         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Red Lion Borough,                          :
                 Appellant                 :
                                           :
            v.                             :
                                           :
Red Lion Borough Zoning                    :   No. 55 C.D. 2017
Hearing Board and ArthurLee, LLC           :   Argued: September 11, 2017



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                              FILED: October 20, 2017



            Before this Court is the zoning appeal of Red Lion Borough (Borough)
from the December 14, 2016 order of the Court of Common Pleas of York County
(trial court), which upheld the June 14, 2016 decision of the Red Lion Borough
Zoning Hearing Board (Board) approving the special exception and variance request
of ArthurLee, LLC. (AL) Upon review, we affirm.
            AL is the owner of real property located at 84-90 North Main Street,
Red Lion, Pennsylvania, 14356, York County Tract Nos. 82-03-167B, 82-03-167A,
82-03-167 (Property). (R.R. at 5a-11a.) AL permits a neighboring used car lot to
park used car inventory on the Property.
            On March 15, 2016, AL received a zoning enforcement letter from the
Borough zoning and codes enforcement officer alerting AL it needed a special
exception to park extra used cars on the Property. Id. at 13a-14a. On or about March
29, 2016, AL filed an application for a special exception for automobile sales lot as
well as a variance to waive the requirement for a 1600 square foot display building.
Id.
              On May 17, 2016, the Board held a hearing on the zoning application.
At the conclusion of the hearing, the Board orally granted the special exception and
variance, finding that AL met all requirements of the zoning ordinance (Ordinance)
except Section 27-605.C.1 The Board also granted a variance from the requirements
of Subsection 27-605.C. Thereafter, on June 14, 2016, the Board issued its written
decision approving the special exception and variance. (Board Opinion, 6/14/16, at
6.)
              On July 13, 2016, the Borough filed an appeal with the trial court
arguing that AL did not meet all relevant requirements of the Ordinance for the
special exception, specifically failing to present evidence it could meet the 80-foot
minimum lot width requirement of Section 27-605.B.2 By order filed December 14,
2016, the trial court dismissed the Borough’s appeal, holding that “[t]he issue of
whether the lot in question met the [80-foot minimum lot] width requirements was




       1
         The variance from Subsection 27-605.C involved square footage requirements for an
indoor display area for the cars. Appellee has since removed this subsection from the Ordinance
by amendment approved on January 9, 2017.

       2
        Section 27-605(B) of the Ordinance (pertaining to automobile and/or trailer sales;
automobile body shop and/or automobile garages) states:
              …
              B. Lot width shall be 80 feet, minimum.

Certified Record (C.R.), Item #14 at 27-64; Ordinance, §27-605(B). (Emphasis added.)


                                                2
never placed squarely before the [Board].” Trial Court Opinion, 12/14/16, at 2-3.
This appeal followed.3

                                           Discussion

                The Borough argues the trial court erred in dismissing its appeal,
thereby affirming the Board’s grant of a special exception, on the basis that the
Borough did not attend the zoning hearing. The Borough maintains it has statutory
standing to appeal any decision of its Board pursuant to Section 908(3) of the
Pennsylvania Municipalities Planning Code (MPC).4

                Section 908(3) of the MPC provides:

                       (3) The parties to the hearing shall be the
                municipality, any person affected by the application who
                has made timely appearance of record before the board,
                and any other person including civic or community
                organizations permitted to appear by the board. The board
                shall have power to require that all persons who wish to be
                considered parties enter appearances in writing on forms
                provided by the board for that purpose.

53 P.S. §10908(3). (Emphasis added.)

                Citing West Manchester Township v. Zoning Hearing Board of West
Manchester Township, 403 A.2d 234 (Pa. Cmwlth. 1979), the Borough asserts it has
the authority to appeal a decision by the Board even if it did not participate in the
proceedings before the Board or otherwise object. “[T]he municipality is made a
       3
         This Court's scope of review when no additional evidence is taken following the
determination of a zoning hearing board is limited to determining whether the board committed a
manifest abuse of discretion or an error of law. Slice of Life, LLC v. Hamilton Township Zoning
Hearing Board, 164 A.3d 633 (Pa. Cmwlth. 2017).

       4
           Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10908(3).

                                                  3
party to all zoning board proceedings whether or not the municipality appears at the
hearings or otherwise objects and thus has standing to appeal an adverse decision of
the zoning board.” Id. at 234-35.
                 The legislature’s purpose for providing the municipality with this
statutory standing, argues the Borough, was “succinctly and eloquently stated”5 in
the nearly identical factual situation presented by Lower Paxton Township v.
Fieseler Neon Signs, 391 A.2d 720 (Pa. Cmwlth. 1978). “To impose the burden of
requiring a municipality to participate in every hearing for a variance lest it waive
its right to challenge the zoning board’s action would be unreasonable.” Id. at 723.
The Borough contends the only difference between the facts presented in Lower
Paxton and the case sub judice is the applicant in Lower Paxton requested a variance,
whereas, here, AL requested a special exception.6
                 Relying on Elizabethtown/Mt. Joy Associates, L.P. v Mt. Joy Township
Zoning Hearing Board, 934 A.2d 759 (Pa. Cmwlth. 2007), the Borough further
argues the Board may only grant a special exception if the applicant complies with
the specific ordinance requirement at the time the application is presented to the
Board. Because the applicant must meet all specific requirements of the Ordinance
relative to the use of the property, the Borough contends AL has the duty to present
evidence and the burden of persuading the Board that the proposed use satisfies the
specific and objective requirements of the Ordinance for the proposed use. Greaton
Properties, Inc. v. Lower Merion Township, 796 A.2d 1038 (Pa. Cmwlth. 2002).
According to the Borough, since Section 27-605.B of the zoning ordinance requires
a minimum lot width of 80 feet for the proposed use (in connection with an

       5
           Appellant’s Brief at 7.

       6
         The variance in Lower Paxton and the special exception here each require the applicant
to meet specific criteria in order to receive the relief requested.

                                                4
automobile sales lot), the issue of compliance with the lot width requirement was
not and could not be waived because it is part of the specific requirements of the
Ordinance which AL was required to meet, and the Borough could appeal the
Board’s decision “because the proper criteria for the relief requested was not met by
[AL].”7
                AL counters that the Board did not abuse its discretion or commit an
error of law when it granted a special exception permitting it to use the Property as
an automobile sales lot pursuant to Section 27-605(B) of the Ordinance. AL asserts
the Borough never raised the issue of the 80-foot minimum lot width before the
Board and, consequently, the issue is waived. AL maintains the Board hearing
transcript is “clearly devoid” 8 of any mention of lot width and a review of the
transcript proves the Board solicitor asked AL if it wished to amend its application
to ask for a variance only from the 12,000 minimum square footage requirement.

                [Board member/solicitor Markey] …The special
                exception obviously is a permitted use. And provided that
                [AL] can satisfy each of those criteria, which they’ve set
                out in their application as well as in their testimony here
                tonight and at the planning commission minutes, subject
                to the showroom, the only other issue then remaining
                would be the 12,000 square feet, which they appear to be
                over even considering maybe [Nevin] Horne’s[ 9 ]
                suggestion or at least raising it to our attention.

                What I would recommend, because I think the [B]oard is
                inclined to approve this, I would recommend to [AL] that
                to be safe you request in the alternative a variance from
      7
          Appellant’s Brief at 10.

      8
          Appellee’s Brief at 4.

      9
        Nevin Horne is identified as a councilman and “chair of planning, zoning and
redevelopment.” (R.R. at 18a.)

                                              5
                the 12,000 square feet [minimum square footage
                requirement]. So it would appear the [B]oard is inclined
                to approve the request, so [the Board] would approve a
                variance then for the showroom and they would approve a
                variance just in the event that you would be shy of the
                12,000 square feet for some reason. That would give you
                then an approval of the special exception and the two
                variances which would give what [the Board] desire[s].

R.R. at 25a-26a.

                AL points out the zoning officer for the Borough, an officer and agent
of Borough who attended the hearing, could have raised the issue of the lot width on
behalf of the Borough and failed to do so. Therefore, AL argues, the Borough’s
failure to raise the issue of lot width before the Board effectuated a waiver and
precluded the trial court from considering the issue on appeal. Citing 813 Associates
v. Zoning Hearing Board of Springfield Township, 479 A.2d 677, 680 (Pa. Cmwlth.
1984), AL maintains it is well-established in the Commonwealth that an issue not
raised before a zoning hearing board may not be raised and considered for the first
time on appeal. We agree.
                The Borough’s suggestion that the trial court dismissed its appeal, at
least in part, “because the [Borough] did not attend”10 the hearing before the Board
completely misstates the trial court’s actions. In fact, the trial court recognizes the
presence and participation of the Borough at the Board hearing, but rejects the notion
that the issue of lot size was properly presented: “A fair reading of the transcript [of
the Board hearing] … reveals that the reference to lot width was purely incidental to
a discussion regarding requirements for square footage.” (Trial Court Opinion,
12/14/16, at 2.) Explaining its reasoning further, the trial court, in its opinion issued



      10
           Appellant’s Brief at 7.
                                             6
pursuant to Rule 1925(a) (1925 Opinion), Pa.R.A.P. 1925(a), stated that while it
found:

                [T]he 80 foot requirement had been raised at various times
                [by the Borough] during the hearing it was ‘purely
                incidental to a discussion regarding requirements for
                square footage.’ Specifically, the trial court found that the
                issue of whether or not the lot in question met the size
                requirements of the zoning ordinance was ‘never place[d]
                square[ly] before the [Board]’ and therefore had been
                waived.

(1925 Opinion, 2/28/17, at 2). (Internal citations omitted.) Against this backdrop,
it is clear the Borough’s claim that the trial court found its claim “waived by the
failure of the Borough to attend the zoning hearing”11 is completely without merit.
                We further reject the Borough’s interpretations of Lower Paxton
Township and West Manchester Township as those decisions are readily
distinguishable from the case sub judice. In Lower Paxton Township, the township’s
standing to appeal was the specific issue before this Court. The initial hearing before
the Board of Supervisors of Lower Paxton Township (township board) concerned
the denial of a building permit by the township zoning officer. But for the testimony
of the zoning officer as to the reasons for his denial, the township did not participate
in the hearing. The township board granted the variance and the township appealed.
Exxon, as intervenor, filed a motion to quash the appeal, which the Court of
Common Pleas of Dauphin County denied.
                It was this denial which was appealed. As such, this Court initially
noted that the “appeal is improperly before us and should, therefore, be quashed.”



      11
           Appellant’s Brief at 11.


                                               7
Lower Paxton Township, 391 A.2d at 722. However, “in the interests of judicial
economy,”12 the Court addressed the merits.
               Exxon argued the township lacked standing because it was never a party
before the board and, consequently, it was not aggrieved by the board’s decision.
This Court concluded the township’s standing was made clear by the legislature.

               In designating a municipality as a party to all zoning board
               hearings, it is clear that the legislature intended that it be
               the collective representative of all residents and property
               owners, and, as such, interested in the proper enforcement
               and application of its zoning ordinance. In the instant
               case, the Township claims that the [b]oard abused its
               discretion in granting the variance and that the decision
               was contrary to the law applying to variances. In our view,
               the legislature has declared that a township has such an
               interest as would cause it to be aggrieved, for purposes of
               appeal, by a decision of the Zoning Hearing Board which
               it considered to be adverse to its best interests. Since the
               Township is a “party aggrieved”, it may appeal the zoning
               board decision to the lower court, even though it did not
               participate in the hearing before the zoning hearing
               board…

               …To impose the burden of requiring a municipality to
               participate in every hearing for a variance lest it waive its
               right to challenge the zoning board’s action would be
               unreasonable.

Lower Paxton Township, 391 A.2d at 723. (Emphasis added.)13

               Further distinguishing Lower Paxton Township is the fact that in the
present case, the trial court specifically recognized the Borough’s right to appeal an
adverse decision of the Board: “[The] Borough has statutory standing to appeal any


      12
           Lower Paxton Township, 391 A.2d at 722.

      13
          The brief decision in West Manchester Township merely reaffirmed the underlying
holding of Lower Paxton Township.
                                               8
decision of its zoning hearing board pursuant to Section 908(3) of the Pennsylvania
Municipalities Planning Code [53 P.S. § 10908(3)].”            (Trial Court Opinion,
12/14/16, at 2.) What the Borough seems to argue, however, is that its right to appeal
somehow exempts it from preserving issues on appeal. Although it participated in
the hearing before the Board, it failed to raise the issue of lot size at that hearing.
Moreover, on appeal from the Board’s decision, the Borough did not request the
opportunity to present additional evidence before the trial court as is statutorily
allowed. See 53 P.S. § 11005-A of the MPC, added by the Act of December 21,
1988, P.L. 1329, 53 P.S. § 1105-A. This left the trial court (and us) with a record
created at the Board level. There is nothing in the law which gives special license
to the Borough to avoid the peril of waiver when it fails to take appropriate steps to
preserve the issues it seeks to present on appeal.
             For these reasons, the order of the trial court is affirmed.




                                        ___________________________
                                        JOSEPH M. COSGROVE, Judge




                                            9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Red Lion Borough,                     :
                 Appellant            :
                                      :
           v.                         :
                                      :
Red Lion Borough Zoning               :    No. 55 C.D. 2017
Hearing Board and ArthurLee, LLC      :


                                   ORDER


           AND NOW, this 20th day of October, 2017, the order of the Court of
Common Pleas of York County is affirmed.




                                    ___________________________
                                    JOSEPH M. COSGROVE, Judge
