D.P. Kissane v. Twp. Council of the Town of McCandless v. Wal-Mart Real Estate Business Trust

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dennis P. Kissane, Rita Martin, :

Suzanne Devore, Andrea Tiglio, :

Andrew Tiglio, Howard I. Roe, :

David C. Scares, Pat Bauer, Tracy :

Palmieri, Shawn Corrello, Joyce :

Wahlah, Angela Bidlack, Barbara :

B. Gordon, Robert B. Gordon, Lance :

Crow, David Eisenreich, and :

Kenneth Spear, :

Appellants : No. 314 C.D. 2015

: Argued: November 17, 2015

v. :

:

Town Council of the Town of :

McCandless :

:

v. :

:

Wal-Mart Real Estate Business :

Trust :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1

HONORABLE ROBERT SIMPSON, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE SIMPSON FILED: February 18, 2016

In this land use appeal, Dennis P. Kissane, Rita Martin and 15 other

property owners (Objectors) seek review of an order of the Court of Common

Pleas of Allegheny County (trial court)2 that dismissed their appeal from a decision

1

This case was assigned to the opinion writer on or before January 31, 2016, when Judge

Leadbetter assumed the status of senior judge.

2

The Honorable Joseph M. James, Senior Judge, presided.

of the Town Council (Council) of the Town of McCandless (Town) approving

applications for a subdivision plan (SP) and a preliminary and final land

development plan (LDP) submitted by the Wal-Mart Real Estate Business Trust

(Walmart). Objectors are homeowners in a residential district immediately

adjacent to the proposed Walmart site.

Objectors contend the trial court erred or abused its discretion by

affirming Council’s approval of Walmart’s SP and LDP applications where the

proposed site is too small and Walmart’s plans fail to comply with the applicable

provisions of the Town’s Zoning Code3 with respect to required parking and

stormwater controls. Objectors also argue the trial court erred or abused its

discretion by denying their motion to present additional evidence. For the reasons

that follow, we affirm.

I. Background

A. Generally

Walmart acquired equitable title to separate lots comprising

approximately 30 acres situated at 555 Blazier Drive within a C-5 Commercial

Residential District. Pursuant to the SP and LDP, Walmart intends to redevelop an

aging commercial property originally built as a shopping center in the early 1980s.

The shopping center included two large commercial buildings, comprising

approximately 135,000 square feet. Originally, a K-Mart retail store occupied the

larger structure (90,579 square feet). At the time Walmart filed its applications,

3

See Title Three of the Township’s Planning and Zoning Ordinance, Reproduced Record

(R.R.) at 10a-255a.

2

Trader Horn, a general merchandise store, and Brewery Outlet, a beer distributor,

occupied the larger structure. A Kroger grocery store originally occupied the now

smaller structure (43,964 square feet). Walmart plans to demolish the existing

structures and replace them with a 150,000 square-foot retail store with a grocery

component (Supercenter), and two out-parcels that can be developed at a later date.

Walmart’s plans describing the proposed development were available for public

review in the Town Hall from the date they were received on March 3, 2014. See

Appellee Township’s Br. at 4.

Walmart filed its applications for the LDP and SP in February 2014

and June 2014, respectively. Thereafter, three public meetings were held on

Walmart’s applications.

B. Public Meetings

On July 1, 2014, Walmart presented the preliminary/final LDP and SP

to the Planning Commission. Walmart’s applications were advertised as action

items in the Planning Commission’s revised agenda. Reproduced Record (R.R.) at

304a. Walmart’s public presentation included a slide show, drawings, and

comments from Walmart’s architects, engineers and counsel. See Comm’n

Minutes,7/1/14; R.R. at 324a-29a. At that meeting, the Planning Commission also

took public comment on the LDP and SP. Id.

On July 21, 2014, Walmart presented the LDP and SP to the Council’s

Zoning and Finance Committee (Zoning Committee) at its regularly scheduled

meeting. The Zoning Committee is comprised of all members of Council.

3

Approximately 170 residents appeared at the meeting, of which 138, including

several Objectors, signed in. At the meeting, which lasted five hours, the

Committee accepted extensive public comment on the LDP and SP. See Zon.

Comm. Minutes, 7/21/14; R.R. at 368a-73a.

On July 28, 2014, Council moved its regularly scheduled meeting to

the Carson Middle School to accommodate interest in the Walmart project.

Walmart made minor modifications to the LDP and SP based on comments from

the Zoning Committee. See Council Minutes, 7/28/14; R.R. at 394a-98a. Council

took more than five hours of public comment on all aspects of the applications.

Ultimately, Council voted 5-2 to approve the SP and 4-3 to approve the LDP. Id.

At the July 28 meeting, Objectors, having less than a week’s notice of

Walmart’s LDP and SP applications, requested a continuance of the proceedings in

order to have their own experts review Walmart’s applications and present their

own case through legal counsel. Council denied Objectors’ request.

C. Land Use Appeal

Thereafter, Objectors filed a land use appeal with the trial court

challenging Council’s approval of the LDP and SP. Essentially, Objectors alleged

their due process rights were violated because: they did not have an opportunity to

review the LDP and SP; they were denied an opportunity to have Walmart’s

applications reviewed by legal counsel or experts to determine their compliance

with the Zoning Code and other applicable laws; they were not afforded an

opportunity to present any legal case, supported by expert testimony, in opposition

4

to Walmart’s applications; and, they were not provided a copy of the written

decision approving the applications until the day before the expiration of the 30-

day appeal period. See Appellants’ Land Use Appeal at ¶32; R.R. at 448a.

Objectors nonetheless believed Walmart’s applications fell short of

compliance with the Town’s Zoning Code because Walmart’s plans did not

comply with the Zoning Code’s requirements for traffic improvements under a

legitimate traffic impact study. Objectors further averred Council failed to require

Walmart to establish it had the requisite real property interests for the

improvements depicted in its plans. Land Use Appeal at ¶35; R.R. at 449a.

However, without any meaningful opportunity to access Walmart’s applications,

Objectors could not “articulate with any specificity” the grounds upon which

Council erred or abused its discretion in approving Walmart’s applications. Land

Use Appeal at ¶36; R.R. at 449a. A fundamental requirement of due process is the

opportunity to be heard at a meaningful time and in a meaningful manner.

Plowman v. Plowman, 597 A.2d 701 (Pa. Super. 1991).

D. Motion to Present Additional Evidence

Objectors also filed a motion to present additional evidence, alleging

they were not afforded an opportunity to do so before Council. In their motion,

Objectors, previously unaware of Walmart’s plans for a McCandless store,

alleged they had no particular reason to regularly monitor the Town’s website or

the Planning Commission’s or Council’s upcoming meeting agendas. Therefore,

they were essentially denied an opportunity to obtain legal representation in order

to meaningfully review Walmart’s LDP and SP applications.

5

Furthermore, Objectors noted Council held no public hearings on

Walmart’s applications. Rather, Council held three public meetings in July 2014

and then approved Walmart’s LDP and SP. As a result, Objectors assert they had

no meaningful opportunity to determine whether Walmart’s LDP and SP complied

with the applicable standards in the Town’s Zoning Code.

Therefore, Objectors requested, pursuant to Section 1005-A of the

Pennsylvania Municipalities Code (MPC),4 53 P.S. §11005-A, that the trial court

reopen the record and remand the case to Council for an evidentiary hearing in

order to allow Objectors to present expert testimony and legal argument in

opposition to Walmart’s LDP and SP applications. Objectors further requested the

trial court to direct Council to reconsider its decisions to approve Walmart’s LDP

and SP in light of the additional evidence presented.

E. Walmart’s Intervention

Walmart intervened in Objectors’ appeal and opposed Objectors’

motion to present additional evidence. Walmart asserted Objectors were not

denied due process under the MPC. The Town held three separate public meetings

on Walmart’s applications. Thus, Objectors had adequate notice of the LDP and

SP applications under the MPC and the Town’s Zoning Code. Neither the MPC

nor the Zoning Code requires that the LDP or SP be subject to any additional

process prior to Council approval.

4

Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988,

P.L. 1329.

6

F. Denial of Motion to Present Additional Evidence

Following a hearing, the trial court made the following findings:

1. [Council] conducted two hearings on this matter and

took over ten hours of testimony;

2. [Objectors] failed to state in their offer of proof what

additional evidence they intended to offer;

3. Based on the Notice of Appeal filed and the motion to

present additional evidence and the oral proof as to the

content of the additional evidence, the Motion to Present

additional evidence is denied.

4. [Objectors’] request for an immediate appeal is denied.

5. Parties shall file their briefs on the underlying [Land

Use Appeal] within 45 days.

Tr. Ct. Order, 10/27/14, at 1-2; R.R. at 548a-49a.

G. Denial of Land Use Appeal

In denying Objectors’ land use appeal, the trial court rejected their

claim that Walmart’s 29-acre site is too small because the C-5 District requires a

30-acre minimum site requirement. The trial court observed that Section

1335.02(a) of the Zoning Code does not contain a minimum site requirement;

rather, it provides: “A C-5 District must contain a minimum of 30 acres.” R.R. at

168.1a (emphasis added). The C-5 District at issue here exceeds 30 acres; it is

comprised of at least four parcels totaling more than 45 acres. Tr. Ct., Slip. Op,

1/28/15, at 3. Aside from Walmart’s two parcels totaling 29 acres, there are two

contiguous lots totaling another 15 acres. Id.

7

The trial court further determined Walmart’s plan meets or exceeds

the Zoning Code’s requirements for front, rear and side yard buffer depths. Tr. Ct.,

Slip. Op., at 3. The 150,000 square foot Supercenter falls well within the 200,000

square foot limit in Section 1335.02(h) of the Zoning Code. See R.R. at 170a.

Also, the building coverage, based on gross lot area is only 14.7%, well within the

25% requirement in Section 1335.02(k) of the Zoning Code. Id.

The trial court also rejected Objectors’ argument that Walmart’s plan

does not provide for adequate parking. Section 1313.06(a) of the Zoning Code sets

the standard for retail store parking at one space for every 150 square feet of gross

floor area. R.R. at 33a. However, Section 1313.06(e) provides:

Council may require or approve alternative design

standards for off-street parking in response to unusual

conditions such as attendant parking, indoor parking …

or a clearly documented difference between expected

parking and required parking spaces; provided any

reduction in the number of required spaces so granted

shall be offset by a reserved area for future installation of

a like number of spaces to be so improved at the

discretion of the Town.

Section 1313.06(e) of the Zoning Code; R.R. at 35a (emphasis added).

Here, Walmart provided a detailed parking evaluation based on

similarly sized stores indicating that a ratio of 4.19 spaces per 1,000 square feet of

gross build area would be sufficient. Walmart further demonstrated it could

provide additional parking if needed. Therefore, the trial court determined Council

properly approved Walmart’s alternate parking plan for 624 spaces, with an

additional 376 spaces in two reserve parking areas. Tr. Ct., Slip. Op., at 4.

8

The trial court further determined Walmart’s stormwater plans comply

with Article 913 of the Town’s Streets, Utilities and Public Services Code (Utilities

Code), which governs stormwater management. Id. at 4-5. Walmart also

presented alternative stormwater plans in the event it needed to construct parking

in the existing stormwater basins. Id. at 5.

Finally, the trial court rejected Objectors’ argument that the Town

erred in approving Walmart’s plan because it fails to depict current Federal

Emergency Management Agency (FEMA) flood mapping. In August 2014, the

Town adopted a new ordinance governing Flood Plain Construction and

Development Requirements. The new ordinance became effective in September

2014. However, the trial court rejected Objectors’ claim that Walmart’s failure to

utilize the new FEMA maps invalidate Walmart’s LDP and SP. To that end, the

trial court noted the Town approved Walmart’s plans months before the new

ordinance became effective. Id. at 5.

Ultimately, the trial court observed, Council’s approvals of Walmart’s

LDP and SP were supported by substantial evidence. Id. Moreover, Walmart’s

plans were reviewed and approved by the Town’s various engineers, the Planning

Commission, the Zoning Committee and Council. Therefore, the trial court

determined Council properly approved Walmart’s LDP and SP. Accordingly, the

trial court denied Objectors’ land use appeal.5

5

Where the trial court takes no additional evidence, 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. Whitehall Manor, Inc. v. Planning Comm’n of the City of

Allentown, 79 A.3d 720 (Pa. Cmwlth. 2013).

9

II. Issues

Objectors present three primary issues. They contend the trial court

erred or abused its discretion in affirming Council’s approval of Walmart’s LDP

and SP because Walmart’s proposed site is too small. Objectors further assert the

trial court erred or abused its discretion in affirming Council’s approval of

Walmart’s LDP and SP where Walmart’s plans fail to comply with the applicable

provisions of the Town’s Zoning and Utilities Codes with respect to parking

requirements and stormwater controls. In addition, Objectors argue the trial court

erred or abused its discretion by denying their motion to present additional

evidence where they were denied a meaningful opportunity to develop a record in

support of their opposition to Walmart’s LDP and SP.

III. Discussion

A. Proposed Site

1. Argument

Objectors first contend Council erred in interpreting Section 1335 of

the Zoning Code as requiring only that a C-5 District contain a minimum of 30

acres rather than a minimum lot size of 30 acres. Here, Objectors assert Walmart’s

proposed site is only 23.42 acres, much less than the 30-acre minimum

requirement. Objectors note the Town recently amended Article 1335 in

December 2013 by enacting Ordinance No. 1443, immediately prior to Walmart’s

submission of its LDP and SP. As written, Objectors assert, Ordinance 1443

appears to change the lot size requirement to a minimum zoning district size, no

matter the size of any proposed development. Objectors maintain this provision is

inconsistent with the lot size requirements for all other districts in the Zoning

10

Code. Further, none of the other 15 districts in the Zoning Code have either a

minimum or maximum area requirement.

Objectors claim they are not challenging the validity of the 2013

amendments to Article 1335 of the Zoning Code.6 Rather, Objectors assert

Council’s interpretation of Section 1335.02(a) of the Zoning Code is an absurd and

unreasonable statutory construction under 1 Pa. C.S. 1922(a). Similar to statutes,

the fundamental objective in interpreting a municipal ordinance is to determine the

intent of the legislative body in enacting the ordinance. 1 Pa. C.S. §1921(a);

Bailey v. Zoning Bd. of Adjustment of City of Phila., 801 A.2d 492 (Pa. 2002).

Where the language of the ordinance is free from ambiguity, the letter of the

ordinance may not be disregarded under the pretext of pursing its spirit. 1 Pa. C.S.

§1921(b).

Alternatively, when the language in an ordinance is not clear or

explicit, the intent of the legislative body may be ascertained by considering,

among other things, the object to be obtained, the prior version of the law, if any,

the consequences of a particular interpretation, and, the legislative and

administrative interpretations of the provision. 1 Pa. C.S. §1921(c). However, in

reaching the proper interpretation of the ordinance, it is presumed that the

6

Pursuant to Section 916.1 of the MPC, added by the Act of December 21, 1988, P.L.

1329, as amended, 53 P.S. §10916.1, a validity challenge to zoning ordinance or map must first

be submitted to the ZHB as a substantive validity challenge or to the governing body as an

application for a curative amendment. A validity challenge cannot be raised for the first time

before a trial court. Dore v. Zoning Hearing Bd. of W. Norriton Twp., 587 A.2d 367 (Pa.

Cmwlth. 1991).

11

legislative body did not intend a result that is absurd, unreasonable or incapable of

execution. 1 Pa. C.S. §1922; Bailey.

Here, Objectors offer a number of reasons why Council’s

interpretation of Section 1335.02(a) is unreasonable or absurd. First, if a C-5

District in the Town contained less than 30 acres, it could not be commercially

developed to any extent. However, there is no C-5 District in the Town with less

than 30 acres. Therefore, Objectors assert, the requirement is superfluous.

Second, the Town’s interpretation of Section 1335.02(a)’s 30-acre

requirement is unreasonable or absurd because it does nothing to regulate the scale

of development in relation to the size of the lot on which it is proposed. Therefore,

Objectors assert, subject to the dimensional requirements of the Zoning Code, a

developer may build as large and intense a development on as small a site as

desired.7

Objectors further argue there is no cognizable reason why a C-5

District should have a minimum area requirement while none of the Town’s other

15 districts include a minimum area requirement. To that end, Objectors assert the

Town’s amendment deleting the 30-acre lot size requirement is a transparent

attempt to circumvent the rational zoning standards applicable in every other

district in order to accommodate Walmart’s undersized lot in the C-5 District.

7

Section 1335(g) permits a building’s maximum area to be 150,000 square feet. R.R. at

170a. Section 1335(h) permits maximum building square footage of 200,000 square feet. Id.

Section 1335(k) provides that building coverage based on gross lot area shall not exceed 25%.

Id.

12

Additionally, Objectors argue Walmart alternatively asserts it also

complies with a 30-acre lot requirement because it holds equitable title to separate

lots comprising approximately 30 acres. To the contrary, Objectors contend

Walmart does not have anything that is close to 30 acres. Rather, Objectors claim

Walmart’s commercial site will contain a net lot area of only 23.3 acres,

approximately 23% less than that required by a proper interpretation of Section

1335.02(a) of the Zoning Code.

Objectors also claim the Town’s zoning officer, Bruce Betty (Zoning

Officer), issued a June 2014 letter to Walmart indicating the project did not meet

the Zoning Code’s requirements. In his letter, Zoning Officer noted Walmart’s

proposed project had not received Council approval. See R.R. at 320a.

2. Analysis

Section 1335.01 of the Zoning Code defines the purpose a C-5 District

as follows (with emphasis added):

The purpose of a C-5 Commercial Residential

District is to provide areas of mixed use development in a

unified manner. It is desired to encourage innovation in

development planning by allowing an intermixing of

compatible commercial and residential uses in an

integrated complex, and to effect conservation and more

efficient use of available land and public services. Such

developments should be subject to final site development

approval by Council.

R.R. at 169a.

13

To begin our analysis, we note that a municipality may not withhold

approval of a land development plan that conforms to its regulations; the

municipality may not condition approval of a plan based upon a standard not

contained in its regulations. Montgomery Twp. v. Franchise Realty Interstate

Corp., 422 A.2d 897 (Pa. Cmwlth. 1980). With respect to Objectors’ argument

that Council and the trial court misinterpreted Section 1335.02(a) of the Zoning

Code, it is well-settled that words of a statute may be considered ambiguous if they

are capable of at least two reasonable interpretations. Bowman v. Sunoco, 65 A.3d

901 (Pa. 2013).

Here, however, the language of Section 1335.02(a) is clear and

unambiguous. It states (with emphasis added): “A C-5 District must contain a

minimum of 30 acres.” R.R. at 169a. In the present case, the subject C-5 District

is comprised of four lots totaling approximately 49.452 acres. See R.R. at 341a.

This includes Walmart’s two lots (Lot A: 23.42 acres and Lot B: 5.67 acres)

totaling approximately 29.09 acres. Id.

We also observe that Objectors misrepresented that the 2013

amendments purportedly deleted a lot size requirement. To the contrary, the

record indicates previous dimensional standards for a C-5 District, enacted in 1978,

did not specify an individual lot size requirement. See R.R. at 168.1a (“gross area

of 30 acres;” no mention of lot size). As such, there neither is, nor has been, since

at least 1978, a minimum lot size requirement for individual parcels in a C-5

District.

14

As noted, the purpose of the district is to encourage innovative uses of

property while taking into account conservation, efficient use of available land, and

public services. To that end, the plain language of Section 1335.02(a) requires

only the district itself be a minimum of 30 acres.

Further, rather than deleting existing dimensional requirements,

Ordinance No. 1443 actually added stricter dimensional standards, including new

landscaping and buffer yard requirements, maximum residential density

requirements, and building square footage requirements. See Sections 1335.03-

1335.06 of the Zoning Code; R.R. at 169a-71a.

We also reject Objectors’ argument that a June 2014 letter from the

Town’s Zoning Officer (indicating Walmart’s LDP had not yet received Council

approval) essentially continued in effect. See R.R. at 320a. That municipal letter,

required by the Department of Environmental Protection (DEP), indicated that

Walmart’s LDP did not receive Council approval at that time. Id.

As reflected by the record, Walmart obtained final approval of its

LDP in July 2014 by a 4-3 Council vote. See Zoning Officer’s July 29, 2014 letter

to Walmart (pertaining to the LDP). R.R. at 400a-02a. Walmart also obtained

final approval of its SP for a lot line revision in July 2014 by a 5-2 Council vote.

See Zoning Officer’s July 29, 2014 letter to Walmart (pertaining to the SP). R.R.

at 403a.

15

For the above reasons, we discern no error or abuse of discretion on

the part of either Council or the trial court in determining the unambiguous

language in Section 1335.02(a) of the Zoning Code requires only that a C-5

District itself must be a minimum of 30 acres. Bowman; Franchise Realty. As

such, the 30-acre requirement does not apply to individual lots within a C-5

District. Consequently, we reject Objectors’ contention that Walmart’s lot size is

too small for development as planned.

B. Parking and Stormwater Requirements

1. Parking

a. Alternative Parking Standards

i. Argument

Objectors contend Walmart’s site simply does not have sufficient

areas to provide the required number of parking spaces. They further assert

Walmart failed to demonstrate it can meet the standards for an alternative parking

scheme.

First, Objectors assert Section 1313.06(a) of the Zoning Code requires

one parking space for every 150 square feet of gross floor area plus an additional

one parking space for every 200 square feet of outdoor storage. R.R. at 33a.

Given Walmart’s 150,000 square-foot building, 1,000 parking spaces would be

needed. However, Walmart’s plan provides only 624 spaces, or 376 spaces (38%)

less than what Section 1313.06(a) requires.

16

Objectors further contend Walmart does not qualify for any

exceptions under Section 1313.06(e) of the Zoning Code, which provides (with

emphasis added):

Council may require or approve alternative design

standards for off-street parking in response to unusual

conditions such as attendant parking, indoor parking,

interaction between different abutting uses in the same

zoning district, or a clearly documented difference

between expected parking and required parking spaces;

provided any reduction in the number of required spaces

so granted shall be offset by a reserved area for future

installation of a like number of spaces to be so improved

at the discretion of the Town.

R.R. at 35a.

Objectors first argue Council never enacted or approved any alternate

design standards for off-street parking. Therefore, there are no such standards.

Objectors assert Section 1313.06(e) permits the application only if the applicant

competently demonstrates the existence of unusual conditions of the types

specified. In short, Objectors argue the unusual conditions are a condition

precedent to the alternative design standards; they are not themselves the

alternative design standards.

To that end, Objectors maintain Council and the trial court conflated

the term “unusual conditions” with “alternative design standards.” Although it is

the applicant’s burden to establish unusual conditions, Objectors contend

alternative parking standards must be established by legislative authority.

Objectors note alternative parking standards might include: the types or size of

17

developments to which alternative parking might apply; the process for

submission, review and approval of alternate plans; the necessary content of such

plans; limits on the amount of parking reduction; and, such considerations as

whether alternative parking may include off-site parking. Consequently, if the

applicant can demonstrate its proposed development is subject to unusual

conditions, then the proposed development may be able to gain approval of an

alternative parking plan so long as the alternative parking plan meets the

established alternative parking standards.

Here, Objectors argue Council neither enacted nor approved any

alternative parking standards. Rather, Walmart attempted to establish “unusual

conditions” by documenting a difference between “expected parking” and

“required parking spaces.” However, even assuming Walmart’s documentation is

competent, which Objectors assert it is not, Section 1313.06(e) of the Zoning Code

does not permit Walmart, or any other applicant, to simply provide whatever

amount of spaces it wants to provide. Moreover, Objectors assert, Section

1313.06(e) does not permit Council to sit quasi-judicially and decide the number of

required spaces on an ad hoc, or case by case, basis.

In sum, Objectors assert Section 1313.06(e) lacks legislatively

established uniform standards for alternative parking schemes. By comparison, the

City of Pittsburgh provides uniform parking requirements for specific uses and

rigorous standards for alternative parking. See R.R. at 256a-60a (Pittsburgh’s off-

street parking schedules). In other words, Objectors argue the Zoning Code’s lack

18

of alternative parking standards improperly permitted Walmart to decide the

number of required parking spaces it needs to provide.

ii. Analysis

Section 1313.06(e) of the Zoning Code provides (with emphasis

added) that “Council may require or approve alternate design standards for off-

street parking in response to unusual conditions such as … a clearly documented

difference between expected parking and required parking spaces; provided any

reduction in the number of required spaces so granted shall be offset by a reserved

area for future installation of a like number of spaces to be so improved at the

discretion of the Town.” R.R. at 35a. Aside from specifically described

conditions, the plain language of Section 1313.06(e) indicates the Town provided

for a reduced parking requirement where the applicant can show a clearly

documented difference between its expected parking needs and the required

number of parking spaces under the Zoning Code. Importantly, in such cases

Section 1313.06(e) also requires that the applicant provide for reserved parking up

to the Zoning Code requirement. R.R. at 35a.

Here, Walmart’s traffic engineer, McMahon and Associates

(Walmart’s Traffic Engineer), presented a May 2014 parking evaluation

memorandum to the Town’s traffic engineer, Trans Associates (Town’s Traffic

Engineer). Walmart’s parking evaluation included a study of peak parking demand

at 19 similarly sized Walmart stores. See R.R. at 290a-93a. In its memorandum,

Walmart’s Traffic Engineer opined that the Zoning Code’s requirement of 6.67

spaces per 1,000 square feet of was excessive and created “a sea of impervious

19

pavement and unused parking area .…” R.R. at 290a. Walmart’s Traffic Engineer

further opined, based upon the comparative evaluation, 4.19 spaces per 1,000

square feet of retail space would be adequate for the planned McCandless

Walmart. R.R. at 290a-92a. This is more than the 4.0 spaces per 1,000 square feet

of retail space typically required by a Walmart store to meet its anticipated parking

demand. R.R. at 291a. As reflected by the study, maximum parking demand at

any of the stores in the study never exceeded 3.85 spaces per 1,000 square feet.

R.R. at 293a.

In response, the Town’s Traffic Engineer indicated in a July 2014

letter that it concurred with the adequacy of Walmart’s proposed parking ratio of

4.19 spaces per 1,000 square feet of retail space provided that additional parking

could be provided if the need arose. See R.R. at 352a. The Town’s Traffic

Engineer noted the ratio of 4.19 spaces per 1,000 square feet of retail space

exceeded the peak demand at any location in the study. Id.

Based on its parking needs study, which the Town accepted as

credible, Walmart met the legislatively established condition in Section 1313.06(e)

of the Zoning Code for a reduction in parking. It did so by establishing a clearly

documented difference between its expected parking needs and the parking spaces

required by the Zoning Code. In short, Walmart met the Section 1313.06(e)

“either/or” requirement by establishing: (a) a lesser number of spaces are needed;

and, (2) the existence of an area available for additional parking sufficient to meet

the Zoning Code requirement.

20

Moreover, a calculation of expected parking needs based on the

anticipated use of a new development would, by necessity, be site or development

specific. Here, the plain language of Section 1313.06(e) permits an alternative

parking design specific to this development, with a requirement for reserved

parking spaces sufficient to meet the Zoning Code requirement, if they should be

needed. Although the reduction in parking is development specific, it is based on

the reasonably defined standard of expected actual parking needs. As such,

Objectors’ argument that Section 1313.06(e) is devoid of any uniform standards

for alternative parking schemes fails.

b. Unlawful Delegation of Legislative Power

i. Argument

In a related argument, Objectors contend Council’s approval of

Walmart’s alternative parking scheme, absent the application of legislatively

established standards, constitutes an unlawful delegation of legislative power or ad

hoc legislation. The prohibition against the delegation of legislative power

requires that basic policy choices actually be made by the legislative body.

William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269 (Pa. 1975).

The delegation doctrine serves two related purposes. Id. First, it insures that basic

policy choices are made by duly authorized and politically responsible officials.

Id. Second, it protects against the arbitrary exercise of unnecessary and

uncontrolled discretionary power. Id. By providing standards to guide those to

whom a legislative scheme is entrusted, the legislative body serves both purposes.

Id. Such standards articulate the basic policy choices made and limit the exercise

of discretion. Id.

21

Here, Objectors argue Council conflated the terms “standards” and

“unusual conditions” in Section 1313.06(e) as if that provision intended to create

ad hoc standards on a case by case basis. Objectors assert Section 1313.06(e)

neither articulates any standards nor authorizes the creation or use of ad hoc or

“case by case” standards.

ii. Analysis

To constitute an adequate standard under the delegation doctrine, the

standard itself need not be definite or precise. See William Penn Parking Garage

(power to find a tax invalid if it is unreasonable or excessive upheld as a

constitutional delegation of power); Commonwealth v. Cherney, 312 A.2d 38 (Pa.

1973) (authorization to Secretary of Highways to establish higher speed limits

where traffic or other conditions make it safe to drive faster upheld as a

constitutional delegation of power).

As discussed above, Section 1313.06(e) permits an alternative parking

design based on clearly documented evidence of expected parking needs. In so

doing, Section 1313.06(e) reflects a legislatively determined policy choice to

permit a reduction in parking based upon an objective showing of actual parking

needs. We find the “expected parking” language in Section 1313.06(e) to be an

adequate standard upholding a basic policy choice by the Town to permit a

reduction required parking spaces based upon documented analysis of anticipated

22

parking needs. As such, it does not constitute an unlawful delegation of legislative

power.8 William Penn Parking Garage.

c. Variance Needed

i. Argument

In another related argument, Objectors contend the Town may not

deviate from the requirements in Section 1313.06(a) of the Zoning Code. Rather,

the Town’s Zoning Hearing Board (ZHB) maintains exclusive jurisdiction to hear

and render final adjudications over applications for variances from the terms of the

zoning ordinance based on undue hardship and public interest concerns. See

Section 909.1 of the MPC9 (ZHB has exclusive jurisdiction over applications for

zoning variances).

Here, Objectors argue, absent any express legislative standards for

granting Walmart a reduced number of spaces, Council circumvented the exclusive

jurisdiction of the ZHB by granting Walmart’s request for a reduced number of

parking spaces under Sections 1313.06(e) based on expected parking needs.

8

Again, we note a validity challenge to a municipal zoning provision cannot be raised for

the first time in an appeal to a trial court. Dore. Although Objectors claim they are not

challenging the validity of Sections 1313.06(e) of the Zoning Code, the nature of their arguments

belies this claim.

9

Added by the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §10909.1.

23

ii. Analysis

As noted, Section 1313.06(e) of the Zoning Code permits Walmart to

submit an alternative parking design for its LDP based on a written analysis

documenting a difference between Walmart’s expected parking need of 4.19 per

1,000 square feet of gross floor area and the Zoning Code’s requirement of 6.67

spaces per 1,000 square feet. Council’s approval of Walmart’s plan is consistent

with the plain language of Section 1313.06(e) of the Zoning Code, which states

“Council may … approve alternate design standards for off-street parking in

response to unusual conditions such as … a clearly documented difference between

expected parking and required parking spaces ….” R.R. at 35a (emphasis added).

Here, Council accepted Walmart’s documentation that it needs only 4.19, not 6.67,

parking spaces per 1,000 square feet of gross floor area.

In short, because Council approved an alternate parking standard for

Walmart based on a documented difference between its expected parking needs

and the Zoning Code’s parking requirements, Council acted in accord with the

plain language of Section 1313.06(e). As such, there is no need for Walmart to

seek a variance from the Town’s zoning requirements.

d. Walmart’s Parking Needs Analysis

i. Argument

Objectors also contend Council erred or abused its discretion by

relying on Walmart’s documentation indicating its expected parking needs were

nearly 40% less than what is required by the Zoning Code. In particular, Objectors

claim Walmart’s parking comparison study is invalid because it did not limit itself

24

to Supercenters (stores with a grocery department), especially Supercenters in

western Pennsylvania or in comparably populated areas.

Objectors further claim Walmart’s parking analysis is invalid because

its parking studies covered just one weekday and one consecutive Saturday.

Moreover, Objectors assert Walmart’s study avoided the busiest December

holidays for all but one of the 19 locations. Consequently, Objectors maintain

Walmart’s parking needs analysis is arbitrary at best and cannot establish a clearly

documented difference between Walmart’s parking needs and the requirements of

the Zoning Code.

ii. Analysis

As discussed above, Walmart’s Traffic Engineer presented a May

2014 parking evaluation memorandum to the Town’s Traffic Engineer. Walmart’s

parking analysis included a study of peak parking demand at 19 similarly sized

Walmart stores. See R.R. at 290a-93a. Walmart’s Traffic Engineer opined, based

upon the comparative analysis, that 4.19 spaces per 1,000 square feet of retail

space would be adequate for the planned McCandless Walmart. R.R. at 290a-92a.

As reflected by the study, maximum parking demand at any of the stores in the

study never exceeded 3.85 spaces per 1,000 square feet. R.R. at 293a.

Ultimately, the Town’s Traffic Engineer, in a July 2014 letter,

concurred with Walmart that 4.19 spaces per 1,000 square feet would be

appropriate for the site as long as Walmart reserved an area for additional parking

sufficient to meet the Zoning Code requirement. R.R. at 352a.

25

Council acted in accord with the plain language of Section 1313.06(e).

Section 1313.06(e) affords Council a range of discretion to approve a required

number of parking spaces tailored to site-specific conditions peculiar to each

development. It is the function of Council as the fact-finder to determine the

credibility of the witnesses and to weigh the evidence. Pohlig Builders, LLC v.

Zoning Hearing Bd. of Schuylkill Twp., 25 A.3d 1260 (Pa. Cmwlth. 2011). This

Court may not substitute its interpretation for that of the fact-finder. Id. (citing

Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005)).

e. Garden Center; Outdoor Storage/Display

i. Argument

Objectors further contend Walmart failed to account for parking

required for its garden center and outdoor storage and display areas. Section

1313.06(a) of the Zoning Code requires one parking space for every 200 square

feet of outdoor storage/display area. Objectors also assert Walmart failed to state

that the outdoor storage/display areas used for gardening supplies actually diminish

the number of available parking spaces. Thus, Objectors argue Walmart seriously

under-calculated the number of required parking spaces, which will adversely

affect Objectors’ adjoining residential properties.

ii. Analysis

Walmart’s proposed 2,229 square-foot outdoor garden center area

would, at most, require an additional 11 spaces under Section 1313.06(a) of the

Zoning Code. See R.R. at 33a. As noted above, Council accepted Walmart’s

parking needs analysis indicating that maximum parking demand at any of the

26

stores included in the study never exceeded 3.85 spaces per 1,000 square feet.

R.R. at 293a. Consequently, Walmart’s planned parking ratio of 4.19 spaces per

1,000 square feet would easily cover an additional 11 spaces for garden center and

outdoor display.

We also reject Objectors’ assertion that Walmart’s garden center and

outdoor display area would actually diminish the planned parking spaces.

Objectors cite nothing indicating Walmart intended to use available parking spaces

for its garden center or outdoor display area. Rather, Objectors merely claim a

Google Earth snapshot shows that a neighboring Walmart used available parking

spaces for an outdoor display area. As such, Objectors’ contention that Walmart’s

LDP fails to comply with the Zoning Code’s parking requirements for outdoor

storage/display lacks any cognizable merit.

f. Reserved Areas for Future Parking Needs

i. Argument

Objectors also contend Walmart failed to comply with the Section

1313.06(e) requirement that an applicant must offset any reduction in parking

spaces “by a reserved area for future installation of a like number of spaces to be

so improved at the discretion of the Town.” See R.R. at 35a (emphasis added).

More specifically, Objectors assert Walmart failed to identify a properly reserved

area for future parking spaces because these areas are already devoted to

stormwater detention basins: Basin No. 1 and Basin No. 2. Basin No. 1 is

approximately 0.6 acres; Basin No. 2 is approximately 0.7 acres. Objectors argue

Walmart cannot be permitted to propose a reserved parking area in a detention

27

basin because such designated areas cannot be improved into parking areas at the

discretion of the Town. In other words, if the parking areas were constructed, this

would eliminate the detention basins.

Objectors further assert Walmart would have to obtain approval from

the Allegheny County Conservation District (County) in order to construct the

alternative stormwater management plan referenced in its LDP. However,

Walmart failed to obtain County approval for any alternative plan. Therefore,

Objectors argue Walmart’s LDP does not meet the requirements of the Town’s

Zoning Code.

ii. Analysis

The record indicates the Town’s stormwater engineers required

Walmart to submit an alternative method of stormwater management in the

situation where the basins would be needed for future parking. See R.R. at 350a

(Item #10). In response, Walmart attached its calculations and plans for an

alternative underground stormwater detention basin. See R.R. at 334a-40a.

Objectors contend this plan is invalid because Walmart needs County

approval to construct an underground stormwater system. However, Objectors fail

to cite any statutory or regulatory requirements Walmart failed to meet.

Section 913.201 of the Town’s Streets, Utilities and Public Services

Code (Utilities Code) recognizes that the Town is granted authority under the

28

Stormwater Management Act10 to regulate stormwater activities within its

boundaries. Regulated activities include (with emphasis added): land development

and redevelopment, subdivision, construction of new buildings and the

“[i]nstallation of stormwater management facilities or appurtenances thereto.”

Section 913.202.1 of the Utilities Code. Absent any allegation of a specific

violation of a statutory or administrative provision, we reject Objectors’ contention

that Walmart’s LDP and SP are invalid because Walmart failed to obtain County

approval of its proposed alternative stormwater management plans.

As to the alleged failure of Walmart to comply with the Section

1313.06(e) proviso for reserved future parking, Objectors do not explain what part

of the requirement has not been satisfied. That Section allows Council to approve

alternate design standards for off-street parking

provided any reduction in the number of required spaces

so granted shall be offset by a reserved area for future

installation of a like number of spaces to be so improved

at the discretion of the Town.

Section 1313.06(e); R.R. at 35a.

We discern no abuse of discretion by Council. Clearly, there is a

reserved area for the future installation of a number of parking spaces equivalent to

the reduction allowed. The reserved area is open space. There is no express

prohibition against also using the open space for stormwater detention. So long as

the plans accommodate both available space reserved for future parking and

10

Act of October 4, 1978, P.L. 864, as amended, 32 P.S. §§680.1-680.17.

29

approved alternate stormwater facilities if the open space is needed in the future,

we cannot say that Council’s decision was manifestly unreasonable, or the result of

partiality, prejudice, bias or ill will. See Henderson v. Unemployment Comp. Bd.

of Review, 77 A.3d 699 (Pa. Cmwlth. 2013).

2. Stormwater Requirements

a. Current FEMA Flood Mapping

i. Argument

Objectors next contend Council erred in approving Walmart’s LDP

because it fails to depict the most recent FEMA flood mapping. Current FEMA

flood mapping for the site, last revised September 26, 2014, shows the 100-year

flood area protruding significantly into Walmart’s build area. See Appellants’ Br.,

App’x. D-2. However, on Walmart’s LDP, the 100-year flood area does not

protrude into the build area. See Appellants’ Br., App’x. D-1.

Objectors assert both the Town and Walmart were acutely aware of

these changes. At the July 28, 2014 meeting, Zoning Officer stated that in 2011

the Town received notice that FEMA’s flood maps were being revised. See R.R. at

390a-91a. Zoning Officer commented that the new maps provide a satellite view

that will make it easier to identify flood plain areas. R.R. at 391a. Nevertheless,

Council approved Walmart’s LDP with conspicuously outdated flood mapping. As

a result, Walmart is permitted to build within the 100-year flood plain area.

30

ii. Analysis

Pursuant to Section 203 of the Flood Plain Management Act, 11 the

adoption and administration of floodplain management regulations is governed by

the MPC. Section 508(4) of the MPC provides that any change in a zoning,

subdivision or governing ordinance or plan, while a LDP or SP is pending approval

or disapproval, shall not adversely affect such application. 53 P.S. §10508(4).

Rather, the applicant is entitled to a decision in accordance with the provisions as

they stood at the time of application. Id.

Here, the new flood maps adopted by the Town were not revised and

effective until September 2014. However, Walmart submitted its LDP and SP

applications in February and June 2014. Further, the Town approved Walmart’s

LDP and SP in July 2014. Consequently, Walmart’s plans depicted FEMA’s flood

maps at the time the applications were considered. As such, they were not

invalidated by FEMA’s September 2014 revisions. Section 508(4) of the MPC, 53

P.S. §10508(4).

b. Stormwater Discharge

i. Argument

Objectors further contend Walmart failed to account for a significant

amount of stormwater routed from a planned basin located at the northeast corner

of the site and routed to an existing basin at the eastern end of the site. Objectors

assert this discharge is not accounted for in Walmart’s stormwater models.

11

Act of October 4, 1978, P.L. 851, as amended, 32 P.S. §§679.101 - 679.601.

31

ii. Analysis

In the present case, PVE Sheffler (Town Stormwater Engineers)

reviewed Walmart’s stormwater management plans and calculations on four

occasions. See R.R. at 294a, 328a, 321a, 366a. To that end, Council ultimately

conditioned approval of Walmart’s LDP upon Walmart’s compliance with all

items contained in Town Stormwater Engineers’ latest review letters.

Furthermore, Objectors cite no record evidence supporting their

assertion that Walmart’s stormwater management plan is deficient or that it in any

way runs afoul of the Town’s stormwater regulations. To the contrary, Objectors

assert they would have produced expert testimony on this subject if they would

have been afforded an opportunity to do so. Given the lack of objective support

for Objectors’ contention that Walmart’s plans failed to account for a significant

amount of stormwater discharge, we conclude Objectors’ argument lacks merit.

C. Motion to Present Additional Evidence

1. Argument

Objectors also contend the trial court erred or abused its discretion in

denying their motion to present additional evidence. Objectors claim the trial court

unfairly denied them an opportunity to present their case on the record, and then

rejected their arguments because they were not on the record.

First, Objectors assert Council failed to conduct public hearings and

take testimony. Rather, Council merely held two public meetings at which public

comment was permitted. Objectors maintain the distinctions between hearings

32

versus meetings, and testimony versus public comment, are enormous. At no point

did Council claim it held a public hearing on Walmart’s applications.

Second, Objectors assert the trial court erred or abused its discretion

in determining Objectors failed to indicate what additional evidence they intended

to offer. Objectors maintain they advised the trial court they intended to present

evidence regarding: the size deficiencies of Walmart’s site in a C-5 District;

Walmart’s failure to meet the parking and stormwater requirements; and,

Walmart’s failure to prove its development is outside of FEMA’s flood areas.

Objectors contend a fully developed record is essential to adequately

support these arguments. In short, although Objectors could make these

arguments, there is currently nothing in the record to support them.

Objectors also claim the trial court, in reviewing their land use appeal,

failed to properly perform its decision-making function. In particular, Objectors

contend the trial court failed to adequately address their various arguments

regarding: whether a proper interpretation of the language in Section 1335.02(a)

requires that a C-5 Commercial District contain a minimum of 30 acres; whether

Council properly approved Walmart’s alternative parking plan under Section

1313.06(e) of the Zoning Code; or, whether Council failed to count the additional

spaces required under 1313.06(a) of the Zoning Code for Walmart’s outdoor

storage and display area. Rather, Objectors assert, the trial court merely

determined that substantial evidence supports the Council’s approvals without

addressing the legal questions Objectors raised. Therefore, Objectors argue the

33

trial court erred by failing to perform its decision-making function and render a

legal judgment on these issues. A&L Invs. v. Zoning Hearing Bd. of City of

McKeesport, 829 A.2d 775 (Pa. Cmwlth. 2003).

2. Analysis

Whether to permit the presentation of additional evidence in a land

use appeal is a matter within the discretion of the trial court. Eastern Consol. &

Distrib. Servs., Inc. v. Bd. of Comm’rs of Hampden Twp., 701 A.2d 621 (Pa.

Cmwlth. 1997). Section 1005-A of the MPC, 53 P.S. §11005-A, affords the trial

court the discretion to either hold a hearing to receive additional evidence or

remand the case to the governing body or a special fact-finder.

The party seeking to present additional evidence bears the burden of

demonstrating the governing body denied a party the opportunity to be fully heard.

McGrath Constr. Co. v. Upper Saucon Twp. Bd. of Supervisors, 952 A.2d 718

(Pa. Cmwlth. 2008). In the absence of a demonstration that the record before the

governing body was insufficient for effective review or that relevant testimony was

offered and excluded, a request to present additional evidence may be denied. In

re Schieber, 927 A.2d 737 (Pa. Cmwlth. 2007).

Notably, the MPC places virtually no procedural requirements on a

governing body considering subdivision and land development proposals.

Miravich v. Twp. of Exeter, 6 A.3d 1076 (Pa. Cmwlth. 2010). In fact, the MPC

makes it clear that public hearings are not required. Whitehall Manor, Inc. v.

Planning Comm’n of the City of Allentown, 79 A.3d 720 (Pa. Cmwlth. 2013).

34

Whitehall Manor is instructive. In that case, two objectors challenged the

preliminary and final LDP and SP for the PPL Arena in Allentown, a project larger

than the proposed Walmart at issue here. The governing body in Whitehall Manor

issued the approvals approximately one month after the developer’s application

was filed and after a single public meeting.

Similar to the present case, the objectors in Whitehall Manor

advanced a number of procedural arguments, including a hurried approval in a

manner that prevented the objectors’ meaningful participation. The objectors

further alleged they received only two documents under the Right-to-Know Law

(RTKL).12 This Court, however, citing Miravich, found no due process violation

because the governing body followed the procedures set forth in the MPC.

Similarly here, both the Town and Walmart complied with the

requirements of the MPC, the Sunshine Act,13 and the Town’s Zoning and Utilities

Codes. Walmart presented the preliminary/final LDP and SP to the Planning

Commission on July 1, 2014 at a duly advertised public meeting. On July 21,

2014, Walmart presented the LDP and SP to the Council’s Zoning Committee,

which is comprised of all members of Council. Approximately 170 residents

appeared at the meeting, of which 138, including several Objectors, signed in. The

meeting lasted five hours; the Committee took extensive public comment on the

LDP and SP. On July 28, 2014, Council moved its regularly scheduled meeting to

the Carson Middle School to accommodate interest in the Walmart project.

12

Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.

13

65 Pa. C.S. §§701-716.

35

Council took more than five hours of public comments on all aspects of the

applications.

Finally, we note the MPC does not require that a governing body allot

time for residents to obtain trial counsel to review an LDP or SP, develop counter-

expert testimony or prepare an evidentiary rebuttal case. Whitehall Manor.

Rather, the General Assembly enacted Section 508 of the MPC to remedy

indecision and protracted deliberations by local governing bodies, to eliminate

deliberate or negligent action on the part of governmental officials and to assure

that an unsuccessful applicant is provided with bases for appeal. Timothy F.

Pasch, Inc. v. Springettsbury Twp. Bd. of Sup’rs, 825 A.2d 719 (Pa. Cmwlth.

2003). Having determined Objectors were not denied due process under the MPC,

we discern no error or abuse of discretion by the trial court in denying Objectors’

motion to present additional evidence.

In addition, we see no improprieties in the trial court’s opinion and

order denying Objectors’ land use appeal. The trial court reviewed the

unambiguous provisions of the Zoning Code at issue and determined Objectors’

arguments were unsupported by either the law or the facts. To that end, the trial

court reviewed and rejected each of Objectors’ arguments.

36

IV. Conclusion

For the above reasons, we discern no error in Council’s approval of

Walmart’s SP and LDP. Accordingly, we affirm the trial court’s order denying

Objectors’ appeal.

ROBERT SIMPSON, Judge

37

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dennis P. Kissane, Rita Martin, :

Suzanne Devore, Andrea Tiglio, :

Andrew Tiglio, Howard I. Roe, :

David C. Scares, Pat Bauer, Tracy :

Palmieri, Shawn Corrello, Joyce :

Wahlah, Angela Bidlack, Barbara :

B. Gordon, Robert B. Gordon, Lance :

Crow, David Eisenreich, and :

Kenneth Spear, :

Appellants : No. 314 C.D. 2015

:

v. :

:

Town Council of the Town of :

McCandless :

:

v. :

:

Wal-Mart Real Estate Business :

Trust :

ORDER

AND NOW, this 18th day of February, 2016, the order of the Court of

Common Pleas of Allegheny County is AFFIRMED.

ROBERT SIMPSON, Judge