Broussard v. Zoning Board of Adjustment

DISSENTING OPINION BY

Senior Judge FLAHERTY.

Respectfully, I dissent.

Schenley Farms, et al, and Elsie R. Broussard, M.D., (collectively, Appellants) argue that the ZBA erred by allowing MedCano Corporation (MedCano) to comply with the specific requirements of 914.07.G.2 at a later date. In support of their argument, Appellants first direct our attention to Chapter 922 (Development and Review Procedures) of the Zoning Code, Section 922.01.B.1, which provides that:

Limitations on Action
The body holding the hearing may take any action on the application that is consistent with the notice given, including approving such application, approving the application with conditions, approving in part, denying in part, or denying the application. The reviewing body may impose conditions on the application or allow amendments to the application if the effect of the conditions or the amendments is to allow a less intensive use or zoning district than proposed on the application or to reduce the impact of the development or to reduce the amount of land area included in the application. The review[ing] body may not approve a *774greater amount of development, a more intensive use or a more intensive zoning district then was indicated in the notice.

Section 922.01.B.1 (emphasis added).

In Edgmont Township v. Springton Lake Montessori School, Inc., 154 Pa.Cmwlth. 76, 622 A.2d 418 (1998), the school filed an application for a Special Exception with the zoning board for the purpose of seeking permission to operate a pre-school in a residential/agricultural district. At the zoning board hearings, the township opposed granting the Special Exception because the plan submitted by the school did not meet specific criteria set forth in the zoning ordinance. The school admitted that its application for a Special Exception did not meet the requirements of the zoning ordinance but promised that it would be in compliance prior to opening the school. The zoning board granted the Special Exception on the condition that the school bring its plan into compliance prior to opening the school. The township appealed to the trial court, which affirmed the decision of the zoning board. On appeal to this Court, we reversed and held that:

Here, the plan as submitted admittedly did not meet four specific requirements of the ordinance needed to be met to obtain a special exception. The School’s promise that it intended to revise the plan to meet these requirements is not evidence but a self-serving declaration. A self-serving declaration of a future intent to comply is not sufficient to establish compliance with the criteria contained in the ordinance. Baird. If we were to adopt a rule that to obtain a special exception all that would be required is for an applicant to promise to come into compliance at some future date, it would make Board approval meaningless because once a[n] applicant promises[,] it is entitled to receive the special exception. Accordingly, because a promise to come into compliance is not evidence to support the Board’s grant of the special exception, the order of the trial court is reversed.

Id. at 420 (emphasis added).

In support of our decision, we cited Appeal of Baird, 113 Pa.Cmwlth. 637, 537 A.2d 976 (1988). In Baird, the appellee applied for a Special Exception to establish a commercial dog kennel on its property. The zoning board denied the application because the appellee did not submit any plans or specifications to show that the proposed dog kennel would be in compliance with the zoning ordinance. On appeal, the trial court reversed the zoning board and granted the Special Exception. As a basis for its decision, the trial court stated that, because the lot size was in excess of eleven acres, it was self-evident that the parcel of land was sufficiently large enough to hold whatever building configuration was necessary. On appeal to this Court, we reversed and noted that the proper function of a condition imposed upon a special condition is to reduce the adverse impact of the use allowed under the Special Exception, not to allow the applicant to meet his burden. Id. at 978.

Another case dealing with parking is also instructive in this matter. In Lafayette College v. Zoning Hearing Board of City of Easton, 138 Pa.Cmwlth. 579, 588 A.2d 1323 (1991), the college applied for a Special Exception because it wished to convert a single-family house into “rooming units.” The zoning board denied the application, but the trial court, after taking additional evidence, reversed and granted the Special Exception. Although the parking plan did not comply with the yard requirements of the ordinance, the trial court imposed a condition to move one of the parking spaces off-site and to slightly reposition two other off-site parking spaces, which the trial court felt would *775rectify this problem. On appeal, we reversed and, citing Baird, stated that “[t]he trial court has exceeded its authority by modifying the plan, and has approved a plan not submitted by Lafayette ... the standard to be observed in these cases is whether the plan as submitted complies.” M at 1327.

MedCano argues that it did not need to have a written agreement recorded before the Special Exception was granted because Section 914.07.G.2(a)(4) only mandates that a property owner take this step before a building 'permit is granted. MedCano asserts that this Section of the Zoning Code is written this way so that a property owner is not forced to “cloud the title” of a property by recording a parking agreement before knowing whether or not that parking agreement will in fact be approved by the ZBA.

A close reading of Section 914.07.-G.2(a)(4) reveals that approval of an off-site parking agreement is a two-step process. First, in order for the Special Exception to be granted, “a written agreement among the owners of record shall be required.” (emphasis added). Second, “[pjroof of recordation of the agreement shall be presented to the Zoning Administrator prior to issuance of a budding permit.” Thus, MedCano is correct that the off-site parking agreement does not have to be recorded before the budding permit is granted. However, it is clear that before the Special Exception is granted, a written agreement among the owners of record is required. The language of the Zoning Code in this regard is mandatory. However, MedCano only submitted a letter that was not signed by the owners of record of the MedCano property. The ZBA recognized this in its decision when it found that the Zoning Code requires “van or shuttle service ... and ... a recordable [off-site] parking agreement. Neither condition has been fully satisfied as of the date hereof.” (ZBA Decision, p. 8; emphasis added). In fact, the letter submitted by MedCano is not a binding agreement upon the off-site parking facility and thus there is no legal basis upon which to grant an exception.

Nevertheless, the ZBA granted the Special Exception, with conditions, and these conditions were not to “allow a less intensive use or zoning district than proposed on the application or to reduce the impact of the development or to reduce the amount of land area included in the application.” Section 922.01.B.1. Rather, the ZBA granted the Special Exception while imposing the condition that MedCano comply with the Zoning Code at some time in the future, which is a practice that this Court has found to be unacceptable. See Edgmont, Baird and Lafayette College. Thus, I would hold that the ZBA erred by granting the Special Exception with conditions when MedCano had not submitted “a written [parking] agreement among the owners of record” as required by Section 914.07.G.2 of the Zoning Code.

Accordingly, for the reasons set forth above, I would reverse the order of the trial court.