          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Appeal of AMA/American     :
Marketing Association, Inc. from  :
the Decision of the Borough Council
                                  :
of Ambler Borough, on May 21, 2014:
dated May 22, 2014 Denying its    :                No. 643 C.D. 2015
Application for Final Land        :
Development Approval for a        :
Townhome Development              :
                                  :
Appeal of: AMA/American Marketing :
Association, Inc.                 :

In Re: Appeal of AMA/American     :
Marketing Association, Inc. from  :
the Decision of the Borough Council
                                  :
of Ambler Borough, dated March 18,:
2014 Denying its Application for  :                No. 644 C.D. 2015
Conditional Use for a Townhouse   :                Argued: May 13, 2016
Development                       :
                                  :
Appeal of: AMA/American Marketing :
Association, Inc.                 :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                              FILED: June 14, 2016

               In these consolidated zoning and land development appeals,
AMA/American Marketing Association, Inc. (Applicant) asks whether the Court of
Common Pleas of Montgomery County1 (trial court) erred in affirming the


      1
          The Honorable Carolyn Tornetta Carluccio presided.
decisions of the Ambler Borough Council (Council) that denied Applicant’s
applications for conditional use and final land development approval for its
proposed townhome development. Applicant argues Council erred in denying its
conditional use application and final land development plan where Council’s
findings were not supported by substantial evidence. Upon review, we affirm.


                                 I. Background
            Applicant owns property with frontage on Chestnut Street in the
Borough of Ambler (Borough), Montgomery County (property). The property
consists of approximately 4.58 acres and is zoned OC Office Campus. It also lies
within the RO Redevelopment Overlay district. Transit-Oriented Developments
(TODs) are permitted by conditional use in the RO district under the 1996 Zoning
Ordinance of Ambler (zoning ordinance).


            In February 2013, Council granted conditional, preliminary approval
of Applicant’s land development application for a proposed townhome
development.   Council conditioned its grant of preliminary land development
approval on Applicant’s resolution of all outstanding items in the review letter
prepared by Gilmore & Associates, Inc. (Borough’s Engineer), which included
numerous issues under the zoning ordinance and the Borough’s Subdivision and
Land Development Ordinance (SALDO).


            In addition, Applicant filed a conditional use application with
Council. In particular, Applicant requested approval for the proposed design,
placement and installation of a 40-townhome TOD along with roadways, drives,
parking, stormwater management facilities and related improvements.

                                       2
              Council held a hearing on the conditional use application.2                   An
adjoining property owner requested and was granted party status.                    After the
hearings, Council issued a decision in which it denied Applicant’s conditional use
application. In so doing, it made the following findings.


              Matthew Z. Kensil, P.E., who was recognized as an expert in civil
engineering, testified on Applicant’s behalf (Applicant’s Engineer). Council noted
that Applicant’s Engineer never worked on a TOD. Applicant’s Engineer testified
that the standards that apply to all conditional use applications in the RO district
are set forth in Section 27-413 of the zoning ordinance. He testified the additional
standards that apply specifically to TOD conditional use applications in the RO
district are provided for in Section 27-2703(E)(4) of the zoning ordinance.


              Applicant’s Engineer explained that the property is zoned OC, and it
is located within 500 feet of an existing rail station and supporting parking lot.
The property has approximately 1,000 feet of frontage on a commuter rail line.


              Applicant’s Engineer testified that Applicant’s development proposes
connections for both public water and sewer. He testified the townhomes in the
proposed development would incorporate unspecified, but varying architectural
elements.     Applicant’s Engineer testified the development proposes sidewalk
connections to adjacent tracts, but no sidewalk would be provided along Chestnut

       2
          Prior to the conditional use hearing, Council approved a text amendment to the zoning
ordinance, which permitted Applicant to place its proposed townhome development on a 4-acre
lot if it had 750 feet of railroad frontage and was within 500 feet of a railroad station or its
parking lot. This text amendment is not directly at issue here.



                                               3
Avenue. He also testified Applicant would hire a private trash hauler for garbage
and recycling collection if the Borough would not collect trash for the
development. Applicant’s Engineer further testified the development proposes a
landscaped buffer along adjacent property lines, but only where feasible.
Applicant’s Engineer testified proposed lighting fixtures within the development
would be a maximum of 15 feet in height, that all proposed lighting fixtures are to
be designed and installed so as to minimize spillover onto adjacent properties and a
lighting plan was in the process of being revised so as to conform with all
requirements in the zoning ordinance and the SALDO.


                 Applicant’s   Engineer   testified   the   homeowners’   association
documents for the development would be provided to the Borough. Applicant’s
Engineer also testified a traffic impact study conducted for a previous development
indicated acceptable traffic impact on intersections within 1,000 feet of the
property. Applicant’s Engineer testified the property is immediately adjacent to a
property that is currently under the jurisdiction of the U.S. Environmental
Protection Agency (EPA) as a brownfield Superfund site as a result of asbestos
stockpiles on that property.       Applicant’s Engineer also testified the Borough
Planning Commission had not yet issued any recommendation as to the proposed
development.        Applicant’s Engineer testified that 10 common (or overflow)
parking spaces, in addition to garages, are proposed as part of the development.
Applicant’s Engineer testified that if the adjacent property were not the subject of a
proposed development, the property would have no sidewalk connection to the
train station.




                                            4
             Council also made the following conclusions of law. A conditional
use is a special exception that falls within the jurisdiction of the municipal
legislative body rather than the zoning hearing board.         Section 603(c) of the
Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805,
as amended, 53 P.S. §10603(c). A local governing body may grant a conditional
use pursuant to its police power to regulate land use. Clinton Cnty. Solid Waste
Auth. v Wayne Twp., 643 A.2d 1162 (Pa. Cmwlth. 1994). The fact that a use is
permitted as a conditional use, rather than prohibited, reflects a legislative decision
that the use is not per se adverse to the public interest.         K. Hovnanian Pa.
Acquisitions, LLC v. Newtown Twp. Bd. of Supervisors, 954 A.2d 718 (Pa.
Cmwlth. 2008); Susquehanna Twp. Bd. of Comm’rs v. Hardee’s Food Sys., Inc.,
430 A.2d 367 (Pa. Cmwlth. 1981).


             In order to show an applicant is entitled to the conditional use, the
applicant initially bears the burden of establishing the application complies with
the zoning ordinance’s objective standards. Visionquest Nat’l, Ltd. v. Bd. of
Supervisors of Honey Brook Twp., Chester Cnty., 569 A.2d 915 (Pa. 1990); City
of Hope v. Sadsbury Twp. Zoning Hearing Bd., 890 A.2d 1137 (Pa. Cmwlth.
2006). Satisfaction of the applicant’s burden establishes a legislative presumption
that the use is consistent with the health, safety, and welfare of the community.
Susquehanna Twp. If the applicant satisfies this initial burden, the burden shifts to
any objectors to rebut this presumption by establishing the use will have a
detrimental impact on the surrounding community. Joseph v. N. Whitehall Twp.
Bd. of Supervisors, 16 A.3d 1209 (Pa. Cmwlth. 2011); Sheetz v. Phoenixville
Borough Council, 804 A.2d 113 (Pa. Cmwlth. 2002).



                                          5
             A local governing body hearing a conditional use application is free to
reject even uncontradicted testimony if it finds it lacking in credibility, including
testimony offered by an expert witness. Taliaferro v. Darby Twp. Zoning Hearing
Bd., 873 A.2d 807 (Pa. Cmwlth. 2005).


             Here, Council determined Applicant did not meet its burden of
establishing its proposed conditional use complied with the objective standards set
forth in the zoning ordinance.      More particularly, Applicant did not present
sufficient evidence or testimony to satisfy the specific conditional use criteria set
forth in Section 27-2703(E)(4) of the zoning ordinance. To that end, Applicant did
not demonstrate:

             a. that the lot to be developed is in one ownership or subject to
             an application filed jointly by the owners of each lot under
             consideration - §27-2703(E)(4)(a)(6);

             b. that the development would be designed to be compatible in
             use with existing Borough development, and in its residential
             and nonresidential components in terms of architecture,
             building materials, massing, and scale - §27-2703(E)(4)(a)(7);

             c. that the development would comply with maximum building
             and impervious surface coverage requirements - §27-
             2701(E)(4)(b)(2);

             d. that the development would comply with yard setback and
             building height requirements - §27-2703(E)(4)(b)(3);

             e. that the development would comply, with maximum building
             length requirements - §27-2703(E)(4)(b)(4);

             f. that the development would satisfy the various building
             spacing requirements - §27-2703(E)(4)(b)(5);




                                         6
g. that the building front facades would be orientated towards
an internal or external street or driveway - §27-
2703(E)(4)(b)(6);

h. that there would be no blank walls in the development - §27-
2703 (E)(4)(b)(7)(a);

i. that the development would provide all pedestrian connection
requirements - §27-2703(E)(4)(d)(2);

j. that all sidewalks within 300 feet of the transit station would
be a minimum of five feet in width §27-2703(E)(4)(d)(4);

k. that site amenities, such as bicycle racks, benches and trash
receptacles would be provided in appropriate locations - §27-
703(E)(4)(d)(5);

l. that parking would be provided for residential units at a rate
of 1.5 spaces per unit - §27-2703(E)(4)(e)(1);

m. that parking spaces would be interconnected and cross-
easements would be provided to ensure shared use where
appropriate - §27-2703(E)(4)(e)(2);

n. that off-street parking and garages would be designed such
that vehicular access to such parking or garages would not
unnecessarily obstruct the primary internal driveways or
existing external streetscape - §27-2703(E)(4)(e)(3);

o. that dedicated areas for trash loading and disposal would be
provided for, and that such areas would be located to the side or
rear of buildings and would be screened from view from public
streets - §27-2709(E)(4)(f)(1), (2);

p. that the development would comply with all applicable
landscape buffer requirements - §27-2703(E)(4)(g);

q. that the development would comply with all open space
requirements - §27-2703(E)(4)(h);

r. that the development would comply with light placement and
illumination requirements - §27-2703(E)(4)(i)(1);


                             7
            s. that the development would comply with all lighting design
            requirements - §27-2703(E)(4)(i)(2);

            t. that the development would, comply with all light spillover
            requirements - §27- 2703(E)(4)(i)(4); and,

            u. that the development would comply with all access and
            interior circulation requirements - §27-2703(E)(4)(k).

Borough Council’s Dec. & Order, 4/24/14, Concl. of Law No. 9.


            Council further determined Applicant did not present sufficient
evidence to satisfy the general conditional use criteria contained in Section 27-
413(1)(D) of the zoning ordinance. Specifically, Applicant did not demonstrate the
proposed development:

            a. would not be detrimental to or endanger the public health,
            safety, or welfare - §27-413(1)(D)(1). In this regard, no
            evidence was presented to demonstrate how the use of the yards
            associated with townhomes would be limited or monitored to
            account for the yards being placed over remediated asbestos;

            b. would not impede the normal and orderly development and
            improvement of the surrounding properties for permitted uses -
            §27-413(D)(2);

            c. would include adequate utilities, access roads, drainage
            facilities and other necessary infrastructure - §27-413.1(D)(3);
            and,

            d. had or would have taken adequate measures to provide
            ingress and egress, designed to minimize congestion on public
            streets - §27- 413.1(D)(4); while the ordinance recognizes the
            ability to satisfy these requirements in the future from the
            evidence presented it did not appear that Applicant could
            provide proper ingress and egress under any scenario.




                                        8
Concl. of Law No. 10.        Council also determined Applicant did not present
sufficient evidence to satisfactorily address the concerns raised in the review letters
prepared by the Borough’s Engineer.            For all these reasons, Council denied
Applicant’s conditional use application.


             Shortly thereafter, Council denied Applicant’s application for
approval of its final land development plan based primarily on Applicant’s failure
to obtain conditional use approval. Council also stated Section 22-308(I)(7) of the
SALDO required Applicant to submit copies of all necessary permits from
governmental agencies from which approval was required by federal or state law.
Here, Applicant did not show it received the required permits from the
Pennsylvania Department of Environmental Protection (DEP) or the Montgomery
County Conservation District.       Council also noted the Montgomery County
Planning Commission voted to deny making a recommendation to Council on
Applicant’s plan until Council granted conditional use approval. Additionally, the
Planning Commission recommended that approval be withheld until any comments
and legal questions regarding the proposed Chestnut Street right-of-way were
resolved to the Borough’s satisfaction.


             Applicant appealed Council’s decisions denying its conditional use
and final land development applications to the trial court.           The trial court
consolidated the appeals.     Without taking additional evidence, the trial court
affirmed both decisions.




                                           9
             Applicant appealed to this Court, and the trial court directed it to file a
concise statement of the errors complained of on appeal, which it did. The trial
court subsequently issued an opinion pursuant to Pa. R.A.P. 1925(a) in which it
explained, in relevant part:

                   In [its] [o]pinion, [Council] explains that it denied
             [Applicant’s] conditional use request due to the fact that at the
             hearing [Applicant] failed to meet [its] burden in establishing
             compliance with the [zoning] [o]rdinance’s objective standards
             and criteria. Indeed, [Council’s] Decision and Order [cites]
             numerous [o]rdinance criteria that [Applicant] failed to meet.
             In this regard, the trial court respectfully requests that the
             appeal court see [Council’s] Decision and Order, Paragraphs 8,
             9, 10 and 11 .… Moreover, [Council’s] findings and
             conclusions are all supported by the record from the conditional
             use hearing.

                    That is, the underlying record clearly demonstrates that
             [Council] had substantial evidence to support [its] conclusion
             that [Applicant] failed to meet the express standards and
             requirements of the [zoning ordinance]. To illustrate such
             substantial evidence, the trial court again respectfully requests
             that the appellate court review the Notes of Testimony from
             Conditional Use Hearing dated March 18, 2014, pgs. 22-30;
             pgs. 34-42; pg. 53; pg. 56; and pgs. 60-61. A review of the
             record shows that there was substantial testimony presented by
             [Applicant’s] own engineer indicating that [Applicant’s]
             application did not meet the [zoning ordinance] criteria. In fact,
             the trial court notes that [Council] cited numerous deficiencies
             as a basis for its denial. However, in actuality, [Council] could
             have denied the request with only one deficiency. This is
             because a conditional use must comply with all ordinance
             requirements. In short, in [its] discretion, [Council] could have
             denied [Applicant’s] conditional use request on any one of the
             [25] enumerated deficiencies that it cited in its Order. …

             [Applicant] argues that [Council] misinterpreted and misapplied
             Sections 27-413 and 27-2703 of the [zoning ordinance] when it
             denied [Applicant’s] conditional use request. The trial court is
             unable to address this appellate claim given that [Applicant]


                                          10
              fails to specify how [Council] misinterpreted and/or misapplied
              the specific [zoning] [o]rdinance [s]ections cited. Further, any
              misapplication argument is of no moment because … there was
              no abuse of discretion by [Council] when it denied
              [Applicant’s] conditional use request.

                     Lastly … [Council] denied [Applicant’s] final
              subdivision and land development plan approval because
              [Applicant] did not first obtain a conditional use. It is well
              settled law that subdivision and land development approval
              cannot be granted until the conditional use approval is first
              obtained. In re Thompson, 896 A.2d 659, 670 [(Pa. Cmwlth.
              2006)]. Here the conditional use was denied on April 17, 2014,
              and thereafter, [Applicant] applied for final subdivision and
              land development plan approval. Accordingly, [Council]
              correctly denied the final plan request due to the fact that
              [Applicant] had not received a conditional use.

Tr. Ct., Slip Op., at 4-5, 6-7 (emphasis in original). This matter is now before us
for disposition.3




       3
          Before this Court, Intervenor Maple Avenue Park Partners, LLC (MAPP) filed a motion
to strike certain documents from Applicant’s Reproduced Record on the ground these documents
were not part of the record before Council, and, although Applicant attempted to supplement the
record before the trial court with these documents, the trial court denied Applicant’s request.
Applicant filed an answer to MAPP’s motion, and a single judge of this Court heard oral
argument. Thereafter, the single judge entered the following order:

              [U]pon consideration of appellee [MAPP’s] ‘Motion To Strike Portions of
              Appellant’s Reproduced Record,’ [Applicant’s] answer thereto, and after
              oral argument on the issue by counsel of record, the Motion is granted.
              Pages 31a-41a, 116a-154a, and 166a-172a of the reproduced record are
              stricken and shall not be considered by the Court in disposition of the
              appeal. See Fotta v. Workmen's Comp. Appeal Bd. (U.S. Steel/USX Corp.
              Maple Creek Mine), 626 A.2d 1144, 1147 n.2 (Pa. 1993) (review is
              limited to matters appearing in the record); B.K. v. Dep't of Public
              Welfare, 36 A.3d 649 (Pa. Cmwlth. 2012) (same).

Cmwlth. Ct. Order, Dkt. Nos. 643, 644 C.D. 2015, 3/21/16, at 1.



                                              11
                                           II. Issues
               On appeal,4 Applicant argues Council’s denial of its conditional use
application constitutes an error of law or an abuse of discretion where it was based
on findings that were not supported by substantial evidence. Applicant also
contends Council’s denial of its final land development plan constitutes an error of
law or abuse of discretion where it was based on findings that were not supported
by substantial evidence.


                                       III. Discussion
                                     A. Conditional Use
                                       1. Contentions
               Applicant argues this matter involves its consolidated appeals of
Council’s denial of its conditional use and final land development applications.
Applicant contends, although Council previously granted conditional preliminary
land development approval for Applicant’s townhome development, the zoning
ordinance also required conditional use approval of all uses in the zoning district in
which the property is located.


               Although conditional use approval concerns the use of the property,
which Council already preliminarily approved, Applicant maintains, it proceeded
with its conditional use application and subsequently its final land development

       4
         Where, as here, the trial court did not take additional evidence, our review is limited to
determining whether Council abused its discretion or committed an error of law in granting the
conditional use application. Aldridge v. Jackson Twp., 983 A.2d 247 (Pa. Cmwlth. 2009).
       In addition, where the trial court takes no additional evidence, the scope of appellate
review in a land development appeal is limited to determining whether the local governing body
committed an error of law or an abuse of discretion. Kassouf v. Twp. of Scott, 883 A.2d 463
(Pa. 2005).



                                               12
application and plan.     Applicant asserts Council denied the conditional use
application based on findings unsupported by substantial evidence.           Thus, it
argues, Council’s denial of its conditional use application was an error of law and
an abuse of discretion and should be overturned.


             In response, Maple Avenue Park Partners, LLC (MAPP), which owns
property adjacent to Applicant’s proposed development, which it seeks to develop
as an apartment complex, asserts the law (as well as the zoning ordinance itself) is
clear that an applicant seeking conditional use approval must prove compliance
with both the specific and general conditional use standards and criteria set forth in
the applicable zoning ordinance. See, e.g., Thompson.


             MAPP maintains Section 27-413(1)(D) of the zoning ordinance sets
forth general conditional use standards and criteria that must be satisfied by all
proposed conditional uses. Additionally, Section 27-2703(E)(4) of the zoning
ordinance sets forth TOD-specific conditional use standards and criteria that must
also be satisfied by all proposed TOD uses.


             After a review of the evidence and testimony submitted during the
hearing, MAPP argues, Council concluded in Conclusion of Law No. 9 that
Applicant did not demonstrate compliance with 21 of the TOD-specific conditional
use standards and criteria set forth in Section 27-2703(E)(4) of the zoning
ordinance. Council further concluded in Conclusion of Law No. 10 that Applicant
did not demonstrate compliance with four of the general conditional use standards
and criteria set forth in Section 27-413(1)(D) of the zoning ordinance.



                                         13
             MAPP contends Applicant fails to advance any evidence or valid
argument in support of its claim that any (let alone all 25) of Council’s conclusions
related to Applicant’s failure to comply with the express conditional use criteria
applicable to Applicant’s proposed development were not supported by substantial
evidence. To the contrary, it argues, Council’s conclusions of law were clearly
supported by the record, specifically, by the complete lack of any evidence
Applicant submitted at the hearing to establish compliance.            In fact, MAPP
maintains, in its opinion, the trial court explained Council’s findings and
conclusions were all supported by the record from the hearing.


             In short, MAPP argues, because Council’s conclusions on Applicant’s
conditional use Application were clearly supported by substantial evidence, and
were properly affirmed by the trial court, this Court should affirm.


             In particular, MAPP points out, the trial court directed this Court’s
attention to certain pages of the hearing transcript in which Applicant’s Engineer,
its lone witness, explicitly testified the conditional use application: (1) did not
include sidewalks as required by §27-2703(E)(4)(d)(2) of the zoning ordinance,
Reproduced Record (R.R.) at 75a; (2) did not comply with all applicable
landscaping buffer requirements required by §27-2703(E)(4)(g) of the zoning
ordinance, R.R. 86a; (3) did not include a lighting placement, design, illumination
or spillover plan as required by §§27-2703(E)(4)(i)(1), 27-2703(E)(4)(i)(2), 27-
2703(E)(4)(i)(4) of the zoning ordinance, R.R. at 87a-88a; (4) did not meet the
parking requirement of 1.5 spaces per residential unit (if Council excluded from
that calculation the garages, which often times are used for additional storage), as



                                         14
required by §27-2703(E)(4)(e)(1) of the zoning ordinance, R.R. at 92a; (5) did not
include a conceptual utility plan as required by §27-413(1)(D)(3) of the zoning
ordinance, R.R. at 93a; and, (6) that the DEP Act 25 process (which has not
occurred) would have to be completed before a determination could be made as to
whether the proposed development would be detrimental to or endanger the health,
safety and welfare of the general public, as required by §27-413(1)(D)(1) of the
zoning ordinance, R.R. at 93a. Thus, MAPP asserts, as confirmed by the trial
court, Council’s denial of the conditional use application was supported by
substantial evidence, and was therefore not an abuse of discretion or an error of
law.


             For its part, the Borough contends Applicant’s central argument is that
conditional use approval must be granted because preliminary conditional land
development approval was previously granted. The Borough asserts Applicant
cites no legal authority for this novel proposition, having backed away from the
authority it cited to the trial court. The Borough argues it is legally incorrect to
state the grant of a preliminary conditional land development approval compels the
grant of conditional use approval.


             The Borough further maintains Applicant also attempts to challenge
some of Council’s specific determinations as set forth in Council’s findings of fact
and conclusions of law. Aside from the issue of ingress/egress, the Borough
asserts, Applicant did not present these arguments before the trial court, a point

       5
        “Act 2” refers to the Land Recycling and Environmental Remediation Standards Act,
Act of May 19, 1995, P.L. 4, No. 2, 35 P.S. §§6026.101–6026.908.



                                           15
which the trial court acknowledged in its opinion. Therefore, the Borough asserts,
Applicant’s contentions on these issues are waived.


            The Borough adds that from a fair reading of the record, see R.R. at
68a, it is fairly easy to see what happened here. Applicant’s counsel walked his
expert witness through the various points raised in the Borough Engineer’s review
letter. However, that review letter did not purport to offer comment on every
conditional use standard or criterion in the zoning ordinance. By addressing the
letter, rather than the full list of criteria in the zoning ordinance, the Borough
asserts, items were skipped entirely.     The Borough argues that this placed
Applicant in the untenable position of arguing it did not have to address each
conditional use standard or criterion on the ground that the preliminary land
development approval is, according to Applicant, tantamount to a conditional use
approval.


                                    2. Analysis
            At the outset, we note, Council is the fact-finder here, with exclusive
province over matters of credibility and weight to be afforded the evidence. Caln
Nether Co., L.P. v. Bd. of Supervisors of Thornbury Twp., 840 A.2d 484 (Pa.
Cmwlth. 2004). As such, Council may reject even uncontradicted testimony if it
finds it lacking in credibility. Id. We will not engage in fact-finding or disturb
Council’s credibility determinations on appeal. Id.


            Further, a conditional use is one specifically recognized by the
legislature as consistent with the zoning plan. Aldridge v. Jackson Twp., 983 A.2d



                                        16
247 (Pa. Cmwlth. 2009). As such, it is presumed the particular type of use does
not, of itself, adversely affect public interest. Id.


             In addressing an application for a conditional use, a local governing
body must employ a shifting burden of persuasion. Id. First, the applicant must
persuade the local governing body its proposed use is a type permitted by
conditional use and the proposed use complies with the requirements in the
ordinance for such a conditional use. Id. Once it does so, a presumption arises the
proposed use is consistent with the general welfare. Id. The burden then shifts to
objectors to rebut the presumption by proving, to a high degree of probability, the
proposed use will adversely affect the public welfare in a way not normally
expected from the type of use. Id.


             In addition, a local governing body is entitled to considerable
deference in interpreting its zoning ordinance. Id.


             Section 27-2703(E) of the zoning ordinance permits a TOD by
conditional use in the RO district. Section 27-413(1)(D) of the zoning ordinance
sets forth four criteria that are generally applicable to all conditional use requests in
the Borough. Additionally, Section 27-2703(E)(4) contains numerous detailed
“Conditional Use Standards” specific to TODs. Id.


             Here, Council determined Applicant’s conditional use application
contained 21 deficiencies when viewed in light of the specific conditional use
standards applicable to TODs, and the application did not satisfy any of the 4



                                            17
general conditional use criteria. As the Borough argues, with the exception of its
argument relating to ingress and egress for the development, in its brief to the trial
court Applicant did not challenge Council’s determinations regarding Applicant’s
failure to satisfy the standards required for conditional use approval of its proposed
TOD. See Certified Record (C.R.), Tr. Ct. Dkt. No. 2014-08599, Br. of Appellant
AMA/American Marketing Association. Nor did Applicant identify or challenge
any of Council’s findings or conclusions regarding Applicant’s failure to comply
with the conditional use standards in its land use appeal to the trial court. R.R. at
5a-7a.6 As such, Applicant’s challenges to Council’s determinations regarding its
failure to comply with nearly all of the zoning ordinance’s conditional use criteria


       6
           The only arguably relevant contentions in Applicant’s land use appeal were:

                 5.    During the course of the Hearing held on March 18, 2014
                 [Applicant] presented testimony to demonstrate that [Applicant] would be
                 able to meet the requirements of the Borough Ordinance for the
                 Conditional Use in its Final Land Development Plans.

                 6.      The March 18, 2014 Denial by Council of [Applicant’s]
                 Conditional Use Application did not indicate that [Applicant] was unable
                 to satisfy the requirements to obtain Conditional Use Approval[.]

                                                  ****

                 14. [Applicant] is entitled to Approval of its Conditional Use
                 Application in accordance with the provisions of the Borough
                 Ordinance[.]

                                                  ****

                 16. The action of Council in Denying [Applicant’s] Application for
                 Conditional Use is not authorized by any code, ordinance, or statute and
                 is contrary to same and therefore procedurally defective, void and of no
                 effect.

Reproduced Record at 6a, 7a (emphasis added).



                                                18
are waived. See Berner v. Montour Twp., 120 A.3d 433 (Pa. Cmwlth. 2015)
(failure to raise issue before trial court results in waiver).


              Nevertheless, even if not waived, our review of the record supports
Council’s determinations regarding Applicant’s failure to satisfy several of the
zoning ordinance’s conditional use standards applicable to TODs. In particular,
Applicant did not clearly establish compliance with the following zoning ordinance
provisions: (1) Section 27-2703(E)(4)(d)(2) (stating that convenient pedestrian
connections shall be provided from all residential entrances to parking areas, open
space and recreational areas, as well as to the transit station to be served by the
TOD); (2) Section 27-2703(E)(4)(g) (relating to required planting buffers); (3)
Section 27-2703(E)(4)(i)(1), (2), (4) (relating to lighting standards); (4) Section 27-
413(1)(D)(3) (imposing a requirement that adequate utilities are present or will be
provided); (5) Section 27-2703(E)(4)(b)(2) (relating to maximum building and
impervious coverage requirements); (6) Section 27-2703(E)(4)(b)(4) (relating to
maximum building length requirements); (7) Section 27-2703(E)(4)(b)(5) (setting
forth building spacing requirements); (8) Section 27-2703(E)(4)(b)(6) (pertaining
to building orientation); (9) Section 27-2703(E)(4)(b)(7)(a) (stating that blank
walls are not permitted); (10) Section 27-2703(E)(4)(e)(2) (parking areas shall be
interconnected and cross-easements provided to ensure shared use is provided
where appropriate); and, (11) Section 27-2703(E)(4)(e)(3) (off-street parking and
garages should be designed such that vehicular access to such parking or garages
does not unnecessarily obstruct primary internal driveways or the existing external
streetscape). Thus, even if Applicant properly preserved its challenge to Council’s




                                            19
determinations that it did not satisfy the zoning ordinance’s conditional use
criteria, Council acted properly in denying Applicant’s conditional use application.

             Indeed, on cross-examination Applicant’s Engineer testified:

             Q. … I noticed a number of the specific conditional use
             standards. Your, response was that they will be addressed later
             in the land development process; is that right?

             A. That’s correct.

             Q. So lighting and all of the other requirements set forth by [the
             Borough’s Engineer] under conditional use standards are going
             to be addressed not now but later in the land development
             process?

             A. That’s correct.

R.R. at 87a-88a (emphasis added). Clearly, Applicant’s Engineer’s testimony was
insufficient to satisfy Applicant’s burden to obtain the requested conditional use.
As we explained in Thompson:

                   An applicant for special exception or conditional use
             must demonstrate that his proposed use meets the applicable
             requirements of the zoning ordinance when the application is
             submitted. A promise to comply or conditions compelling
             future compliance cannot cure an otherwise noncompliant
             application. 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 the approval process meaningless because once an
             applicant promises it would be entitled to receive the special
             exception.

Id. at 680 (emphasis added) (citations omitted).




                                         20
             In addition, while Applicant asserts Council’s conclusions on the
numerous deficiencies are in error because Applicant addressed these deficiencies
on the plans it submitted with its conditional use application, Applicant did not use
the plans it now references during the hearing on its conditional use application in
an effort to prove compliance with the various conditional use criteria. Indeed,
those plans were not made part of the record of the conditional use proceeding
before Council, the fact-finder here. See C.R., Tr. Ct. Dkt. No. 2014-08599,
Return of the Record of the Borough Council of the Borough of Ambler. Rather,
Applicant relied on the testimony of its Engineer, who did not address all of the
applicable conditional use standards applicable to TODs.


             Further, we reject Applicant’s argument that Council’s grant of
conditional approval to Applicant’s preliminary land development plan requires
approval of Applicant’s conditional use application.       To that end, Applicant’s
proposal required both conditional use approval and land development approval.
As set forth above, in order to obtain conditional use approval Applicant was
required to prove compliance with the zoning ordinance’s criteria relating to
conditional uses. Indeed, “satisfying the criteria for conditional use is just one step
of the subdivision approval process.       In fact, subdivision approval cannot be
granted until the conditional use approval is first obtained. See Residents Against
Matrix v. Lower Makefield Township, 845 A.2d 908 [(Pa. Cmwlth. 2002)] (a
governing body cannot approve an application for final subdivision and land
development when the applicant did not first apply for approval for the intended
use.).” Thompson, 896 A.2d at 670.




                                          21
            Thus, Council’s conditional grant of approval to Applicant’s
preliminary land development plan does not compel a grant of Applicant’s
conditional use application. To that end, the Borough’s letter granting conditional
approval of Applicant’s preliminary subdivision plan expressly required that
Applicant obtain zoning approval.      R.R. at 21a-24a.    Moreover, contrary to
Applicant’s assertions, neither Williams Holding Group, LLC v. Board of
Supervisors of West Hanover Township, 101 A.3d 1202 (Pa. Cmwlth. 2014) nor
McGrath Construction Inc. v. Upper Saucon Township Board of Supervisors, 952
A.2d 718 (Pa. Cmwlth. 2008), hold that the grant of preliminary subdivision or
land development approval compels a grant of conditional use approval.


            In addition, although Applicant appears to assert that, in denying its
conditional use application, Council improperly applied criteria that relate to
subdivision and land development applications and plans rather than zoning
applications, our review of Council’s decision reveals Council denied Applicant’s
conditional use application based solely on Applicant’s failure to comply with the
zoning’s ordinance’s express criteria relating to conditional uses, not on any
SALDO provisions. As we stated in Thompson (with emphasis added):

                  What must be demonstrated in order to obtain conditional
            use approval must be determined on a case by case basis and
            will vary among municipalities based upon the use requested
            and the language in the ordinance. See, e.g., [Sheetz]; [In re
            Brickstone Realty Corp., 789 A.2d 333, 340 (Pa. Cmwlth.
            2001)]; Schatz [v. New Britain Twp. Zoning Hearing Bd. of
            Adjustment, 596 A.2d 294 (Pa. Cmwlth. 1991)]. In Schatz, we
            held that a zoning board could not reject an application for a
            special exception as not being in the best interest of the
            community because the application did not address the issues of
            adequate sewage capacity, storm water management or water
            supply requirements. We held that ‘such issues are to be

                                        22
addressed further along the permitting and approval process.
Zoning only regulates the use of land and not the particulars of
development and construction.’ Schatz, 596 A.2d at 298;
compare East Manchester Township v. Dallmeyer, 609 A.2d
604 (Pa. Cmwlth. 1992) (we allowed the more stringent
requirements for water supply and sewage to be considered
because these requirements were a part of the township’s
special exception requirements).

      Similarly, in Brickstone Realty, we held that detailed
design information such as floor plans, even if required by the
ordinance, is not relevant to the consideration of a special
exception or conditional application. All the ordinance
required for approval of the use was information indicating the
nature, size, and location of the proposed use. 789 A.2d at
339.

        In Sheetz, the applicant sought a conditional use permit
for construction of a service station. The application was denied
by borough council on the grounds that the applicant failed to
demonstrate compliance with requisite standards of a ‘service
conditional use.’ The application did not show the required 40–
foot buffer zone or planted buffer screen, which were required
for the conditional use for a service station. The borough
council reasoned that the applicant was not entitled to approval
of its application by allowing them to establish compliance later
in the context of a land development plan application. Thus, the
applicant failed in its burden of establishing its application’s
compliance with the necessary requirements as a precondition
to approval. We opined, the applicant ‘is not permitted to evade
these requirements because a service station is a conditional
use, and upon review, [b]orough [c]ouncil properly denied the
application.” Sheetz, 804 A.2d at 115.

      In In re Application for Conditional Use Approval of
James Saunders, 636 A.2d 1308 (Pa. Cmwlth. 1994), [appeal
denied, 657 A.2d 494 (Pa. 1995)], the applicant sought a
conditional use permit to develop a 367-unit mobile home park
on the property. The zoning ordinance listed a mobile home
park as a conditional use in the agricultural district. The
township supervisors denied the application on the basis that
the application was deficient in various areas, especially failing
to comply with the zoning ordinance’s requirements of

                            23
              showing a centralized sewer and water system. Our review of
              the record revealed that the applicant presented testimony,
              diagrams and descriptions of the proposed water and sewage
              facilities. We opined that approval of a use is only the first step
              along the road for an applicant to receive an occupancy permit.
              We held that the information provided by the applicant was
              adequate to meet the requirement set forth in the zoning
              ordinance that the mobile home park have ‘central sewer and
              water’ and that the [s]upervisors erred in denying the
              conditional use application on the basis that the application
              itself did not meet the requirements for adequate water and
              sewage. James Saunders.

                     What we garner from these cases is that an applicant
              seeking conditional use approval must demonstrate compliance
              with the express standards and criteria of the ordinance that
              relate specifically to the conditional use. As illustrated above,
              those criteria will vary from ordinance to ordinance.

Id. at 670-71. Here, Council denied Applicant’s conditional use request based on
its failure to comply with the express standards for conditional uses set forth in the
zoning ordinance. No error is apparent in that decision. Thompson.


                          B. Final Land Development Plan
                                   1. Contentions
              Applicant further argues, because Council should have granted
Applicant’s conditional use application based on the evidence submitted, if
Applicant was able to satisfy the conditions of its preliminary land development
approval, it should have received final land development approval.                  Thus,
Applicant asserts Council’s denial constitutes an error of law and an abuse of
discretion.




                                           24
               MAPP responds it is clear that subdivision and land development
approval cannot be granted until conditional use approval is first obtained.
Thompson.      MAPP argues Applicant requested consideration of its final land
development application at Council’s May 2014 meeting, which was after the
March 2014 denial of its conditional use application and the subsequent issuance
of Council’s written decision in April 2014. In accordance with applicable law,
MAPP contends, Council voted unanimously to deny final land development
approval based on, among other things, Applicant’s failure to secure the
prerequisite conditional use approval for the proposed development. MAPP argues
Council’s decision is in accordance with the law and therefore, was properly
affirmed by the trial court.


               Similarly, the Borough contends Council denied Applicant’s
conditional use application for a host of reasons. It was then required to deny
Applicant’s final land development application as such approval requires first that
conditional use approval be obtained, and it was not.


                                    2. Analysis
               As indicated above, because final subdivision and land development
approval cannot be granted until a conditional use approval is first obtained,
Thompson; Residents Against Matrix, and because Applicant failed to obtain
conditional use approval for its proposed development, no error or abuse of
discretion is apparent in Council’s denial of Applicant’s final land development
application.




                                        25
                                   IV. Conclusion
            For all the foregoing reasons, we affirm the orders of the trial court
that affirmed Council’s decisions denying Applicant’s conditional use application
and final land development plan.




                                       ROBERT SIMPSON, Judge




                                        26
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Appeal of AMA/American     :
Marketing Association, Inc. from  :
the Decision of the Borough Council
                                  :
of Ambler Borough, on May 21, 2014:
dated May 22, 2014 Denying its    :       No. 643 C.D. 2015
Application for Final Land        :
Development Approval for a        :
Townhome Development              :
                                  :
Appeal of: AMA/American Marketing :
Association, Inc.                 :

In Re: Appeal of AMA/American     :
Marketing Association, Inc. from  :
the Decision of the Borough Council
                                  :
of Ambler Borough, dated March 18,:
2014 Denying its Application for  :       No. 644 C.D. 2015
Conditional Use for a Townhouse   :
Development                       :
                                  :
Appeal of: AMA/American Marketing :
Association, Inc.                 :

                                 ORDER

            AND NOW, this 14th day of June, 2016, the orders of the Court of
Common Pleas of Montgomery County are AFFIRMED.




                                      ROBERT SIMPSON, Judge
