Crystal Forest Associates, LP v. Buckingham Township Supervisors

DISSENTING OPINION BY

Judge LEAVITT.

With all due respect, I dissent. I believe that the trial court properly excluded the testimony of the Township’s proffered expert witness, Robert H. Edelstein, Ph. D., who was hastily prepared and not familiar with' key aspects of this case. As such, Dr. Edelstein was incompetent to offer expert testimony. I also disagree with my colleagues’ conclusion that the challenged provisions of the Ordinance are not unduly restrictive. Today the majority has endorsed illusory zoning as a means of *219regulating land use and development. I am deeply troubled by that result.

With respect to the issue of Dr. Edel-stein’s competency, it is “well established that the admission of expert-opinion evidence is a matter for the direction of the trial [c]ourt and will not be reversed, overruled or disturbed unless there was a clear abuse of discretion.” Laubach v. Haigh, 433 Pa. 487, 491, 252 A.2d 682, 683 (1969). This Court and the Pennsylvania Supreme Court have repeatedly upheld trial court decisions excluding expert testimony where the expert had inadequate knowledge of the specific facts of the case. For example, in Laubach, an action arising from an automobile accident, plaintiff challenged the trial court’s refusal to admit into evidence the expert opinion of a traffic engineer regarding the angle of impact and point of collision. The Supreme Court agreed with the trial court that “[t]here was no evidence that this witness was familiar with the scene of the accident or had examined the vehicles involved at any time before or after the accident.” Id. at 490, 252 A.2d at 683. See also Laukemann v. Pennsylvania Liquor Control Board, 82 Pa.Cmwlth. 502, 475 A.2d 955 (1984) (rejecting physician’s proffered testimony in liquor license suspension case where witness did not personally examine or have firsthand knowledge of individuals alleged to have been visibly intoxicated); Nixon Hotel, Inc. v. Redevelopment Authority of City of Butler, 11 Pa.Cmwlth. 519, 315 A.2d 366 (1974) (disallowing testimony of three proffered experts in condemnation case where none of the witnesses had made a current evaluation of the area for the purpose of determining blight).

In the present case, the Township was aware that the de novo hearing would proceed on a day-to-day basis until complete,1 but the Township was not ready to present its rebuttal case after McKee rested. Nevertheless, the trial court granted a ten-day continuance to the Township for the very purpose of securing an expert. Notwithstanding this accommodation, the Township did not retain Dr. Edelstein until two to three days before the continued hearing. Any harm to the Township’s case caused by the exclusion of Dr. Edelstein’s testimony was a harm of the Township’s own making.

On this point, the majority acknowledges several deficiencies in Dr. Edel-stein’s preparation that I find troublesome. Most telling is that Dr. Edelstein never reviewed the Ordinance at issue. He also did not conduct an independent analysis of the economic feasibility of McKee’s development plan, which is the very heart of this case. Dr. Edelstein further admitted that he had reviewed only two transcripts from the public hearings before the Board and was unaware that nineteen hearings had been conducted by the Board over a two-year period.

The majority discounts these shortcomings in light of the experience and accomplishments described in Dr. Edelstein’s curriculum vitae. However, impressive credentials, standing alone, do not an expert make. The proffered experts in Lau-bach, Laukemann and Nixon Hotel all had similar achievements but, like Dr. Edel-stein, very limited knowledge of the specific facts and issues in those cases. This is not, as the majority suggests, merely an issue of “the credibility and the weight” to be accorded Dr. Edelstein’s testimony. Majority Opinion at 12. The extent to which Dr. Edelstein had studied the Ordinance and the economic feasibility of *220McKee’s development plan unquestionably went to his competency as an expert witness. The trial judge, sitting as fact-finder, concluded that Dr. Edelstein’s testimony would not have facilitated his decision-making process. The judge was in the best position to make such an assessment, and I would defer to his ruling.

Even more troubling is my colleagues’ resolution of the main issue in this case: whether the challenged provisions of the Ordinance were unduly restrictive and therefore unconstitutional. It is beyond peradventure that property owners have a constitutionally protected right to enjoy their property. U.S. Const, amends. V, XIV; Pa. Const, art. 1, § 1. That right, however, may be reasonably limited by zoning ordinances that are enacted by municipalities pursuant to their police power, i. e., governmental action taken to protect or preserve the public health, safety, morality and welfare. Cleaver v. Board of Adjustment of Tredyffrin Township, 414 Pa. 367, 372, 200 A.2d 408, 412 (1964). Accordingly, as the majority points out, in Pennsylvania the constitutionality of a zoning scheme is reviewed under a substantive due process analysis. Majority Opinion at 13 (quoting Kirk v. Zoning Hearing Board of Honey Brook Township, 713 A.2d 1226, 1229 (Pa.Cmwlth.1998)). Furthermore, “[a] zoning ordinance may be unconstitutional if it is exclusionary or unduly restrictive.” Christ United Methodist Church v. Municipality of Bethel Park, 58 Pa.Cmwlth. 610, 428 A.2d 745, 748 (1981) (emphasis added). See also Surrick v. Zoning Hearing Board of the Township of Upper Providence, 476 Pa. 182, 188, 382 A.2d 105, 108 (1977) (acknowledging that “exclusionary or unduly restrictive zoning techniques do not have the requisite substantial relationship to the public welfare.”) (emphasis added).

“[I]n order to establish that a zoning ordinance is unconstitutional on economic terms, the challenger must establish that the use in question is economically unfeasible.” Heritage Building Group, Inc. v. Plumstead Township Board of Supervisors, 833 A.2d 1205, 1211 (Pa.Cmwlth. 2003). The phrase “economically unfeasible” relates to the effect an ordinance has on any developer who, because of an ordinance’s restrictions, is barred from development because of economic infeasibility. Stahl v. Upper Southampton Township Zoning Hearing Board, 146 Pa.Cmwlth. 659, 606 A.2d 960, 967 (1992). An ordinance may not be declared invalid because it deprives the landowner of his most lucrative and profitable uses; so long as the property in question may be reasonably used for the purposes permitted under the ordinance, the owner may not legally complain. Kirk, 713 A.2d at 1231 (emphasis added).

As the above authority makes clear, an ordinance will be found unconstitutional if it is exclusionary or if it renders a permitted use economically unfeasible by imposing unduly restrictive requirements on that permitted use. These alternative theories were both at issue in Stahl v. Upper Southampton Township Zoning Hearing Board, 146 Pa.Cmwlth. 659, 606 A.2d 960 (1992). Stahl is particularly instructive here and worthy of further discussion.

In Stahl, the township’s zoning ordinance permitted mobile home parks only in R-4 (Residential) Districts and required that each lot in a mobile home park have a minimum size of 9,000 square feet, a minimum width of 75 feet, a minimum front yard of 30 feet and a minimum rear yard of 35 feet. The ordinance further imposed the maximum density requirement applicable to single-family detached dwellings, which was three units per acre. Landowners sought to develop a mobile home park *221on a tract of land they owned in an R-2 District.2 They challenged the substantive validity of the ordinance, asserting that it effected a de facto exclusion of mobile home parks, and proposed a curative amendment. Landowners were unsuccessful before the zoning hearing board and the trial court.

On appeal to this Court, landowners raised two issues that are pertinent to our inquiry today: (1) whether the township’s ordinance effected a de facto and unconstitutional exclusion of mobile home parks and (2) whether the zoning hearing board erred in concluding that the dimensional aspects of the mobile home park ordinance made the development of mobile home parks infeasible and therefore rendered the ordinance de facto exclusionary. Stahl, 606 A.2d at 962.3 This Court, following the Surrick test for determining whether zoning is exclusionary, rejected landowners’ first issue. We held that landowners failed to meet their burden with regard to then* challenge that the township failed to provide its “fair share” of land for mobile home parks.

With respect to landowners’ claim of economic infeasibility, we began by recognizing that an ordinance is unduly restrictive if “the severity of its restrictive impact on the owner of the regulated property is unjustified for police power purposes.” Stahl, 606 A.2d at 964 (quoting Martin v. Township of Millcreek, 50 Pa.Cmwlth. 249, 413 A.2d 764, 765 (1980)). We continued our analysis with language that may be viewed as prophetic to the present case:

[Satisfaction of the Supreme Court’s fair share requirement outlined in Sur-rick would be meaningless without reasonable zoning provisions that allow development of a particular use such as mobilehome parks. Theoretically, a municipality could comply with its fair share responsibility and nevertheless indirectly preclude development of a type of housing by adopting restrictive dimensional requirements.

Stahl, 606 A.2d at 965 (emphasis added). Relating these principles to the ordinance before it, the Stahl court compared the area and density requirements for mobile home parks versus other uses in the R-4 District and concluded that

in this municipality, there is no provision for the low-cost housing alternative of a true mobilehome park because the three-units-per-acre ‘mobilehome park’ is illusory.
The evidence here does support the [landowners’] argument that development of a mobilehome park in accordance with these ordinance requirements is economically infeasible.

Id. at 966.4 We granted landowners’ requested relief and concluded our opinion with language that I find dispositive here:

[Although economic concerns, i.e., the degree of profit from a use, are not governing with regard to constitutional *222challenges, if an ordinance, through its particular requirements, makes the development of a use permitted by the ordinance economically impossible, the ordinance is unconstitutional, because the municipality has essentially precluded a legitimate use by an indirect means.

Id. at 967 (emphasis added). See also Montgomery Crossing Associates v. Township of Lower Gwynedd, 758 A.2d 285, 290 (Pa.Cmwlth.2000) (“The critical question is not whether one use is more profitable, but rather whether the excluded use is so unprofitable in its permitted zone as to be effectively excluded.”).

The majority dismisses the Stahl analysis by asserting that Stahl is inapposite. I disagree. While it may be factually distinguishable from the present case, Stahl nevertheless reinforces the notion that “exclusionary” and “unduly restrictive” are two distinct grounds for assailing the constitutionality of an ordinance. That the Stahl court found the challenged ordinance was not exclusionary has no bearing on its ultimate conclusion that the ordinance’s dimensional and density requirements made it economically unfeasible to develop a mobile home park. This fact, standing alone, rendered the ordinance unconstitutional. The theory on which the Stahls, or McKee, or any landowner proceeds is really irrelevant; the clear import of the Stahl analysis is that illusory zoning is an unconstitutional exercise of a municipality’s police power. Unduly restrictive zoning techniques simply do not have the requisite substantial relationship to the public welfare. Surrick, 476 Pa. at 188, 382 A.2d at 108. Moreover, I can think of no clearer abrogation of substantive due process than a governing body granting a property right, e.g., permitting mobile home park development in a given zoning district, and then foreclosing that right through unduly restrictive density and setback requirements.5

Returning to the case at bar, McKee and professional land planner R. Douglas Stewart were both accepted as experts by the trial court. Together they offered a complete economic analysis of developing and operating a mobile home park on the Property with 37, 58 and 74 units, both with and without amenities.6 Reproduced Record at 46 (R.R. -). All of these scenarios resulted in a net operating loss ranging from $15,450 to $99,780. Id.7 *223McKee testified that the losses would be greater in the early years of development before the park is fully occupied. The trial court credited this uncontroverted testimony and supporting evidence, and this Court is bound by this fact finding. Based upon the record evidence, the trial court properly concluded, as a matter of law, that “[t]he dimensional requirements are unduly restrictive and do not allow for the economically feasible development of a mobile home park.” Trial Court Opinion at 21. Because the type of mobile home park permitted in the AG-1 District is illusory, the decisional law of this Commonwealth, particularly Stahl, requires that such a zoning provision must fail.

The Township’s restrictions on mobile home parks in the AG-1 District deviate widely from the dimensional requirements for mobile home parks in the MHP District. This stark contrast is illustrated by the ehart below, which was prepared by the trial court:

REQUIREMENT MHP DISTRICT AG-1 DISTRICT (McKee Property)
Min. lot area 5320 square feet
Min. open space 25% 50% (80% of which must be in one farmable parcel)
Max. impervious 50% 25%
Min. site area 50 acres 25 acres
Max. Density 5 units per gross acre .47-94 units per net acre
Min. front yard 20 feet 25 feet
Min. side yard 5 feet 10 feet
Min. rear yard 10 feet 40 feet
Min. perimeter setback 50 feet 100 feet

Trial Court Opinion at 9. The Township defends these differences as necessary to preserve open space in the AG-1 District. This defense does not withstand close scrutiny.

Preserving open space is an unassailable objective. Indeed, the MPC authorizes municipalities to enact zoning ordinances regulating “[protection and preservation of ... agricultural land and activities.” Section 603(b)(5) of the MPC, 53 P.S. § 10603(b)(5). The MPC further provides that zoning ordinances “shall be designed ... [t]o preserve prime agriculture and farmland considering topography, soil type and classification, and present use.” Section 604(3) of the MPC, 53 P.S. § 10604(3).8 However the fact remains that, as a matter of law, the Township may not impose zoning restrictions that render a permitted use economically unfeasible. There is simply no lawful justification for illusory zoning.

The Township’s defense is also impossible to reconcile with the fact that the Ordinance permits various other uses in *224the AG-1 District that do not further the preservation of agriculture or open space. For instance, the entire AG-1 District could be subdivided into 1.8 acre residential lots, with no minimum requirements for agricultural use or open space, in accordance with use B1 (Single Family Detached Dwelling), which is a use permitted by right. Ordinance § 502.A.1. The same is true of use B5 (Flexible Lot Size Subdivision), which allows for a minimum lot area of only 25,000 square feet, or just over one-half acre. Ordinance § 502.A.8. The Ordinance also permits houses of worship, schools, golf courses, day care centers, bed and breakfasts and emergency facilities to be located in the AG-1 District without agricultural or open space provisions. Ordinance §§ 501.B, 502.A.8. As the trial court aptly noted, it is only when mobile homes are involved that the more burdensome use and dimensional regulations apply.

For the foregoing reasons, I would affirm the order of the trial court.

. After two years and nineteen separate hearings before the Board, the Township could not claim surprise with respect to McKee’s case.

. In the R-2 District the township permitted certain agricultural uses along with single-family detached dwelling units, conversion of existing detached dwelling units into apartments as a conditional use, and cluster development of detached single-family homes as a conditional use.

. Landowners raised a third issue: whether the ordinance was de facto exclusionary because it did not permit lots in mobile home parks to be sold in fee simple or under a condominium regime. We rejected this argument because the MPC’s definition of "mobile home park” at the time the township adopted its ordinance included a reference to single ownership.

.The Court relied in large part on the testimony of landowners’ expert, who opined that development of the property in strict conformance with the ordinance would cost between $25,000 and $30,000 per lot.

. Of course the Township did not have to allow mobile home parks as a conditional use in the AG-1 District. It chose to do so, however, presumably with the belief that the accompanying density and dimensional requirements would pass constitutional muster. This Court should also not ignore the timing of the Township’s actions. The challenged zoning provisions were added by amendment in 1996, while McKee’s first fair share action was pending. In my view this was more than coincidental and only highlights the illusory nature of the conditional use.

. The parties disagreed as to how many mobile home units could be developed on the Property under the current zoning restrictions. The discrepancies pertain to whether transferable development rights are required under the Ordinance (and available), and whether certain environmentally sensitive areas have to be netted out of the gross acreage. These mathematical differences are irrelevant since McKee proved that under any scenario he would be operating the park at a loss.

.At the Board hearings, McKee presented evidence that development and operation of a 58-unit mobile home park on the Property under the above restrictions would yield a rate of return between 1.125% and 1.58% depending upon whether amenities such as a clubhouse, swimming pool, walking trails and tennis courts were included. R.R. 28-29. Significantly, those figures did not account for the financing costs associated with the purchase of the ground and transferable development rights, or the cost of site improvements.

. I hasten to add that the same section of the MPC requires that zoning ordinances be designed "[t]o provide for the use of land within the municipality for residential housing of various dwelling types encompassing all basic forms of housing, including single-family and two-family dwellings, and a reasonable range of multifamily dwellings in various arrangements, mobile homes and mobile home parks, provided, however, that no zoning ordinance shall be deemed invalid for the failure to provide for any other specific dwelling type.” Section 604(4) of the MPC, 53 P.S. § 10604(4) (emphasis added).