holding, under Section 508(4), an applicant has a vested right 16 to develop property in accordance with the zoning in effect at the time its application is filed and a landowner cannot be denied this right by a change in zoning.
How later courts described this case
- holding, under Section 508(4), an applicant has a vested right 16 to develop property in accordance with the zoning in effect at the time its application is filed and a landowner cannot be denied this right by a change in zoning.
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Honey Brook Estates, LLC, :
Appellant :
:
v. : No. 1258 C.D. 2014
: Argued: December 10, 2015
Board of Supervisors of Honey :
Brook Township :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE MARY HANNAH LEAVITT, Judge2
HONORABLE P. KEVIN BROBSON, Judge
OPINION
BY JUDGE LEAVITT FILED: January 13, 2016
Honey Brook Estates, LLC, (Developer) appeals an order of the Court
of Common Pleas of Chester County (trial court) that affirmed the decision of the
Board of Supervisors of Honey Brook Township (Township) to disapprove
Developer’s preliminary plan for a townhouse development. Developer contends
that the Township deliberately delayed action on its preliminary plan to give the
Township time to rezone Developer’s land from residential to agricultural.
Developer contends that this bad faith conduct by the Township entitles it to a new
review of its preliminary subdivision and land development plan under the zoning
ordinance in effect when it filed its preliminary plan. We reverse and remand.
1
This case was assigned to the opinion writer before December 31, 2015, when President Judge
Pellegrini assumed the status of senior judge.
2
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
Background
On December 16, 2005, Developer purchased a 39.9-acre parcel of
land, located in the Township’s residential district, for $1,085,000. The
Township’s Zoning Ordinance3 permitted by right “[s]ingle family ... [and] [multi]
family dwelling[s]” in the residential district. ZONING ORDINANCE §27-702.4
On May 15, 2006, Developer learned that the Township planned to
amend the Zoning Ordinance to rezone most of Developer’s land from residential
to agricultural. It also learned that a public hearing on the proposed zoning
amendment was scheduled for June 14, 2006.
On June 13, 2006, in accordance with the Township’s Subdivision and
Land Development Ordinance (SALDO),5 Developer submitted a preliminary
subdivision and land development plan for a development of 78 townhouses.
Developer’s preliminary plan proposed to subdivide the 39.9-acre parcel into three
lots. Two lots would be used for each of the existing single-family homes on the
property.6 The remainder, Lot 3, would consist of approximately 37 acres to be
used for the construction of a 78-unit townhome community along with associated
parking, access roads, stormwater management facilities, and a common open
space area.
3
HONEY BROOK TOWNSHIP ZONING ORDINANCE of 2003 (enacted March 12, 2003, and readopted
by Ordinance No. 129-2007, August 2, 2007) known as Chapter 27 in the Honey Brook
Township Code of Ordinances, as amended (Zoning Ordinance).
4
Sections 301 and 302 of the Zoning Ordinance set forth the base zoning districts and the zoning
map. ZONING ORDINANCE §§27-301 and 27-302.
5
THE HONEY BROOK TOWNSHIP SUBDIVISION AND LAND DEVELOPMENT ORDINANCE, Ordinance
No. 109-2004 (September 8, 2004), as amended (SALDO); Reproduced Record at 6a-168a.
6
Because these lots were non-conforming with respect to building setbacks, the preliminary plan
noted that Zoning Hearing Board approval would be needed for final plan approval.
2
On June 20, 2006, Michael L. Reinert, Township Engineer, informed
Developer that its preliminary plan was incomplete and would not be forwarded to
the Planning Commission. Reinert’s letter identified five omissions in Developer’s
preliminary plan:
1. A cost estimate of all proposed improvements is noted to
be included on the checklist and was not provided.
2. The checklist notes that all proposed earthmoving and
grading, devices and measures to control erosion during
land disturbance, and stabilization/site restoration
measures are required. No erosion and sediment control
plans were included with the submission. This is also
required by Section 502.E of the SALDO.
3. Sewage planning modules were not submitted with the
information as required by the checklist and Section
405.B.2.d.
4. Certification of the sewer & water facilities connection
from the appropriate authorities is noted on the checklist
and has not been provided.
5. The checklist requires that all waiver requests should be
noted on the plans. There are no waiver requests noted,
however a traffic impact study is required per Section 612
for residential uses in excess of 20 units. The traffic study
has not been included with the submission.
Reproduced Record at 2027a (R.R. __).7
Ten days later, Developer submitted an amended preliminary plan that
addressed each of the five items in Reinert’s letter. The amended plan included a
cost estimate; an erosion and sediment control plan; sewage planning information,
7
While Reinert signed the letter as the “Subdivision Officer,” he testified that the Township had
no designated subdivision officer at that time. Reinert Deposition, Notes of Testimony at 13-14
(N.T. __); R.R. 803a.
3
including the module planning forms required by the Department of Environmental
Protection (DEP); copies of letters on sewer and water capacity and connection
points that were sent to the appropriate authorities; the contract with the consultant
engaged to do a traffic study; and, finally, a verification that waivers were not
requested.
On July 5, 2006, the Township adopted Ordinance No. 119-2006 and
No. 120-2006, which amended the Zoning Ordinance, effective immediately. This
zoning change implemented the Township’s 2006 Comprehensive Plan, which was
adopted in accordance with the Pennsylvania Municipalities Planning Code
(MPC).8 A central goal of the Comprehensive Plan was the preservation of open
space and limitation on further development in the Township by rezoning a large
part of the Township as agricultural. The 2006 amendment rezoned most of
Developer’s property from residential to agricultural.
On July 10, 2006, Michael Brown, Township Manager, rejected
Developer’s amended preliminary plan as incomplete and informed Developer that
its plan would not be allowed to “enter[ ] the review cycle.” R.R. 2044a. In his
disapproval letter, Brown set forth three reasons for his decision:
1. Sewage planning modules were not submitted with the
information as required by the checklist and Section
405.B.2.d. …. The submission of a DEP postcard mailer
does not satisfy this requirement.
2. Certification of the sewer & water facilities connection
from the appropriate authorities is noted on the checklist
and has not been provided. The submission of requests for
sewer and water service from [Developer] to the applicable
authorities does not comply with this requirement.
8
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
4
Although the majority of the development is not located
within the approved 537 sewer district, public sewer is
proposed to serve the entire development based on the
content of the designs submitted and the lack of onlot soils
testing. In addition, this property is not located within the
franchise area of the public water provider, nor has
approval for its inclusion been obtained with this
submission. Sections 622 and 623.A.2 of the Township
SALDO further clarifies these requirements.
3. The submission of a traffic impact study is required for all
residential subdivision or land development proposing 20
or more dwelling units. The proposed development
contains 78 townhomes and 2 existing single family
dwelling units. The response letter indicates a contractual
agreement has been entered into with a qualified traffic
consultant. A letter is included from the traffic consultant
requesting acknowledgement of the study areas required
for the completion of the study. Section 612.B indicates
the study shall include an analysis of expected traffic
generation to, from, and upon surrounding roads within a
radius of ½ mile from the proposed development. We
believe this requirement is clearly written in the Ordinance
and does not require acknowledgement from the Township
in order for a traffic study & report to be completed and
submitted. Therefore, the submitted scoping letter from
the traffic consultant does not constitute a complete traffic
study and does not comply with this requirement.
R.R. 2044a-45a (emphasis added).9 By letter, Developer objected to Brown’s
decision for the stated reason that the Township was imposing requirements upon
Developer that had never been imposed on preliminary plan applicants and
requested reconsideration.
On July 18, 2006, Township Solicitor, John E. Good, commented on
Brown’s advice to Developer that its amended preliminary plan would not be
9
Brown conceded that he had not been appointed or designated as the Township’s subdivision
officer. Brown Deposition, N.T. 287; R.R. 723a.
5
allowed to enter the “review cycle.” In a letter to Brown, Good observed that
historically the Township “has been far less technical in its objections to
completeness of plans” in contrast to “the position that we are taking with these
recent sets of plans….” R.R. 1188a. Shortly thereafter, the Township forwarded
Developer’s amended preliminary plan to the Planning Commission for review.
Township Brief at 9. It did so, however, without informing Developer of this
change.
On August 18, 2006, Reinert submitted Developer’s amended
preliminary plan to the Planning Commission. In a cover letter, Reinert explained
that although the Township believed the plan was incomplete,
[o]ut of an abundance of caution the Board of Supervisors
directed a review of the purported application for its
compliance with the applicable ordinances of the Township in
effect at the time of filing. This review does not invalidate the
earlier finding that the application was substantially incomplete
and should be rejected on its face.
R.R. 1268a. Reinert’s letter then made 93 critical “comments” on the merits of
Developer’s plan. On August 24, 2006, after noting the absence of Developer
from the meeting, the Planning Commission voted to recommend disapproval of
Developer’s amended preliminary plan by the Township.
On August 30, 2006, Developer responded to Brown’s July 10, 2006,
comments by submitting additional supporting documents. However, Brown
returned the materials to Developer, noting that the Planning Commission had
already recommended that the Township Board of Supervisors disapprove
Developer’s plan. On September 13, 2006, the Board of Supervisors voted to
reject Developer’s amended preliminary plan, based on “packages” of information
prepared for its review by Brown. Brown Deposition, N.T. 301; R.R. 726a.
6
Neither the Planning Commission nor the Board of Supervisors received, or
considered, any of the supplemental information Developer had sent to Brown in
support of the amended plan.
On September 14, 2006, Brown advised Developer that the amended
preliminary plan had been disapproved by the Board of Supervisors and cited 59
reasons for its decision. On October 6, 2006, Developer filed a land use appeal
with the trial court, challenging the Township’s rejection of its amended
preliminary plan, asserting that irregularities in the Township’s review of its plan
had deprived it of the opportunity to have the plan reviewed objectively on its
merits.
Trial Court Appeal
Before the trial court, Developer requested the opportunity to present
evidence of the Township’s bad faith in processing its amended preliminary plan.
The trial court granted both parties permission to submit evidence on the following
issues: (1) the manner in which Developer’s plan was processed and how that
process differed from the review of other plans; (2) discussions of technical
requirements or ordinance interpretation; and (3) whether Developer was afforded
a reasonable opportunity to respond or modify the amended preliminary plan. The
trial court cautioned that even were Developer to establish bad faith, it would also
have to show that it was reasonably likely that Developer could have modified its
plan to overcome the Township’s objections.
Before the trial court, the parties’ evidence consisted of a series of
depositions that included, inter alia, Michael L. Reinert, Michael J. Brown and
7
Mark A. Magrecki, Developer’s attorney.10 These depositions are summarized,
briefly, seriatim.
Reinert explained that he is not the Township’s designated
subdivision officer, as specified in the SALDO.11 Rather, Brown directed Reinert
to serve in that capacity. Because implementation of the Township’s
Comprehensive Plan would require zoning changes, the Township was concerned
that developers would file preliminary plans “haphazardly or irresponsibly
prepared and rushed … just to beat the zoning amendment.” Reinert Deposition,
N.T. 118; R.R. 1855a. To address this problem, the Township decided to forward
preliminary plans to the Planning Commission with a review letter, so that the
commission could make an informed recommendation to the Board of Supervisors.
In addition, no plan would be forwarded to the Planning Commission until it was a
“complete application as defined in the SALDO.” Reinert Deposition, N.T. 35;
R.R. 1834a. Reinert acknowledged that neither the public nor applicants were
advised of these changes in procedure.12
In his deposition, Brown testified that he discussed changing the
review process with the Township solicitor because of concern that the pending
10
The depositions all appear to have been prepared in preparation of a lawsuit Developer has
filed against the Township in the United States District Court for the Eastern District of
Pennsylvania. A copy of the federal complaint is contained in the record at R.R. 240a-63a. The
record also contains deposition testimony from several other individuals, but their statements are
not referenced in Developer’s brief to this Court and, thus, are not summarized herein.
11
The SALDO states that the subdivision officer is to be “designated by the Board [of
Supervisors of Honey Brook Township] to administer the provisions of this Ordinance.”
SALDO §202; R.R. 23a.
12
Brown instructed Reinert on the new procedure and directed Reinert to review preliminary
plans for completeness. Shortly thereafter, Brown decided that as Township Manager, he could
act as the subdivision officer and undertake the completeness review.
8
revisions to the Zoning Ordinance would precipitate the filing of hastily prepared
subdivision plans. The solicitor informed him that the Township can reject a plan
if incomplete. Out of an abundance of caution, Brown and the solicitor decided to
forward incomplete plans to the Planning Commission.
Prior to the new procedure, Brown could not recall a single instance
where a preliminary plan was not submitted to the Planning Commission as a
matter of course. Likewise, Brown could not recall a single occasion where a
landowner was not present for a meeting where the Planning Commission
considered the landowner’s preliminary plan. When asked how the landowner
would know that its preliminary plan would be reviewed by the Planning
Commission, Brown stated that, generally, the Township Engineer sends a review
letter to an applicant, and this will “trigger an applicant’s awareness that its
application would be coming up before the planning commission” and, thus, know
to show up at the next meeting. Brown Deposition, N.T. 294; R.R. 1776a.
Landowners periodically telephone the office to learn what projects are on the
Planning Commission agenda. When asked how Developer could possibly know
that its preliminary plan would be considered by the Planning Commission,
particularly since it had been advised that it would not be forwarded to the
Planning Commission, Brown was not sure. Brown stated “[t]he only way they
would have known is if they got a copy of a review letter in advance.” Brown
Deposition, N.T. 295; R.R. 1776a.
Magrecki, counsel for Developer, was also deposed. He explained
that Developer retained him in 2006 to assist in the development of its 39.9-acre
parcel. Magrecki stated that rezoning Developer’s property to an agricultural
district rendered it virtually worthless. Because Developer’s right to use the
9
property as residential would vest if it filed a preliminary plan before the new
zoning was enacted, Magrecki made sure that the preliminary plan was filed in
time.
Magrecki testified about the Township’s past practice. He explained
that typically the Township Engineer reviews a preliminary plan, and this is
followed by a back and forth discussion. That did not happen in this case. Instead,
Reinert rejected the plan pre-emptively. Magrecki discussed the rejection with
Reinert, particularly the traffic study. Magrecki stated that because a traffic study
is expensive, it is standard to wait for the Planning Commission’s input. He
explained, “[y]ou don’t lead with a traffic impact study.” Magrecki Deposition,
N.T. 177; R.R. 1330a. Magrecki testified that Reinert told him that a letter
outlining the scope of the traffic study would be adequate, but afterwards denied
making such a comment.
Magrecki challenged Reinert’s June 20, 2006, objection that the plan
lacked a cost estimate, explaining that a cost estimate is premature at the
preliminary plan stage. The rejection for lack of an erosion and sediment plan was
unfounded because DEP strictly governs this process. Magrecki did not
understand Reinert’s sewage planning objection because the preliminary plan made
clear Developer was pursuing public sewage. Certification for sewer and water
facilities requires Township support and cannot be obtained in advance of filing a
preliminary plan.
In any case, Developer filed an amended preliminary plan to address
Reinert’s five stated reasons for rejecting the plan as incomplete. Thereafter,
Brown rejected the amended plan without giving Developer an opportunity to
address Brown’s three new objections. Magrecki testified that none of the three
10
objections listed by Brown constituted a valid reason for removing a preliminary
plan from the “review cycle.”
The first reason cited by Brown related to the sewage district.
Magrecki explained that DEP, not the Township, is responsible for sewage
treatment and disposal. Developer could only file the “module mailer postcard to
DEP” and wait for DEP to start to process. Magrecki Deposition, N.T. 208; R.R.
1338a.
The second reason was the lack of certification for sewer and water
facility connection. Magrecki explained that proposed connections cannot be
certified until a preliminary plan is approved. It “is usual and customary to be
worked out as you move through the review and approval cycle. It is an approval
requirement, but it’s not a submission requirement.” Magrecki Deposition, N.T.
214; R.R. 1340a.
Brown’s third and final reason for objecting to the amended plan
related to the traffic impact study. In the amended preliminary plan, Developer
included its contract with a qualified traffic consultant as well as a copy of the
consultant’s letter identifying the areas to be studied. Brown found the contract
inadequate because the study did not state it would examine the surrounding roads
within a half mile radius of the proposed development. Magrecki stated this was
not a valid objection because the specifics of the traffic study are for the Planning
Commission to determine.
Magrecki testified that after receiving Brown’s letter, he made
telephone calls and sent letters to the Township seeking reconsideration. He
attempted to provide supplemental information to the Township, which was
refused. Brown never informed Magrecki that the Planning Commission or the
11
Board of Supervisors would be acting upon Developer’s preliminary plan. To the
contrary, Brown advised him that Developer’s plan had been removed from the
review cycle. Magrecki was, accordingly, confused by the Board of Supervisors’
disapproval, done on the basis of supplemental information provided by Reinert
and Brown without Developer’s knowledge. At the same time, Reinert and Brown
refused to accept Developer’s supplemental information or forward it to the
Planning Commission.
The trial court affirmed the decision of the Board of Supervisors for
the stated reason that the actions of the Township did not rise to the level of bad
faith. Trial Court op. of June 30, 2014; R.R. 2197a. In its Pennsylvania Rule of
Appellate Procedure 1925(a)13 opinion to this Court, the trial court further
explained that even if Developer had demonstrated bad faith on the part of the
Township, it would not make a case unless it could also establish that Developer
could have modified its preliminary plan to the Township’s satisfaction. This did
not seem likely to the trial court, which noted that “‘denial of approval for a plan
can stand if supported by any one of the reasons set forth for denial.’” Trial court
1925(a) op. at 3 (quoting Kassouf v. Township of Scott, 883 A.2d 463, 473 (Pa.
2005) (citing Goodman v. Board of Commissioners of the Township of South
13
It provides that
the judge who entered the order giving rise to the notice of appeal, if the reasons
for the order do not already appear of record, shall forthwith file of record at least
a brief opinion of the reasons for the order, or for the rulings or other errors
complained of, or shall specify in writing the place in the record where such
reasons may be found.
PA. R.A.P. 1925(a)(1).
12
Whitehall, 411 A.2d 838, 840 (Pa. Cmwlth. 1980))).14 The trial court rejected
Developer’s argument that its preliminary plan had been rejected in bad faith,
asserting that a wholesale modification of Developer’s preliminary plan would
have been necessary in order to satisfy “the ordinances in existence as of the date
upon which the application was first presented to [the] Township.”15 Trial court
1925(a) op. at 7.
Appeal to Commonwealth Court
On appeal,16 Developer argues that the trial court erred in holding the
Township did not act in bad faith. Developer contends that the evidence shows,
overwhelmingly, that the Township did not process Developer’s preliminary plan
in an objective manner but, rather, acted to derail its approval. Specifically, the
Township refused to meet with Developer to discuss the preliminary plan or
revisions; rejected the plan as incomplete; and then sent the “incomplete” plan to
the Planning Commission after informing Developer that the plan had been pulled
from the review cycle. The Township’s refusal to discuss the preliminary plan
with Developer was unprecedented. Developer also contends that the trial court
erred by concluding that the alleged defects in the plans were either substantial or
incapable of correction.
14
While denial of a plan is proper if supported by any one of the reasons for denial, this
presupposes that a good faith review occurred. In Goodman the developer claimed that the
board’s denial of its preliminary plan was based on findings inadequate as a matter of law. The
developer was not purporting that bad faith had tainted the review.
15
The trial court does not identify which of the Township’s 59 objections to Developer’s
amended preliminary plan constituted fundamental defects not subject to modification.
16
Where, as here, the trial court takes additional evidence, our standard of review is whether the
trial court abused its discretion or committed an error of law. Larock v. Board of Supervisors of
Sugarloaf Township, 961 A.2d 916, 923 n.3 (Pa. Cmwlth. 2008).
13
Analysis
We begin with a review of the precedent relevant where a landowner
asserts that bad faith has tainted a municipality’s review of a preliminary
subdivision and land development plan. The leading cases are Raum v. Board of
Supervisors of Tredyffrin Township, 370 A.2d 777 (Pa. Cmwlth. 1977), and
Highway Materials, Inc. v. Board of Supervisors of Whitemarsh Township, 974
A.2d 539 (Pa. Cmwlth. 2009).
In Raum, 370 A.2d 777, a landowner filed a subdivision plan.
Seventy-eight days later, and two days before the township was scheduled to act on
a proposed rezoning of the landowner’s property, the planning commission
disapproved the landowner’s subdivision plan for the stated reasons that it
contained “more information than required” and because three of the 19 lots
required further subdivision because they were bisected by roads. Raum, 370 A.2d
at 802. The landowner filed a modification to the plan within the two days
available, but the municipality refused to consider the modifications. We held that
the township acted in bad faith and, thus, the landowner was entitled to have its
plan approved.
We reasoned that a municipality has a legal obligation to act in good
faith upon any proposed subdivision and land development plan. Id. at 798. This
duty
includes discussing matters involving technical requirements or
ordinance interpretation with an applicant, and providing an
applicant a reasonable opportunity to respond to objections or
to modify plans where there has been a misunderstanding or
difference of opinion.
14
Id. Further, an applicant has a “vested right” to develop property in accordance
with the zoning in effect at the time his application is filed. Id. at 797.17 A
landowner “cannot be denied this right by a change in zoning.” Id. By waiting
until the last possible moment to raise objections and then claiming there was
insufficient time to consider the modified plan, the township acted in bad faith.
Notably, the township had departed from prior practice by, inter alia, refusing to
engage in a dialogue with the landowner.
In Highway Materials, 974 A.2d 539, a landowner sought to develop
its property in an industrial district and to that end filed a preliminary plan. At the
time, the township was considering a zoning change that would rezone the
landowner’s property from industrial to residential. The township engineer
requested more information on the sewer design and noted that the preliminary
plan did not include a 15-foot berm, chain link fence with barbed wire or adequate
17
Pursuant to Section 508(4)(i) of the MPC, while an application is pending approval:
[N]o change or amendment of the zoning, subdivision or other governing
ordinance or plan shall affect the decision on such application adversely to the
applicant and the applicant shall be entitled to a decision in accordance with the
provisions of the governing ordinances or plans as they stood at the time the
application was duly filed.
53 P.S. §10508(4)(i). Section 508(4) of the MPC modified the common law version of the
“pending ordinance doctrine,” which rendered a landowner’s use non-conforming once the
ordinance was pending. Lehigh Asphalt Paving and Construction Company v. Board of
Supervisors of East Penn Township, 830 A.2d 1063, 1067 n.3 (Pa. Cmwlth. 2003). Essentially,
the MPC
establishes an exception to the common law rule, which operates to protect a
landowner/applicant. Under Section 508(4), as amended, 53 P.S. §10508(4),
while an application for subdivision or land development is pending, no change in
the applicable ordinances shall adversely affect the municipality’s decision on
those plans.
Id. (internal citations omitted) (emphasis omitted).
15
storm water detention. The landowner responded with a revised preliminary plan
that included two sewer proposals. The planning commission rejected the
preliminary plan, and the landowner appealed. The trial court reversed. It found it
relevant that the landowner had asked the township for input on whether a water
basin could be located on the property, and the township responded that it was not
going to help the developer “on a controversial development.” Highway Materials,
974 A.2d at 544. Further, when the landowner sought direction on the sewer
system and on the fence and berm, the township did not respond. On these facts,
the trial court held that the township “did not proceed in good faith in advising
[landowner] as to how to correct the defects in its plan, [and] it did not afford
[landowner] the opportunity to cure the deficiencies.” Id. at 545.
This Court affirmed the trial court. We noted that the landowner
requested input by the township and made requests for extension that were denied,
thereby denying the landowner an opportunity to correct the plan. On that basis we
remanded to the township for further review.
With this precedent in mind, we turn to the instant appeal. The
Township acknowledges that Developer was the first to have its preliminary plan
rejected for incompleteness but notes that Developer is not alone. The Township
subsequently rejected other preliminary plans for that reason. Thus, Developer
was not treated differently than other similarly situated landowners. Developer
responds that the Township cannot defeat the charge of disparate treatment because
it later treated other applicants unfairly.
The record in this case is voluminous, i.e., several thousand pages,
consisting of extensive witness testimony, documents and correspondence. The
trial court concluded that Developer did not prove bad faith by the Township, but it
16
offered no discussion of the record evidence. We reject the trial court’s
conclusion.
Raum established the elements of good faith as follows:
A municipality has a legal obligation to proceed in good faith in
reviewing and processing development plans. The duty of good
faith includes discussing matters involving technical
requirements or ordinance interpretation with an applicant,
and providing an applicant a reasonable opportunity to
respond to objections or to modify plans where there has been a
misunderstanding or difference of opinion.
Raum, 370 A.2d at 798 (emphasis added).18 The record shows that the Township
rejected Developer’s preliminary plan in both its original and amended form,
without giving Developer the opportunity to confer with the Township. The
Township rejected Developer’s first preliminary plan for five stated reasons, to
which Developer responded with an amendment addressed to each of the five
reasons. The Township then found three new reasons to object. After telling
Developer that its plan was incomplete and would not be sent to the Planning
Commission for review, the Township did an about face and sent it to the Planning
Commission. It did so without informing Developer of this change in the review
process or giving Developer an opportunity to present supplemental information to
the Planning Commission. At the same time, the Township offered the Planning
Commission volumes of additional materials and new reasons why Developer’s
amended preliminary plan should be denied. By the time Developer’s preliminary
plan made its way to the Planning Commission and the Board of Supervisors, the
18
The above-quoted excerpt from Raum was quoted with approval in Highway Materials, 974
A.2d at 544.
17
Township’s objections had expanded in number from five to 59 (albeit down from
93). R.R. 169a-179a.
The evidence of record, including the admissions by the Township
officials Reinert and Brown, establishes that the preliminary plans were rejected
with no opportunity for Developer to respond. This constitutes bad faith under
Raum and Highway Materials, and we reject the trial court’s contrary conclusion.
We turn, next, to Developer’s claim that the trial court erred in finding
remand would be futile for the stated reason that Developer’s amended plan was
incapable of being revised satisfactorily. In so holding, the trial court did not
identify which of the reasons for rejecting Developer’s preliminary plan were
incapable of correction.
In its brief to this Court, the Township offers three reasons to support
the trial court’s conclusion that the amended preliminary plan was incapable of
correction. First, the property is not entirely within the Township’s sewer district
and, thus, cannot be served by public sewer, as required by Section 27-703 of the
Zoning Ordinance.19 Second, Developer proposes 78 units on the property, but the
density requirements limit the development to 76 units. Third, Developer proposed
public water service, but the property is not located within the Public Utility
Commission’s (PUC) water service area. Developer contends that each of these
purported deficiencies is correctable or, alternatively, illegal.
First, Developer argues that, as a matter of law, a township cannot
require that lots be served by public sewer and then refuse to allow a public sewer.
In Council of Middletown Township v. Benham, 523 A.2d 311, 317 (Pa. 1987), it
19
It requires “[a]s a prerequisite for approval, any lot must demonstrate the capability to be
served by public water and public sewer.” ZONING ORDINANCE §27-703.
18
was established that a “township cannot preclude development by a zoning
requirement that developers use non-existent municipal services.” Therefore, the
Township was under an obligation either to extend the public sewer service or give
Developer an opportunity to modify its plans to provide for an alternative means of
providing for sewer service.
Second, Developer posits that the density of the proposed
development is easily remedied by reducing the proposed units from 78 to 76. In
any case, neither Reinert nor Brown listed this as an objection to Developer’s
preliminary plan in either its original or amended version.
Third, Developer asserts that the public water requirement is easily
addressed. It is true that the property is not currently in the public water service
area, but this does not mean that service is not available. PUC water franchise
areas are expanded all the time. At most, the requirement can be included as a
condition of plan approval, not a reason to reject a preliminary plan. See Morris v.
South Coventry Township Board of Supervisors, 836 A.2d 1015, 1026 (Pa.
Cmwlth. 2003) (“[W]here an outside agency’s approval is required, the
municipality should condition final approval upon obtaining a permit, rather than
denying preliminary approval of the land development application.”).
We agree with Developer. The density requirement can be easily
modified, and sewer and water requirements are not fatal to the preliminary plan.
In CACO Three, Inc. v. Board of Supervisors of Huntington Township, 845 A.2d
991 (Pa. Cmwlth. 2004), this Court explained that a preliminary plan does not need
to contain “sufficient details for the sewer system.” Id. at 996. Instead, it was
“more reasonable and consistent … to condition final approval of the development
plan upon obtaining all the required permits from the DEP, rather than rejecting the
19
plan outright.” Id. at 996-97. We reached the same conclusion when addressing
the developer’s “potable water supply system” requirements. Id. at 997-98. We
held that failure to provide design details is “not critical in the preliminary plan
approval stage.” Id. at 997. The developer established that it filed applications
with “DEP and other authorities seeking approval for the proposed private water
supply system;” therefore, the “[b]oard should have approved the preliminary plan
subject to a condition that [the developer] must obtain the required permits for final
approval.” Id. at 997-98.
The Township attempts to justify its actions by referencing Section
405 of the SALDO, which states:
The Subdivision Officer shall make a preliminary review of the
application. If the Subdivision Officer determines that the
application is defective on its face, he shall notify the applicant,
and the application is deemed not accepted.
SALDO §405.C.2; R.R. 29a. It claims that Developer’s preliminary plan was
“defective on its face.” We disagree.
The Township did not establish a facially defective preliminary plan.
It offers three reasons to support that conclusion, but each is easily addressed, as
discussed above. Accordingly, the Township did not establish that Developer’s
preliminary plan was facially defective and incapable of meeting the requirements
of the Township’s land use ordinances.
Conclusion
For the above-stated reasons, we reverse the decision of the trial court
and remand this matter to the Board of Supervisors with instructions that it review
Developer’s amended preliminary plan under the Zoning Ordinance in existence at
the time the plan was filed; provide input on technical requirements and ordinance
20
interpretation; identify objections and provide Developer the opportunity to
respond to the objections.
______________________________
MARY HANNAH LEAVITT, Judge
Judge Cohn Jubelirer and Judge Covey did not participate in the decision in this
case.
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Honey Brook Estates, LLC, :
Appellant :
:
v. : No. 1258 C.D. 2014
:
Board of Supervisors of Honey :
Brook Township :
AND NOW, this 13th day of January, 2016, the order of the Court of
Common Pleas of Chester County, filed June 30, 2014, is hereby REVERSED and
the matter is REMANDED, with the instruction that it be REMANDED to the
Board of Supervisors of Honey Brook Township to conduct review in accordance
with the attached opinion.
Jurisdiction relinquished.
______________________________
MARY HANNAH LEAVITT, Judge