“[T]he presence of inadequate independent grounds for denial does not vitiate the legitimate substantive grounds for denial identified by the [Board.]”
How later courts described this case
- “[T]he presence of inadequate independent grounds for denial does not vitiate the legitimate substantive grounds for denial identified by the [Board.]”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Delchester Developers, L.P., :
Appellant :
:
v. : No. 148 C.D. 2016
: Argued: October 17, 2016
London Grove Township :
Board of Supervisors :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
SENIOR JUDGE COLINS FILED: May 9, 2017
Before this Court is the appeal of Delchester Developers, L.P.
(Delchester) of the December 30, 2015 order of the Court of Common Pleas of
Chester County (Trial Court) affirming the July 15, 2015 denial by the London
Grove Township Board of Supervisors (BOS) of Delchester’s preliminary
subdivision and land development plan application (Plan). Delchester has raised
four issues for review, arguing that the Trial Court erred in affirming the denial of
the Plan issued by the BOS because: (i) the reasons for denying the Plan were
insufficiently specific contrary to the mandate of Section 508(2) of the
Municipalities Planning Code1 (MPC), 53 P.S. § 10508(2); (ii) the BOS
improperly incorporated reviews of the Plan by independent consultants in its
denial of the Plan; (iii) the BOS identified a failure to secure third-party permits as
a basis for denial rather than issuing an approval of the plan conditioned on
1
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 – 11202.
Delchester obtaining the requisite third-party permits; and (iv) the BOS acted in
bad faith by denying the Plan. For the reasons that follow, we affirm the order of
the Trial Court.2
Section 508 of the MPC provides the procedure whereby the
governing body or planning agency of a township shall review and act upon a
subdivision and land development application. 53 P.S. § 10508. If the plan
submitted by the applicant complies with all of the objective provisions of the
applicable subdivision and land development ordinance (SALDO) as well as all
other applicable regulations, the plan must be approved by the reviewing body.
Herr v. Lancaster County Planning Commission, 625 A.2d 164, 169 (Pa. Cmwlth.
1993). Subsection 2 of Section 508 requires of the reviewing body that:
When the application is not approved in terms as filed the
decision shall specify the defects found in the application
and describe the requirements which have not been met
and shall, in each case, cite to the provisions of the
statute or ordinance relied upon.
53 P.S. § 10508(2); see also Herr, 625 A.2d at 169. A decision rejecting a
subdivision and land development plan will be voided for contravening Section
508(2) of the MPC if it fails to cite to the specific provision of the SALDO relied
upon or if the reasons for rejection are vague and undiscernible. Coretsky v. Board
of Commissioners of Butler Township, 555 A.2d 72, 74 (Pa. 1989). If the decision
2
Where no additional evidence has been taken by the trial court, our scope of review is limited
to determining whether the board of supervisors committed an abuse of discretion or an error of
law. Appeal of Richboro CD Partners, L.P., 89 A.3d 742, 746 n.1 (Pa. Cmwlth. 2014). An
abuse of discretion is established where the findings are not supported by substantial evidence;
substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. Id.
2
complies with Section 508(2) of the MPC, then rejection of the plan will stand if
even one of the reasons for denial is supported by substantial evidence. Herr, 625
A.2d at 169.
The July 15, 2014 decision issued by the BOS contained 44 reasons
for denial of the Plan broken down into the following categories: (i) zoning
ordinance provisions; (ii) groundwater protection district; (iii) SALDO; (iv) sewer
and water; (v) stormwater management; and (vi) general. Delchester argues that
Nos. 10, 17, 18, 28, and 293 are not sufficiently specific to satisfy Section 508(2) of
3
The BOS’s denial reasons Nos. 10, 17, 18, 28 and 29 are as follows:
***
GROUNDWATER PROTECTION DISTRICT
***
10. Applicant failed to comply with the requirements relating to
Historic Resource Protection in Part XVII with regard to the
portion of the Property located in the I- Industrial District.
***
SUBDIVISION AND LAND DEVELOPMENT ORDINANCE
***
17. Applicant has failed to demonstrate compliance with Section
612.I (formerly Section 612.A.9) relating to street system impacts.
***
18. Applicant has failed to demonstrate compliance with Section
615.12 (formerly Section 615.L) relating to recreation lands and
facilities, fees -in -lieu thereof and trails.
***
STORMWATER MANAGEMENT
***
28. Applicant has failed to demonstrate compliance with Section
303.4.B.1 (formerly Section 303.02.13) relating to identification of
limits of Cockeysville Marble areas.
***
29. Applicant has failed to demonstrate compliance with Section
303.5.C.l.f (formerly Section 303.01.C.14) relating to the use of
infiltration systems for sediment and erosion control with regard to
the proposed detention/infiltration basin or the seepage beds.
(BOS Op., Nos. 10, 17, 18, 28, & 29.)
3
the MPC, and that Nos. 3, 22, 23, 31, 38, 39, 40, 41, 42, 43 and 44 4 do not cite to
provisions of the Township’s SALDO, also in violation of Section 508(2) of the
4
The BOS’s denial reasons Nos. 3, 22, 23, 31, 38, 39, 40, 41, 42, 43 and 44 are as follows:
ZONING ORDINANCE PROVISIONS
***
3. Applicant failed to note the proposed perimeter setback should
be identified for the access road and site improvements listed on
Sheets 1, 2 and 4.
***
GROUNDWATER PROTECTION DISTRICT
22. Applicant has failed to demonstrate how Applicant has
addressed outstanding comments relating to water and sewer from
the London Grove Township Municipal Authority.
23. Applicant has failed to demonstrate how Applicant has
addressed outstanding comments regarding the Sewage Facilities
Planning Module from former Township Engineer URS.
STORMWATER MANAGEMEMT
***
31. Applicant has failed to demonstrate that it has permission from
adjacent property owner London Grove North LP to connect the
outfall pipe for the proposed drywell to an existing storm sewer
system located on the adjacent property and has failed to
demonstrate that this system was designed with additional capacity
to accommodate the flow from Applicant’s development.
***
38. Applicant has failed to demonstrate that discharges from the
proposed detention/infiltration basin into the proposed
underground seepage bed will not hydraulically overload the
seepage bed.
39. Applicant has failed to furnish a viable plan to demonstrate
how the seepage bed will be protected from silt intrusion during
construction.
GENERAL
4
MPC. 53 P.S. § 10508(2). Delchester also argues that the reasons given for denial
in Nos. 1, 2, 7, 21, 24, 26, 32, 35, 36 and 44 5 were easily correctible technical
40. Applicant has failed to demonstrate that it has obtained
[Pennsylvania Department of Transportation] approval for the
proposed entrances and turn lane on East Baltimore Pike.
41. Applicant’s [Pennsylvania Natural Diversity Inventory]
correspondence from [Pennsylvania Department of Conservation
and Natural Resources] has expired and applicant has failed to
provide current correspondence.
42. Applicant has failed to remove General Note 21 from Sheet 1
of the plan as requested by the Township’s Engineer.
43. Applicant has failed to provide the Township with evidence of
abandonment of the 10 foot right of way existing on Tax Parcel #
59-5-89 or clarified the rights of the utility company mentioned in
the General Notes.
44. Applicant has failed to update Note 29(26) of Sheet 1 relating
to retaining walls over 4 feet in height as requested by the
Township Engineer and corrected apparent typographical errors in
the Note(s).
(BOS Op., Nos. 3, 22, 23, 31, 38, 39, 40, 41, 42, 43 & 44.)
5
The BOS’s denial reasons Nos. 1, 2, 7, 21, 24, 26, 35, 36 and 44 are as follows:
ZONING ORDINANCE PROVISIONS
1. Applicant has failed to demonstrate via calculations that the
floor area ratios on Sheets 1, 2 and 4 meet the maximum permitted
by Section 27- 1103.D.
2. Applicant failed to submit revised calculations and corrected lot
size information for Sheets 1, 2 and 4 netting out all required
easements as required by the definition of "Lot area, net" in
Section 27 -202.
***
GROUNDWATER PROTECTION DISTRICT
7. Applicant failed to document compliance with Section 1406.7
(formerly Section 1305.H) which allows a maximum of fifty
5
percent impervious coverage for portions of the site which fall
within the Groundwater Protection District ("GWPD") in tabular
form on Sheet 1 of the plans as requested by the Township
Engineer.
***
SUBDIVISION AND LAND DEVELOPMENT ORDINANCE
***
21. Applicant has failed to demonstrate compliance with Section
502.8.A (formerly Section 501.11.2) which requires all tree and
bush masses and trees with a diameter greater than 6 inches to be
shown on plans by not clearly showing the limits of the existing
tree masses on the Existing Features Plan and in addition, since the
date of filing of the Application, Applicant has removed a
significant portion of the tree mass on the Property.
***
STORMWATER MANAGEMEMT
24. Applicant has failed to demonstrate compliance with
Section 402.2.B.7 (formerly Section 302.01.B.1) by adding all
required easements to the plan sheets and by adding notes
explaining the purposes of the easements.
***
26. Applicant has failed to provide soil infiltration testing
results, including field logs, required to demonstrate
compliance with Section 303.3.C.3 (formerly Section
303.01.C.3).
***
32. Applicant has failed to demonstrate compliance with
Section 303.5.C.1(d) relating to required approvals for removal
of temporary erosion and sediment control measures by failing
to include these requirements in the Sequence of Construction.
***
35. Applicant has failed to demonstrate compliance with
Section 407.01.B.i relating to stormwater management
easements by failing to cover all areas requiring an easement in
its Post Construction Stormwater Management Plan.
36. Applicant has failed to provide the requested written
clarification to the Township relating to accessing the property
for required inspections to demonstrate compliance with
Section 407.06.B relating to stormwater management
easements.
6
defects that are insufficient to serve as grounds for denial of the Plan. Delchester
further argues that the decision issued by the BOS failed to properly incorporate
the consultant letters that the BOS relied upon in support of its denial.
Specifically, Delchester challenges denial reasons Nos. 11, 13, 16, 22 and 23. 6
GENERAL
***
44. Applicant has failed to update Note 29(26) of Sheet 1 relating
to retaining walls over 4 feet in height as requested by the
Township Engineer and corrected apparent typographical errors in
the Note(s).
(BOS Op., Nos. 1, 2, 7, 21, 24, 26, 35, 36 & 44 (emphasis added).)
6
The BOS’s denial reasons Nos. 11, 13, 16, 22 and 23 are as follows:
***
GROUNDWATER PROTECTION DISTRICT
***
11. Applicant failed to address Township professional consultant
Taproot Native Design’s review comments relating to the buffering
and landscaping requirements in Section 1806 (formerly Section
1705).
***
SUBDIVISION AND LAND DEVELOPMENT ORDINANCE
13. Applicant has failed to demonstrate compliance with Section
502.5.K (formerly Section 501.E.11) relating to delineation of any
freshwater wetlands by providing a determination from a qualified
wetlands biologist.
***
16. Applicant has failed to demonstrate compliance with the
landscaping requirements set forth in Section 502.9 (formerly
Section 501.1) and failed to address review comments from the
Township's landscaping consultant.
***
SEWER AND WATER
22. Applicant has failed to demonstrate how Applicant has
addressed outstanding comments relating to water and sewer from
the London Grove Township Municipal Authority.
7
Finally, Delchester argues that the BOS impermissibly rejected its Plan based on
Delchester’s failure to secure third-party permits when it was required to approve
the Plan conditioned upon Delchester’s receipt of third-party permits.7
23. Applicant has failed to demonstrate how Applicant has
addressed outstanding comments regarding the Sewage Facilities
Planning Module from former Township Engineer URS.
(BOS Op., Nos. 11, 13, 16, 22 & 23.)
7
The BOS’s denial reasons Nos. 14, 20, 22, 40 and 41 address third-party permits and are as
follows:
***
SUBDIVISION AND LAND DEVELOPMENT ORDINANCE
***
14. Applicant has failed to demonstrate compliance with Section
502.7 (formerly Section 501.G) relating to Chester County
Conservation District approval of erosion and sedimentation
control plans and post-construction stormwater management plans.
***
20. Applicant has failed to demonstrate compliance with Section
607.1.0 (formerly Section 606.A.5) by documenting how apparent
conflicts with [Pennsylvania Department of Environmental
Protection] regulations relating to the sewage planning module
have been resolved.
***
SEWER AND WATER
22. Applicant has failed to demonstrate how Applicant has
addressed outstanding comments relating to water and sewer from
the London Grove Township Municipal Authority.
***
GENERAL
40. Applicant has failed to demonstrate that it has obtained
PENNDOT approval for the proposed entrances and turn lane on
East Baltimore Pike.
41. Applicant’s PNDI correspondence from PA DCNR has expired
and applicant has failed to provide current correspondence.
8
Initially, the Township argues that even if Delchester succeeded in
striking down each ground for denial it has challenged on appeal, Delchester has
failed to challenge nine of the bases for denial identified in the BOS decision and,
as a result, the denial must be affirmed. (See BOS Op., Nos. 8, 13, 15, 19, 25, 27,
30, 33 & 34.8) In addressing Delchester’s arguments regarding failure to comply
(BOS Op., Nos. 14, 20, 22, 40 & 41.)
8
The BOS’s denial reasons Nos. 8, 13, 15, 19, 25, 27, 30, 33 and 34 are as follows:
***
GROUNDWATER PROTECTION DISTRICT
***
8. Applicant failed to provide an Environmental Assessment
Report as required by Section 27 -1409 (formerly Section 1308).
***
13. Applicant has failed to demonstrate compliance with Section
505.5.K (formerly Section 501.E.11) relating to delineation of any
freshwater wetlands by providing a determination from a qualified
wetlands biologist.
***
SUBDIVISION AND LAND DEVELOPMENT ORDINANCE
***
15. Applicant failed to tag existing trees in excess of six inches in
diameter and/or to obtain Board of Supervisors approval to remove
existing trees on the CI lot as required by Section 502.8.B
(formerly Section 501.H.3).
***
19. Applicant has failed to demonstrate compliance with Section
701.6 (formerly Section 700.F) relating to protection of adjacent
residential areas using methods such as extra parcel depth and/or a
permanently landscaped evergreen buffer strip.
***
STORMWATER MANAGEMENT
***
25. Applicant has failed to demonstrate compliance with Section 3
03.3.C.1 and 2 (formerly Section 303.01.C.1 and 2) by failing to
explain why an above ground device is not feasible and by failing
to demonstrate how the proposed underground [Best Management
Practices] conforms to applicable Township ordinance regulations.
***
9
with Section 508(2) of the MPC, the Township contends that it engaged in
extensive discussions with Delchester over a four-year period and that despite clear
direction regarding the Plan’s deficiencies and how each deficiency could be
corrected, Delchester failed to cure its plan. The Township argues that Nos. 10,
17, 18, 28 and 29 (see note 3, supra) are sufficiently specific independent grounds
for denial, with each reason identifying a specific portion of the SALDO or other
applicable ordinance that the Plan does not comply with and leaving no ambiguity
regarding the deficiency that Delchester needs to cure in order to receive approval.
Although the Township agrees that a subset of the reasons identified in the denial
decision do not cite to the SALDO or other applicable ordinance as the basis for
denial, the Township contends that these issues were identified in the decision for
completeness rather than as independent grounds for denial. Furthermore, the
Township argues that Nos. 24, 26, 32, 35, and 36 (see note 5, supra) are each
27. Applicant has failed to demonstrate compliance with Section
303.3.C.4 (formerly Section 303.01.C.4) relating to infiltration
facility requirements by proposing a detention facility with a depth
in excess of the 2 foot maximum.
***
30. Applicant has failed to demonstrate compliance with Section
303.02.C.2 which requires the bottom of infiltration BMPs to be
12' above the water table and 6' above the bedrock.
***
33. Applicant has failed to demonstrate compliance with Section
303.7.B.1 and 2 by proposing a detention/infiltration basin without
establishing that other preferred methods of stormwater
management as specified in the ordinance are not feasible.
34. Applicant has failed to demonstrate compliance with Section
303.7.C.2(f) relating to final design of storm sewer systems by
failing to provide the required freeboard between the [Hydraulic
Grade Line] and rim elevations throughout the entire storm sewer
system.
(BOS Op., Nos. 8, 13, 15, 19, 25, 27, 30, 33 & 34.)
10
substantive rather than mere technical defects and that each of these grounds
address the failure of the Plan to comply with the Township’s Storm Water
Management Ordinance (SWMO). The Township argues that the decision
properly incorporated and relied upon external documents, and that Delchester was
aware of the letters and the deficiencies described within. Finally, the Township
argues that it included the lack of third-party permits for completeness rather than
as independent reasons for denial. Furthermore, the Township contends that if
Delchester’s Plan had otherwise complied with the SALDO, then the precedent
regarding approval conditioned upon the receipt of third-party permits would
apply; the Township contends that under the circumstances of this case, the
precedent regarding conditioned approval is inapplicable.
In Shelbourne Square Associates, L.P. v. Board of Supervisors,
Township of Exeter, 794 A.2d 946 (Pa. Cmwlth. 2002), this Court reviewed a
subdivision and land development plan denial where the decision of the governing
body contained eight reasons for denial of the plan and concluded that seven of the
reasons given were insufficient to support a denial due to vagueness and an
additional subset were “defects in the plan notations and labels [that] are
correctable by fairly simple amendments to the documents.” Id. at 950. However,
this Court affirmed the denial in Shelbourne because a single ground for denial
rested on clear noncompliance with the township’s SALDO and the
noncompliance was an objective, legitimate, substantive planning issue. Id. at 952.
In Robal Associates, Inc. v. Board of Supervisors of Charlestown Township, 999
A.2d 630 (Pa. Cmwlth. 2010), we reviewed decisional law distinguishing between
defects which constituted objective, legitimate, substantive reasons for denial from
those, like mere labeling issues, which could not form the basis for denial of plan
11
approval. Robal held that “the following reasons are sufficient to support
rejection:
[L]ot area (as opposed to lot dimensions); stormwater
requirements and grading requirements necessary for
stormwater management calculations; sewage or
wastewater disposal requirements; wetlands delineations;
highway access; steep cross-section grades at the
intersection with a public street; and, erosion and
sedimentation controls.
Id. at 637 (footnotes omitted).
In the instant matter, the BOS decision includes mere technical
deficiencies that could be easily cured by amendment as Delchester argues;
however, as Shelbourne makes clear, the presence of inadequate independent
grounds for denial does not vitiate the legitimate substantive grounds for denial
identified by the BOS. The decision identifies five specific areas where
Delchester’s plan failed to comply with Township ordinances applicable to the
Plan: (i) Zoning Ordinance; (ii) Groundwater Protection District; (iii) SALDO; (iv)
Sewer and Water; and (v) SWMO. Within these sections, Delchester failed to
object to two areas of noncompliance specific to the groundwater protection
district, two issues of noncompliance with the SALDO, and five instances of
noncompliance with the SWMO. These nine grounds are sufficient to support the
BOS’s decision.
Yet, even if we examined only those grounds for denial which
Delchester has objected to for failure to comply with Section 508(2) of the MPC, it
is clear that Delchester’s Plan does not comply with substantive and objective
requirements of the applicable ordinances. For example, denial reason No. 26 in
12
the BOS’s decision concludes: “[Delchester] has failed to provide soil infiltration
testing results, including field logs, required to demonstrate compliance with
Section 303.3.C.3 (formerly Section 303.01.C.3).”9 (BOS Op., No. 26.)
Delchester has argued that denial reason No. 26 is a mere technical defect that is an
insufficient basis for denial of its plan. In Schultheis v. Board of Supervisors of
Upper Bern Township, Berks County, 727 A.2d 145 (Pa. Cmwlth. 1999), this Court
held just the opposite, concluding that “[applicant’s] Preliminary Plan application
did not contain soil percolation and probe tests, wetlands delineations and erosion
and sedimentation controls. Although [applicant] contends these deficiencies were
minor technicalities, we must agree with the [governing body] that these
deficiencies were not minor but, rather, were substantive.” Id. at 149. Where a
preliminary plan contains clear substantive issues of noncompliance with a
township’s SALDO or other applicable ordinances, the governing body is within
its discretion to deny the plan. Herr, 625 A.2d 169.
The BOS decision contained sufficiently specific grounds for denial in
accordance with the mandate of Section 508(2) of the MPC; because even one
legitimate basis for denial supports the BOS’s decision to deny rather than grant
conditional approval of the Plan, the issues of whether the BOS properly
9
Section 303.3.C.3 (formerly Section 303.01.C.3) of the Township’s SWMO provides:
Soil infiltration tests shall be made to a depth of not less than three
(3) feet below the bottom of the infiltration area or bed. These
tests shall follow the procedures for infiltration beds established by
the Chester County Health Department. All infiltration methods
shall be designed to handle the ten (10) year storm. Seventy five
(75) percent of the tested percolation rate shall be used to
determine the storage volume required.
SWMO § 303.3.C.3 (formerly § 303.01.C.3).
13
incorporated reviews of the Plan by independent consultants10 or identified a
failure to secure third-party permits11 as a basis for denial rather than issuing an
10
Our Supreme Court held in Kassouf v. Township of Scott, 883 A.2d 463 (Pa. 2005), that
references to supporting documentation will provide, as a substantive matter, an adequate
articulation of grounds for denial for purposes of Section 508(2) of the MPC where it is clear
from the decision what supporting documentation is referenced. Id. at 472. In Advantage
Development, Inc. v. Board of Supervisors of Jackson Township, 743 A.2d 1008 (Pa. Cmwlth.
2000), this Court held that a Board decision denying plan approval was sufficient under Section
508(2) of the MPC where it incorporated an engineer’s report that provided specific numbered
reasons for denial. Id. at 1013-1014. In Kassouf, our Supreme Court concluded that the denial
decision failed to satisfy Section 508(2) of the MPC because, as distinguished from Advantage
Development, it was unclear which external documents were being relied upon by the Board for
its denial and
The subdivision applicant should not be left to guess at whether the
township was truly relying upon an external document in lieu of its
own Section 508 statement. Nor should the applicant be left to
guess as to which of multiple documents is the one that would
serve as the “incorporated” basis for the decision. If a municipal
authority indeed intends for an external document to serve as the
substantive explanation of the basis for its decision, it should make
that point explicitly in the decision letter, and not ask the applicant,
and the court system, to infer the point.
Kassouf, 883 A.2d at 473. In the instant matter, the BOS decision states:
The Township’s Engineers, URS Corporation (“URS”) and
subsequently, Ragan Engineering Associates Incorporated (“Ragan
Engineering”), reviewed the [Plan] for compliance with the
applicable Township zoning, land development and stormwater
ordinance provisions and issued review letters indicating how the
[Plan] needed to be revised to come into compliance. True and
correct copies of the URS review letter dated August 9, 2011 and
the Ragan Engineering review letter dated April 7, 2014 are
attached hereto as Exhibit “A.”
(BOS Op. at 1.) Within the body of the decision, additional consultant letters are referenced but
they are not attached to the decision as a part of Exhibit A. (See,e.g., note 6, No. 11, supra.)
11
Where 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
14
approval of the plan conditioned on Delchester obtaining the requisite third-party
permits have no bearing on the outcome of this appeal. However, Delchester has
also argued that the BOS acted in bad faith by denying the Plan, in part based on
the alleged failure of the Township to provide Delchester with an opportunity to
cure the deficiencies in its Plan prior to review by the BOS. Delchester contends
that the Township’s bad faith was exemplified by its opposition to Delchester
before the London Grove Township Zoning Hearing Board (ZHB) and the
inclusion of several zoning issues for which Delchester sought relief before the
ZHB as grounds for denial in the BOS decision prior to Delchester’s ability to
appeal the ZHB decision.12 Delchester contends that the Township’s bad faith
development application. Morris v. South Coventry Township Board of Supervisors, 836 A.2d
1015, 1026 (Pa. Cmwlth. 2003) (governing body properly conditioned approval of final plan
upon engineer’s approval of design of wastewater storage and disposal system); Stein v.
Easttown Township Board of Supervisors, 532 A.2d 906, 912 (Pa. Cmwlth. 1987) (board erred in
denying preliminary plan, rather than conditioning approval of final plan on issuance of
Department of Environmental Resources permit); Harrisburg Fore Associates v. Board of
Supervisors of Lower Paxton Township, 344 A.2d 277, 282 (Pa. Cmwlth. 1975) (“To us, it would
appear to be more reasonable and consistent with the mandate of Section 508(2) to condition
final subdivision approval upon the issuance of this [PennDot] opening permit rather than to
abort the plan at conception.”). However, in Herr this Court made clear that “[w]hile it is true
that a preliminary subdivision application looks toward an approval subject to conditions, there is
nothing in the MPC or case law to suggest that conditional approval, rather than outright
rejection, must be granted where a proposed plan fails to comply with objective, substantive
provisions of a subdivision ordinance.” 625 A.2d at 172 (footnote omitted). Herr went on to
distinguish situations like absence of a third-party permit and problems with the proposed plan
that are relatively minor, which counsel in favor of conditional approval, to situations “where the
objections concern fundamental defects in the plan, such as failure to conform to lot size
requirements of the zoning ordinance, rejection is appropriate.” Id.
12
Delchester specifically challenges BOS denial reasons Nos. 4, 5, 6, and 9, which are as
follows:
ZONING ORDINANCE PROVISIONS
***
15
stems from the failure of Delchester and the Township to reach an agreement
regarding professional consultant fees. See Section 503(1) of the MPC, 53 P.S. §
10503(1).
The Township argues that the timeline belies Delchester’s accusation
of bad faith; Delchester submitted its Plan in 2010 and the Township issued its first
review letter on December 20, 2010 containing 87 comments, however, as late as
the most recent review letter on April 7, 2014, only 38 of the original comments
had been resolved. The Township argues that it repeatedly provided Delchester
4. Section 27- 1303.1.B (formerly Section 1202.A.2) requires a
minimum lot size of 2 acres. The portion of the development area
located at tax parcel 59-5-89 in the I-Industrial District consists of
0.89 acres and is therefore an existing nonconforming lot. A
special exception is required for the use of this lot under Section
27-2107 (formerly Section 2006) and Applicant has failed to
obtain the required special exception from the ZHB.
5. Section 27-202, the definition of “use, accessory” requires that
accessory uses be a subordinate use to the principal use on that
parcel. The driveway proposed fails to meet the requirement for an
accessory use.
6. The ZHB denied Applicant’s variance request from Section 27-
1303.2 (formerly Section 1202.13.1) to allow the construction of
the proposed internal access drive within 10 feet of the property
line and Applicant therefore failed to meet the setback
requirements of Section 27-1303.2 (formerly Section 1202.13.1).
***
GROUNDWATER PROTECTION DISTRICT
***
9. The proposed underground seepage bed violates the Section
1406.8 (formerly Section 1305.1) I limit relating to the hydraulic
head from infiltration devices and the ZHB denied Applicant’s
variance request relating thereto.
(BOS Op., Nos. 4, 5, 6 & 9.)
16
with letters directing Delchester to move forward and setting up deadlines for the
submission of specific materials, and that it continued to work with Delchester on
processing the Plan even after the Township petitioned the court to assign an
arbitrator to resolve the professional consultant fee dispute. The Township argues
that it appeared before the ZHB to defend its ordinances, not out of bad faith, and
that the BOS is under no obligation to wait for an appeal of a ZHB decision to
come to finality before issuing its decision. Moreover, the Township argues that
Delchester had two weeks to submit a modified Plan responding to the ZHB
decision or make an application to the Township prior to the BOS’s vote on the
Plan.
In Raum v. Board of Supervisors of Tredyffrin Township, 370 A.2d
777 (Pa. Cmwlth. 1976), this Court issued an opinion in support of an order
enforcing its judgment following protracted litigation which culminated in this
Court sustaining the validity of a township’s designation of 1,000 acres as a unified
development area. This Court held that the course of conduct of the governing
body and the township following this Court’s first opinion was a “prime exhibition
of bad faith,” and, accordingly, this Court ordered the township and the governing
body to take specific action involving the approval of the developer’s plan and to
cease and desist from other actions intended to frustrate the developer’s ability to
develop its land. Id. at 779, 804. In the Raum opinion, this Court concluded that
“[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.”
17
Id. at 798. In addition, this Court held in Highway Materials, Inc. v. Board of
Supervisors of Whitemarsh Township, 974 A.2d 539 (Pa. Cmwlth. 2009), that
where a township refuses to advise an applicant on how to cure deficiencies in its
plans, as well as the township’s interpretations of its ordinance, the township will
be found to have acted in bad faith. Id. at 544-545.
However, in Abarbanel v. Solebury Township, 572 A.2d 862 (Pa.
Cmwlth. 1990), this Court held that where a municipality has reviewed plans for
the development of property in good faith, has highlighted the plan’s deficiencies,
and has given the developer an opportunity to cure those deficiencies, the
municipality will not be found to have abused its discretion in denying an
application based on failures of the plan to comply with township ordinances.
Further, this Court reasoned in Abarbanel that “similar to a municipality’s duty
under Raum, a developer has a reciprocal good faith duty to submit revised plans in
a reasonable and timely manner, which will enable a municipality to comply with
its duties under [Section] 508 [of the MPC] and Raum.” Id. at 864. Finally, in
Herr, this Court concluded that there was no evidence of bad faith where the
applicant was given two weeks to address the deficiencies in its plan and
distinguished Raum as a basis for finding bad faith because the deficiencies in the
plan were substantive rather than the frivolous technical details cited as a basis for
the rejection in Raum. Herr, 625 A.2d at 172-173.
Following review of the procedural and factual history in the instant
matter, the Trial Court concluded that the Township acted in good faith by granting
numerous extensions for review of the Plan and twelve waivers from the SWMO
despite the fact that during the four-year pendency of the Plan before the Township
Delchester failed to correct issues of noncompliance with the SALDO and other
18
applicable ordinances known to Delchester since the beginning of the process. We
agree. The actions of the Township and the BOS in this matter are quite distinct
from those of the governing body in Raum or in Highway Materials. The BOS
repeatedly and clearly advised Delchester on how to cure the deficiencies in its
Plan, both substantive and technical, as well as alerted Delchester to the
information it needed from Delchester to proceed. The BOS provided Delchester
with ample time within which to act. Instead, Delchester chose to continue without
modifying its Plan and without providing information critical to demonstrating
compliance with the applicable ordinances. Delchester’s assertion of bad faith has
absolutely no support in the record. See Kassouf v. Township of Scott, 883 A.2d
463, 476 (Pa. 2005).13 Moreover, contrary to the “prime exhibition of bad faith”
evident in Raum, the record here demonstrates a prime exhibition of an applicant
seeking to have the applicable ordinances adapted to a plan, rather than produce a
plan in compliance with the applicable ordinances.
13
In Kassouf, the Court adopted the reciprocal good faith standard for action by governing
bodies and applicants on subdivision and land use plans, concluding:
There is no existing basis in law to suggest that a developer is
entitled to infinite opportunities to address and remedy the defects
in a subdivision plan. While reciprocal actions taken in good faith
are required of the parties, a reciprocal good faith standard cannot
simply eliminate the inherent discretionary powers of a
municipality in this area. [Applicant’s] plan raised multiple issues
related to non-compliance with ordinances, and [applicant] was
made aware of these defects on a number of occasions between
July and October of 2000. That he failed to adequately address
them all prior to the November 14, 2000 deadline does not
establish bad faith on the part of the township in electing to act
without granting him additional time to address the defects.
Id. at 476.
19
We also reject Delchester’s contention that the BOS acted in bad faith
by proceeding with its decision regarding Delchester’s Plan prior to the completion
of Delchester’s appeal of the ZHB’s denial of zoning relief. There is no
requirement within the MPC or decisional law that the governing body of a
township must await the outcome of an appeal by an applicant denied zoning relief
by the zoning hearing board before issuing its decision granting or denying
preliminary plan approval. Though not required to do so by law, the BOS
postponed its action on the Plan to allow Delchester to seek relief from the ZHB
because the lack of compliance with the Township’s Zoning Ordinance was fatal to
Delchester’s Plan. Having failed to garner the necessary relief, Delchester did not
withdraw its Plan from consideration by the BOS or attempt to modify its Plan and
it was therefore acted upon by the BOS. Delchester’s attempt to argue that the
consequences of its inaction are attributable to the BOS’s bad faith is without
merit.
The order of the Trial Court is affirmed.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Delchester Developers, L.P., :
Appellant :
:
v. : No. 148 C.D. 2016
:
London Grove Township :
Board of Supervisors :
ORDER
AND NOW this 9th day of May, 2017, the order of the Court of
Common Pleas of Chester County in the above-captioned matter is AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge