subject of
this memo and the basis of our legal opinion to you.
Pennsylvania law and [section] 280-101 distinguish between
nonconforming uses and nonconforming structures.
The [Z]oning [O]fficer notes that the gas pumps, which are
not enclosed within a building, are an existing nonconformity.
The preliminary zoning review does not clarify whether the
6
nonconformity is a nonconforming structure or a
nonconforming use.
If the nonconformity is a structural nonconformity, [section]
280-101.B allows that only nonconforming structures
destroyed by fire or other casualty may be reconstructed;
there is no provision to allow the reconstruction of
nonconforming structures if they are destroyed voluntarily.
Voluntary destruction of a building is an abandonment of the
building. If the nonconformity to which the preliminary
review refers is a nonconforming structure, [Wayne] must
seek variance relief from the [ZHB] to pursue this
application[.]
If the unenclosed gas pumps are a nonconforming use, Zoning
Ordinance [s]ection 280-101.A states that “[a]ny change in
nonresidential occupancy shall be deemed to be a change of
use for purposes of [section] 280-101.A(1). [Section] 280-
101.A(1) requires that a “nonconforming use may be changed
to another nonconforming use only upon determination by the
ZHB, after public hearing, that the proposed new use will be
no more detrimental to its neighborhood and surroundings
than is the use it is to replace.”
The last prong of the preliminary zoning review notes that
Zoning Ordinance [s]ection 280-49.D requires that “[]no
goods shall be displayed or offered for sale beyond the front
lines of a building[,”] but states that the sale of goods beyond
the front line of a building is an existing nonconformity. This
nonconformity is a dimensional nonconformity, which ceases
when the buildings on the [P]roperty are razed. Variance
relief would be required to allow the sale of goods beyond the
front line of a building.
The Zoning Ordinance and Pennsylvania law direct that
[ZHB] relief is required in order for this application to
proceed. [Wayne] can offer an additional extension while the
relief is pursued. The current extension run[s] only until May
13, [2019,] so if [Wayne] declines to provide an additional
7
extension, it is our recommendation that the [Township]
Planning Commission recommends denial of this plan.
(R.R. at 0266a-67a) (emphasis omitted).
At a meeting on April 1, 2019, the Township Planning Commission
recommended to the Board that Wayne’s application for approval of its Preliminary
Plan be denied. On June 10, 2019, the Board held a hearing and denied approval. The
Board, by counsel, issued a written denial to Wayne’s counsel on June 13, 2019 (Denial
Letter). Id. at 0104a-05a; 0323a-25a.8 Wayne filed a land use appeal to the trial court
8
The Board’s written denial identified the following items of noncompliance with the Zoning
Ordinance and SALDO:
1. Failure to receive [ZHB] approval as required by [s]ection 280-101[.]
A[ ](1) of the Township’s [Z]oning [O]rdinance which requires any
change in nonresidential occupancy to receive a special exception
from the [ZHB].
2. Non-compliance with [s]ection 280-49.D of the [ ] [Z]oning
[O]rdinance which prohibits goods to be displayed beyond the front
lines of a building.
3. Non-compliance with [s]ections 280-4[.B] and 280-52[.E] of the [ ]
[Z]oning [O]rdinance regarding encroachment into the rear yard
setback requirements for a corner lot.
4. Non-compliance with [s]ections 280-112.J[ ] of the [ ] [Z]oning
[O]rdinance due to the proposed parking areas in steep slopes of 20%
or greater.
5. Noncompliance with the following [SALDO] requirements:
a. Section 255-20.B(1)(n) which requires significant man[-]made
features within 500 feet of the site to be shown on the plans.
b. Section[s] 255-29.A(12)(c) and 255-30.C with respect to width
of entrance and exit drives.
c. Section 255-38.H regarding the listing of all proposed trees on
the plan.
(Footnote continued on next page…)
8
on July 10, 2019, and Intervenors were permitted to intervene. The trial court did not
receive additional evidence, and the parties submitted proposed findings of fact,
conclusions of law, and briefs. The trial court ultimately sustained Wayne’s land use
appeal, approved the Preliminary Plan, and directed Wayne to submit a final plan that
complied with the SALDO.9
After the Board and Intervenors appealed to this Court, the trial court set
forth its reasoning in an opinion pursuant to Pennsylvania Rule of Appellate Procedure
(Pa. R.A.P.) 1925(a). Therein, the trial court concluded that (1) the Zoning Officer’s
d. Section 255-20.B(1)(n) which requires surveys in all areas
within 500 feet of the property line.
e. Section 255-20.B(5)(d)[2][a] which requires information
regarding internal pedestrian circulation as part of the
transportation impact study requirement.
f. Section 255-20.B(5)(d)[3] and [s]ection 255-6 which require a
traffic study area of .5 miles and specific criteria for
documenting existing traffic conditions.
g. Section 255-20.B(5)(d)[4] which requires the calculation of trip
generation data in accordance with Attachment 4 of the [ ]
[SALDO].
h. Section 255-20.B(5)(d)[5] which requires a dedicated 75-foot
left turn lane for the westbound approach of Lancaster Avenue
at the proposed access driveway during all study periods which
the applicant has not shown on the Plans.
i. Section 255-20.B[(]5)(d)[6][a] which requires specific
recommendations for remediation of all streets and intersections
showing a Level of Service below C which the application has
failed to address.
(R.R. at 0323a-24a.)
9
In its January 30, 2020 order, the trial court incorporated Wayne’s proposed findings of fact,
conclusions of law, and brief. (Trial Ct. Order, 1/30/20, ¶ 3.) The trial court also made additional
relevant findings independent of those submitted by Wayne. Id., ¶¶ 2-6.
9
opinion in the Zoning Letter that the Preliminary Plan complied with the Zoning
Ordinance was binding on the Board; (2) Wayne was not required to obtain a special
exception under section 280-101.A of the Zoning Ordinance due to a change of
occupancy; (3) the legal, nonconforming use of outside gasoline sales was not
abandoned by Wayne and may continue on the Property as a legal, nonconforming use;
(4) the Preliminary Plan substantially complied with the provisions of the Zoning
Ordinance and SALDO; and (5) the Board acted in bad faith during the plan review
process. (Trial Ct. Op. at 7-33.) The trial court further discussed certain substantive
challenges to the Zoning Ordinance that Wayne raised in its brief, but nevertheless
concluded that such challenges had not been preserved for appeal because they had not
been raised before the Board. Id. at 27-32.
II. ISSUES PRESENTED10
The Board and Intervenors present similar, but not identical, issues for
review. We have combined, summarized, and rearranged the issues presented in both
consolidated appeals as follows:
1. Whether the Board was bound by the interpretation of
the Zoning Ordinance rendered by the Zoning Officer in the
Zoning Letter. (Board’s Br. at 7, IV(B); Intervenors’ Br. at 5,
IV(1).)
2. Whether Wayne’s proposed development of the
Property constituted an abandonment of a legal
10
Where, as here, the trial court takes no additional evidence, this Court’s “review of a land
development appeal is limited to determining whether the local governing body committed an error
of law or an abuse of discretion.” Berner v. Montour Township, 120 A.3d 433, 436 n.5 (Pa. Cmwlth.
2015). An abuse of discretion occurs when the governing body’s findings are not supported by
substantial evidence. Gerryville Materials, Inc. v. Planning Commission of Lower Milford Township,
74 A.3d 322, 325 n.5 (Pa. Cmwlth. 2013). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. (citation and internal
quotation omitted).
10
nonconforming use. (Board’s Br. at 7, IV(A),(C);
Intervenors’ Br. at 5, IV(3).)
3. Whether the trial court erred or abused its discretion in
concluding that Wayne was not required to obtain a special
exception for new occupancy. (Board’s Br. at 26-30, VII(C);
Intervenors’ Br. at 5, IV(2).)
4. Whether the Board appropriately rejected the
Preliminary Plan due to noncompliance with the Zoning
Ordinance and SALDO. (Board’s Br. at 8, IV(D);
Intervenors’ Br. at 5, IV(4).)
5. Whether the trial court erred or abuse its discretion in
adopting Wayne’s proposed findings of fact and conclusions
of law to conclude that the Board acted in bad faith during the
plan review process. (Board’s Br. at 8, IV(E); Intervenors’ Br.
at 6, IV(6).)
6. Whether the trial court erred or abused its discretion in
considering and ruling upon Wayne’s substantive challenge
to the Zoning Ordinance, raised for the first time in the trial
court. (Board’s Br. at 8, IV(F); Intervenors’ Br. at 5-6, IV(5).)
III. DISCUSSION
A. The Zoning Letter
First, Appellants argue that the trial court erred in concluding that the
Zoning Officer’s opinion that the Preliminary Plan complied with the Zoning
Ordinance was binding on the Board. They accordingly argue that the Board properly
denied Preliminary Plan approval based on an interpretation of the Zoning Ordinance
that conflicted with that offered by the Zoning Officer. (Intervenors’ Br. at 17-20;
Board’s Br. at 22-26; Trial Ct. Op. at 7-9; R.R. at 0340a-42a.) Wayne argues to the
contrary that the Zoning Letter is a binding interpretation of the relevant provisions of
the Zoning Ordinance and that the Board was not free to disagree with it in denying
11
Plan approval. We agree with Appellants that the Zoning Letter was not binding on
the Board.
Section 614 of the Pennsylvania Municipalities Planning Code (MPC), 53
P.S. § 10614,11 establishes the scope of authority of zoning officers as follows:
For the administration of a zoning ordinance, a zoning officer,
who shall not hold any elective office in the municipality,
shall be appointed. The zoning officer shall meet
qualifications established by the municipality and shall be
able to demonstrate to the satisfaction of the municipality a
working knowledge of municipal zoning. The zoning officer
shall administer the zoning ordinance in accordance with its
literal terms, and shall not have the power to permit any
construction or any use or change of use which does not
conform to the zoning ordinance. Zoning officers may be
authorized to institute civil enforcement proceedings as a
means of enforcement when acting within the scope of their
employment.
53 P.S. § 10614.12 Section 909.1 of the MPC, 53 P.S. § 10909.1,13 further establishes
the authority and jurisdiction of both governing bodies and zoning hearing boards. It
provides, in pertinent part, as follows:
(a) The zoning hearing board shall have exclusive jurisdiction
to hear and render final adjudications in the following
matters:
11
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202. Section 614 was
reenacted and amended by the Act of December 21, 1988, P.L. 1329.
12
Section 280-130 of the Zoning Ordinance defines the responsibilities and authority of the
Zoning Officer and provides that the administration of the Zoning Ordinance shall be “enforced by
the Zoning Officer.” (Zoning Ordinance, § 280-130.) The Zoning Officer has the explicit duty to (1)
enforce the provisions of the Zoning Ordinance, (2) accept permit applications, and (3) issue permits.
Id. § 280-130(A)-(C).
13
Section 909.1 was added by the Act of December 21, 1988, P.L. 1329.
12
(1) Substantive challenges to the validity of any land use
ordinance, except those brought before the governing
body pursuant to sections 609.1[14] and 916.1(a)(2).[15]
....
(3) Appeals from the determination of the zoning officer,
including, but not limited to, the granting or denial of any
permit, or failure to act on the application therefor, the
issuance of any cease and desist order or the registration
or refusal to register any nonconforming use, structure or
lot.
....
(8) Appeals from the zoning officer’s determination under
section 916.2.[16]
....
53 P.S. § 10909.1(a).17
14
53 P.S. § 10609.1, as amended and reenacted. Section 609.1 was added by the Act of June
1, 1972, P.L. 333.
15
53 P.S. § 10916.1, as amended. Section 916.1 was added by the Act of December 21, 1988,
P.L. 1329. It provides, in pertinent part, as follows:
(a) A landowner who, on substantive grounds, desires to challenge the
validity of an ordinance or map or any provision thereof which prohibits
or restricts the use or development of land in which he has an interest
shall submit the challenge either:
(1) to the zoning hearing board under section 909.1(a); or
(2) to the governing body under section 909.1(b)(4), together with a
request for a curative amendment under section 609.1.
53 P.S. § 10916.1.
16
53 P.S. § 10916.2, as amended. Section 916.2 was added by the Act of December 21, 1988,
P.L. 1329.
17
The MPC defines a “determination” as a “final action by an officer, body or agency charged
with the administration of any land use ordinance or applications thereunder. . . .” Section 107(b) of
the MPC, 53 P.S. § 10107(b).
13
In the land development process, “[s]ection 916.2 of the MPC[18] provides
a mechanism whereby a landowner wishing to take advantage of an ordinance or map
may foreclose challenge[s] to such ordinance or map by requesting a preliminary
opinion from the zoning officer.” Friends of Lackawanna v. Dunmore Borough Zoning
Hearing Board, 227 A.3d 37, 42 (Pa. Cmwlth. 2020) (citation and quotation omitted).
Section 916.2 states, in relevant part, as follows:
In order not to unreasonably delay the time when a landowner
may secure assurance that the ordinance or map under which
he proposed to build is free from challenge, and recognizing
that the procedure for preliminary approval of his
development may be too cumbersome or may be unavailable,
the landowner may advance the date from which time for any
challenge to the ordinance or map will run under section
914.1[19] by the following procedure:
(1) The landowner may submit plans and other
materials describing his proposed use or development
to the zoning officer for a preliminary opinion as to
their compliance with the applicable ordinances and
18
Added by Section 99 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10916.2.
19
Section 914.1, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10914.1.
Section 914.1(a) provides as follows:
(a) No person shall be allowed to file any proceeding with the board
later than 30 days after an application for development, preliminary
or final, has been approved by an appropriate municipal officer,
agency or body if such proceeding is designed to secure reversal or
to limit the approval in any manner unless such person alleges and
proves that he had no notice, knowledge, or reason to believe that
such approval had been given. . . . The failure of anyone other than
the landowner to appeal . . . from an adverse decision by a zoning
officer on a challenge to the validity of an ordinance or map
pursuant to section 916.2 shall preclude an appeal from a final
approval except in the case where the final submission substantially
deviates from the approved tentative approval.
53 P.S. § 10914.1(a).
14
maps. Such plans and other materials shall not be
required to meet the standards prescribed for
preliminary, tentative or final approval or for the
issuance of a building permit so long as they provide
reasonable notice of the proposed use or development
and a sufficient basis for a preliminary opinion as to its
compliance.
(2) If the zoning officer’s preliminary opinion is that
the use or development complies with the ordinance or
map, notice thereof shall be published once each week
for two successive weeks in a newspaper of general
circulation in the municipality. . . . The favorable
preliminary approval under section 914.1 and the time
therein specified for commencing a proceeding with
the board shall run from the time when the second
notice thereof has been published.
53 P.S. § 10916.2 (emphasis added).20 Section 916.2 thus establishes a procedure to
advance the date from which time for any challenge to the validity of an ordinance or
map will run under Section 914.1 of the MPC. MCM Ventures, slip op. at 3-4. In an
appeal of a zoning officer’s determination under section 916.2, the only issue before
the zoning board is the substantive validity of the zoning ordinance. Susquehanna
Rheems Holdings, LLC v. West Donegal Township Zoning Hearing Board (Pa.
20
Section 916.2(2) does not expressly indicate who is responsible for publishing notice of a
preliminary opinion favorable to a landowner. However, we previously have at least suggested that
it is the landowner’s duty to comply with the procedural requirements of section 916.2(2). See MCM
Ventures, Ltd. v. Zoning Hearing Board of the Borough of Sewickley (Pa. Cmwlth., No. 759 C.D.
2011, filed August 10, 2012), slip. op. at 10-11, 2012 WL 8679758 (“[A landowner may use [s]ection
916.2 to secure a preliminary decision that its tentative plans comply with a zoning ordinance . . . [.]
[I]f properly advertised, this preliminary opinion will start the 30-day time period within which a
substantive challenge must be made . . . . However, if the landowner does not fulfill the statutory
requirements of [s]ection 916.2, the time period under [53 P.S. § 10914.1] will not begin to run.”)
(emphasis added). See Section 414(a) of the Commonwealth Court’s Internal Operating Procedures,
210 Pa. Code § 69.414(a) (Unreported panel decisions of this Court issued after January 15, 2008,
may be cited for their persuasive value.)
15
Cmwlth., No. 1394 C.D. 2017, filed July 23, 2018), slip op. at 44-45, 48-49, 2018 WL
3520284.
In Borough of Jenkintown v. Board of Commissioners of Abington
Township, 858 A.2d 136 (Pa. Cmwlth. 2004), we considered a zoning officer’s role in
making zoning determinations in the context of subdivision and land development
proposals under Article V of the MPC. Therein we discussed the interplay between
zoning determinations made by the zoning officer and zoning interpretations made by
the governing body:
We agree that both the [t]ownship’s SALDO and the MPC
contemplate that a party seeking to develop land in the
[t]ownship must obtain from the zoning hearing board any
waivers, variances, or special exceptions necessary under the
[t]ownship’s zoning ordinance before the [board] may grant
approval of a land development application. However, before
seeking such zoning relief, the SALDO, the zoning ordinance,
and the appeal provisions of the MPC recognize that a
developer generally needs to seek such relief or approval from
a zoning hearing board only if the proposed use does not
comply with the terms of the zoning ordinance. Zoning
officers generally act in a gate-keeper-type capacity,
sheltering zoning hearing boards from the duty to render
preliminary decisions as to zoning compliance. Where a
municipality has a zoning officer, the MPC provides for relief
from such officer[’s] determinations by its jurisdictional grant
to zoning hearing boards.
....
The drafters of the 1988 MPC amendments certainly
recognized the fact that zoning officers make determinations
both in the context of land development proposals under
Article V of the MPC as well as other types of land use
proposals, i.e., whether a use is permitted and whether zoning
relief is necessary for a particular use. The MPC provides
developers with the option of seeking to have all zoning issues
resolved before submitting a land development application,
16
and having those issues decided preliminarily by a zoning
officer, with the right to appeal his determinations to the
zoning hearing board. Section 916.2, 53 P.S. § 10916.2. This
section specifically states that its purpose is to provide
developers with this option in order to ensure that the proposal
is free from challenge at the development application phase.
However, while this provision vests zoning hearing boards
with jurisdiction over such determinations of zoning officers,
and while other provisions recognize that review of certain
determinations of zoning officers arising in the course of the
MPC’s land development process rests with the governing
body, the MPC is silent as to the method to challenge other
determinations of a zoning officer that are made in the context
of the land development review process before a governing
body. . . . Regardless of the . . . MPC’s silence as to the timing
of challenges to the zoning aspect of land development
approval, the Supreme Court has stated that issues involving
zoning in land development should be resolved before a
governing body may grant final approval.
....
Presumably, in a case where a [board] does not agree with a
zoning officer’s conclusions, the [b]oard would deny the
proposal, or grant approval with the condition that the
developer must first seek whatever variances or special
exceptions are required under the zoning ordinance. A
landowner in such circumstances[ ] may appeal that
determination to the courts of common pleas, as presently
provided in the MPC. In reviewing such decisions, if a trial
court determines that a governing body improperly
interpreted the zoning ordinance, it may reverse the governing
body’s decision, as containing a fundamental defect, or it may
reverse and remand, upon a finding that variances or special
exceptions are required, viewing the governing body’s
decision as conditional, and resting ultimately on whether the
developer obtains the required zoning relief.
Borough of Jenkintown, 858 A.2d at 140-41. See also id. at 142 (“The underlying
notion is that, while a governing body may interpret zoning ordinances in the land
17
development review process, it has no authority to render final determinations
resolving questions such as whether a use is permitted and whether relief from zoning
ordinances is warranted or deserved.”).
Thereafter, in Friends of Lackawanna, we considered the extent to which
a land developer can seek preliminary zoning approval from a zoning officer under
section 916.2 and, relatedly, how any such approvals apply to the governing body’s
final plan determination. We concluded as follows:
Section 916.2 of MPC allows a land developer to advance the
date from which time for any challenge to the ordinance or
map will run under [s]ection 914.1. Section 916.2 does not
confer broad authority upon a zoning officer to issue an
advisory determination on the validity of a land use proposal.
A favorable preliminary opinion does not give the landowner
a substantive land use approval.
[A] [z]oning [o]fficer’s preliminary opinion reduce[s] the
period of time [the] [o]bjectors ha[ve] to challenge the
substantive validity of [a] [z]oning [o]rdinance. Once [the]
[o]bjectors abandon[ ] their substantive validity challenge to
[a] [z]oning [o]rdinance, [a] [z]oning [hearing] [b]oard [is]
deprived of jurisdiction to consider [ ] other [ ] issues raised
by [the] [o]bjectors in [an] appeal.
....
Section 909.1(a)(3) does not confer jurisdiction on a zoning
hearing board to consider the merits of a preliminary opinion
issued under [s]ection 916.2 of the MPC. Simply, a
preliminary opinion is not a “determination” for purposes of
[s]ection 909.1(a)(3). When interpreting a statute, courts must
give full effect to each provision of the statute if at all
possible. Section 909.1(a)(3) and [s]ection 909.1(a)(8)
provide for different categories of appeals. To hold that
[s]ection 909.1(a)(3) provides for an appeal from the zoning
officer’s preliminary opinion issued pursuant to [s]ection
18
916.2 would render the language of [s]ection 909.1(a)(8) as
surplusage.
Friends of Lackawanna, 227 A.3d at 44-45. See also MCM Ventures, slip op. at 10-
11.
We also have considered whether and to what extent a developer can pose
specific zoning-related issues to a zoning officer for determination during the land
development review process. In North Codorus Township v. North Codorus Township
Zoning Hearing Board, 873 A.2d 845 (Pa. Cmwlth. 2005), we considered whether a
zoning officer’s oral opinion given in response to a question posed by a developer
during the land development review process was a “determination” that could be
appealed to and finally determined by a zoning hearing board pursuant to section
909.1(a)(3) of the MPC. The developer in North Codorus Township asked the
township zoning officer during a telephone conversation whether a prior or the newly-
enacted zoning ordinance would apply to the developer’s proposed land development
plan. Id. at 847. We concluded that the zoning officer’s oral response indicating that
the newly-enacted zoning ordinance would apply was a discreet, appealable
“determination” that could be appealed to the zoning hearing board under section
909.1(a)(3).
The MPC therefore vests the authority to make final interpretations of
zoning ordinances in zoning hearing boards and not in zoning officers. Wayne’s
contention that Zoning Officer is the “determining force” and “final arbiter” with the
“final say” regarding whether a plan complies with the Zoning Ordinance simply is
inaccurate. See Wayne’s Br. at 10, 12. Rather, pursuant to the MPC and Zoning
Ordinance, Zoning Officer may render (1) preliminary opinions on a plan’s compliance
with the Zoning Ordinance or (2) individual determinations on zoning issues during
the plan development process, both of which may be appealed to the ZHB under
19
separate subsections of section 909.1. Although the MPC is not explicit on the
procedure for challenging zoning officer determinations during the land development
process, our decisions in Borough of Jenkintown and Friends of Lackawanna make
clear that the zoning officer does not have broad, general authority to render
preliminary advisory determinations on zoning compliance that bind the governing
body.21 To the extent that a developer is dissatisfied with how a governing body
interprets a zoning ordinance in denying plan approval, the developer may appeal to
the Court of Common Pleas, which is what occurred in this case.
In sum, where a developer requests an opinion on specific zoning issues
that arise during the plan approval process, the zoning officer may render
“determinations” that are appealable to the zoning hearing board under section
909.1(a)(3) of the MPC. But that is not what Wayne requested from the Zoning Officer
here. Rather, Wayne requested a generic, preliminary determination regarding whether
any particular relief was required under the Zoning Ordinance for the plan development
process to continue. Further, to the extent that Wayne’s Request Letter was submitted
under section 916.2, a fact that it disclaims, any decision rendered by the Zoning
Officer under that section is not a binding determination regarding comprehensive
zoning compliance, especially where, as here, Wayne did not publish the determination
to permit any objectors to challenge the Zoning Ordinance. Wayne’s broad reliance on
the Zoning Officer’s general conclusions in the Zoning Letter thus was misplaced,
particularly given the Zoning Officer’s express indication that his opinion was not
21
We note, however that the Township’s SALDO, like that in Borough of Jenkintown, see
Borough of Jenkintown, 858 A.2d at 137, provides that the Zoning Officer automatically shall review
the “zoning considerations” in a preliminary plan application after it is accepted. See SALDO, § 255-
14(D)(5) (within 30 days following acceptance of the preliminary plan application, the Zoning Officer
shall (a) review the proposed zoning considerations in the application’s submission, and (b) make
recommendations to the Township engineer).
20
based on a thorough Zoning Ordinance review. In this circumstance, and as we
indicated in Borough of Jenkintown, the Board may itself interpret the Zoning
Ordinance as part of its determination of a preliminary land development application.
The fact that it did so here in a way that contradicted the Zoning Officer’s prior opinion
does not, in itself, render the Board’s interpretation erroneous. To the extent that the
trial court concluded to the contrary, it erred.
B. Abandonment
Appellants next argue that, by removing the buildings on the Property to
construct a new Wawa store with gasoline sales, Wayne has abandoned the legal
nonconforming use of gasoline sales. We disagree.
“A lawful nonconforming use establishes in the property owner a vested
property right which cannot be abrogated or destroyed unless it is a nuisance, it is
abandoned or it is extinguished by eminent domain.” Money v. Zoning Hearing Board
of Haverford Township, 755 A.2d 732, 736-37 (Pa. Cmwlth. 2000) (quoting Keystone
Outdoor Advertising v. Department of Transportation, 687 A.2d 47, 51 (Pa. Cmwlth.
1996) (footnote omitted). See also Tantlinger v. Zoning Hearing Board of South Union
Township, 519 A.2d 1071, 1073 (Pa. Cmwlth. 1987) (“Property owners have a
constitutional right to continue a nonconforming use, unless the municipality proves
that such a use has been abandoned.”)
The party seeking to establish abandonment bears the burden of proving
that a landowner has abandoned a nonconforming use. Money, 755 A.2d at 737 (citing
Latrobe Speedway, Inc. v. Zoning Hearing Board of Unity Township, 720 A.2d 127
(Pa. 1998)). “To sustain its burden of proof, the [governing body] must show that (1)
[a] [l]andowner intended to abandon the nonconforming use and (2) [a] [l]andowner
actually abandoned the use consonant with his intention.” Id. Nevertheless, “even
21
where a landowner has used the building within the prior designated time period,
structural alterations to a building that are inconsistent with continuance of the
nonconforming use may establish both intent to abandon and actual abandonment.” Id.
(citing Smith v. Board of Zoning Appeals of City of Scranton, 459 A.2d 1350 (Pa.
Cmwlth. 1983)).
In arguing that Wayne has abandoned the nonconforming use of gasoline
sales on the Property through its plans to demolish the current structures and build the
Wawa store, Appellants rely chiefly on this Court’s decision in Tantlinger, where we
held that “the complete removal of a nonconforming structure, and replacement of it
with a different type of structure, is an abandonment of the nonconforming use thus
eliminated, and is inconsistent with the concept of continuing it.” Tantlinger, 519 A.2d
at 1074. In Tantlinger, the landowners owned two single-family residences on their
property, one of which was a mobile home, a legal nonconforming use in the zoning
district. The landowners’ property also was smaller than the minimum lot area required
by the zoning ordinance for properties with two residences. But, because both
residences predated the enactment of the zoning ordinance, the mobile home was a
“legal nonconforming use and the lot size of the two single-family dwellings
constitute[d] a legal nonconformity as to area.” Id. at 1072.
The landowners in Tantlinger sought to replace the mobile home with a
modular home, which was a conforming, permitted use in the zoning district. Id. at
1072. The zoning hearing board concluded that the replacement was not a “valid
expansion or continuation of the legal nonconforming use,” and the trial court affirmed.
Id. at 1072-73. On appeal to this Court, we concluded that the landowners’ replacement
of the mobile home with a conforming modular home constituted a replacement of a
nonconforming use with a conforming use that remained in nonconformity as to lot
22
area. Id. at 1073. We rejected the landowners’ argument that they merely sought to
continue the prior nonconforming use, concluding that they instead had abandoned it:
The intent to abandon a use may be shown by structural
alterations to the building, inconsistent with continuance of
the nonconforming use.
Clearly, the complete removal of a nonconforming structure,
and replacement of it with a different type of structure, is an
abandonment of the nonconforming use thus eliminated, and
is inconsistent with the concept of continuing it.
Id. at 1073 (citation omitted). We also rejected the landowners’ contentions pursuant
to the “natural expansion” doctrine:
The law in Pennsylvania is well established[:] a municipality
cannot prohibit the natural expansion of a nonconforming use
which accommodates the dictates of business and
modernization[.] The courts . . . have invariably applied this
doctrine to commercial or rental housing property, to allow
for an increase of business. Because the expansion requested
in this case relates to a nonconforming private residence, the
natural expansion doctrine is not applicable.
Id. (citation omitted). See also Korngold v. Zoning Board of Adjustment of the City of
Philadelphia, 606 A.2d 1276 (Pa. Cmwlth. 1992) (destruction of nonconforming
signage on top of landowners’ building “extinguished” the nonconforming use of the
sign; proof of abandonment not necessary); Keystone Outdoor Advertising, 687 A.2d
at 50 (removal of damaged, nonconforming billboard and replacement with new
billboard made of different materials not permitted where prior billboard was
completely removed; right to reconstruct nonconforming billboard was extinguished
as a matter of law).
We find Tantlinger to be inapposite to the instant case, chiefly because
Wayne is not proposing to replace a nonconforming structure with a different kind of
23
structure. Rather, it is seeking to maintain a legal nonconforming use (gasoline sales)
by building new structures that will add permitted retail sales and reduce the number
of gasoline pumps. We thus find our decisions in Money and Robertson v. Henry Clay
Township Zoning Hearing Board, 911 A.2d 207 (Pa. Cmwlth. 2006), to be more on
point and controlling here. In Money, we considered whether a landowner’s (Money)
complete replacement of a dilapidated, nonconforming garage building that exceeded
the dimensional limits of the Haverford Township Zoning Ordinance qualified as a
valid continuation of a prior nonconforming use. Both the township and zoning
hearing board in Money concluded that, because the new garage would completely
replace the prior garage, Money was not in effect continuing a legal nonconforming
use by building a new nonconforming structure. Id. at 735. The trial court affirmed,
relying on Tantlinger to conclude that the replacement of “one nonconforming
structure with another nonconforming structure” is prohibited. Id.
We reversed. Although we acknowledged that “structural alterations to a
building that are inconsistent with continuance of the nonconforming use may establish
both intent to abandon and actual abandonment,” we nevertheless concluded that the
new garage construction was the continuation of a legal nonconforming use and that
the trial court therefore erred in finding Tantlinger applicable:
Thus, contrary to the trial court’s interpretation, Tantlinger
does not prohibit the replacement of “one nonconforming
structure with another nonconforming structure[.]” [R]ather,
it prohibits only the replacement of a nonconforming
structure with a different type of structure.
Here, [Money] proposes to replace the old garage/chicken
coop with a similar structure—a garage. Because both
structures are nonconforming as to area, it cannot be said that
[Money] is abandoning the nonconforming use by building
the new garage. Unlike the situation in Tantlinger, [the
24
l]andowner’s proposed replacement garage is a continuation,
not an abandonment, of a nonconforming use.
Courts have permitted landowners to demolish
nonconforming structures and replace them with new
nonconforming structures. [See Amoco Oil Co. v. Ross
Township Zoning Hearing Board, 426 A.2d 728 (Pa. Cmwlth.
1981); Trettel v. Zoning Hearing Board of Harrison
Township, 658 A.2d 741 (Pa. 1995)].
We recognize that, where a building has become so
dilapidated that complete reconstruction is necessary, a
zoning ordinance may bar reconstruction in the interest of the
public health, safety, morals or general welfare. However,
such a restriction must be specifically set forth in the
ordinance and, absent such regulations, a landowner seeking
to continue a valid nonconforming use must be permitted to
do so.
Id. at 738 (some internal citations and quotations omitted). Because we concluded that
Money intended to continue the same legal nonconforming use—albeit with a new
structure—we reversed the trial court and remanded for the issuance of a building
permit. Id. at 739.
Similarly, in Robertson, we considered whether a landowner’s
(Robertson) replacement of a nonconforming camping trailer with a block and frame
structure at the same campsite and for the same camping purpose constituted a valid
continuation of a preexisting nonconforming use. Id. at 209-10. The Henry Clay
Township zoning officer and zoning hearing board concluded that the new structure,
because it differed from the camper in size, construction materials, and mobility, did
not constitute a valid continuation of a prior nonconforming use. Id. The trial court
affirmed, concluding that “Robertson abandoned the pre[ ]existing nonconforming use
as a camp, desired a permanent structure on the property and, when denied a permit
therefore, proceeded to construct a ‘building,’ not a ‘trailer’ . . . .” Id. at 210.
25
On appeal to this Court, we reversed, in part, concluding that Robertson
had continued a legal nonconforming use by building the new camping structure. We
noted that, because the activities for which Robertson had used the camping trailer and
would use the new structure were not explicitly allowed in the zoning district, she had
to either establish that the camping use was an unabandoned preexisting
nonconforming use or obtain a variance, which she did not seek. Id. at 211. We
concluded that the township had failed to prove that Robertson intended to and did
abandon “the long-standing use” of the property for “family camping and recreation
on the weekends and vacations,” and rejected the trial court’s reliance on Tantlinger
for the proposition that “simply removing the prior camper and replacing it with a wood
frame structure constituted abandonment of the prior use.” Id. at 212. Rather, as we
had done in Money, we again clarified what our decision in Tantlinger did, and did not,
mean:
We stated [in Tantlinger] that the complete removal of a
nonconforming use and replacement with a conforming use
constitutes an abandonment of the nonconformity and,
inasmuch as the lot’s size could not legally accommodate
both residences, the addition of the modular home would
violate the ordinance. In the present case, Robertson does not
seek to establish a new use. Rather, she seeks only to replace
the old camper with a structure equally well suited to her
continued use of the property as her family used it during the
preceding fifty years. Robertson is entitled to continue this
use.
Notably, Robertson’s protected use is integrally tied to and
dependent upon the placement of a structure functionally
equivalent to the prior camper for the purpose of the protected
use. Indeed, the concept of use, as we understand it in the law
of zoning, routinely implicates both the activity to be
conducted on the property and the type of structure or
improvements suitable to accommodate that activity. The
[t]ownship cannot thwart or unreasonably infringe on her
26
right to continue the pre[ ]existing use on the ground that the
structure necessary to that use is not allowed. Moreover, we
can perceive of no rational basis for limiting Robertson to
only replacement of a camper rather than allowing the
functional equivalent thereof.
We recognize that, in general, a municipality may direct in its
ordinance that where a dimensionally nonconforming
structure is razed, rebuilding must conform to the existing
dimensional regulations. However, even where such a
provision exists, dimensional nonconformity must be
accommodated if it is necessary to avoid extinguishment of
the pre[ ]existing nonconforming use. Under such a
circumstance, the necessary variances must issue in order to
avoid a taking.
Id. at 212-13 (citations omitted). We accordingly reversed the trial court’s
determination that Robertson was not continuing a legal nonconforming use and
remanded for the issuance of necessary variances, subject to any reasonable conditions
and safeguards that may be imposed by the zoning hearing board. Id. at 213.
Here, Wayne proposes to continue the nonconforming use of outside
gasoline sales on a single, consolidated parcel. To do so, it plans to remove the existing
structures and construct a Wawa convenience store housing permitted retail sales with
a reduced number of outside gasoline pumps. Although Appellants attempt to construe
Wayne’s proposed changes to the Property in broad terms, the very narrow question
presented deals only with gasoline sales as the continuation of a legal nonconforming
use. Neither Tantlinger nor Korngold apply in circumstances where, as here, a property
owner intends to remove structures that house a nonconforming use specifically to
continue that use in new structures that will modernize, and decrease the extent of, the
nonconformity. In those circumstances, Money and Robertson squarely apply to permit
the continuation of the use. Accordingly, we conclude that the trial court did not err in
27
concluding that Wayne did not abandon the legal nonconforming use of gasoline sales
on the Property.
C. Change in Occupancy
Appellants next argue that, even if Wayne has not abandoned the legal
nonconforming use of gasoline sales, the trial court nevertheless erred in concluding
that Wayne was not required to obtain a special exception to continue the
nonconforming use pursuant to section 280-101.A(1) of the Zoning Ordinance. We
disagree.
Section 280-101.A(1) governs “[n]onconforming uses, structures and
lots” and provides, in pertinent part, as follows:
A. Nonconforming uses. Except as hereinafter provided in
this article, the lawful use of a building or structure or
any land or premises existing at the time of the effective
date of this chapter or any subsequent amendment or at
the time of a change in the Zoning Map may be
continued, although such use does not conform to the
provisions hereof or of any subsequent amendment. Any
change in nonresidential occupancy shall be deemed
to be a change of use for purposes of § 280-101[.]A(1).
(1) A nonconforming use may be changed to another
nonconforming use by grant of special exception only
upon a determination by the Zoning Hearing Board,
after public hearing, that the proposed new use will
be no more detrimental to its neighborhood and
surroundings than is the use it is to replace. In
determining relative detriment, the [ZHB] shall take
into consideration, among other things, traffic
generated; nuisance characteristics, such as emission
of noise, dust and smoke, fire hazards; and hours and
manner of operation.
28
(Zoning Ordinance, § 280-101.A(1); R.R. at 0286a) (emphasis provided).22 Under
Pennsylvania law, an ordinance that permits a change from one nonconforming use to
another that is “no more detrimental” to the neighborhood than the prior use “in effect
permits a change in the use, by special exception.” Blancett-Maddock v. City of
Pittsburgh Zoning Board of Adjustment, 640 A.2d 498, 500 (Pa. Cmwlth. 1994) (citing
Martire v. Zoning Board of Adjustment, City of Pittsburgh, 459 A.2d 1324 (Pa.
Cmwlth. 1983)). These zoning limitations are reasonable restrictions imposed on a
change from one nonconforming use to another, and zoning provisions permitting such
a change “must be construed strictly so as to restrict non[ ]conforming uses closely.”
Fiechter v. Zoning Hearing Board of Pennsbury Township, 458 A.2d 616, 618 (Pa.
Cmwlth. 1983) (citing Hauser v. Borough of Catasauqua Zoning Hearing Board, 341
A.2d 566, 569 (Pa. Cmwlth. 1975)).
First, we need not determine whether removal of the current businesses
on the Property and the construction of a Wawa store will result in a change of
occupancy. As the trial court concluded and as Wayne argues here, even assuming a
change in occupancy would occur, we conclude that section 280-101.A(1) may not be
used by the Board in this instance to eliminate a legal preexisting nonconforming use
22
Both section 280-101.A and the definition of “nonconforming use” in section 280-4.B of
the Zoning Ordinance were amended in 1997 by Ordinance No. 97-12, which is not included in the
record and does not appear to be available online. “Nonconforming use” currently is defined as
follows:
[a] use of land or of a building lawfully existing at the time this chapter
or subsequent amendments hereto became effective which does not
conform to use requirements of the district in which it is located. Any
change in nonresidential occupancy will be considered to be a change
of nonconforming use under this chapter, specifically § 280-101[.]A.
(Zoning Ordinance, § 280-4.B; R.R. at 0286a.) The term “nonresidential occupancy” is not defined
in the Zoning Ordinance.
29
that is constitutionally protected and runs with the land. We begin by reiterating and
reemphasizing that the nonconforming “use” at issue here is gasoline sales. Although
Appellants throughout their briefs attempt to re-cast the issue as a significant expansion
of the current use of the Property, we are not here considering all of the changes to the
Property that Wayne proposes. Rather, we consider only whether Wayne’s proposed
continuation (and reduction) of gasoline sales on the Property is a valid continuation
of a legal nonconforming use that is subject to the special exception requirements in
section 280-101.A(1).
Interpreted according to its plain language, section 280-101.A(1) permits
a change from one nonconforming use to another by grant of special exception only if
the ZHB determines that the “proposed new use” will be no more detrimental to the
neighborhood and surroundings “than is the use it is to replace.” Zoning Ordinance, §
280-101.A(1). Here, and unlike the cases cited by Appellants, Wayne is not seeking
to change from one nonconforming use to another nonconforming use or to add an
additional nonconforming use to its current one. See, e.g., Hanna v. Board of
Adjustment of the Borough of Forest Hills, 183 A.2d 539, 541 543 (Pa. 1962) (property
owner seeking to change from one nonconforming use (used car business) to another
nonconforming use (gasoline station); Fiechter, 458 A.2d at 617 (property owner
seeking to add an additional nonconforming convenience store to its preexisting
nonconforming service station). Nor is it seeking to expand the scope of a
nonconforming use under the “natural expansion” doctrine. Rather, Wayne seeks to
continue (and reduce) outside gasoline sales in conjunction with the addition of a
(permitted) retail convenience store.
Section 280-101.A of the Zoning Ordinance expressly provides that
nonconforming uses may continue notwithstanding the fact they do not comply with
30
any subsequent amendments to the Zoning Ordinance. If the last sentence of section
280-101.A, which was enacted long after gasoline sales began on the Property, applied
to Wayne’s proposed development, it would deem Wayne’s continued, reduced
gasoline sales a “new use” that could continue only if Wayne obtained a special
exception under the standards set forth in section 280-101.A(1). In fact, it would
require a special exception every time the technical occupancy of the Property changed,
no matter whether the same legal nonconforming use continued unchanged and
unexpanded.23 Thus, the precise question before the Court is whether the last sentence
of section 280-101.A, which was added to the Zoning Ordinance in 1997, may
automatically convert any preexisting nonconforming use in the Township into a “new
use” subject to special exception approval every time any change in nonresidential
occupancy occurs.
23
We noted in Hanna, a case relied upon by Appellants:
A basic purpose of zoning is to ensure an orderly physical development
of the city, borough, township or other community by confining
particular uses of property to certain defined areas. With such a purpose
nonconforming uses are inconsistent. The continuance of
nonconforming uses under zoning ordinances is countenanced because
it avoids the imposition of a hardship upon the property owner and
because the refusal of the continuance of a nonconforming use would
be of doubtful constitutionality. Even though zoning ordinances permit
the continuance of nonconforming uses, it is the policy of the law to
closely restrict such nonconforming uses and to strictly construe
provisions in zoning ordinances which provide for the continuance of
nonconforming uses.
....
The nonconforming use which is within the orbit of protection of the
law and the [c]onstitution is the nonconforming use which exists at the
time of the passage of the zoning ordinance or the change in a use
district under a zoning ordinance, not a new or different nonconforming
use.
Hanna, 183 A.2d at 543-44 (citation omitted).
31
We conclude that it may not do so. Such an application, which is based
on a technical, non-use-related factor that is not related to the land but, instead, to its
occupant, impermissibly would deprive a landowner of a constitutionally protected
right to continue a legal nonconformance. See, e.g., DoMiJo, LLC v. Treesmiths Utility
Arborists, 41 A.3d 967, 969-70 (Pa. Cmwlth. 2012) (landowner could continue legal
nonconforming use notwithstanding the failure to register the use in accordance with
the zoning ordinance; “Because the right to continue a nonconforming use arises from
constitutional protections and not from regulatory provisions, the right cannot be lost
in this way.”). Thus, even assuming Wayne’s land development plan would involve a
change in occupancy, the application of section 280-101.A to the plan without any
actual change in use would violate Wayne’s protected right under both Pennsylvania
law and the Zoning Ordinance to continue the legal nonconforming use of gasoline
sales in accordance with the Zoning Ordinance as it existed when that nonconforming
use first was established. We therefore affirm the trial court on this issue.24
D. Compliance with the Zoning Ordinance and SALDO
Appellants next argue that the trial court erred in concluding that the
Board could not reject Wayne’s Preliminary Plan application due to its alleged
noncompliance with certain provisions of the Zoning Ordinance and SALDO.
1. Rear Yard Setback
Appellants first argue that Wayne did not comply with the rear yard
setback requirements applicable to the Plan, and therefore the Board appropriately
denied approval on this basis. In its Denial Letter, the Board stated that the Plan did
24
We hasten to point out that our decision in this regard is not, and should not be construed
to be, an invalidation of any portion of the Zoning Ordinance. We conclude only that the last sentence
of section 280-101.A may not be applied to a legal nonconforming use in existence prior to its
enactment based solely on a change in nonresidential occupancy unaccompanied by an actual change
of, expansion of, or addition to, the nonconforming use.
32
not comply with sections 280-4.B and 280-52.E of the Zoning Ordinance “regarding
encroachment into the rear yard setback requirements for a corner lot.” (R.R. at 0323a.)
Wayne argues that this setback issue was not raised during the land development
process until counsel for Intervenors brought the issue to the Board’s attention.
Sections 280-4.B and 280-52.E of the Zoning Ordinance provide the rear
yard setback requirements for buildings on corner lots. Section 280-52.E requires that
every lot in the C-2 District have a rear yard “not less than 35 feet in depth or not less
than 35% of the lot depth, whichever is the greater.” (Zoning Ordinance, § 280-52.E;
R.R. at 0294a.) “Rear Yard” is defined in section 280-4.B of the Zoning Ordinance as
the “minimum open space extending the full width of a lot, required between the rear
line of the lot and the principal building on the lot, exclusive of cornices, eaves, gutters
and chimneys projecting not more than two feet from the building.” (Id. § 280-4.B;
R.R. at 0290a.) Section 280-4.B imposes specific yard requirements on corner lots:
In the case of a corner lot having frontages on two streets,
there shall be provided two front yards, one along each street
line as described under [s]ubsection [(1)] above, one side yard
as described under [s]ubsection [(2),] and one rear yard as
described under [s]ubsection [(3)]. The rear lot line shall be
designated as that lot line towards which the rear of the
principal building is oriented.
Id. (emphasis provided). The trial court addressed this issue as follows:
Appellants allege[ ] that the [Zoning Ordinance] requires that
the rear lot line shall be oriented towards the rear of where the
building is oriented as this is a corner lot. The planned land
development has the entry into the building on all sides and
the rear of the building is presently oriented to the opposite of
the residential neighbors, Intervenors. Wayne presented
evidence that the required rear yard setback is 84.7 feet as that
is 35% [of] the lot depth and that the current use of the land
is nonconforming to that setback requirement. The proposed
33
land development plan [purports] to bring the rear setback
into conformity by having the rear yard [setback] at 86.3 feet,
just under [two] feet beyond the minimum . . . . [The trial
court] in issuing its determination relied on the record below,
which did not contain any evidence to the contrary . . . .
(Trial Ct. Op. at 16-17; R.R. at 0349a-50a.)
The Board in its brief devotes little more than a paragraph to this issue
with only a blanket conclusion that the rear yard setback is in excess of 100 feet, with
no citations to the Zoning Ordinance or record for how that distance was calculated.
(Board’s Br. at 32.) The Board also did not raise the issue to Wayne during the
preliminary approval process, and further did not specify on the record at the June 19,
2019 hearing or in its Denial Letter how the Preliminary Plan did not comply with the
rear yard setback requirements of the Zoning Ordinance. Intervenors likewise did not
present any evidence at the hearing before the Board regarding why the setback
requirements were not met. Rather, they submitted a letter to the Board indicating that
the front of the Wawa building should be considered to face Aberdeen Avenue, which
would make the rear of the Wawa building face east and the rear yard setback
noncompliant. (R.R. at 0263a.) Although that interpretation of Wayne’s Preliminary
Plan could be plausible, the Board did not have before it, and did not refer to,
substantial record evidence from which to conclude that only the western side of the
building could be construed as the front of the Wawa building. Accordingly, we are
constrained to agree with the trial court that the Board abused its discretion in finding
that Wayne’s Preliminary Plan did not comply with the rear yard setback requirements.
We accordingly affirm the trial court on this issue.25
25
We acknowledge that, in response to public comment on the Board’s motion to deny
Wayne’s Preliminary Plan application, Peter Karakelian suggested that the Wawa building would
face “east and west.” (R.R. at 0095a.) However, such a comment is not “substantial” evidence
(Footnote continued on next page…)
34
2. Steep Slopes
The Board next contends,26 as it indicated in its Denial Letter, that
Wayne’s Preliminary Plan did not comply with section 280-112.J of the Zoning
Ordinance, which provides for single-lot exceptions to the “steep slope”27 use
limitations found in section 280-112.D of the Zoning Ordinance.28 Section 280-112.D
delineates a limited number of uses that are permitted on “steep slope” areas but does
not permit parking. (Zoning Ordinance, § 280-112.D.) Section 280-112.J, however,
provides that “single lots existing at the date of the addition of this section to this
chapter and which are not of sufficient size to be subdivided because of the zoning
district lot size limitation are exempted from the provisions of this section except for
Subsections B, C, E and H.” Id. § 280-112.J.
The Township’s engineer addressed the steep slope requirements in a
letter to Wayne on March 20, 2019. (R.R. at 0188a). In the letter, the engineer advised
that “it appears” that the section 280-112.J exception applied and further indicated that
Wayne “must provide dimensional information that the lots are in [conformity] with
this section.” Id. at 0189a. Wayne’s engineer replied on April 30, 2019, advising that
supporting a finding that the rear setback requirements of the Zoning Ordinance were not satisfied in
accordance with the Plan as it had been submitted to the Township’s engineer throughout the
preliminary approval process.
26
Intervenors do not brief this issue.
27
“Steep slope” is defined under the Zoning Ordinance as “[l]and whose slope (surfaces at an
angle to the plane of the horizon) is 20% or more (a vertical difference of two feet or more per 10 feet
of the horizontal distance).” (Zoning Ordinance, § 280-4.B)
28
Neither section 280-112.J nor section 280-112.D of the Zoning Ordinance are included in
the Reproduced Record. We obtained those sections from the version of the Zoning Ordinance posted
on Radnor Township’s website, available at https://www.radnor.com/government/boards-and-
commissions/zoning-hearing-board (last visited August 7, 2023).
35
Wayne would comply with the Township’s request and that “[t]he [P]lan will be
revised to include dimensions which show that the two (2) existing lots are non[
]conf[o]rming and cannot be further subdivided.” Id. at 0242a. Thus, nowhere in the
record is there substantial evidence that Wayne’s Preliminary Plan did not or would
not comply with the steep slope provisions of the Zoning Ordinance. Rather, the
evidence indicates that the subject lots are exempt under section 280-112.J and that
Wayne’s proposal to submit a revised Plan showing that the lots cannot be subdivided
would bring the Plan into compliance with the Zoning Ordinance. The Board therefore
did not have substantial evidence before it to deny approval on this ground.
The Board argues that Wayne’s “promise to comply” was insufficient and
any conditional approval that it might have received on that basis would be invalid.
The Board relies on two cases to support that conclusion, both of which are inapposite.
Edgmont Township v. Springton Lake Montessori School, Inc., 622 A.2d 418 (Pa.
Cmwlth. 1993), and Appeal of Baird, 537 A.2d 976 (Pa. Cmwlth. 1988), both dealt
with whether zoning hearing boards properly granted special exceptions without the
applicants first presenting evidence of their actual compliance with the applicable
special exception requirements of the zoning ordinances. In both cases, we held that
mere “promises” to present in the future sufficient evidence of actual compliance with
the zoning ordinance would not support a grant of a special exception. In addition, we
concluded that zoning hearing boards may not cure noncompliance by granting a
special exception on condition that the applicant comply in the future. See Edgmont
Township, 622 A.2d at 419-420; Appeal of Baird, 537 A.2d at 977-78.
Here, however, we are not considering the propriety of the grant of a
special exception. Rather, we consider whether the governing body may grant
preliminary approval on condition that certain land development or zoning
36
requirements be satisfied prior to final plan consideration and approval. Both the MPC
and our caselaw clearly contemplate the granting of conditional, preliminary approval
of a plan. Indeed, that precisely is why land development law distinguishes between
preliminary and final approval. Whitehall Manor, Inc. v. Planning Commission of the
City of Allentown, 79 A.3d 720, 734-35 (Pa. Cmwlth. 2013). See also Sections 503(1)
and 508(4) of the MPC, 53 P.S. §§ 10503(1), 10508(4); Robert S. Ryan, Pennsylvania
Zoning Law and Practice §§ 11.2.1, 11.2.3) (2007 ed. & Supp. 2023). Because the
Board was without substantial evidence to deny plan approval on the ground that
Wayne’s Preliminary Plan did not comply with the steep slope requirements of the
Zoning Ordinance, we affirm the trial court’s conclusion that the Board abused its
discretion in this regard.
3. SALDO Compliance
The Board29 next argues that it properly denied Wayne’s Preliminary Plan
based on nine provisions of the SALDO with which the Plan allegedly did not comply.
The Board identified these same items of noncompliance in its Denial Letter. (R.R. at
0324a.) We agree with Wayne that none of the cited instances of alleged
noncompliance with the SALDO justified Preliminary Plan disapproval because they
are not supported by substantial evidence in the record.
“Section 508 of the MPC provides the procedure whereby the governing
body or planning agency of a township shall review and act upon a subdivision and
land development application.” Delchester Developers, L.P. v. London Grove
Township Board of Supervisors, 161 A.3d 1106, 1108 (Pa. Cmwlth. 2017) (citing 53
29
Although Intervenors argue in their brief that the Board had sufficient grounds to deny
Preliminary Plan approval based on the Plan’s noncompliance with certain sections of the SALDO,
see Intervenors’ Br. at 27, they do not identify any specific sections of the SALDO or develop any
argument on this issue.
37
P.S. § 10508). If the applicant’s plan “complies with all of the objective provisions of
the applicable [SALDO] as well as all other applicable regulations, the plan must be
approved by the reviewing body.” Id. at 1108 (citing Herr v. Lancaster County
Planning Commission, 625 A.2d 164, 169 (Pa. Cmwlth. 1993)). Pursuant to section
508(2) of the MPC, 53 P.S. § 10508(2), when rejecting a subdivision and land
development plan, the reviewing body must specify the defect found, describe the
requirements that have not been met, and cite to the relevant provisions of the statute
or ordinance relied upon as the basis for the denial. 161 A.3d at 1009 (citing 53 P.S. §
10508(2) and Herr, 625 A.2d at 169).
When the reviewing body’s decision “complies with section 508(2) of the
MPC, then rejection of the plan will stand if even one of the reasons for denial is
supported by substantial evidence.” Id. (citing Herr, 625 A.2d at 169). This Court
reviews the findings of noncompliance made by a reviewing body below to determine
whether they are supported by substantial evidence. Herr, 625 A.2d at 169. In
reviewing the adequacy of a reviewing body’s decision denying plan approval, our
inquiry focuses on whether the decision “is sufficient to permit the applicant to
understand the specific nature of the deficiency identified, so as to permit the applicant
to take whatever further action it deems necessary or appropriate.” Kassouf v.
Township of Scott, 883 A.2d 463, 474 (Pa. 2005).
Our review of the trial court’s opinion (R.R. at 0352a-57a), the testimony
and documents introduced at the Preliminary Plan approval hearing, id. at 0046a-81a,
and Wayne’s responses to the Board engineer’s correspondence letters regarding
SALDO compliance, see, e.g., id. at 0242a, indicates that all of the alleged SALDO
violations cited by the Board are technical, non-substantive violations that are not
supported by substantial evidence or reasoning in the record. Although the Board
38
included in its Denial Letter generic references to specific SALDO provisions, it did
not make any findings or set forth any explanations for why each of the alleged
violations justified denying Plan approval, why it would not grant tentative approval
conditioned on future SALDO compliance, or why any requested waivers, which in
some instances were suggested by the Board, were not granted.30 As the trial court
concluded and as Wayne points out in its brief, Wayne presented in its response letters
and at the approval hearing substantial evidence showing that it fairly addressed the
noncompliance issues identified by the Board. Because we cannot find in the record
substantial evidence supporting the Board’s conclusions that Wayne’s attempts at
compliance were insufficient, and for the reasons set forth in the trial court’s opinion
and in Wayne’s brief, we conclude that the Board’s SALDO-related reasons for
30
For example, in its Denial Letter, the Board indicated that the Preliminary Plan did not
comply, in part, with section 255.20.B(1) of the SALDO because it did not show “significant man[-
]made features within 500 feet of the site.” (R.R. at 0324a.) Prior to the hearing on Plan approval,
the Board’s engineer advised Wayne’s engineer of the need to comply with section 255.20.B(1)(n),
noted that Wayne had submitted an aerial photograph to show information required by that section,
and indicated that “[i]f all the required information is not provided, the applicant must request a
waiver from this requirement.” Id. at 0243a. Wayne responded:
A waiver is requested from this section of the code. It is our belief that
the extent of the survey conducted is sufficient to support the
application. The plan does provide all of the required information per
survey for and directly surrounding all areas of proposed improvements.
The plan set also includes an aerial plan on which the proposed
improvements are superimposed. The Aerial Plan includes all
significant features within 500 feet of the site.
Id. At the Plan approval hearing, Wayne’s engineer testified that Wayne included with its application
an aerial photograph that “generally addresses” the requirements of section 255-20.B(1)(n). Id. at
0048-49. The engineer also introduced a supplemental aerial survey to show additional information
about the structures within 500 feet. Id. at 0048-51; 0254a. The Board provided no explanation at
the hearing or in its Denial Letter regarding how Wayne’s submissions still did not comply with
section 255.20.B(1)(n) or why a waiver was not granted.
39
denying Preliminary Plan approval are not supported by substantial evidence in the
record.31
The lack of substantial evidence supporting the Board’s decision in this
regard is exacerbated by the fact that the Board’s Denial Letter does not comply with
section 508(2) of the MPC. Although this specific issue was not raised on appeal, we
note the deficiency here because it reinforces our conclusion that the record is bereft of
substantial evidence supporting the SALDO-related findings in the Denial Letter.
Although the Board in its brief to this Court provides additional reasoning and
argument regarding why each of the alleged SALDO violations supported Plan denial,
those justifications were not provided in the Denial Letter. Given the extensive
correspondence between Wayne’s engineer and the Township’s engineer prior to the
approval hearing and the indications therein that Wayne either would or could bring
the Plan into compliance or receive the necessary waivers prior to final plan approval,
the generic citations to SALDO provisions in the Denial Letter failed to adequately
advise Wayne of those alleged deficiencies.
We therefore affirm the trial court’s decision in this regard that the Board
erred and abused its discretion in denying Preliminary Plan approval based on alleged
violations of the SALDO.
E. Adoption of Proposed Findings and Conclusions Regarding Bad Faith
Appellants next argue that the trial court erred and abused its discretion
by incorporating into its decision Wayne’s proposed findings of fact and conclusions
31
We emphasize that our decision in this regard applies only to the Board’s denial of
preliminary plan approval and not final plan approval. The trial court was careful to point out, and
we do again here, that the Board may impose conditions on Preliminary Plan approval that require
specific compliance with the SALDO prior to obtaining final approval.
40
of law, more specifically those findings and conclusions that the Board acted in bad
faith during the preliminary plan approval process.32
We conclude that, to the extent that the trial court determined that the
Township acted in bad faith, we need not address this issue on appeal. We already
have concluded that Wayne may continue its legal nonconforming use of gasoline sales
on the Property and that the Township’s proffered Zoning Ordinance and SALDO
violations may not, in this instance, be utilized to justify denying Preliminary Plan
approval. Because we affirm the trial court to the extent that it held that Wayne’s
Preliminary Plan must be accepted by the Board subject to sufficient compliance with
all other requirements of the Zoning Ordinance and SALDO, the issue of bad faith is
moot, and we decline to consider it.
F. Substantive Challenge to the Zoning Ordinance
Finally, Appellants contend that the trial court erred to the extent that it
considered, and made any findings and conclusions regarding, any substantive
challenges to the Zoning Ordinance because such challenges were never raised before
the Board. We agree.
As Appellants point out, section 916.1(a) of the MPC requires that
substantive validity challenges to a zoning ordinance be submitted to either the zoning
32
The good faith standard applicable to the land development plan review process is well
established:
A municipality has a legal obligation to proceed in good faith in
reviewing and processing development plans. The duty of good faith
includes discussing matters involving technical requirements or
ordinance interpretation with an applicant, and providing an applicant a
reasonable opportunity to respond to objections or to modify plans
where there has been a misunderstanding or difference of opinion.
Highway Materials, Inc. v. Board of Supervisors of Whitemarsh Township, 974 A.2d 539, 544 (Pa.
Cmwlth. 2009) (quoting Raum v. Board of Supervisors of Tredyffrin Township, 370 A.2d 777, 798
(Pa. Cmwlth. 1977)).
41
hearing board or governing body. If it is submitted to the governing body, it must be
accompanied by a proposed curative amendment. 53 P.S. § 10916.1(a). This is the
exclusive method for raising substantive challenges to zoning ordinances. Urey v.
Zoning Hearing Board of City of Hermitage, 806 A.2d 502, 506 (Pa. Cmwlth. 2002).
The trial court concluded as follows:
A thorough reading of the [l]and [u]se [a]ppeal filed by
Wayne demonstrates that no substantive challenge was filed
relating to the Zoning [Ordinance]. Wayne asserted in its
brief that if gasoline sales could not take place in the front
of the building then there was a de jure exclusion, as more
fully examined below. This was set forth in their argument
and not specifically enumerated as a reason for the filing of
the [l]and [u]se [a]ppeal.
As such there was not a perfected substantive challenge to the
[Zoning Ordinance] and this appeal issue is moot.
(Trial Ct. Op. at 28; R.R. at 0361a) (emphasis added). The trial court nevertheless went
on to discuss the question of whether the Zoning Ordinance was de jure exclusionary,
which would involve a substantive challenge. Id. at 28-31. Because any challenges to
the substantive validity of the Zoning Ordinance were not properly preserved before
the Board and therefore are waived on appeal, the trial court erred to the extent that it
made any findings or conclusions in this regard.33
Further, even if this issue was not waived, we have concluded herein that
the legal nonconforming use of gasoline sales may continue on the Property. Given
that conclusion, and as Wayne appears to have acknowledged before the trial court, we
would not need to consider whether the Zoning Ordinance is de facto or de jure
exclusionary because those issues are now moot.
33
Wayne appears to have abandoned this issue as it has not briefed it in this Court.
42
IV. CONCLUSION
In sum, we conclude that the trial court erred to the extent that it concluded
that the Zoning Letter was binding on the Board and that Wayne’s reliance thereon was
justified. We further conclude that the trial court erred to the extent that it made any
findings or conclusions regarding whether the Zoning Ordinance was impermissibly
exclusionary. We nevertheless affirm the trial court’s January 30, 2020 order to the
extent that it sustained Wayne’s land use appeal, approved Wayne’s Preliminary Plan,
and directed final plan approval conditioned on Wayne’s compliance with all pertinent
SALDO requirements.34 We accordingly remand the matter to the trial court for
remand to the Board for further proceedings.
________________________________
PATRICIA A. McCULLOUGH, Judge
34
Because we conclude that outdoor gasoline sales are a legal nonconforming use that Wayne
may continue, we need not address Wayne’s alternative arguments that gasoline sales are a permitted
or accessory use under the Zoning Ordinance. See Wayne Br. at 25-33.
43
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wayne Property Acquisition, Inc. : CASES CONSOLIDATED
:
v. : No. 254 C.D. 2020
:
Board of Commissioners of the :
Township of Radnor and Bradley :
Mortensen, Susan Stern, Warren Ayres :
and Susan Ayres :
:
Appeal of: Radnor Township Board :
of Commissioners :
:
Wayne Property Acquisition, Inc. :
:
v. : No. 279 C.D. 2020
:
Board of Commissioners of Radnor :
Township and Bradley Mortensen, :
Susan Stern, Warren Ayres and :
Susan Ayres :
:
Appeal of: Bradley Mortensen, :
Susan Stern, Warren Ayres and :
Susan Ayres :
ORDER
AND NOW, this 7th day of August, 2023, the January 30, 2020 order of the
Court of Common Pleas of Delaware County (trial court) hereby is AFFIRMED, in part, and
REVERSED, in part, as set forth in the foregoing Memorandum Opinion. This case is
REMANDED to the trial court with instructions to remand to the Board of Commissioners
of Radnor Township for further proceedings consistent herewith.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge