Commonwealth, Bureau of Corrections v. City of Pittsburgh

OPINION

ZAPPALA, Justice.

This is an appeal from an order of the Commonwealth Court, 91 Pa.Cmwlth. 293, 496 A.2d 1361, reversing and remanding a decision of the Allegheny County Court of Common Pleas. The question we are called upon to decide is whether the Appellant met its burden of proof of showing that the placement of a pre-release center for state prisoners in a Pittsburgh neighborhood would pose a substantial threat to the community. We hold that Appellant did not meet that burden, and accordingly, affirm the decision of the Commonwealth Court.

On November 21, 1983, Appellee filed a conditional use application, seeking to use property located at 108-110 Miltenberger Street, Pittsburgh, as a pre-release center for state prisoners. A similar facility had been operated by Appellee at another Pittsburgh location (Ridge Avenue) without incident since 1969; however, because the Ridge Avenue property was being sold, Appellee wished to relo*78cate to the Miltenberger Street site. The Miltenberger property is located in the Soho/Bluff area of Pittsburgh which is zoned a C-3 commercial district. Under Section 993.01(a)(A)(10) of the Pittsburgh Zoning Ordinance, institutional facilities are permitted in C-3 districts as a conditional use.

A hearing was held before the City Planning Commission on January 24, 1984 and February 7, 1984. At that time, persons who objected to the placement of the facility in the neighborhood were allowed to give testimony indicating why they did not want the center in the community. Thereafter, the Commission recommended denial of Appellee’s application. In March, 1984, City Council reviewed the Commission’s recommendation, and referred the matter back to the Commission requesting that a meeting be held with all of the interested parties in order to resolve the objections to the facility. R. 76a. The Commission rejected that request, however, and City Council then voted to accept the Commission's recommendation and deny Appellee’s application. R. 77a.1

Appellee appealed City Council’s decision to the Court of Common Pleas. That court took no additional evidence and affirmed the denial of the application. Appellee then appealed to the Commonwealth Court, which reversed the decision of the Court of Common Pleas and remanded with the direction that the application for conditional use be granted. Appellant now appeals from that decision.

The basis of the Commonwealth Court’s decision was that the objectors to the facility had failed to meet their burden of showing that the facility would pose a substantial threat to the community. That court’s scope of review, and ours, is limited to determining whether an abuse of discretion or *79error of law has been committed. See, Lower Merion Township v. Enokay, Inc., 427 Pa. 128, 233 A.2d 883 (1967). Only if the findings of City Council are unsupported by substantial evidence may we hold that there has been an abuse of discretion. See, Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983).

A conditional use is one which, under the Pittsburgh Zoning Ordinance, must be approved by City Council. More specifically, the ordinance reads:

(a) Conditional Uses Permitted by Council Approval. The uses named in this category are in general those of a public or semi-public character, deemed to be essential and desirable for the general convenience and welfare, and because of the nature of the use and/or its relationship to the overall plan, require the exercise of planning judgment on location and site plan. Specific conditions to be met are listed as minimum requirements.
A. Location and specific requirements. The uses listed hereunder and the establishment or enlargement thereof may be permitted in the districts herein and previously designated, by Council, when the specific conditions for approval have been met, after a public hearing and recommendation of the Commission.

Pittsburgh Zoning Ordinance, Chapter 993.01(a)(A).

An applicant for a conditional use must prove that the standards set forth in the zoning ordinance were met. Greensburg City Planning Commission v. Threshold, Inc., 12 Pa.Commw. 104, 315 A.2d 311 (1974). After the applicant has met those standards, to defeat the application evidence must be produced showing that the proposed use would pose a substantial threat to the community. Susquehanna Township Board of Commissioner v. Hardee’s Food Systems, Inc., 59 Pa.Commw. 479, 430 A.2d 367 (1981). If the evidence does not demonstrate a substantial threat to the community, the conditional use application should be granted. Id.

*80Appellant’s principal argument is that the objectors to the pre-release facility did show by substantial evidence that relocating the pre-release center to Miltenberger Street would pose a threat to the community and thus, that no abuse of discretion by City Council occurred. A review of the record, however, shows that the Commonwealth Court’s conclusion to the contrary was correct.

“Substantial evidence” is “relevant evidence as a reasonable mind might accept to support a conclusion.” Valley View Civic Association, 501 Pa. at 555, 462 A.2d at 640 (citations omitted). The evidence presented by the objectors consisted of testimony of various residents of the Soho/Bluff area of Pittsburgh. The testimony showed that many of the residents perceived that the addition of the center to the neighborhood would ruin the neighborhood for various reasons. R. 26a-28a. For example, there were statements made concerning the high crime rate in the area, the number of bars in the area, and the existence of a house of prostitution in the area. There was also concern voiced about the numerous elderly and female residents in the area. Finally, concern over the effect on property values which would be caused by the center was expressed. The testimony of the neighborhood’s residents, however, was not substantiated by facts but was no more than their bald assertions, personal opinions, and perceptions of the pre-release center and the area. They did not present any studies, police records, property valuations or any type of substantive evidence upon which their fears were based, which would lead a reasonable mind to conclude that the facility would be detrimental to the community’s general welfare. Although it had ample opportunity to do so at prior stages of these proceedings, the City, for whatever reason, failed to introduce any evidence to bolster the claims voiced by the objectors.

Appellant argues that Appellee should shoulder the burden of showing that the center is not a detriment to the community in this case. In support of this conclusion, the Appellant relies on Texas Department of Community Af*81fairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Burdine is a case brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. Appellant finds in that case a complicated scheme of shifting of burdens of proof between the parties and urges that the same should be applied in the instant case. Appellant does not explain why the burdens of persuasion in a federal sex discrimination case have any relevance to zoning, and for this reason alone we are unpersuaded that Burdine, even were Appellant’s questionable reading correct, should have any effect on the disposition of this case.

More importantly, a reading of the zoning ordinance itself and a review of the relevant law of this Commonwealth convinces us that once the applicant for a conditional use has met the standards of the statute, any objectors, including the City, have the burden of proving that the use will harm the community.

Appellant notes that in Bray v. Zoning Board of Adjustment, 48 Pa.Commw. 523, 410 A.2d 909 (1980) the applicants for a special exception under the Philadelphia Zoning Ordinance had the evidence production burden and persuasion burden as to detriment to health, safety and general welfare. In Bray, however, the court recognized that while normally the objectors carry the burden of showing the proposal to be detrimental to public health, safety and welfare, the burden can be changed by the language of the ordinance. Id. The Philadelphia Zoning Ordinance involved in Bray had accomplished this, but that court noted:

[A]n applicant, by showing compliance with the specific requirements of the ordinance, identifies the proposal as one which the local legislation expressly designates to be appropriate in the district and therefore presumptively consistent with the promotion of health, safety and general welfare; hence it is logical that, as noted below, the Pennsylvania decisions have placed on the objectors the ‘burden’ of showing the proposal to be detrimental to public health, safety and welfare.

*82Id. at 527, 410 A.2d at 911; citing Borden Appeal, 369 Pa. 517, 87 A.2d 465 (1952); Root v. Erie Zoning Board of Appeals, 180 Pa.Superior Ct. 38, 118 A.2d 297 (1955); Zoning Hearing Board v. Konyk, 5 Pa.Commw.Ct. 466, 470-71, 290 A.2d 715, 718 (1972). Later cases have reaffirmed this principle: See, Susquehanna Township Board of Commissioners, supra; Foster Grading Company v. Venango Township Zoning Hearing Board, 49 Pa.Commw. 1, 412 A.2d 647 (1980); Greensburg City Planning Commission, supra.

Appellant also argues that the Commonwealth Court erred in relying upon cases involving innocuous uses of property. This argument is based on a flawed premise; that is, the assumption that by its nature a pre-release center is a detriment to a neighborhood. Such a conclusion is unsupported in view of the fact that the Ridge Avenue facility operated without any problems since 1969. R. 54a. It is also clear that “no one [questioned] the quality of the program, or the excellent track record of the Community Service Division ...”. R. 67a. Accordingly, for Appellant to now assert that the pre-release facility is per se a detriment to the community is unfounded. Appellant failing to show by any substantial evidence that the facility will be such a detriment, we affirm the judgment of the Commonwealth Court.

Affirmed.

LARSEN, J., files a dissenting opinion in which McDermott, j., joined. PAPADAKOS, J., files a dissenting opinion.

. Justice Papadakos notes in his dissent that no findings or written decision were issued by City Council in support of its decision to deny this application, and thus that there is nothing for the courts to review. A lack of written findings is not a fatal defect in this case, but more importantly, the dissent is raising an issue that has been waived by the parties. See, North Point Breeze Coalition v. City of Pittsburgh, 60 Pa.Commw. 298, 305, n. 9, 431 A.2d 398, 401, n. 9 (1981).