Abington Little League, Inc. v. Glenburn Twp. ZHB ~ Appeal of: D. Druck

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Abington Little League, Inc. : CASES CONSOLIDATED

:

v. : No. 895 C.D. 2021

:

Glenburn Township Zoning Hearing :

Board :

:

Appeal of: David Druck, Marilyn :

Druck, Charles Sansky, Lynn Sansky, :

Gerard O’Sullivan, Cara O’Sullivan, :

and Marilyn Costa :

Abington Little League, Inc., :

Appellant :

:

v. : No. 925 C.D. 2021

: Argued: December 15, 2022

Glenburn Township Zoning :

Hearing Board :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY SENIOR JUDGE LEAVITT FILED: March 7, 2023

David Druck, Marilyn Druck, Charles Sansky, Lynn Sansky, Gerard

O’Sullivan, Cara O’Sullivan, and Marilyn Costa (collectively, Objectors) have

appealed an order of the Court of Common Pleas of Lackawanna County (trial court)

that reversed a decision of the Glenburn Township Zoning Hearing Board (Zoning

Board or Zoning Hearing Board) to deny Abington Little League, Inc. (Little League

or Abington) a special exception for the installation of lighting at two of its baseball

fields, along with a sound system. In reversing the Zoning Board, the trial court

imposed six conditions on the special exception that limited the hours that the

lighting and sound system could be used. Little League, designated as cross-

appellant, has appealed those conditions.1 After review, we affirm the trial court’s

decision on the special exception and reverse the trial court’s imposition of

conditions on Little League’s use of the lights and sound system.

Background

Little League is a non-profit corporation that owns the Ackerly Fields

Complex (Ackerly Fields), approximately 30 acres in size. Ackerly Fields consists

of five baseball fields, dugouts, batting cages, a concession stand, a playground, an

equipment shed, bleachers, parking facilities, a walking trail, and upgraded sewage

disposal facilities. Portions of the complex remain undeveloped. Ackerly Fields is

located in the M-1 District, Light Manufacturing. GLENBURN TOWNSHIP ZONING

ORDINANCE, §201.1 (December 2003) (ZONING ORDINANCE); Reproduced Record

at 80 (R.R.___).2 The intent of the M-1 District is stated as follows:

Based on location, existing uses and facilities, and the

relationship to other land uses, to reserve those areas in the

Township best suited for manufacturing and industry, uses with

potential for greater community impact, and other offensive uses.

ZONING ORDINANCE, §201.2; R.R. 81. The Zoning Board described Ackerly Fields

as “a grandfathered use in an M-1 zoning district.” Zoning Board Remand

Adjudication, 4/1/2019, at 6; R.R. 57.

1

Objectors’ and Little League’s respective appeals were consolidated by Order of this Court dated

January 20, 2022.

2

Rule 2173 of the Pennsylvania Rules of Appellate Procedure specifies: “[T]he pages of . . . the

reproduced record . . . shall be numbered separately in Arabic figures . . . thus 1, 2, 3, etc., followed

in the reproduced record by a small a, thus 1a, 2a, 3a, etc.” PA. R.A.P. 2173. Because Objectors’

Reproduced Record page numbers are not followed by a small “a,” for ease of reference, this

opinion refers to the reproduced record pages as numbered by Objectors.

2

In 2017, Little League sought a special exception from the Zoning

Board to install lights on two of its five fields. Little League explained that the lights

would be used for night games during the regular spring season, which runs from

April through June. The lights would also be used for All-Star games one or two

nights per week in June and July, with three games per week possible but unlikely.

Finally, Little League would use the lights during Fall Ball, which occurs in

September and October. Little League does not use its baseball fields from

November to March.

In its application to the Zoning Board, Little League requested (1) a

special exception because an outdoor lighting installation at a baseball field is not a

use specifically allowed or denied in any zoning district;3 (2) an interpretation of the

outdoor lighting provisions in the Zoning Ordinance; and (3) in the alternative, a

dimensional variance from the height limitation on the lighting poles should the

Zoning Ordinance be construed to impose such a limitation. Little League sought to

install six lighting poles on one of its larger fields and four lighting poles on one of

its smaller fields. The poles on the larger field would be between 60 and 80 feet

high, and the poles on the smaller field would be between 60 and 70 feet high. The

light poles will use LED lights that will be directed downward to focus on the fields.

The chosen lighting technology eliminates any glare and prevents almost all light

from spilling beyond Little League property borders.

The Zoning Board referred the matter to the Township’s Planning

Commission, which considered the special exception at a meeting on May 25, 2017.

At the meeting, Little League presented testimony from its president, Ryan

3

The Zoning Ordinance provides that “[w]henever a use is neither specifically permitted nor

specifically denied in any zoning district established under [the Zoning Ordinance] and an

application is made to the Zoning Officer for such use, the application shall be submitted to the

Zoning Hearing Board which shall have the authority to permit the use or deny the use as a special

exception.” ZONING ORDINANCE, §301.2A; R.R. 83.

3

Mitvalsky, and Robert Zoeller, a technical consultant with Musco Sports Lighting,

an international company that specializes in lighting for sports facilities and

stadiums. Zoeller is a member of the Illumination Engineering Society of North

America and qualified as a lighting expert in six states. Zoeller testified that Little

League Baseball guidelines are more stringent than those of the Illumination

Engineering Society of North America, and Little League’s proposal for Ackerly

Fields meets the more stringent guidelines.

The Planning Commission voted unanimously to recommend denial of

Little League’s request for a special exception. The Planning Commission believed

the Zoning Board lacked jurisdiction to consider Little League’s application because

baseball fields are a use permitted in a zoning district where private recreational

facilities are authorized, and lighting is an accessory use to the principal use of a

recreational facility.4 Accordingly, the Planning Commission determined Little

League’s proposed lighting installation was not a use that could be permitted as a

special exception. It also found that Little League’s proposed light poles were not

compatible with the existing, mainly residential, use in the surrounding area. As

such, the proposal was not consistent with the purpose and intent of the Zoning

Ordinance. In regard to the alternate request for a variance from the 25-foot height

limitations, the Planning Commission found that Little League did not prove its

proposal constituted the minimum variance needed.

4

The Zoning Ordinance defines Private Recreational Facilities as follows:

Outdoor or indoor areas of structures, operated by private non-profit or private

commercial entities, open to the public, which may contain entertainment and

amusement devices or attractions, including but not limited to picnic groves, animal

farms, zoological parks, tennis and racquetball courts, ski areas, miniature golf

courses, golf driving ranges, animal racing tracks, and the like, but excluding golf

courses, theaters, public parks and playgrounds.

ZONING ORDINANCE, §1003 (Definitions); R.R. 235.

4

Thereafter, the Zoning Board held hearings on July 10, and August 16,

2017. Essentially adopting the Planning Commission’s reasoning, the Zoning Board

held that it did not have jurisdiction to grant a special exception request but, in any

case, the grant of a special exception was not appropriate. The Zoning Board denied

Little League’s request for an interpretation of the lighting provision in the Zoning

Ordinance, finding that Little League satisfied some, but not all, of the applicable

standards. Finally, the Zoning Board held that Little League had not sustained its

burden for a variance and denied this request as well.

Little League appealed the Zoning Board’s decision to the trial court,

which heard oral argument on February 2, 2018. On September 18, 2018, the trial

court sustained Little League’s appeal and remanded the matter to the Zoning Board.

Noting that a private ballfield is not included in, or excluded from, the

Zoning Ordinance’s definition of private recreational facilities, the trial court

concluded that the Zoning Board erred in holding that it lacked jurisdiction over the

special exception application. On the merits, the trial court also determined that the

Zoning Board erred in concluding that Little League’s proposed outdoor lighting

project did not comply with Sections 601.8 E. (Nuisances) and 601.8 F. (Height) of

the Zoning Ordinance.

The Zoning Ordinance states that the “standards of the Illuminating

Engineering Society shall be used” for the design of a lighting installation. ZONING

ORDINANCE, §601.8; R.R. 159. The trial court identified inconsistencies both in the

Zoning Ordinance provisions on lighting standards and in the Zoning Board’s

analysis thereof. The trial court explained as follows:

So on the one hand, we have an Ordinance requiring proposed

projects to comply with specified standards and a project which

complies with those standards. On the other hand, we have a

conclusion of the Zoning Board that a project complying with

specifically mandated standards nonetheless violates the same

5

Ordinance. Additionally, the Board found that Abington’s

proposal satisfied the requirements for shielding (601.8 C.) and

glare (601.8 D.) (Findings and Conclusions, p. 35) but at the

same time was somehow inadequate with respect to shielding

(601.8 E. Nuisances). Additionally, Abington’s proposal called

for light standards ranging in height from 60-80 feet while the

Ordinance lists a maximum height of light standards at 25 feet

(with exceptions that do not apply here (601.8 F.)). So in effect,

the standards mandated by the Ordinance are in turn negated by

the Ordinance.

Trial Court Op., 9/18/2018, at 11; R.R. 47 (emphasis added). These inconsistencies

in the Zoning Ordinance led the trial court to conclude that there was no applicable

height limitation and, thus, a variance was not needed. It explained:

Since Abington employed the standards of the Illuminating

Engineering Society, as it was required to do by the Zoning

Ordinance, see Section 601.8 Lighting and Glare, and its

proposal was consistent with the mandated standards with

respect to the height of the poles, was a variance even necessary?

We conclude that it was not.

Trial Court Op., 9/18/2018, at 12-13; R.R. 48-49. The trial court remanded the

matter to the Zoning Board for further proceedings consistent with its opinion.

On remand, the Zoning Board conducted hearings over two days. On

January 9, 2019, Mitvalsky and Zoeller again testified. In addition, Little League

presented the testimony of Sue Savitski, a traffic engineer; Chris O’Boyle, a

professional realtor and Little League board member; Scott Douglas Allen, a

registered architect; and Robert Naegele, a civil engineer. On February 18, 2019,

real estate appraiser Leonard Silvestri and Thomas Shepstone, a planning consultant,

testified for Objectors, as did two Objectors, Lynn Sansky and David Druck. In

rebuttal, Naegele testified.

Zoeller testified that Little League’s proposal would not result in any

light spillage beyond Ackerly Fields. Savitsky, who formerly worked for the

Pennsylvania Department of Transportation performing traffic studies, testified that

6

there would be no significant impact on traffic caused by night games. O’Boyle

testified that Little League’s presence has had a positive effect on property values in

the community, and that effect has continued even while Little League’s special

exception request has been pending. Allen testified that Little League’s proposed

use was similar to, and compatible with, other conditional uses listed for the M-1

Zoning District. Naegele testified that the storm water drainage was adequate and

that the proposed lighting was a use consistent with, and even more desirable than,

the other conditional uses authorized in the M-1 Zoning District. These uses range

from bus terminals, detention facilities, and slaughterhouses, to solid waste facilities.

See ZONING ORDINANCE §301.3; R.R. 84-87.

For Objectors, Silvestri, a real estate appraiser, testified that the lights

may diminish property values in the nearby residential area by anywhere between

5% to 25%, given the potential for light trespass or spillover. Shepstone opined that

Little League did not qualify for a special exception because its proposed use would

not “be in harmony with the purposes, goals, objectives and standards of [the]

Ordinance and other ordinances of the Township.” ZONING ORDINANCE, §1108.4

(Standards and Criteria); R.R. 256. He recommended that a safety and

environmental impact study be done. Lynn Sansky, who owns a home abutting the

Little League property, testified that she can hear the games and see the fields from

her deck. She expressed concern that her home will lose value if Little League’s

request were to be approved. David Druck testified about similar concerns and

added that he does not want to hear Little League’s night games. William Wicks, a

neighborhood homeowner not affiliated with any party to the present action, testified

that he was concerned about a reduction in the value of his property should Little

League’s request be approved.

7

On April 1, 2019, the Zoning Board again denied Little League a

special exception, and Little League appealed to the trial court. On July 20, 2021,

the trial court reversed the Zoning Board’s remand adjudication, thereby allowing

the installation of lighting, along with the accompanying sound system, at two of

Little League’s five baseball fields. In addition, the trial court imposed six

conditions on the installation of lighting and a sound system.5

Objectors and Little League each appealed to this Court.6

5

The trial court’s order stated as follows:

1. Abington Little League, Inc. shall be permitted to install lighting on the two

baseball fields identified in its application and more fully described in the testimony

before the Glenburn Township Zoning Hearing Board, together with an

accompanying sound system;

2. Abington Little League, Inc. shall take the necessary steps to plant additional

trees, shrubs and other landscaping around the fields where the lighting will be

installed to be adequate and sufficient to provide a visual and/or aural buffer

between the Little League’s property and the neighbors’ properties;

3. The lighting and sound systems shall not be utilized on Sundays;

4. The lighting system may be used during the months of May, June, September

and October and shall cease operation no later than 8:00 p.m. Monday through

Thursday, and 9:30 p.m. on Friday and Saturday;

5. The lighting system may be used no more than twice weekly from Monday

through Thursday during the months of May, June, September and October;

6. The sound system may be utilized for All-Star games and tournaments during

June and July, but not for regular season games;

7. The lighting system will never be utilized during the months of January,

February, March, November and December.

Trial Court Op., 7/20/2021, at 32-33; R.R. 32-33.

6

“Where, as here, the trial court does not take additional evidence, this Court’s review determines

whether the Zoning Board committed an abuse of discretion or an error of law. An abuse of

discretion will be found where the Zoning Board’s findings of fact are not supported by substantial

evidence.” Frederick v. Allegheny Township Zoning Hearing Board, 196 A.3d 677, 686 n.13 (Pa.

Cmwlth. 2018) (citation omitted).

8

Appeal

In their appeal, Objectors have raised three issues. First, they contend

that Little League did not prove that its proposed use does not conflict with the intent

of the M-1 Zoning District or the general purpose and intent of the Zoning

Ordinance. Second, they contend that Little League did not prove that its proposed

use of outdoor sports lighting is similar to and compatible with the conditional uses

expressly allowed in the M-1 Zoning District. Third, they contend that assuming

arguendo Little League established a basis for a special exception, the Zoning Board

correctly held that the proposed outdoor lighting would be detrimental to the health,

safety and welfare of the surrounding residential community, and the trial court erred

in otherwise holding.

In its appeal, Little League presents one issue for this Court’s review.

It contends that the trial court erred and abused its discretion in setting limits on

Little League’s use of the lights and sound system.

Analysis

I.

In their appeal, Objectors first argue that Little League did not meet its

burden under Section 301.2 of the Zoning Ordinance of proving that its proposed

use does not conflict with the intent of the M-1 District and the general purpose of

the Zoning Ordinance. These standards are drawn from Section 301.2(B) of the

Zoning Ordinance, which requires the applicant for a special exception to show the

following:

B. Findings - The use may be permitted only if the Zoning Board

makes all of the following findings; and, the burden of proof shall

be upon the applicant:

1. The use is similar to and compatible with the uses

listed for the subject zoning district by the Schedule

Regulations.

9

2. The use in no way conflicts with the intent of the

zoning district and the general purpose and intent

of this Zoning Ordinance.

3. The use is not permitted in any other zoning

district.

ZONING ORDINANCE, §301.2(B); R.R. 83 (emphasis added). Objectors’ first issue

turns on the second requirement – the intent of the M-1 District and the general

purpose of the Zoning Ordinance. Id.

In response, Little League argues that its burden was to satisfy the

objective criteria for the conditional use, which then establishes a “presumption []

that the use is consistent with the health, safety and general welfare of the

community.” Freedom Healthcare Services, Inc. v. Zoning Hearing Board of City

of New Castle, 983 A.2d 1286, 1291 (Pa. Cmwlth. 2009). It is not disputed that

Little League satisfied the objective criteria in the Zoning Ordinance for the

installation of outdoor lighting. As the trial court noted: “The [Zoning] Board did

conclude that the standards of the Illuminating Engineering Society have been met

with respect to [] Little League’s proposal.” Trial Court Op., 7/20/2021, at 25; R.R.

25. Little League argues that because the Zoning Ordinance requires applicants to

show that the proposed use is in harmony with “the general purpose and intent of

[the] Zoning Ordinance,” it is too vague to be enforceable. It contends that under

Bray v. Zoning Board of Adjustment, 410 A.2d 909, 912 (Pa. Cmwlth. 1980), a vague

requirement of this type requires the opposition to the special exception to bear the

burden of persuasion and proof. The Zoning Board erroneously required Little

League to carry this burden. In any case, Little League argues that the trial court

correctly held that the Zoning Board’s adjudication was unsupported by the record

or any cogent legal analysis.

With regard to the intent of the M-1 District, the Zoning Ordinance

states as follows:

10

M-1 Light Manufacturing[:] Based on location, existing uses and

facilities, and the relationship to other land uses, to reserve those

areas in the Township best suited for manufacturing and industry,

uses with potential for greater community impact, and other

offensive uses.

ZONING ORDINANCE, §201.2; R.R. 81 (emphasis added). The general intent and

purpose of the Zoning Ordinance is stated as follows:

This Ordinance is adopted in accordance with an overall land use

control program and with consideration for the character of the

municipality, its various parts and the suitability of the various

parts for particular uses and structures. This Ordinance is

enacted for the following purposes:

A. To promote, protect and facilitate one or more of

the following: the public health, safety, morals,

general welfare; coordinated and practical

community development; density of population; . .

. disaster evacuation, . . . the provisions of adequate

light and air; police protection; vehicle parking and

loading space; transportation; . . . reliable, safe and

adequate water supplies; safe and adequate

sewerage disposal, . . . and other purposes set forth

in the Pennsylvania Municipalities Planning Code

[(MPC)].[7]

B. To prevent one or more of the following:

overcrowding of land, . . . blight, danger and

congestion in travel and transportation, loss of

health, life or property from fire, flood, panic or

other dangers.

ZONING ORDINANCE, §102; R.R. 77 (emphasis added). In short, the general purpose

of the Zoning Ordinance is sometimes promotional and other times preventative.

In looking to “intent” and “purpose,” the Zoning Board focused on

whether outdoor lighting of a sports field was similar to, and compatible with, the

conditional uses listed for the M-1 District, not whether it conflicted with the Zoning

7

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

11

Ordinance’s stated intent for the M-1 District. The stated intent of the M-1 District

is to provide an area for “uses with potential for greater community impact[] and

other offensive uses.” ZONING ORDINANCE, §201.2; R.R. 81.

The trial court concluded that the Zoning Board’s factual findings about

the adverse impact from the proposed lighting system actually supported the

conclusion that this use belonged in the M-1 District. Specifically, the Zoning Board

found that “baseball under the lights has the potential for ‘greater community

impact’ and, therefore, will be ‘offensive’ because of glare, noise and traffic in the

evenings on which games are played.” Trial Court Op., 7/20/2021, at 9; R.R. 9

(quoting Zoning Board Remand Adjudication, 4/1/2019, at 10; R.R. 61). Given the

Zoning Board’s finding on the “offense” and “greater community impact caused” by

“baseball under the lights,” the trial court concluded that “these fields are exactly

where they ought to be,” i.e., in the M-1 District. Trial Court Op., 7/20/2021, at 9;

R.R. 9. The M-1 District is specifically intended for “offensive uses.” ZONING

ORDINANCE, §201.2; R.R. 81.

As to the general purpose and intent of the Zoning Ordinance, ZONING

ORDINANCE, §102(A), the Zoning Board concluded that public health, safety,

general welfare, community development, density of population, adequate light and

air, police protection, vehicle parking, transportation, and natural resources would

be adversely impacted by the installation of Little League’s lighting. Zoning Board

Remand Adjudication, 4/1/2019, at 7-11; R.R. 58-62. The trial court rejected this

conclusion as lacking any basis in the record. It explained as follows:

The proposed use has zero impact on the density of population

and has nothing to do with community development. Likewise,

there is no additional impact on light or air, parking or

transportation or natural resources. Any impact this activity

visits is extant. All that is proposed is the addition of some

lighting on two fields for the purposes of playing baseball on a

limited number of evenings. Baseball has been played on these

12

fields for years. Any impact it has had on public safety, general

welfare, community development, density of population,

adequate light and air, police protection, vehicle parking,

transportation and natural resources has likewise been extant.

Trial Court Op., 7/20/2021, at 7-8; R.R. 7-8 (emphasis added). In short, the absence

of daylight has little or no impact on the matters sought to be promoted by the Zoning

Ordinance.

As to the “preventions” set forth in Section 102(B) of the Zoning

Ordinance, the trial court rejected the Zoning Board’s conclusion that it was

necessary to deny the special exception in order to prevent overcrowding of land,

danger and congestion in travel, and loss of property from other dangers. The trial

court first noted that the Zoning Board did not explain how sports lighting relates to

overcrowding, especially since lighting would be limited to two of the five baseball

fields. Second, because there are fewer games in the evening, the presence of lights

could not have any effect on traffic congestion. Third, the Zoning Board did not

explain how “loss of property from other dangers” would result from baseball under

the lights or even what those other dangers could be. Trial Court Op., 7/20/2021, at

9-10; R.R. 9-10.

We discern no error in the trial court’s analysis reversing the Zoning

Board’s conclusion that a lighted baseball field would deviate from the intent of the

M-1 District or the general purpose of the Zoning Ordinance. We agree with the

trial court that there was no support in the record for the Zoning Board’s legally

erroneous conclusions.8 The Zoning Board erred and abused its discretion in holding

8

Little League argues that under Bray, 410 A.2d 909, Section 301.2(B) is vague, and Objectors

had the burden of coming forward with the evidence. The trial court did not specify which party

bore the burden of proof. Rather, the trial court determined that the Zoning Board erred by

reaching conclusions that were based on a misapplication of the law and a lack of the requisite

support in the record. Even if the Zoning Board incorrectly imposed the burden of proof on Little

League, rather than Objectors, the outcome is the same.

13

that outdoor lighting of Little League’s baseball fields did not satisfy the stated intent

for the M-1 District and general intent and purpose of the Zoning Ordinance.

ZONING ORDINANCE, §301.2(B); R.R. 83.

In their second issue, Objectors contend that Little League did not meet

its burden of proving that its proposed outdoor sports lighting is similar to, and

compatible with, the primary and conditional uses authorized in the M-1 District.

They contend that the Zoning Board correctly concluded that the vehicles and light

produced by the night use of the baseball fields would not be compatible with the

primary use, i.e., forestry, or any of the conditional uses contemplated for the M-1

District.

The conditional uses authorized for the M-1 District are varied. They

include:

- Agricultural and food products processing

- Bulk fuel storage facilities

- Bus terminals

- Construction contractors, including storage of heavy equipment

- Crematoriums

- Detention facilities

- Junk yards

- Manufacturing, light

- Manufacturing and industry

- Natural resources processing

- Recyclable processing facilities

- Recycling collection facilities, large

- Slaughter houses

- Solid waste facilities, commercial

- Solid waste facilities, public

- Solid waste staging areas

- Truck terminals

14

- Warehouses

ZONING ORDINANCE, §301.3; R.R. 87. The Zoning Board reasoned that none of the

uses in this list “involve outdoor recreational activity at night, the use of 60-, 70- and

80-foot lights, nighttime gatherings of children, parents and coaches, vehicular and

pedestrian traffic, nighttime activity and noise.” Zoning Board Remand

Adjudication, 4/1/2019, at 7; R.R. 58. Therefore, the Zoning Board concluded that

lighted baseball fields were incompatible with the conditional uses authorized in the

M-1 District.

The trial court rejected the Zoning Board’s rationale, noting that even

a cursory review of the authorized conditional uses revealed the Zoning Board’s

error. The trial court explained as follows:

Indeed, it is difficult to imagine the allowed uses, for example,

bus terminals, detention facilities, truck terminals, warehouses,

recycling facilities, slaughterhouses and solid waste facilities

(both commercial and public) operating in the absence of people,

vehicles, pedestrians, light and noise, day and night. Moreover,

there is nothing in the record to establish any numbers of people,

children, vehicles, etc., expected with the proposed use in

relation to the listed uses.

Trial Court Op. at 6-7; R.R. 6-7 (emphasis in original). We agree.

Bus terminals, detention facilities and truck terminals necessarily

generate the presence of people, vehicles, pedestrians, light, and noise. They operate

day and night. The record is silent on the number of people, children, vehicles, and

pedestrians, or the amount of light and noise, generated by lighted baseball fields

relative to the conditional uses allowed in the M-1 District. Simply, the Zoning

Board’s findings in this regard are not supported by substantial evidence. As such,

the Zoning Board erred and abused its discretion in concluding that Little League

did not prove that its proposed use was similar to, or compatible with, the uses listed

for the M-1 District.

15

In their third issue, Objectors argue that assuming arguendo that Little

League established a right to a special exception, the Zoning Board properly

concluded that the proposed use would be detrimental to the health, safety, and

welfare of the surrounding community. They argue that the trial court erred in

otherwise holding.

In granting a special exception, there must be a showing that the

proposed use

shall not result in a substantial or undue adverse effect on

adjacent property, the character of the neighborhood, traffic

conditions, parking, public improvements, public sites or rights-

of-way, adjacent property values, or other matters affecting the

public health, safety, and general welfare[.]

ZONING ORDINANCE, §1108.4; R.R. 256 (emphasis added). The Zoning Board

determined that lighted baseball fields would adversely affect the public health,

safety, and the general welfare because there would be additional light, noise, dust,

and people, during the nighttime hours, which could require more police, fire, and

emergency services. Specifically, it reasoned as follows:

The adverse effect on adjacent property will involve additional

light, noise, dust, people and traffic at night, which are additional

times which have not previously been used by [] Little League.

There will be an undue adverse, [sic] effect on the character of

the neighborhood. With two fields lit at nighttime by multiple

light standards, some of which rise to 80 feet, there will be

additional light, noise, dust, people and traffic. This will change

the rural aesthetic of both the Township and the neighborhood .

. . . [A]s codified in the Zoning Ordinance, the Township has a

rural, subdued aesthetic which is particularly available at night.

It provides a place where residents, like [Objectors] who

testified, a place of quiet, dark, inactivity, calmness and

solemnity. Youth baseball games at night on two fields are

directly inapposite to and inconsistent with this calmness and

solemnity.

16

Zoning Board Remand Adjudication, 4/1/2019, at 12-13; R.R. 63-64 (emphasis

added).

In reaching this conclusion, the Zoning Board rejected all of Little

League’s evidence and accepted all the evidence of Objectors. The Zoning Board

explained that “Mr. Allen, Mr. O’Boyle, and Mr. Naegele, while well intentioned

and well spoken, have children in Little League currently, which affects the

objectiveness of their opinions.” Zoning Board Remand Adjudication, 4/1/2019, at

13; R.R. 64. By contrast, the Zoning Board found Silvestri’s opinion that real

property values could fall anywhere from 5% to 25% persuasive over the opinion of

Little League’s appraisal expert that the ballfields had a salutary impact on property

values. The Zoning Board characterized its decision as “objective” and

“dispassionate.” Zoning Board Remand Adjudication, 4/1/2019, at 25; R.R. 76.

The trial court rejected the Zoning Board’s characterization of its work

as “objective,” noting that “[s]imply because the Zoning Board describes its decision

as such does not make it so.” Trial Court Op., 7/20/2021, at 31; R.R. 31. The trial

court acknowledged the prerogative of the Zoning Board to make credibility

determinations.9 Nevertheless, the record must substantiate the Zoning Board’s

credibility determinations. Here, the Zoning Board erred in crediting witnesses

whose opinions lacked a foundation in the record.

Where an expert opinion lacks a foundation in the record, it must be

rejected as incompetent. Indeed, an expert opinion “is incompetent and may not be

admitted into evidence if the expert’s opinion is based upon mere conjecture.”

Hussey v. May Department Stores, Inc., 357 A.2d 635, 637 (Pa. Super. 1976); see

also, e.g., Collins v. Hand, 246 A.2d 398, 404 (Pa. 1968) (“An expert cannot base

9

See Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807, 811 (Pa. Cmwlth. 2005)

(stating that the zoning hearing board may reject testimony it finds lacking in credibility and may

choose to believe one expert and not another).

17

his opinion upon facts which are not warranted by the record. No matter how skilled

or experienced the witness may be, he will not be permitted to guess or to state a

judgement based on mere conjecture.”); Somerset Welding and Steel v. Workers’

Compensation Appeal Board (Lee), 650 A.2d 114, 118 (Pa. Cmwlth. 1994) (the

supposed facts forming the basis of a medical expert’s opinion must be proven by

competent evidence).

Here, the Zoning Board credited the testimony of real estate appraiser

Silvestri, even though he “offered no method in expressing his opinion about the

rather broad range in diminution of values [he] applied” between 5% and 25%. Trial

Court Op., 7/20/2021, at 29; R.R. 29 (emphasis added). Further, Silvestri conceded

that he “did not do any appraisals on the properties.” Notes of Testimony (N.T.),

2/18/2019, at 366, 370; R.R. 866, 870. He acknowledged that a full appraisal was

necessary to assign a diminution in property value. Silvestri did not address

Zoeller’s testimony and expert report that the lights would not impact residential

property values. Instead, Silvestri “in conclusory fashion,” offered “a wide range of

potential diminution in value” for the neighboring properties, painting “with the

broadest of brushes.” Trial Court Op., 7/20/2021, at 20; R.R. 20. When asked, for

sake of comparison, about the potential impact of bus terminals, junk yards, and

slaughterhouses on neighboring residential property values, Silvestri testified “I

don’t have an opinion.” N.T. 363; R.R. 863.

The trial court concluded that Objectors’ witnesses and experts

established that they do not want Little League’s lights, but it is “not up to the

neighbors” to decide. Trial Court Op., 7/20/2021, at 28; R.R. 28. They did not show,

with probative evidence, that lighted baseball fields had an impact on property

values that was greater than the impact of junk yards and slaughterhouses.

We discern no error in the trial court’s analysis that the Zoning Board

erred and abused its discretion in relying upon evidence that did not demonstrate

18

more than “unsubstantiated concerns or vague generalities[.]” Siya Real Estate LLC

v. Allentown City Zoning Hearing Board, 210 A.3d 1152, 1160 (Pa. Cmwlth. 2019).

Objectors had to show “a high degree of probability” that the lighted fields will

adversely impact the health and safety of the community, and they did not. Marr

Development Mifflinville, LLC v. Mifflin Township Zoning Hearing Board, 166 A.3d

479, 483 (Pa. Cmwlth. 2017). Objectors’ stated concerns about property values and

aesthetics did not establish an adverse impact on the general welfare of the

Township.

We hold that the trial court properly rejected the Zoning Board’s

adjudication as not supported by the record and based upon erroneous conclusions

of law. The trial court issued its holding without addressing Little League’s

contention that Objectors bore the burden of proving, with a high degree of

probability, that approval of Little League’s application for a special exception was

not in harmony with the intent and purposes of the Zoning Ordinance. Because we

discern no error in the trial court’s conclusion that the Zoning Board’s findings of

fact were not supported by substantial evidence and its legal conclusions erroneous,

there is no need for us to decide Little League’s contention that Bray, 410 A.2d 909,

required the Zoning Board to place the burden of proof on Objectors.

We affirm the order of the trial court that the Zoning Board erred and

abused its discretion in denying Little League’s application for a special exception.

II.

In its appeal, Little League challenges the trial court’s conditions on the

use of the lights and sound system. It contends that they are not supported by the

record. Rather, the trial court imposed conditions in an effort to bring the “saga” to

an end. Little League Brief at 38.

The MPC authorizes the imposition of conditions upon the approval of

a special exception. Section 912.1 of the MPC states as follows:

19

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.

53 P.S. §10912.1 (emphasis added). A zoning board’s conditions may be imposed

to “mitigate any potential adverse impacts from the proposed use[.]” In re Maibach,

LLC, 26 A.3d 1213, 1216 (Pa. Cmwlth. 2011). The MPC specifically authorizes

the “governing body” of a municipality to impose conditions, but it does not

authorize a court of common pleas to do so as part of a land use appeal.

On the other hand, Section 1006-A(a) of the MPC does authorize the

trial court to modify a zoning board “action, decision or order.”10 Here, because the

Zoning Hearing Board denied the special exception requested by Little League, the

trial court was not presented with a decision that imposed any conditions. As we

have explained:

Inasmuch as the adjudication of the Board was a denial of a

special exception, the court could reverse the action of the Board,

but it then had nothing before it to modify. We do not interpret

the word “modify” in Section 1009[11] . . . to mean that the court

10

Added by the Act of December 21, 1988, P.L 1329. It states:

In a land use appeal, the court shall have power to declare any ordinance or map

invalid and set aside or modify any action, decision or order of the governing body,

agency or officer of the municipality brought up on appeal.

53 P.S. §11006-A(a) (emphasis added).

11

Section 1009 of the MPC, Act of July 31, 1968, P.L. 805, repealed by the Act of December 21,

1988, P.L. 1329, provided, in relevant part, that on an appeal from a zoning board of adjustment:

The final decision shall contain conclusions of law, and: (1) Where the appeal is

from the decision of the board, the court may reverse, affirm or modify the decision

appealed.

20

could reverse the Board’s denial and thereafter impose its own

restrictions and conditions upon the special exception . . . . [I]t is

the local zoning officials who have the knowledge of local

circumstances who should establish the conditions to be applied

to special exceptions.

Butler v. Derr Flooring Company, 285 A.2d 538, 543 (Pa. Cmwlth. 1971) (emphasis

added). In sum, the trial court’s power to “modify” does not include the power to

impose its own conditions when it reverses a zoning board’s denial of a special

exception.

Here, the trial court reversed the determination of the Zoning Board.

As such, there were no conditions in the Zoning Board adjudication for the court to

“modify.” Moreover, the trial court was acting in its appellate capacity, reviewing

the Zoning Board’s decision for error of law. The record lacked any factual evidence

that would support the landscaping requirements and limits on hours of use as

conditions on the special exceptions that were imposed by the trial court.

For these reasons, we reverse the trial court’s imposition of conditions.

Conclusion

For all of the above reasons, the trial court’s order is affirmed, in part,

and reversed, in part. It is affirmed to the extent it reverses the Zoning Board’s

denial of Little League’s Application for Special Exception. It is reversed to the

extent it imposes conditions on Little League’s proposed use.

____________________________________________

MARY HANNAH LEAVITT, President Judge Emerita

formerly 53 P.S. §11009. Section 1006-A(a) of the MPC replaced former Section 1009 of the

MPC.

21

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Abington Little League, Inc. : CASES CONSOLIDATED

:

v. : No. 895 C.D. 2021

:

Glenburn Township Zoning Hearing :

Board :

:

Appeal of: David Druck, Marilyn :

Druck, Charles Sansky, Lynn Sansky, :

Gerard O’Sullivan, Cara O’Sullivan, :

and Marilyn Costa :

Abington Little League, Inc., :

Appellant :

:

v. : No. 925 C.D. 2021

:

Glenburn Township Zoning :

Hearing Board :

ORDER

AND NOW, this 7th day of March, 2023, the July 20, 2021, Order of

the Lackawanna County Common Pleas Court is AFFIRMED in part and

REVERSED in part. The Order is affirmed to the extent it reverses the Glenburn

Township Zoning Hearing Board’s denial of Abington Little League, Inc.’s

Application for Special Exception. The Order is reversed to the extent it imposes

conditions on Abington Little League, Inc.’s use of its facilities.

____________________________________________

MARY HANNAH LEAVITT, President Judge Emerita