            IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Appeal of Joanne Lesko From the Decision :
Dated June 14, 2018 of the Lower Gwynedd :
Township Zoning Hearing Board            :
                                         : No. 532 C.D. 2019
Appeal of: Joanne Lesko                  : Argued: June 9, 2020



BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE J. ANDREW CROMPTON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CROMPTON                                           FILED: July 9, 2020

               Joanne Lesko (Objector) appeals an order of the Court of Common
Pleas of Montgomery County (trial court) which affirms the decision of the Zoning
Hearing Board of Lower Gwynedd Township (ZHB) granting a special exception to
the Lower Gwynedd Township Ordinance (the Ordinance) to Martin and Marnie
Hughes (Applicants). Objector argues that the trial court abused its discretion and
committed errors of law in granting the special exception because the ZHB allegedly
disregarded provisions of the Pennsylvania Municipalities Planning Code (MPC)1
and the Ordinance2 in granting the special exception. Objector also argues that the


      1
          Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.

      2
         See Lower Gwynedd Twp., Pa., Zoning Ordinance §§1252.03(a)(3), 1252.03(a)(4),
1252.03(a)(6) (1989).
ZHB abused its discretion and committed errors of law by disregarding the “spatial
relationship” and “rehabilitation” provisions of the Ordinance.3 Finally, Objector
argues that the ZHB abused its discretion and committed errors of law by
disregarding the historic overlay provision of the Ordinance.4 Discerning no error
below, we affirm.


                                        I.   Background
                Applicants own real property at 776 Johns Church Lane (Subject
Property) in Lower Gwynedd Township. The Subject Property includes a Manor
Home as well as four other existing structures (Additional Structures).5 The Subject
Property has two road frontages, one along Tennis Avenue and another along
Susquehanna Road, which contains a bend where Johns Lane and Susquehanna Road
meet. Finding of Fact (F.F.) No. 34. Objector resides at 765 Johns Lane, a property
that abuts Applicants’ Subject Property. As a neighboring landowner, Objector
appealed the granting of the special exception.


                Applicants’ residence, the Manor Home, was constructed in the 18th
century. The Manor Home and the Subject Property were both recognized by Lower
Gwynedd Township as historic resources as of May 10, 2007. F.F. No. 45. This



       3
           See Ordinance §1298.19(d)(1).

       4
           See Ordinance §1298.19(e).

       5
         The Subject Property includes the Manor Home, the Spring House, the Ice House and the
Blacksmith Shop. Objector refers to “The Toll House” as an additional structure on the Subject
Property. However, the Toll House is located at 777 Johns Church Lane. While the Applicants
own this property, it is not part of the Subject Property that is the subject of this appeal.




                                              2
distinction requires adherence to the Historic Resources Protection Standards in
Section 1298.19(d)(1)6 of the Ordinance.
              On June 8, 2017, Applicants submitted a request for a special exception
to the Ordinance for reduced dimensional regulations in exchange for not
demolishing the Manor Home.7 F.F. Nos. 38-39. The Subject Property is located
within the A-Residential Zoning District, which permits lots that are 40,000 square
feet in size. Applicants submitted an application for special exception for reduced
area and bulk regulations. The A-Residential Zoning District includes single-family
homes as a permitted use. Applicants submitted a proposed 7-lot plan of single-
family homes for the Subject Property (the Plan). The Plan included the 2.3-acre
Manor Home lot, which will be preserved for the purpose of Applicants’ family’s
primary residence. The Plan estimates the location of a possible internal road
connecting the Subject Property to the bend where Johns Lane and Susquehanna
Road meet, which abuts the Subject Property. F.F. No. 67.


              Public zoning hearings were held on the application for special
exception on May 14, 2017; September 14, 2017; October 12, 2017; November 9,
2017; and December 21, 2017.           At the hearings, Applicants presented testimony
from Mark Altrogee, P.E., a civil design engineering expert. Mr. Altrogee assessed
that if a subdivision and land development plan for the Subject Property was to be




       6
         “Instead of demolition of an historic resource, a landowner or developer may be allowed
to reduce the otherwise applicable area and bulk regulations.” Ordinance §1298.19(d)(1).

       7
         Applicants initially submitted a request for a variance for the 777 Johns Lane property
alongside the request for a special exception for the Subject Property. Applicants later amended
the application to include only a request for a special exception for the Subject Property.
Accordingly, we only consider the Subject Property on appeal.


                                               3
pursued in the future, then the use of the bend at Johns Lane and Susquehanna Road
would be a suitable location for access to the Subject Property. F.F. No. 68.


             Objector presented testimony from a civil design engineering expert,
Jeffrey Wert, P.E. Mr. Wert asserted that Applicants failed to satisfy the criteria for
the grant of a special exception; that granting the special exception would result in
violating applicable provisions of the Ordinance; and that granting the special
exception will create a detriment to public health, safety, and welfare. F.F. No. 74.
Mr. Wert admitted that nothing submitted by Applicants constitutes a final plan. F.F.
No. 64.


             The ZHB rejected as not credible “any and all testimony” offered by
Mr. Wert. F.F. No. 74. The ZHB also found that Objector’s “lay-person testimony”
was not credible and was impeached by her own conduct, including “repeated
placement of cones” and recurring “yard sales” at the bend location where Johns
Lane and Susquehanna Road meet. F.F. No. 80. The ZHB further concluded that
the “ability to visually observe the demeanor of [Objector’s expert and Objector] in
the process of delivering that testimony” contributed to the ZHB’s rejection of
Objector’s evidence. F.F. Nos. 75, 80.


             The ZHB, finding no evidence of unsafe traffic conditions or substantial
effects on the health, safety, and welfare of the community, granted Applicants’
request for a special exception. Objector appealed, and the trial court affirmed the
decision of the ZHB.




                                          4
                                       II.     Discussion
                   A. MPC Section 912.1 and Ordinance §1252.03(a)
              On appeal,8 Objector argues that the ZHB abused its discretion and
committed errors of law by violating the statutory mandate of MPC Section 912.1.9
The MPC requires that the ZHB decide special exception requests in accordance
with the express standards outlined in Section 1252.03 of the Ordinance. Objector
asserts that plans provided by Applicants were insufficient to support approval of
the special exception. Objector also contends that the ZHB failed to consider the
effect of the proposed special exception on existing public service systems and on
the neighborhood.




       8
          When, as here, a trial court accepts no additional evidence, “our review is limited to
considering whether the zoning hearing board erred as a matter of law or abused its discretion.”
S. of S. St. Neighborhood Ass’n v. Phila. Zoning Bd. of Adjustment, 54 A.3d 115, 119 n.1 (Pa.
Cmwlth. 2012). “An abuse of discretion occurs when the findings of the [ZBA] are not supported
by substantial evidence.” MarkWest Liberty Midstream & Res., LLC v. Cecil Twp. Zoning Hr’g
Bd., 102 A.3d 549, 553 n.6 (Pa. Cmwlth. 2014).

       9
        Section 912.1 of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53 P.S.
§10912.1 states:

              Zoning Hearing Board’s Functions; Special Exception.
              Where the governing body, in the zoning ordinance, has stated special
              exceptions to be granted or denied by the board pursuant to express
              standards and criteria, the board shall hear and decide requests for such
              special exceptions in accordance with such standards and criteria. In
              granting a special exception, the board may attach such reasonable
              conditions and safeguards, in addition to those expressed in the ordinance,
              as it may deem necessary to implement the purposes of this act and the
              zoning ordinance.



                                               5
               A special exception is not an exception to the zoning ordinance, but a
use permitted conditionally, and the application is to be granted or denied by the
ZHB pursuant to express standards and criteria. Shamah v. Hellam Twp. Zoning
Hearing Bd., 648 A.2d 1299 (Pa. Cmwlth. 1994). Where a particular use is
permitted in a zone by special exception, it is presumed that the local legislature has
already considered that such use satisfies local concerns of the general health, safety,
and welfare and that such use comports with the intent of the zoning ordinance. Id.
If an applicant can show compliance with the specific requirements of the ordinance
for a special exception, it is presumed that the use is consistent with the promotion
of the health, safety, and general welfare. Bray v. Zoning Bd. of Adjustment, 410
A.2d 909 (Pa. Cmwlth. 1980).


               Objector argues that Applicants did not demonstrate that compliance
with the permitted uses of the Ordinance would be unreasonable or inappropriate.10
Objector further questions the rationale of the ZHB, stating that the Plan submitted
by Applicants was insufficient to meet their burden of demonstrating a need for a
special exception. However, the ZHB found that “the plans and other evidence
provided by the Applicants were sufficient to establish compliance with the
permitted uses and other regulations … applicable to the special exception requested
….” F.F. No. 71(h).


               The Applicants, with the assistance of Applicants’ expert, produced the
Plan as an illustrative depiction of one possible subdivision plan to demonstrate


       10
          Section 1252.03(a)(6) of the Ordinance states: “The applicant shall provide the [ZHB]
with sufficient plans, studies or other data to demonstrate that compliance with the permitted uses
or other regulations, as may be the subject of consideration for a special exception approval, is
unreasonable or inappropriate for the instance at hand.” Ordinance §1252.03(a)(6).


                                                6
reduced criteria, provided the special exception was granted. F.F. No. 53. The Plan
is not fully engineered or to the standards of a subdivision or land development
application. F.F. Nos. 54-55. The Ordinance does not require that any subdivision,
land development application, building application, or any other permit application
be submitted prior to submission of the appeal requesting a special exception for
reduced criteria pursuant to the Ordinance. F.F. No. 58.


                The ZHB, as fact finder, is the ultimate judge of credibility and resolves
all conflicts of evidence. In re Appeal of Brickstone Realty Corp., 789 A.2d 333 (Pa.
Cmwlth. 2001). Section 1252.03(6) of the Ordinance requires “sufficient plans” to
support an application for special exception. The ZHB determined that the Plan
provided by Applicants met this sufficiency standard. The ZHB acted within its
discretion to determine the credibility of the Plan and of Applicants and Applicants’
expert. The ZHB found the evidence provided by Applicants to be more credible
than the evidence provided by Objector.                 F.F. Nos. 75, 80.         This credibility
determination does not amount to an abuse of discretion or error of law on the part
of the ZHB.


                Similarly, Objector argues that the ZHB abused its discretion and
committed an error of law by finding that Applicants complied with the requirements
of Section 1252.03(a)(4) of the Ordinance.11 Objector presented evidence regarding

      11
           Section 1252.03(a)(4) of the Ordinance reads:

                The applicant shall establish, by credible evidence, that the proposed special
                exception or other subject of consideration for approval will be properly
                serviced by all existing public service systems. The peak traffic generated
                by the subject of the approval must be accommodated for in a safe and
                efficient manner, or improvements must be made in order to effect the same.



                                                  7
the current traffic conditions along Johns Lane.             F.F. No. 76. Objector’s lay
testimony identified Johns Lane as “inherently unsafe,” a characterization that the
ZHB rejected as not credible. F.F. No. 80. No traffic engineer testified to the road
conditions or general safety on Johns Lane. F.F. No. 79. The ZHB also concluded,
based on the evidence of record, that the unsafe incidents that have occurred on Johns
Lane are “related to speeding, driving under the influence, and other moving
violations, and not caused by any inherently unsafe condition of the roadway.” F.F.
No. 78.


              As stated above, the ZHB is the ultimate judge of credibility of
evidence. In re Appeal of Brickstone Realty Corp., 789 A.2d at 339. The ZHB found
Objector’s evidence as to the unsafe road conditions on Johns Lane not credible. In
fact, the ZHB previously found “any and all testimony” from Objector’s expert, Mr.
Wert, not credible. F.F. No. 74. Additionally, Objector’s testimony was impeached
in part by her own conduct and acts of self-help, specifically “repeated placement of
cones” at the bend indicated at the intersection of Johns Lane and Susquehanna
Road. F.F. No. 80.


              Not every anticipated increase in traffic will justify the refusal to grant
a special exception. Fantastic Plastic, Inc. v. Zoning Bd. of Adjustment of Pittsburgh,
332 A.2d 577 (Pa. Cmwlth. 1975). To warrant a denial of a special exception, there
must be “not only a likelihood, but a high degree of probability” that the traffic


              Similar responsibility must be assumed with respect to other public service
              systems, including but not limited to police protection, fire protection,
              utilities, parks and recreation.

Ordinance §1252.03(a)(4).



                                               8
increase would pose a substantial threat to the health and safety of the community.
Lower Southampton Twp. v. B.P. Oil Corp., 329 A.2d 535, 540 (Pa. Cmwlth. 1974).
                 While Objector argues that Applicants did not meet their burden under
Section 1252.03(a)(4) of the Ordinance, the provision requires that, in addition to
“peak traffic… [being] accommodated for in a safe and sufficient manner,” the
property that is the subject of a request for special exception must “[be] serviced by
all existing public service systems.”              Ordinance §1252.03(a)(4).           The Subject
Property is capable of being served by public water and sewer. F.F. No. 35. Further,
the ZHB found that the evidence presented at the hearings did not establish that any
inherently unsafe traffic conditions exist along Johns Lane. F.F. No. 84. The ZHB
appropriately exercised its discretion and found Applicants’ evidence to be credible.


                 Objector also argues that the ZHB abused its discretion and committed
errors of law because Applicants did not comply with the requirements of Section
1252.03(a)(3) of the Ordinance.12 The examination of this provision was brief at
both the ZHB and trial court, but the ZHB determined that no credible evidence was
presented to show that granting the special exception requested will result in any
greater impact upon the public interest beyond what might be expected as a result of
the Subject Property’s use absent the grant of the special exception requested. F.F.


       12
            Section 1252.03(a)(3) of the Ordinance reads:

                 The applicant shall establish, by credible evidence, that the proposed special
                 exception or other subject of consideration for approval shall not adversely
                 affect neighboring land uses in any way and shall not impose upon its
                 neighbors in any way, but rather shall blend in with them in a harmonious
                 manner.

Ordinance §1252.03(a)(3).




                                                   9
No. 87. As the determination of the credibility of evidence is the role of the ZHB,
the ZHB was within its discretion to determine that the evidence presented satisfied
Section 1252.03(a)(3).


                         B. Historic Resource Protection Standards
                Objector argues that because Applicants’ request for a special
exception to the Ordinance references only the Manor House, to the exclusion of the
Additional Structures, the ZHB and the trial court erroneously ignored Section
1298.19(d)(1) of the Ordinance.13 Specifically, Objector cites a disregard for “spatial




      13
           Section 1298.19(d)(1) of the Ordinance reads:

                Instead of the demolition of an historic resource, a landowner or developer
                may (except in the case of a bed and breakfast application), as a special
                exception, be allowed to reduce the otherwise applicable area and bulk
                regulations, provided that all other zoning ordinance requirements related
                to the Flood Plain Conservation District are met. As a special exception, the
                [ZHB] may allow a reduction to the applicable area and bulk regulations, in
                the AA, AA-1, A, and A-1 Districts, provided that the historic resource
                meets or will be renovated to meet the standards in Subsection (g) below
                and is deed restricted (in a manner acceptable to the Township) to insure
                permanent protection from demolition and facade alteration (except with
                the written permission of the Township after a public hearing) for the
                historic resource lot, and further provided the following are met:
                        A. A lot area of not less than 18,000 square feet is provided for each
                lot and both public water and public sewer are available.
                        B. A lot width of not less than 85 feet at the building line is provided.
                        C. The front yard shall be not less than 25 feet.
                        D. The side yards shall be not less than 15 feet.
                        E. The rear yard shall be not less than 50 feet.
                        F. The total building coverage shall not exceed 25%.
                        G. The total impervious coverage shall not exceed 40%.

Ordinance §1298.19(d)(1).



                                                  10
relationship” and “rehabilitation” as sources of error for the ZHB and trial court.14, 15
Objector asserts that because the proposed subdivision that would eventually result
if the special exception is granted would destroy the spatial relationship between the
historic resources, granting the special exception violates the Ordinance. Further,
Objector argues that Applicants intend to rehabilitate the Additional Structures on
the Subject Property, meaning that the trial court erred in disregarding the
rehabilitation provision.


       14
          “Rehabilitation” is defined within Section 1298.19(b)(11) of the Ordinance as “[t]he act
or process of making possible a compatible use for a property through exterior repair, alterations,
and additions while preserving those portions or features which convey its historical, cultural, or
architectural values, in accordance with the use provisions of the Secretary of the Interior's
Standards.” Ordinance §1298.19(b)(11).

       15
         Objector relies on “Subsection (g)” as referenced in Section 1298.19(d)(1) of the
Ordinance in making arguments in regards to Applicants’ alleged violation of the Historic
Resource Protection Standards. The relevant portion of the Ordinance, Section 1298.19(g)(1)C, J
reads:

                       Any proposed change to a historic resource shall comply with the
               …Secretary of the Interior Standards, latest edition, adapted as follows:
                       ….
                       C. The historic character of historic buildings, structures, and sites
               shall be retained and preserved. The removal of distinctive materials or
               alteration of features, spaces, and spatial relationships that characterize a
               property shall be avoided. Historic building features such as porches,
               chimneys, and dormers shall not be demolished or modified to obscure their
               character.
                       .…
                       J. New additions, exterior alterations, or related new construction
               shall not destroy historic materials, features, and spatial relationships that
               characterize the property. The new work will be differentiated from the old
               and will be compatible with the historic materials, features, size, scale and
               proportion, and massing to protect the integrity of the property and its
               environment. Such new work shall not attempt to match the original design
               of the historic resource.

Ordinance §1298.19(g)(1)C, J.


                                                11
             Applicants requested a special exception for the Subject Property for
the purpose of complying with Section 1298.19(d)(1) of the Ordinance. Applicants’
request proposes a reduction in area and bulk regulations to continue to use the
Subject Property as Applicants’ primary residence.          The request for special
exception is based on the language of Section 1298.19(d)(1), which states that
“instead of the demolition of a historic resource” a reduction in bulk and area
regulations may be granted by application.


             Objector argues that by granting the special exception, the ZHB has
effectively allowed for a “removal of…spatial relationships” as prohibited by
Section 1298.19(g) of the Ordinance. The term “spatial relationships” is not defined
by the Ordinance and criteria is not outlined for compliance with this term.
Applicants presented an illustrative plan to the ZHB to provide an example of future
development that may be done at the Subject Property if the special exception is
granted. The granting of the special exception does not immediately result in the 7-
lot subdivision represented in the sample Plan. Therefore, while the special
exception was granted, the ZHB did not authorize a development project in relation
to the Subject Property. The special exception, even if in anticipation of a “proposed
change to a historic resource,” does not result in that change, which would implicate
the “spatial relationships” provision. Ordinance §1298.19(d)(1), (g).


             Objector further argues that in granting Applicants’ request for a special
exception, the ZHB ignored the “rehabilitation” provision of Section 1298.19(d)(1).
Objector concedes that Applicants propose no rehabilitation or restoration of the
Subject Property.    F.F. No. 66.     However, Objector asserts that Applicants’
“intention to restore … and maintain” the “outbuildings” indicates that the ZHB was
required to consider “rehabilitation” as a “proposed change” as described within the

                                         12
Ordinance. Section 1298.19(g); Reproduced Record (R.R.) at 456a, 463a. Objector
asserts that a change to the “outbuildings” must be considered when the ZHB decides
whether to grant the special exception.16


               While the evidence of record does contain references to Applicants’
desire to restore the “outbuildings” on the Subject Property, this future restoration is
not the subject of the application for special exception. Applicants submitted a
request for special exception for relief from area and bulk regulations under
Ordinance Section 1298.19(d)(1). Applicants did not seek this relief for the purpose
of restoring the existing structures on the Subject Property.                    Therefore, the
requirements of the rehabilitation provision do not apply.


            C. MPC Section 909.1(a)(6)17 and the Historic Overlay Concept

               Objector argues that the ZHB inappropriately delegated its exclusive
authority to grant special exceptions under Section 909.1(a)(6) of the MPC, 53 P.S.
§10909.1(a)(6) to the Township Board of Supervisors (BOS), a municipal governing
body. Objector asserts that the Subdivision and Land Development Ordinance


       16
          While Objector cites future improvements to the Additional Structures to require
Applicants to comply with Section 1298.19(d)(1) of the Ordinance, Objector raised the issue of
preservation of the Additional Structures at oral argument before this Court. Although the
Additional Structures are not depicted in the Plan, Applicants indicated “an intention to restore…
and maintain [these buildings] as part of their homestead.” R.R. at 463a.

       17
          Section 909.1(a)(6) of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53
P.S. §10909.1(a)(6) states: “The zoning hearing board shall have exclusive jurisdiction to hear and
render final adjudications in the following matters: … (6) Applications for special exceptions
under the zoning ordinance or flood plain or flood hazard ordinance or such provisions within a
land use ordinance, pursuant to section 912.1.”




                                                13
(SALDO), as described in Section 1298.19(e) of the Ordinance,18 must be considered
when deciding whether to grant the application for a special exception. Objector
acknowledges that the Ordinance refers to only “applicable requirements,” but
asserts that provisions of the SALDO apply to Applicants’ application for a special
exception.


              The Ordinance does not define what “otherwise applicable
requirements of the SALDO” describes. SALDO Section 1230.04 states that the
SALDO applies only to a “subdivision or land development.” Applicants have yet
to pursue a subdivision plan, with Objector’s expert admitting that the illustrative
Plan provided with the special exception application does not constitute a final plan
for the purposes of development. F.F. No. 64. Further, as it relates to development
permitting, the SALDO is administered by the Township BOS, not the ZHB.


              Objector argues that because the ZHB did not enforce Section
1298.19(e) of the Ordinance, but instead deferred to the authority of the Township
BOS, it abused its discretion and committed errors of law. The ZHB did not defer
the SALDO to the Township BOS as an exercise of discretion; instead, the ZHB
appropriately identified that the Township BOS is the source of authority for land
development permits within Lower Gwynedd Township.




       18
          Ordinance Section 1298.19(e) states: “Historic overlay concept. For any property shown
on the Historic Resource Map, when the property owner chooses to pursue a special exception, the
requirements of this section shall apply, in addition to the otherwise applicable requirements of
the Subdivision and Land Development Ordinance, and the underlying zoning district regulations.”
Ordinance §1298.19(e).


                                               14
             The ZHB further supported its finding that its role is not that of the
Township BOS, citing Smith v. Zoning Hearing Bd. of Huntingdon Borough: “The
basis for the judicial deference is the knowledge and expertise that a zoning hearing
board possesses to interpret the ordinance that it is charged with administering.” 734
A.2d 55, 58 (Pa. Cmwlth. 1999) (citing Willits Woods Associates v. Zoning Bd. of
Adjustment of City of Philadelphia, 587 A.2d 827 (Pa. Cmwlth. 1991)). The ZHB
interprets the SALDO to both not apply to Applicants’ request for special exception
and to be an ordinance administered by another authority, the Township BOS.


                                   III.      Conclusion
             At issue in this appeal is whether the ZHB committed an error of law
or abused its discretion in granting Applicants a special exception to the Ordinance.
The requested special exception allows for reprieve from dimensional requirements
for lot size as outlined in the Ordinance.


             When interpreting the terms of a local zoning ordinance, any doubt
must be resolved in favor of the landowner and the least restrictive use of the land.
Borough of Fleetwood v. Zoning Hearing Bd. of Borough of Fleetwood, 649 A.2d
651, 657 (Pa. 1994). The ZHB’s interpretation of the Ordinance favors Applicants,
the landowners, providing the least restrictive process for obtaining a special
exception. The ZHB acted within its discretion when it found that Applicants
provided credible evidence to demonstrate that compliance with the Ordinance was




                                             15
inappropriate or unreasonable and that a special exception should be granted for the
Subject Property. For the above reasons, we affirm.




                                          _________________________________
                                          J. ANDREW CROMPTON, Judge


Judge Cohn Jubelirer did not participate in the decision of this case.




                                         16
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Appeal of Joanne Lesko From the Decision :
Dated June 14, 2018 of the Lower Gwynedd :
Township Zoning Hearing Board            :
                                         :    No. 532 C.D. 2019
Appeal of: Joanne Lesko                  :


                                 ORDER


           AND NOW, this 9th day of July 2020, we AFFIRM the order of the
Court of Common Pleas of Montgomery County.



                                     _________________________________
                                     J. ANDREW CROMPTON, Judge
