R.P. Grim v. Maxatawny Twp. Bd. of Supers.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert P. Grim, Jane C. Grim, Shannon :

M. Crowe, Alexander G. Crowe, :

Stephen J. Demchyk, Barbara K. :

Demchyk, John C. Zima, Darrell L. :

Browning, Diane Dudley, Kenneth P. :

Franke, Anne H. Franke, Dean Haas, :

Helen A. Wanamaker, Dwight S. :

Wanamaker, and Laurel L. Burkhardt, :

Appellants :

:

v. :

:

Maxatawny Township Board of :

Supervisors, Duke Realty Limited :

Partnership, Charles E. Wessner, :

Carol J. Wessner, Cynthia K. Schlegel, :

Pollyanna G. Hartman, Kathy Karpeuk, :

Robert M. Skrip, Linda Skrip, Roy :

Wessner, Dale Wessner, Jenni Reinhard, : No. 1452 C.D. 2021

and Jeremy Reinhard : Argued: December 14, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION

BY JUDGE FIZZANO CANNON FILED: April 6, 2023

Robert P. Grim, Jane C. Grim, Shannon M. Crowe, Alexander G.

Crowe, Stephen J. Demchyk, Barbara K. Demchyk, John C. Zima, Darrell L.

Browning, Diane Dudley, Kenneth P. Franke, Anne H. Franke, Dean Haas, Helen

A. Wanamaker, Dwight S. Wanamaker, and Laurel L. Burkhardt (collectively

Objectors) appeal from an order of the Berks County Court of Common Pleas (trial

court) affirming a development approval by the Maxatawny Township (Township)

Board of Supervisors (Board). Upon review, we vacate and remand to the trial court

with a directive to vacate and remand the Board’s decision.

I. Background

In May 2020, Duke Realty Limited Partnership (Duke) proposed a

development plan (Plan) within the Township1 for warehouse/distribution facilities

with a combined area of 1.6 million square feet on lots zoned for light industrial (LI)

use. Duke is the equitable owner of 11 combined parcels comprising the site. The

site is bounded by Kutztown Road (State Route 222) to the south, Long Lane Road

(State Route 1024) to the east, and Hilltop Road to the south and west. Hottenstein

Road goes through the site and would be realigned. The Plan anticipates operations

24 hours a day, 7 days a week, with 1600 employees, 1800 parking spaces for tractor-

trailers, and 985 car parking spaces. A transportation impact study estimated 7,000

trips per day to and from the site, including about 5,000 car trips and about 2,000

tractor-trailer trips.

An environmental study projected the site would provide its own water

through wells Duke would construct. The study did not address impact on the

aquifer and watershed that serve the Township and neighboring localities, and the

Township’s engineer initially found the Plan noncompliant. The Plan would also

1

The Township is about 26 square miles and had an estimated population of 6,873 as of

2021. See https://www.census.gov/quickfacts/maxatawnytownshipberkscountypennsylvania

(last visited Mar. 20, 2023). It has a large rural and agricultural Mennonite component that

travels the roads by bicycle and sometimes by horse and buggy. See

https://www.nytimes.com/2021/05/26/business/lehigh-valley-warehouses-ecommerce.html (last

visited Apr. 5, 2023).

2

cause the Township’s sewage facilities to reach capacity within five years, requiring

an expansion that Duke promised to construct and dedicate to the Township. The

Township engineer ultimately recommended approval of the Plan conditioned on

that expansion as well as ongoing monitoring and compliance with all issues prior

to final approval.

The Board’s members during the relevant time period were Heath

Wessner (Wessner), Allen Leiby (Leiby), and Judy Daub (Daub). Wessner owned

two parcels subject to purchase agreements with Duke as part of the site for the Plan.

Leiby’s son-in-law, Jeremy Reinhard (Reinhard), and sister, Grace Haas (Haas), also

owned parcels subject to purchase agreements with Duke, although Haas’s parcel

was not directly part of the site.

The Township solicitor sought advice from the Pennsylvania State

Ethics Commission (Commission) regarding Leiby’s ability to vote on the Plan. The

Commission advised that Haas’s interest in the Plan through her agreement with

Duke would create a conflict of interest for Leiby, as Haas is Leiby’s immediate

family member. Reproduced Record (RR) at 203a-11a.

The record does not reflect any inquiry with the Commission regarding

Wessner’s conflict. Nonetheless, Wessner abstained from all discussion and action

on the Plan. Thus, abstention by Leiby would leave only one voting Supervisor,

rendering the Board unable to act at all on the Plan. Accordingly, based on Section

1103(j) of the Public Official and Employee Ethics Act (Ethics Act),2 65 Pa.C.S.

§ 1103(j), which codified the common law Rule of Necessity,3 the Commission

2

65 Pa.C.S. §§ 1101-1113.

3

Under the Rule of Necessity, if all members of a tribunal, or so many that there is not a

quorum, are subject to recusal, the tribunal must consider the case despite the conflicts of its

members, where otherwise the agency could not carry out its duties and the litigants would be

3

advised that Leiby could vote on the Plan as long as he disclosed his conflict and did

not engage in discussions or advocacy for the Plan. RR at 203a-11a.

Meanwhile, objections arose over the Plan site’s proximity to several

properties, including the parcel owned by Leiby’s sister, Haas, which contained

residential structures, as well as a church property containing a playground. See,

e.g., RR at 8Ma,4 8Na, 30a-31a, 439a. Section 593(c) of the Township’s Zoning

Ordinance prohibits warehousing within 500 feet of “adjacent property containing a

residential dwelling [or] playground . . . .” MAXATAWNY TWP., PA., ZONING CODE

(Zoning Ordinance), § 593(c) (2012). Duke did not secure any variance for the Plan

from the Zoning Board. The Zoning Officer issued a letter in April 2021 stating that

the Plan proposed a use that is permitted by right per Section 407.1(c) of the Zoning

Ordinance.

In June 2021, after a hearing, the Board voted 2-0 to preliminarily

approve the Plan, with Leiby and Daub voting in favor and Wessner abstaining.5

Conditions included payment of a $1.3 million traffic impact fee and $600,000 for

road improvements, considerate placement of a traffic roundabout (including

accessibility and safety of horses & buggies), water treatment and sewage upgrades,

and consent to monitoring of groundwater levels.

Objectors appealed to the trial court. Duke intervened. The trial court

upheld the Board’s approval, finding that the Board’s approval of the Plan was

denied a decision. Wells v. Unemployment Comp. Bd. of Rev., 236 A.3d 108, 111 (Pa. Cmwlth.

2020) (additional citations omitted).

4

The page numbering in parts of the reproduced record does not comply with the

requirements of Rule 2173 of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 2173.

Numbering here conforms to that used in the reproduced record, for clarity and ease of reference.

5

Leiby is no longer in office and has been replaced by John A. Deplanque (Deplanque).

See http://www.maxatawny.net/supervisors.html (last visited Apr. 5, 2023).

4

supported by substantial evidence. The trial court observed that warehouses are

permitted by right in the LI district and have been operating in it for years. Relying

on the Commission’s opinion and Section 1103(j) of the Ethics Act, the trial court

found no due process violation arising from Leiby’s vote to preliminarily approve

the Plan.

Objectors contended that the Board misinterpreted the Zoning

Ordinance’s restriction that a warehouse shall be no closer than 500 feet from any

adjacent property containing a residential dwelling. See Zoning Ordinance, § 593(c).

The trial court construed that provision as referring to the distance between a

warehouse and residential buildings rather than between lots. In its opinion issued

pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure,

Pa.R.A.P. 1925(a) (1925(a) Opinion), the trial court concluded the provision was

ambiguous and deferred to the Board, which had relied on the Zoning Officer’s

interpretation that the correct measure was building-to-building. 1925(a) Opinion at

4-5. Based on that interpretation, the trial court implicitly concluded that no variance

was needed based on the location of a residence on Haas’s property.6 Id.

Objectors also contended that the Board should have required Duke to

secure a special exception for warehousing activity from the Township’s Zoning

Hearing Board before approving the Plan. The trial court concluded that no special

exception was necessary because warehouses are permitted by right in the LI district.

6

The trial court did not address the issues raised regarding the site’s proximity to other

residences and a church playground. See generally 1925(a) Opinion.

The Plan also stated that graves in a historically significant burial site on the property were

to be disinterred and relocated. In January 2021, living descendants of those buried in the cemetery

sued Duke. That matter purportedly settled in September 2021 with the burial site to remain in

place pursuant to an order of the Berks County Orphans’ Court. RR at 947a-48a.

5

The trial court likewise rejected Objectors’ argument that the proposed

warehouses would be contrary to the area’s health, safety, and welfare. The trial

court dismissed these as general allegations devoid of support through expert

testimony and noted that the approval is still only conditional at this time.

Objectors then appealed to this Court.

II. Issues

On appeal,7 Objectors first raise due process concerns regarding

impartiality of the vote to approve the Plan. Objectors observe that two of the three

Township Supervisors were conflicted by property interests with Duke, but that one

of the conflicted Supervisors still voted for preliminary approval. Objectors posit

that the Rule of Necessity, as codified in the Ethics Act, was either inapplicable or

unconstitutional as applied here. Objectors suggest that no necessity existed to allow

a conflicted Supervisor to vote; instead, Duke should have simply found another site

where there were no conflicts. Objectors ask this Court to void the Township’s

preliminary Plan approval.

Next, Objectors assert that the Board wrongly failed to require Duke to

obtain special exceptions and variances before preliminary approval of the Plan.

Objectors maintain that the Zoning Ordinance unambiguously forbids locating a

warehouse property within 500 feet of a property containing a residential structure.

They assert that Haas’s property, which is not directly part of the parcels comprising

the Plan site, contains a residential structure and is within 500 feet of the Plan site.

7

“Where the trial court takes no additional evidence, our review in a land development

appeal is limited to determining whether the local governing body committed an error of law or an

abuse of discretion.” Berner v. Montour Twp., 120 A.3d 433, 436 n.5 (Pa. Cmwlth. 2015) (citing

Robal Assocs., Inc. v. Bd. of Supervisors of Charlestown Twp., 999 A.2d 630 (Pa. Cmwlth. 2010)

(en banc)).

6

Thus, Objectors contend that Duke must obtain a variance in order to gain approval

of the Plan.

Regarding a special exception, Objectors argue that the Zoning

Ordinance contains conflicting provisions. One provision of the Zoning Ordinance

allows warehousing and distribution as a permitted use in the LI district; another

provision requires a special exception from the Township’s Zoning Hearing Board

for warehousing activity or warehouse facility. The Zoning Ordinance expressly

provides that in case of a conflict in its provisions, the more restrictive provision

applies. Therefore, Objectors posit that Duke had to obtain a special exception for

the use proposed in the Plan.8

Finally, Objectors suggest that the Board wrongly ignored health,

welfare, and safety issues by preliminarily approving the Plan despite its probable

significant adverse impact on traffic, water, and sewer resources. Objectors assert

that Duke failed to offer substantial evidence of the Plan’s feasibility concerning

traffic, water, and sewer provisions and that, moreover, the Board capriciously

disregarded evidence of unfeasibility. Further, Objectors contend that the Board

should not have granted preliminary approval without conditioning that approval on

procurement of necessary permits from government agencies. Thus, Objectors

maintain that the Board abused its discretion by granting preliminary approval to a

plan that contained too many variables and not merely minor defects.

8

Objectors also asserted error regarding provisions relating to the burial ground located on

the site, but as noted above, that issue was settled in separate litigation. Accordingly, we do not

address it here.

7

III. Discussion

A. Conflicts of Interest and the Ethics Act

The parties do not dispute that both Wessner and Leiby had conflicts of

interest that would normally have precluded both of them from discussing,

advocating, or voting on the proposed Plan. Rather, the parties disagree on the

propriety of allowing Leiby to vote on the Plan notwithstanding his conflict.

Objectors insist that the trial court’s decision to let stand a vote by a

conflicted Supervisor erodes public trust by failing to stop potential collusion

between developers and local land use officials who may vote on applications by

those developers. Objectors posit that the abuse is especially egregious here,

because Duke’s application downplayed the necessity for its acquisition of the parcel

owned by Leiby’s sister. Objectors suggest that the Rule of Necessity codified in

the Ethics Act dates from a time when cases could not easily be reassigned, and when

enacted, the Ethics Act contemplated the classic instance of two adversaries and a

single judge. According to Objectors, the rule should be reconsidered; it should not

be applied to land use matters where there is only an applicant and a majority of

conflicted adjudicators, with Objectors powerless on the sidelines while the

applicant and adjudicator both benefit from self-created conflicts of interest.

Objectors acknowledge that Section 508(3) of the Pennsylvania

Municipalities Planning Code (MPC),9 53 P.S. § 10508(3), provides that the inaction

of the local land use authority on an application will result in approval by operation

of law. Thus, inability to obtain a quorum vote could deprive the parties of an

adjudication. However, Objectors contend that where, as here, the reason for the

inaction is a conflict that should disqualify a majority of the adjudicators on the

9

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

8

application, due process concerns should bar application of that provision because

the result would be unjust and absurd. Objectors assert that when the statutory

remedy, such as allowing the vote to stand pursuant to the MPC, will violate due

process and bring an unjust result, a common law remedy is appropriate. Here,

Objectors reason that because the conflict negated a majority of the Board’s ability

to act, Duke’s application should have been deemed denied, as it would have been

had there been only two voting supervisors and a tie resulted. See Crossgates Inc.

v. Bd. of Comm’rs, 603 A.2d 276, 278 (Pa. 1992) (treating tie vote as deemed denial

rather than failure to act).

Subsection 1103(j) of the Ethics Act provides:

(j) Voting conflict.--Where voting conflicts are not

otherwise addressed by the Constitution of Pennsylvania

or by any law, rule, regulation, order or ordinance, the

following procedure shall be employed. Any public

official or public employee who in the discharge of his

official duties would be required to vote on a matter that

would result in a conflict of interest shall abstain from

voting and, prior to the vote being taken, publicly

announce and disclose the nature of his interest as a public

record in a written memorandum filed with the person

responsible for recording the minutes of the meeting at

which the vote is taken, provided that whenever a

governing body would be unable to take any action on a

matter before it because the number of members of the

body required to abstain from voting under the provisions

of this section makes the majority or other legally required

vote of approval unattainable, then such members shall be

permitted to vote if disclosures are made as otherwise

provided herein . . . .

65 Pa.C.S. § 1103(j)10 (emphasis added). Objectors argue that this provision

is inapplicable here because the due process requirement of the Remedies

10

Both Wessner and Leiby disclosed their conflicts of interest. RR at 380a, 386a, 389a.

9

Clause of the Pennsylvania Constitution, article I, section 11,11 was violated

by allowing Leiby to vote.

This Court disagrees with Objectors’ due process argument. The

Remedies Clause, on which Objectors rely, guarantees a remedy for every injury “by

due course of law . . . .” Pa. Const. art. I, § 11. Contrary to Objectors’ argument,

the Ethics Act furthers, rather than thwarts, that guarantee. Applying the Ethics Act

here provides Duke with a remedy by allowing the Board to adjudicate the

preliminary Plan rather than forcing the deemed denial Objectors seek.

We likewise disagree with Objectors’ suggestion that we should

reconsider the Rule of Necessity as codified in the Ethics Act. Although the Rule of

Necessity is a creature of the common law, the Ethics Act is a legislative enactment.

Thus, only the legislature can reconsider the wisdom of Section 1103(j). See

Holland v. Marcy, 883 A.2d 449, 456-57 (Pa. 2005) (stating that “[the] Court may

not amend [a] statute but instead must examine the statute as drafted by the

legislature”).

Nonetheless, we agree with Objectors that the vote as conducted was

improper. Although we conclude that Leiby acted properly by voting on the Plan’s

preliminary approval, we discern no legal basis for precluding Wessner from voting

likewise. Both Leiby and Wessner had conflicts of interest. Abstention by both of

11

The provision of the Pennsylvania Constitution knows as the Remedies Clause provides:

All courts shall be open; and every man for an injury done him in

his lands, goods, person or reputation shall have remedy by due

course of law, and right and justice administered without sale, denial

or delay. Suits may be brought against the Commonwealth in such

manner, in such courts and in such cases as the Legislature may by

law direct.

Pa. Const. art. I, § 11.

10

them would have left the Board without a quorum. Therefore, both were equally

required to vote under Section 1103(j) of the Ethics Act. We find nothing in the

record to justify one of two conflicted Supervisors in voting but not the other. Under

the circumstances of this case, all three Supervisors should have voted. See 65

Pa.C.S. § 1103(j) (mandating that where the number of abstaining members results

in the absence of a quorum, “then such members shall be permitted to vote . . . ”)

(emphasis added); Siteman v. City of Allentown, 695 A.2d 888, 891 (Pa. Cmwlth.

1997) (en banc) (concluding that where multiple recusals left insufficient city

council members to constitute a quorum to hear an employment case, the Rule of

Necessity required a determination by the entire city council). Accordingly, we

conclude that a remand is required in order for the vote to be conducted properly.12

B. Variances and Special Exception

1. Variance Requirement

Section 593(c) of the Zoning Ordinance states that a warehouse

property “shall be located no closer than 500 feet from any adjacent property

containing a residential dwelling, school, day-care facility, park, playground, library,

hospital, nursing, rest, or retirement home, or medical residential campus.” Zoning

Ordinance, § 593(c). The Zoning Ordinance defines “adjacent” as “[t]he state of

12

We recognize, however, that Leiby is no longer a Supervisor and that his replacement,

Deplanque, appears to be unconflicted. If so, there will be a quorum to vote on the preliminary

Plan on remand without Wessner’s vote, rendering Section 1103(j) of the Ethics Act inapplicable.

Further, this Court has previously determined that a conflicted official may not vote to break a tie.

See Koslow v. Commonwealth, 540 A.2d 1374, 1376 (Pa. Cmwlth. 1988) (concluding that a vote

was “illegal and void and could not be counted in computing a quorum or majority” where a

conflicted township commissioner broke a 2-2 tie in his own favor on whether he should be

appointed to the township’s municipal authority). Therefore, in the event that a tie vote of the two

unconflicted Supervisors occurs on remand, the result will be a deemed denial of the preliminary

Plan. See Crossgates Inc. v. Bd. of Comm’rs, 603 A.2d 276, 278 (Pa. 1992).

11

being side by side, next to or adjoining one another.” Zoning Ordinance, § 202; RR

at 570a.

Duke, the Board, and the trial court found Section 593(c) ambiguous

and deferred to the Township’s Zoning Officer, whose determination they read as

concluding that there must be at least 500 feet between warehouse buildings and

residential dwellings on lots adjacent to the warehouse lot. Objectors maintain

Section 593(c) is clear and that the 500-foot distance means from property to

property, not building to building, meaning that the warehouse lot must be at least

500 feet from any lot with a residential dwelling.

We agree with Objectors that the trial court erred in ruling this

provision was ambiguous and rewriting it to refer to the distance from building to

building rather than property to property. Section 593(c) expressly states that the

distance is to be between properties, not between buildings. The Zoning

Ordinance’s use of the word “containing” further supports that meaning, in that

properties contain buildings, but buildings do not contain properties. We further

observe that the Zoning Officer, who advised that the residential dwelling on Haas’s

property had to be demolished in order for the Plan to be in compliance with the

Zoning Ordinance, did not specifically indicate that the violation arose from a

distance of less than 500 feet between the warehouse buildings and the residential

dwelling rather than from property to property. We conclude that Section 593(c) is

not ambiguous in meaning that the issue is distance between properties rather than

buildings on those properties.

We agree with Objectors that the Plan, as approved, violates Section

593(c)’s buffer distance requirement. Although the residence on Haas’s property

purportedly either has been or will be demolished so as to eliminate the 500-foot

12

proximity issue relating to that residence, the record does not indicate that the alleged

proximity of other residences or the church playground was resolved. Therefore,

Duke should have been required to obtain variances before approval of the Plan. On

remand, the Board shall assure that Duke has obtained any requisite variances before

a new vote is conducted on the Plan.

2. Special Exception Requirement

Section 508(4) of the MPC requires that local authorities ensure that,

before preliminary approval is given to an application where a conditional use or

special exception is involved, all necessary information has been provided, because

final approval is generally automatic unless a final plan differs significantly from a

preliminary plan. See 53 P.S. § 10508(4); Weiser v. Latimore Twp., 960 A.2d 924,

929 (Pa. Cmwlth. 2008) (quoting Section 508(4) and stating that “[t]he MPC

provides that an applicant with approval of its preliminary plan is entitled to final

approval”).

Here, Objectors insist that the Plan required a special exception for

Duke’s proposed use of the site for a warehouse and distribution facility. Therefore,

Objectors maintain that the Board should not have granted preliminary approval.

Section 407.1(c) of the Zoning Ordinance permits as a principal use in

the LI district “Wholesaling, Warehousing and Distribution, excluding storage &

sale of lumber, ice, coal and petroleum or other fuels subject to Section 593 of this

Ordinance.” Zoning Ordinance, § 407.1(c). Section 407.3(e), however, requires a

special exception issued by the Zoning Hearing Board for “Warehousing Activity

and/or Facility subject to Section 593 of this Ordinance.” Id., § 407.3(e). Thus,

although Section 407.1 of the Ordinance allows warehousing by right in the LI

13

district, Section 407.3 requires a special exception for warehousing activity and/or a

warehousing facility. The absence of the word “distribution” from Section 407.3

while it appears in Section 407.1 does not mean that Duke was excused from securing

a special exception. The Zoning Ordinance defines “distribution” as “[s]torage,

transfer, and supply of products and materials.” Zoning Ordinance, § 202; RR at

585a. Distribution is part of warehousing as a whole; the Zoning Ordinance defines

a “warehouse” as “[a] building or group of buildings primarily used for the

commercial storage, transfer, and distribution of products and materials.” Zoning

Ordinance, § 202; RR at 617a. Sections 407.1 and 407.3 plainly conflict.

Pursuant to Section 107 of the Zoning Ordinance, “[i]f a discrepancy

exists between any regulations contained within this [Zoning] Ordinance, that

regulation which imposes the stricter limitation on the proposed use or structure shall

apply.” Zoning Ordinance, § 107; RR at 567a. Here, therefore, any proposed

warehousing in the LI district requires a special exception from the Zoning Hearing

Board. Therefore, the Zoning Officer erred and the Board violated the Zoning

Ordinance by failing to require Duke to secure a special exception before granting

preliminary approval. Accordingly, the Board erred by approving the preliminary

Plan without requiring Duke to first obtain a special exception.

C. Health, Safety, and Welfare Concerns

In their final argument, Objectors contend that the Plan does not

comport with the health, safety, and welfare of the community and that the Board

abused its discretion and capriciously ignored evidence of these negative impacts as

well as the Ordinance’s stated purpose of preserving the Township’s rural character.

Objectors maintain that the Plan, including the proposed 7,000 vehicle trips per day,

14

will overwhelm the surrounding roads, which are already at 95% or greater capacity.

Further, Objectors assert that the Plan will overwhelm the Township’s water and

sewage capacity. Objectors maintain that the Board overstretched the limited extent

to which preliminary approval can be based on incomplete information regarding

these crucial matters. They posit that if outright reversal is not warranted, the matter

should at least be vacated and remanded for the trial court to take evidence as needed.

As discussed above, this Court concludes that a remand to the Board is

necessary based on the Board’s errors addressed in Sections A and B of this opinion.

Accordingly, we do not reach these additional issues raised by Objectors. The Board

may consider them, if appropriate, on remand.

IV. Conclusion

Based on the foregoing discussion, we vacate the trial court’s order and

remand this matter for a remand to the Board for further proceedings consistent with

this opinion.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

Judge Wallace did not participate in the decision of this case.

15

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert P. Grim, Jane C. Grim, Shannon :

M. Crowe, Alexander G. Crowe, :

Stephen J. Demchyk, Barbara K. :

Demchyk, John C. Zima, Darrell L. :

Browning, Diane Dudley, Kenneth P. :

Franke, Anne H. Franke, Dean Haas, :

Helen A. Wanamaker, Dwight S. :

Wanamaker, and Laurel L. Burkhardt, :

Appellants :

:

v. :

:

Maxatawny Township Board of :

Supervisors, Duke Realty Limited :

Partnership, Charles E. Wessner, :

Carol J. Wessner, Cynthia K. Schlegel, :

Pollyanna G. Hartman, Kathy Karpeuk, :

Robert M. Skrip, Linda Skrip, Roy :

Wessner, Dale Wessner, Jenni Reinhard, : No. 1452 C.D. 2021

and Jeremy Reinhard :

ORDER

AND NOW, this 6th day of April, 2023, the order of the Court of

Common Pleas of Berks County is VACATED and this matter is REMANDED to

the trial court. On remand, the trial court is directed to vacate the decision of the

Maxatawny Township Board of Supervisors (Board) and remand to the Board for

further proceedings consistent with the foregoing opinion.

Jurisdiction relinquished.

__________________________________

CHRISTINE FIZZANO CANNON, Judge