Petition for Writ of Certiorari — Pocono Green, Inc. v. Board of Supervisors

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

POCONO GREEN, INC.,

Petitioner

vs.

BOARD OF SUPERVISORS OF KIDDER TOWNSHIP

(Carbon County), PENNSYLVANIA

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

_*STEPHEN B. LIEBERMAN

BARRY W. SAWTELLE

Lieberman and Rothstein, P.C.

635 Walnut Street

Reading, Pennsylvania 19601

Of Counsel:

LENARD L. WOLFFE

Houpt, Wolffe, and Huganir, Ltd.

45 Darby Road

Paoli, Pennsylvania 19301

* Counsel of record

QUESTION PRESENTED

Whether the Board of Supervisors of Kidder Township (Carbon

County), Pennsylvania and the Supreme Court of Pennsylvania, re-

spectively, denied preliminary approval of Petitioner's housing devel-

opment based upon statements not in evidence nor part of the record, in

violation of the Fourteenth Amendment to the United States

Constitution.

TABLE OF CONTENTS

Questions Presented

Table of Authorities

Opinions Below

Jurisdiction

Constitutiona! Provisions Involved

Statement of Facts and Applicable Law

Staiement of Facts

Statement of Law

Reasons for Granting the Petition

Conclusion

Appendix A (Pennsylvania Supreme Court Opinion)

Appendix B (Application for Reargument)

Appendix C (Denial of Application for Reargument)

Appendix D (Commonwealth Court Opinion)

Appendix E (Common Pleas Opinion)

Appendix F (Township Decision and Findings)

TABLE OF AUTHORITIES

Cases:

Appeal of Molnar, 441 A.2d 487, 64 Pa. Cmwith. 515

(1982)

Bi-Metallic Investment Co. v. State Board of Equal-

ization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915)

Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct.2701,

33 L.Ed. 2d 548 (1972)

Boddie v. Connecticut, 401 U.S. 371,91 S.Ct. 780,

28 L.Ed. 2d 113 (1971)

Brady v. Township of Colchester, 863 F.2d 205

(2nd Cir., 1988)

Bray v. Zoning Board of Adjustment, 410 A. 2d 909,

48 Pa. Cmwith 523 (1980).

Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 2358,

49 L.Ed. 2103 (1945)

City of Eastlake v. Forest City Enterprises, Inc., 426

U.S. 668, 96 S.Ct. 2358, 49 L.Ed. 2d 132 (1976)

Creative Environments, Inc. v. Estabrook, 680 F.2d

822 (Ist Cir., 1982), cert. denied 459 U.S. 989, 103 S.Ct.

345, 74 L.Ed 2d 385

Doran Investments v. Muhlenberg Township, 309

A. 2d 450, 10 Pa Cmwith. 143 (1973)

Fasano v. Board of County Commissioners, 264 Ore.

574, 507 P. 2d 23 (1973)

Page:

12,19

Cases:

Flick v. Gately, 328 Ill. App. 81, 65 N.E. 2d 137 (1946)

Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L.Ed.

2d 656 (1973)

Goldberg v. Kelly, 397 U.S. 254, 90S. Ct. 1011, 25

L. Ed. 2d 287 (1970)

Littlefield v. City of Afton, 785 F.2d 596 (8th Cir., 1986)

Matthews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47

L.Ed. 2d 18 (1976)

Meyers v. Board of Supervisors of Lower Makefield

Township, 394 A.2d 669, 38 Pa. Cmwith. 578 (1978)

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593,

33 L.Ed. 2d 484 (1972)

National Land Investment Co. v. Kuhn, 215 A.2d 597,

419 Pa. 504 (1965)

Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447,

72 L.Ed. 842 (1928)

Rogin v. Bensalem Township, 616 F.2d 680 (3rd Cir. ,1980),

cert. denied 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed. 2d 223

South Gwinnett Venture v. Pruitt, 491 F.2d 5 (Sth Cir.,en

banc, 1974), cert. dismissed 416 U.S. 901,94 S.Ct. 1625, 40

L.Ed. 2d 119, cert. denied 419 U.S. 837, 95 S.Ct. 66, 42

L.Ed. 2d 64

Village of Belle Terre v. Boraas, 416 U.S. 1,94S.Ct. 1536,

39 L.Ed. 2d 797(1974)

Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47

S.Ct. 114, 71 L.Ed. 303 (1926)

Page:

9,10, 16

9, 10

12, 20

7, 8

Cases:

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.

2d 450 (1977)

Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197,

45 L.Ed. 2d 343 (1975)

Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040,

48 L.Ed. 2d 597 (1976)

Constitution and Statutes:

United States Constitution, Fourteenth Amendment

28 U.S.C. Section 1257(a)

Pennsylvania Municipalities Planning Code, 53 P.S.

Section 1001 et. seqg., Section 10707(4)

Other authorities:

Davidoff and Davidoff, Opening the Suburbs:

Toward Inclusionary Land Use Controls, 22 Syracuse

L. Rev. 511 (1971).

Shortlidge, The “Fasano Doctrine”: Land Use

Decisions As Quasi-Judicial Acts, Planning, Zoning,

and Eminent Domain (Fall, 1986).

Developments in the Law -- Zoning, 91 Harv. L. Rev.

1427 (1978)

Page:

14,15,

16, 20

14, 20

A eA VT

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

No.

POCONO GREEN, INC.,

Petitioner

vs.

BOARD OF SUPERVISORS OF KIDDER TOWNSHIP

(Carbon County), PENNSYLVANIA

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

The Petitioner, Pocono Green, Inc., by and through tts

counsel, petitions for a Writ of Certiorari to review the judgment of

the Supreme Court of Pennsylvania in this case.

OPINIONS BELOW

The opinion of the Supreme Court of Pennsylvania (App.,

injra, \a-1\'a)is reported at 523 Pa. 601 and 568 A.2d612. The opinion

of the Commonwealth Court of Pennsylvania (App., infra, 27a - 29a)

is reported at 117 Pa. Commonwealth 396 and 543 A.2d 1253. The

opinion of the Court of Common Pleas or Carbon County is not re-

ported. The Report of the Supervisors of Kidder Township is not

reported.

JURISDICTION

The judgment of the Supreme Court of Pennsylvania (App.,

infra, 1a) was entered on January 16, 1990. An Application for Rear-

gument was denied on August 22, 1990 (App., infra, 26a). The juris-

diction of this Court is invoked under 28 U.S.C. Section 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to the United States Constitution

provides, in relevant part:

No State shal! make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any Siate deprive

any person of life, liberty or prop-

erty without due process of law...

STATEMENT OF FACTS AND APPLICABLE LAW

The issue in this case is whether the state can deny a

property owner the right to use his land in a manner consistent with

applicable zoning regulations without affording him the safeguards

of Procedural Pue Process. This right is important and fundamen-

tal--too important and fundamental to be defeated by unsupported

and insupportable fears of adverse impact. Yet, precisely this oc-

curred with Petitioner’s land development application to the Board

of Supervisors of Kidder Township.

The Kidder Township Board of Supervisors reached an

incorrect conclusion because it relied upon public opinicn rather

than competent evidence. Procedural Due Process provides safe-

guards which insure that government decisions affecting individu-

als are fair and accurate, not arbitrary or irrational. When govern-

ment agencies stray from the structural framework of Procedural

Due Process, errors are committed and rights protected by the

Fourteenth Amendment are abridged.

Procedural Due Process requires that decisions regarding

reasonable land use be made objectively and without hysteria. This

Court has never instructed local zoning agencies to comport their

actions to the Procedural Due Process requiremenis of the Four-

teenth Amendment. The Court should issue a definitive statement

that local governments must adhere to the requirements of Proce-

dural Due Process in applying zoning ordinances to individual prop-

erties. This will safeguard against the denial of legitimate land use,

based on irrational public sentiment and without regard for the rights of

property owners or the larger needs of society.

I. Statement of Facts.

The Petitioner (“Pocono Green”) is a real estate devel-

oper. In 1985, Pocono Green proposed 2 planned residential devel-

opment of 465 dwellings on a tract of land partially located in Kidder

Township, Carbon County, Pennsylvania. Pursuant to applicable

state law and municipal ordinance, Pocono Green submitted to

Kidder Township its Planned Unit Development' for Tentative

Approval? of the 200 dwellings to be located in the Kidder Township

portion of the tract.

Pennsylvania law provides that the municipal legislative

body may assign consideration of planned developments to an

independent administrative agency (generally called a “Planning

Commission”), Alternatively, the municipal board may opt to re-

view the development plans itself. Kidder Township has opted for

the latter procedure. Accordingly, a public hearing on Petitioner’s

Planned Unit Development was held before the Board of Supervi-

sors of Kidder Township. At the public hearing, Pocono Green

presented exhibits and the swor. testimony of several witnesses,

including a professional engineer. After the public hearing the

Township Board of Supervisors issued a written decision, denying

Tentative Approval of the Planned Unit Development.

The denial of Tentative Approval was based solely upon

the Supervisors’ conclusion that Pocono Green’s plans for sewage

' Planned developments (sametimes called “Planned Unit Developments” or “Planned Resi-

dential Developments”) are a housing development model gaining increasing popularity for the

construction of affordable housing. By clustering the housing units, thereby minimizing the

expense of roads, sidewalks, and unilites, this type of development provides entry level housing

for middle and working class families in a more aesthetically pleasant and environmenially

? Tentative Approval is a preliminary approval of the design scheme, critical under the Penn-

syivania Municipalities Planning Code, 53 P.S. Section 1001, et. seg. The Tentative Approval

process allows a review of the development plans for conformity to state and

local land use regulations. Without Tentative Approval, the development may

not proceed under Pennsylvania law. As a practical matter, also, Tentative

Approval is generally necessary to secure financing for the actual construction of

the Planned Unit Development. Tentative Approval was granted by the adjoining

East Side Borough for the remaining 265 dwellings on December 5, 1985.

treatment were not feasible’. This conclusion resulted entirely

from the Board’s finding of fact that the stream into which Pocono

Green proposed to discharge the treated wastewater processed by

its sewage treatment plant (i) ran dry and (ii) emptied into a pond

with no outlet. The record made before the Board contains no

competent evidence to support these findings.‘

At the public hearing, two residents of Kidder Township,

who were not sworn as witnesses, asked questions of Pocono

Green’s engineer. While asking those questions, the residents

made unsolicited comments from the floor of the public hearing, to

the effect that the stream ran dry and that it emptied into a pond that

_ had no outlet. Regardless of the truth or falsity of the unsworn

statements, the Board should not have relied on them to reach its

decision, because the statements were not part of the sworn testimony

and were not subject to cross-examination.°

Nevertheless, the Board seized on these statements to

3Initially, the developer has the burden to show that the sewage treatment design is feasible, 53

Pa.C.S. Section 10707(4). Feasibility, for purposes of Tentative Approval, is established by

meeting the objective standards of the Ordinance and the enabling legislation,

Doran Investments v. Muhlenberg Township, 309 A.2d 450, 10 Pa. Cmwlth. 143

(1973). The only objective standards in the Ordinance regarding sewage treat-

ment are requirements of compliance with the Pennsylvania Department of

Environmental Resources (“DER”) standards and preliminary approval by

DER. The Report on Sewage and Water Facilities prepared by Petitioner’s

engineer, the testimony of Petitioner's engineer, and the preliminary approval of

the proposed treatment system by the Pennsylvania Department of Environ-

mental Resources, all of which are part of the record, satisfied the objective

requirements of the Ordinance and the enabling legislation. See, Appeal of

Molnar, 441 A.2d 487, 64 Pa. Cmwith. 515 (1982). When the developer meets

these objective standards, the burden shifts to the objectors to show a lack of

feasibility. See, Bray v. Zoning Board of Adjustment, 410 A. 2d 909, 48

Pa.Cmwlth. 523 (1980).

* See, Dissenting Opinion of Justice Larsen (App., infra, 9a-11a)

SThis critical flaw is not merely an academic procedural deficiency. The Pennsylvania

Supreme Court took the extraordinary step of seizing upon these same unswom statements

in supporting jts decision. In its Application to the Pennsylvania Supreme Court seeking

Reargument, Petitioner attached thereto the applicable United States Geological Survey map

and an affidavit of a professional engineer, with accompanying photographs,

showing that the stream in question flowed to an impoundment (commonly

known as a “pond”) created by a railroad embankment, through a concrete

culvert, and then into the Lehigh River. The unswom statements as to the

stream’s terminus were, in fact, false statements.

deny approval to the development. The Board stated:

The evidence before the Board of Supervisors

is sufficiently deficient in showing the

feasibility of the proposed sanitary waste

disposal system being a stream discharge

treatment plant. A proposed system which

discharges into a stream which ofien runs

dry and leads to a pond with no discharge

poirt is detrimental to the environment,

the immediate residents of the area and

all residents of Kidder Township in

general (App., infra, 49a\Xemphasis added).®

In making the finding that the stream ran dry and ran to a

pond with no outlet, the Board of Supervisors confused the legisla-

tive role it normally occupies with the administrative role it exer-

cises in reviewing land development projects. It is acceptable for

a legislative body to rely upon public comment in drafting ordi-

nances. However, when exercising its administrative functions, the

Board may not rely on the kind of unproven, and ultimately false,

statements that were made by the residents from the floor of the

public hearing. Procedural Due Process requires the Board to limit

itself to competent, sworn testimony and properly authenticated

evidence. Here the Board erred fundamentally. It was swayed by the

unswor, erroneous comments of two residents, denying the Petitioner

Procedural Due Process.

Pursuant to the procedural requirements of Pennsylvania

law, Pocono Green sought review from the Court of Common

Pleas of Carbon County, Pennsylvania. The Court of Common

Pleas affirmed the Supervisors’ denial of approval for the develop-

ment without addressing the issue of the unswor statements from the

°The Board of Supervisors has made much of the comments of Petitioner’s engineer in

response to the unproven scenario painted by the objectors to the effect that the stream runs

dry and ends in a pond with no outlet. These comments of the engineer in no way refute the

record proof of the feasibility of the sewage treatment system. The finding of the Township and

the Supreme Court of Pennsylvania that the planned sewage treatment system would be det-

rimental to public health, safety, and welfare necessarily depends on findings of “fact” that are

unsupported by any evidence in the record.

residents.’

Pocono Green appealed the decision of the Court of Common

Pleas to the Commonwealth Court of Pennsylvania and prevailed.

The Commonwealth Court ordered that the development be granted

Tentative Approval, holding that the Supervisors abused their dis-

cretion by relying on the lay testimony of the two residents. The

Supreme Court of Pennsylvania agreed to review the Common-

wealth Court’s decision and, in a 3-to-2 decision, reversed the

Commonwealth Court.

The Supreme Court of Pennsylvania relied on the finding

that the sewage treatment plant would discharge into a stream that

ran dry and ended in a pond with no outlet:

It should go without saying, however, that

when a developer has proposed a sewage treat-

ment plant unsupported by substantial evidence

demonstrating the feasibility of dumpmg treaied

sewage into a stream that runs dry, ending in

a pond with no outlet, the public interest is

ai risk, the physical design of the proposal is

deficient, the manner of deficiency of public

service is obvious, and the relationship to

the neighborhood is adverse.” (App., infra,

9a). (Emphasis added).

The Supreme Court of Pennsylvania fell prey to the false, unsworn

statements from the residents and declined to reconsider its decision

(App., infra, 26a.). The Pennsylvania Supreme Court committed two

fundamental errors. First, it adopted the finding that the stream ran dry

and emptied into a pond with no outlet. This finding is unsupported by

competent evidence on the record. Second, the Pennsylvania Supreme

Court, after accepting as fact the unsworn assertions of the objectors

that the stream in question runs dry and flows to a pond with no outlet,

made its own finding that Petitioner’s planned sewage treatment sys-

7The Court of Common Pleas stated: “The Developer [Pocono Green] contends

that the Board erroneously relied on incompetent “testimony” from two area

residents who attended the meeting and questioned [Pocono Green's engineer]

about the creek and pond. However, we need not reach any issue regarding the

testimonial competence of the questions posed to the engineer by the residents

because it is not necessary to our disposition here.” (App, infra, 35a)

tem would create a risk to the public interest. Nothing in the record,

competent or otherwise, supports this latter finding. In fact, all the

evidence in the record positively contradicts these two findings.

The Pennsylvania Supreme Court also failed to address the

procedural standards that must apply when the municipality exer-

cises its administrative role. By failing to correct Kidder Town-

ship’s use of legislative fact-finding standards in an administrative

context, the court implicitly sanctioned such a process. Such a

procedure allows municipalities virtually unlimited discretion to

determine which housing projects are to be built and the power to

control who gains the right to enter communities. Such a procedure

violates the Due Process Clause of the Fourteenth Amendment.

II. Statement of Law.

The decision of the Pennsylvania Supreme Court allows irra-

tional, unsubstantiated fears to guide and direct the zoning agency’s

review of residential development projects. Decisions based on fears

rather than facts are arbitrary and unconstitutional. The judgment of

the Supreme Court of Pennsylvania denies Pocono Green due process

of law because the decision necessar’'y rests upon material not in

evidence and not part of the record before that court.

The United States Supreme Court has long held that zoning

ordinances are constitutional unless the provisions of the ordinance

“are clearly arbitrary and unreasonable, having no substantial

relation to the public health, safety, morals, and general welfare”,

Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114,

71 L.Ed. 303 (1926). It is settled law that a municipality may not

enact a zoning ordinance that is arbitrary or unrelated to the pres-

ervation of public health, safety, welfare or morals. However, the

Court has left a gap in the legal process that should protect the land-

owner’s right to use his land in conformity with the zoning ordinance.

This Court has not established the procedural standards that are re-

quired to insure that a municipality’s application of an otherwise consti-

tutional zoning or land use ordinance to a particular landowner does not

become arbitrary or is not motivated by purposes unrelated to legiti-

mate governmental interests. The states and the federal courts lack

guidance on the application of the requirements of Procedural Due

Process to the administrative and adjudicatory actions of zoning agen-

cies.

In the present case, the Supreme Court of Pennsylvania failed

to apply a fundamental tenet of Procedural Due Process (that the

government's decision be based on competent evidence in the record)

to the actions of the municipality. This case presents this Court with the

opportunity to define, for the first time, the procedural requirements the

Due Process Clause of the Fourteenth Amendment imposes on the

application of zoning ordinances to individual landowners and proper-

lies.

A. Validity of Ordinances -- Substantive Due Process

Since Village of Euclid v. Ambler Realty Co., supra., and

Nectow v. City of Cambridge, 277 U.S. 183,48 S.Ct. 447,72 L.Ed. 842

(1928) it has been clear that state regulation of land use is limited by the

Due Process Clause of the Fourteenth Amendment, but that land use

regulation is permitted if it is reasonably related to a legitimate govern-

mental interest.* Zoning ordinances and land development regulations

are presumptively valid so long so they are related to public health,

safety, morals and general welfare. This application of these Substan-

tive Due Process elements of the Due Process Clause is well integrated

into the decisions of the Circuits and the state courts.

The Court’s initial decisions in the area of zoning dealt with the

validity of the ordinances generally. The adoption of the zoning ordi-

nance is a quasi-legislative function. The Court analyzed the ordi-

nances for their reasonableness and relationship to the legitimate gov-

emmental purposes of protecting public health, safety, welfare and

morals. No Procedural Due Process requirements attend this legisla-

tive function, Bi-Metallic Investment Co. v. Staite Board of

Equalization, 239 U.S. 441,36S.Ct. 141,60 L.Ed. 372(1915). The right

to Proce lural Due Process in a legislative context would make govern-

ment unworkable. It is not necessary to provide a hearing to all persons

who might be affected by a general enactment of a body with the

authority to legislaie. The protections against improper action of the

legislating body are in judicial review under the principals of Substan-

tive Due Process and through the power to vote officials out of office.

® See also, Village of Belle Terre v. Boraas, 416 U.S. 1,94 S.Ct. 1536, 39 L.Ed. 2d

797 (1974).

The Court's decisions regarding zoning have focused on a review of

the legislative function of the zoning authority.

However, a zoning ordinance that is reasonably related to a

legitimate governmental interest, and therefore valid on its face, must

be applied to particular properties and landowners in a manner which is

not arbitrary and which is related to a legitimate governmental interest.

The zoning regulation musi be applied in a manner which satisfies the

Procedural Due Process requirements of the Fourteenth Amendment.

In the application of the ordinance to particular development plans, the

role of the municipal zoning authority shifts from legislative to judicial

and administrative. When the zoning authority takes on this quasi-

judicial role, the legislative immunity from Procedural Due Process is

removed and the concepts of Procedural Due Process must be applied

to insure fair and correct application of the zoning ordinance to prop-

erly owners.

B. Administrative Action ~— Procedural Due Process

In the 1970s the Court articulated the application of Proce-

dural Due Process to a variety of governmental actions affecting lib-

erty and property interests. The Court has identified several elements

of Procedural Due Process: (1) notice of the governmental action; (2)

a neutral decision-maker, (3) an opportunity to present evidence; (4)

an Opportunity to cross-examine witnesses; (5) a decision based on

the record with a statement of reasons for the decision.’ Furthermore,

the evidence upon which the decision is based nust be competent and

believable. Therefore, oral testimony is generally required to be given

under oath, thereby impressing upon the witness his obligation to speak

truthfully.'° The Court has applied the concepts of Procedural Due

% See, generally, Gagnon v. Scarpelli, 411 U.S. 778,93 S.Ct 1756, 36 L.Ed. 2d

656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed. 2d 484

(1972)

trative proceedings affecting important rights must be under oath to be considered by the

decision-maker). See, also Flick v. Gately, 328 Ill. App. 132, 65 N.E. 2d 81

(1946) (evidence in a zoning case).

Process to a variety of situations'', but not to the application of zoning

or land use ordinances to individual landowners.

Nor has the Court addressed cleariy this distinction between

the legislative role of the municipa! zoning authority and its judicial and

administrative functions. Members of the Court have expressed dif-

fering views on when the zoning agency crosses over from legislating

to adjudicating, but the Court has not addressed this issue directly. In

City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 96 S.Ct.

2358, 49 L.Ed. 2d 132 (1976) the Court reviewed a zoning ordinance of

the City of Eastlake. The ordinance provided for all changes in zoning

classification to be ratified by a referendum vote. A 55% majority of

the votes cast was needed for approval. The analysis of the majority of

the Court rested on the assumption that the reclassification of zoning

was still within the sphere of legislative action. Therefore, no Proce-

dural Due Process protections attached to the referendum process. In

separate dissents, Justice Powell and Justices Stevens and Brennan

argued that an application of the zoning ordinance to a particular prop-

erty and landowner shifted the function of the zoning authority to

judicial and administrative, thereby requiring Procedural Due Process

safeguards to prevent an abuse of individual property rights.

However, the bulk of the zoning agency’s work, including the

application of the ordinance in the present case, 1s Clearly within the

adjudicatory function of the zoning authority. The Petitioner sought

approval for a planned residential development, a permitted use of land

under the ordinance. No zoning reclassification was sought. The

Board of Supervisors’ role was only to determine whether Petitioner's

plans conformed to the requirements of the ordinance. This action,

representative of the work assigned to the zoning authorities in apply-

ing ordinances to particular projects and properties, requires the exer-

cise of administrative functions. Yei no standards exist to guide the

states and the circuits in determining when Procedural Due Process

protections apply to zoning board actions, nor what level of process is

due. The result is a vacuum out of which have developed broad divi-

11 Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed. 2d 548 (1972)

(tenure of faculty); Gagnon v. Scarpelli, 411 U.S. 778,93 S. Ct. 1756, 36 L.Ed. 2d

656 (1973) (probation revocation); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct

2593, 33 L.Ed. 2d 484 (1972) (parole revocation); Goldberg v. Kelly, 397 U.S. 254,

90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970) (welfare benefits).

sions out of which have developed broad divisions among the siates

and circuits, uneven application of constitutionally protected rights, and

uncertainty among the builders of housing that they will receive a

fair and objective review of their plans by the local zoning agencies.

REASONS FOR GRANTING THE PETITION

This Court should review the decision of the Supreme

Court of Pennsylvania and establish clearly the procedural stan-

dards by which zoning ordinances may be applied to individual

landowners. The Court must inject order and fairness into the

zoning and land development process. When municipalities as-

sume administrative roles, they must be held to the standards of

Procedural Due Process. The alternative is chaos. Ungrounded

fears, shouted from the floor of zoning hearings, can effectively

prevent appropriate and necessary housing construction. The Court

should go on record as insisting that zoning decisions be rational,

supportable, and based on fact. The Court should establish un-

equivocally that the long-established principals of Procedural Due

Process must apply to the administration of land use and zoning

regulations.

The Circuit Courts of Appeals and the states are divided as to

(i) whether Procedural Due Process applies to the administration and

application of zoning ordinances and (ii) if Procedural Due Process

considerations do apply, what level of process is due. These constitu-

tional rights require uniform application between jurisdictions to pre-

vent discriminatory and exclusionary zoning practices and to provide

the climate of certainty necessary to allow the investing of resources in

land development and much needed affordable housing.

A. Divisions among the States and the Circuits.

The efforts by the Circuit Courts of Appeals to define

whether, and to what extent, Procedural Due Process requirements

must be incorporated into the administrative role of the zoning authority

have resulted in widely disparate resuits. The Fifth Circuit has con-

cluded that all zoning board activity is legislative and, therefore, the Due

Process Clause imposes no restriction on the process utilized by the

zoning board in considering an application under a zoning ordinance,

South Gwinnett Venture v. Pruitt, 491 F.2d 5 (Sth Cir., en banc, 1974),

cert. dismissed 416 U.S. 901, 94 S.Ct. 1625, 40 L.Ed. 2d 1625, cert.

denied 419 U.S. 837, 95 S.Ct. 66, 42 L.Ed. 2d 64. In South Gwinnett

Venture, the Fifth Circuit Court of Appeals held that the reliance of the

zoning authority on evidence not in the record was not a denial of

Procedural Due Process because the action was legislative and not

subject to the procedural requirements of the Due Process Clause.

In sharp contrast is the Third Circuit's discussion, in Rogin v.

Bensalem Township, 616 F.2d 680 (3rd Cir., 1980), of the distinction

between the zoning authority's legislative and administrative functions

and the procedural requirements that apply when the zoning board acts

in its quasi-judicial role. There, the Third Circuit Court of Appeals

stated:

“In contrast to legislative action is administrative action -- the scope of which is

limited by the due process clause. An example of an administrative act would be

the denial of a variance, because such an act involves not only general policy con

siderations but also application of that general policy to an individual land

owner.” 616 F.2d at 693, fn.60.

Similarly, the First and Second Circuits have found that Procedural Due

Process rights do apply in administrative proceedings before the zoning

board'*. These rights include a hearing before an impartial decision-

maker and the right to a decision based on facts and known standards.

However, confusion best describes the state of the law in this

area. Ancxample is Littlefield v. City of Afton, 785 F.2d 596 (8th Cir.,

1986). There, the Eighth Circuit Court of Appeals stated that Proce-

dural Due Process considerations were relevant, but analyzed the

process by the wrong standard. After recognizing that the landowner

was entitled to Procedural Due Process, the Eighth Circuit Court

should have evaluated the procedural protections afforded. Instead,

the Court of Appeals relied on Euclid v. Ambler Realty, supra., and

analyzed the decision of the zoning authority under the Substantive Duc

Process standard of arbitrariness and reasonableness.

2 Brady v. Township of Colchester, 863 F 2d 205 (2nd Cir., 1988), citing Baddie v. Connecticut,

401 U.S. 371,91 S.C. 780, 28 L.Ed 2d 113 (1971 Creative Exvironments, Inc. v. Estabrook,

680 F.2d 822 (1st Cir, 1982), cert. denied, 459 US. 989, 103 S.C. 345, 74 L. Ed. 2d 385, citing

Matthews v. Eldridge, 424 US. 319, 96 S.Ct. 893,47 L.Ed. 18 (1976).

Similar confusion and division exists among the states. The

Supreme Court of Oregon was among the first of the state courts to

adopt the distinction between legislative and quasi-judicial authority in

Fasano v. Board of County Commissioners, 264 Ore. 574, 507 P.2d 23

(1973). Several other states have followed the reasoning of Fasano,

but these states remain a minority."

The states following Fasano hold that the zoning author-

ity’s legislative function is limited to enactment of the zoning ordi-

nance and comprehensive revisions to the ordinance. Application

of the zoning ordinance to a particular property is a quasi-judicial

act. Application of the zoning ordinance includes approvals or

denials of subdivisions, approvals of planned unit developments and

other deveiopment projects, special use requests, and variance

requests. With the undertaking of this quasi-judicial role, the zoning

authority must conform to the requirements of Procedural Due

Process. However, states adopting these protections, which are

mandated by the Due Process Clause of the Fourteenth Amend-

ment, are the minority.

The Court should establish uniform application of federally

protected rights by resolving these conflicts. The Court should

establish clear Procedural Due Process standards for the administra-

live acts of zoning agencies.

B. Application of Procedural Due Process to zoning actions is a

logical and necessary safeguard to prevent exclusionary and

discriminatory zoning practices.

Exclusionary zoning practices have long been recognized

as an improper utilization of the staic’s zoning power. Exclusionary

zoning is generally defined as “the complex of zoning practices

which results in closing suburban housing and land markets to low-

and moderate-income families.”"* Exclusionary zoning motivated

by racial or economic discrimination makes the headlines. But perhaps

more pervasive, and equally onerous, is discrimination against new-

See, Shortlidge, The “Fasano Doctirine” : Land Use Decisions As Quasi Judicial Acts.

Planning, Zoning, and Eminent Domain (Fall, 1986).

* Davidoff and Davidoll, Opening the Suburbs: Toward Inclusionary Land Use Controls. 2

Syracuse L. Rev. 511 (1971).

comers who would like to be part of a community. This type of

discrimination is particularly odious in the area of housing. Housing is a

fundamental human need. Discrimination against newcomers and

outsiders freezes families out of communities. It allows communities to

build walls and say “we were here first, no one else may enter.” It

attacks directly the basic rights to equal opportunity and equal access.

Closing communities through exclusionary zoning practice distorts the

housing market, limits the opportunity to obtain housing, and places the

burden of accommodating new families squarely on those areas al-

ready urbanized and overburdened. Exclusionary zoning allows com-

munities to shirk their responsibility to share the increasing burdens of a

growing society. The inequality and unfairness injected into communi-

ties when arbitrary barriers are erected taints the dream of home

ownership.

The Pennsylvania Supreme Court has been in the forefront

of the development of the case law condemning exclusionary

practices in zoning regulation.'’ It is ironic, therefore, that the

decision of the Pennsylvania Supreme Court in the present case

opens the door to discriminatory and exclusionary zoning practices.

The decision of the Pennsylvania Supreme Court allows the zoning

agency to deny approval ta development projects without the

safeguard of requiring that decisions be based on objective stan-

dards. When the zoning agency is permitted to deny land develop-

ment projects without supportable reasons, there is no effective

check on the exclusionary and discriminatory zoning practices that

have been universally condemned.

In Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252,97 S.Ct. 555, 50 L.Ed. 2d 450 (1977),

the Court was asked to review whether Arlington Heights’ refusal to

rezone a particular tract of land, to permit a low income housing proj-

ect, was proper. Following on its decisions in Warth v. Seldin, 422 U.S.

490, 95S.Ct. 2197, 45 L.Ed. 2d 343 (1975), and Washington v. Davis,

426 U.S. 229, 96 S.Ct. 2040 , 48 L.Ed. 2d 597 (1976), the Court in

Arlington Heights reaffirmed the landowners’ fundamental

right to be free from arbitrary and irrational zoning

'S See, National Land Investment Co. v. Kuhn, 215 A.2d 597,419 Pa. 504 (1965); Meyers v.

Board of Supervisors of Lower Makefield Township, 94 A.2d 6, 38 Pa. Cmwith. 578 (1978).

actions. The Court went on to declare that zoning actions motivated by

racial discrimination violate this right. However, the Court was unable

to conclude that the denial of Metropolitan Housing's rezoning request

by the Village of Arlington Heights was racially motivated.

In essence, the Court concluded that there was insufficient

evidence of discrimination. The Court recognized the evidentiary

problem faced by parties alleging discrimination in the administration of

a zoning ordinance:

“Determining whether invidious discriminatory purpose was a motivating factor

demands a sensitive inquiry into such circumstantial and direct evidence of intent

as may be available. . . Sometimes a clear pattern, unexplainable on grounds

other than race, emerges from the effect of the state action even when the gov-

erning legislation appears neutral on its face. . . But such cases are rare.” 429

U.S. at 266, 97 S.Ct. at __, 50 L.Ed. 2d at 465.

Arlington Heights was brought to the Court on the theory that

the denial of the rezoning violated the Equal Protection Clause. The

Court did not review the actions of Arlington Heights from the perspec-

tive of Procedural Due Process. This is unfortunate because Proce-

dural Due Process, which requires the zoning agency to disclose the

reasons for its decisions, solves the evidentiary problem identified by

the Court.

Requiring the zoning agency to make its determination

upon known and objective standards and to state reasons for the

decision, supported by facts in the record, eliminates the need to

inquire into the motivations of the zoning agency. If the stated

reasons are not logically consistent with the evidence, then the

decision cannot stand. The subjective motivations of the zoning

authority, which are virtuaily never apparent on the record, become

irrelevant.

The Court has recognized that discrimination may be ac-

complished by the enactment of exclusionary zoning ordinances

and by a discriminatory application of a facially neutral ordinance.

What can be accomplished de jure by the express terms of the

ordinance may also be accomplished de facto by the way the zoning

authorities act upon the particular development application. Proce-

dural Due Process requires that a decision of the zoning authority to be

supported by facts on the record and makes the prohibition against

improperly exclusive zoning practices meaningful. Absent require-

ments that the zoning agency (i) explain its decision, (ii) identify the

facts upon which it relies, and (iii) limit its reliance to those facts

brought to it by competent evidence, the agency may hide its discrimi-

natory and exclusionary intent behind a facade of silence or obfusca-

tion, Without the safeguards of Procedural Due Process, parties ag-

grieved by the action of the zoning agency are left to attempi to prove

the intent of the agency indirectly by historical and circumstantial

evidence. As the holding of Arlington Heights makes clear, this is a

difficult, if not impossible, burden. A direct requirement that the zoning

agency explain itself allows the reviewing court to know whether the

action of the zoning agency was motivated by legitimate or illegitimate

purposes.

C. The effective administration of zoning ordinances is served

by Procedural Due Process.

Procedural Due Process rights promote efficiency and accu-

racy in government actions, including administration of zoning ordi-

nances. Procedural Due Process increases the likelihood that the

government agency will make the correct decision.'® This is particu-

larly appropriate in the present case where the key finding made by the

Pennsylvania Supreme Court was factually erroneous.

The Pennsylvania Supreme Court based its decision upon two

findings: (i) that the stream into which Petitioner proposed its sewage

treatment plant would discharge ran dry and emptied into a pond that

had no outlet and (ii) that discharging treated wastewater into such a

stream created a risk to public health, safety, and welfare. As is amply

demonstrated by Petitioner's Exhibits and Affidavit attached to the

Application for Reargument addressed to the Peansylvania Supreme

Court (App., infra, 12a-25a), the pond into which the stream runs does

have an outlet which flows into the Lehigh River. The Pennsylvania

Supreme Court's finding was based on unsworn statements of resi-

dents who were not subject to cross-cxamination. The assumption that

discharging treated wastewater into the stream threatens the public

interest is not supported by anything in the record. This assumption

may have intuitive or emotional appeal, but lacks any basis in fact.

® Sec, Gagnon v. Scarpelli, supra, where Justice Powell, writing for the majority of the Court,

stated: “These [Procedural Due Process] requirements themselves serve as a substantial

protection against ill-considered [government action] ...",411 U.S. at 786,93S.Ci. at, %

L.Ed. 2d at 664.

Nevertheless, that assumption motivated both the Board of Supervi-

sors and the Pennsylvania Supreme Court to deny Tentative Approval

to Petitioner's Planned Unit Development. This is precisely why so-

called “conventional wisdom”, which may be quite erronzuus, cannot

control the application of a zoning ordinance to a particular develop-

ment application. Instead, facts presented by competent evidence

must drive the decision of the zoning agency. Application of the

Procedural Due Process requirement that the decision be based only on

competent evidence in the record would have avoided these critical

factual errors.

Procedural Due Process preserves the fundamental fair-

ness necessary to make the application of zoning ordinances con-

stitutional.'? Zoning and land use regulation amount to a bargain

between the state and the landowner. The state secks to infringe on

the !andowner’s right to use his land as he wishes by the imposition

of land use regulations. The landowner agrees to give up his right

to use his land unfettered by zoning restrictions, in exchange for an

assurance that he will be able to use his land within certain known

guidelines and that he will have the right to argue for a waiver of the

restriction if they cause unreasonable harm. Thus virtually all

zoning ordinances contain prescribed permitted uses, uses avail-

able by special permission (known in Pennsylvania as special ex-

ceptions), and provisions for obtaining variances and development

approvals.

But this bargain is only meaningful if the state is required to

be fair and objective in determining whether the landowner may

receive a special exception, a variance, or approval of a planned

unit development. The zoning agency, in its legislative capacity, is

given broad discretion in enacting ordinances. The agency's duty

to explain its actions is minimal because the policy statements are

broad and the direct effect on individual properties is largely theoretical

and remote. But as the ordinance comes to be applied t particular

properties the effect can be immediate and severe. Th vefore, the

agency has a greater duty to explain its decision rationally and to

support the decision with facts. In this way the likelihood of a correct

result is increased.

'7 See Developments in the Law-Zoning, 91 Harv.L.Rev.1427 (1978).

When a zoning agency assumes an administrative role, it must

also assume the burden of Procedural Due Process to provide for a fair

adjudication of the individual rights affected by the governmental ac-

tion. The action of the Kidder Township Board of Supervisors, in

basing its decision on the unsworn comments from the audience at the

public hearing, is analogous to the House of Representatives basing a

decision to expel a member of Congress solely on unsworn, uncorrobo-

rated statements shouted from the gallery. Such a decision would

never pass constitutional muster, and neither should the actions of the

Board of Supervisors or the Pennsylvania Supreme Court in this case.

Procedural Due Process, with judicial review, serves to insure

that decisions of the zoning agency will be rational, not arbitrary. The

requirements that a fair hearing be held by an impartial arbiter, that

competent evidence be presented, and that the arbiter state its decision

in writing, supported by reasons and by facts contained in the record of

evidence presented, assure that the rights of the landowner to a fair and

accurate decision regarding the use of his land are preserved.

Finally, Procedural Due Process provides a more complete

and understandable record upon which the courts of appeal may

review the decisions of the zoning agencies. As issues of land

development and environmental concern come to the fore, courts will

be increasingly asked t~ .-view the decisions of local agencies. The

requirements of Proce iural Due Process not only increase the chances

. that the local agencies will make the correct decision in the first place,

but will provide the reviewing courts with an understandable record

upon which to make an informed analysis of the local agency’s deci-

sion.

D. Effective National Housing Policy requires uniform appli-

cation of Federally protected rights.

It is axiomatic to say that the federal policies protected by the

Fourteenth Amendment should be applied uniformly in all fifty states.

Rights guaranteed by the United State Constitution should not be con-

tingent on state law or differing interpretations among the Circuit

Courts. Presently, there is no uniform application of these constitution-

ally protected rights. Landowners in Oregon or, theoretically, the Third

Circuit, have a mechanism to enforce their rights to Procedural Due

Process. Landowners in the Fifth Circuit do not. For this reason alone,

the Court should direct the uniform application of Procedural Due

Process principals to the quasi-judicial actions of zoning authorities.

But land development and housing construction particularly

require Certainty, clarity and objectivity in the decision-making proc-

ess. Housing development necessarily demands the investment of

large sums of money. Uncertainty increases risk. Increased risk

means less housing is built, and the housing that is built costs more.

Allowing the municipality to reject housing development projects

based on fears rather than facts chills the climate for housing develop-

ment, particularly planned communities such as in the present case.

Due Process provides the stability and certainty necessary to

allow reasonable, appropriate, and necessary housing development. In

Boddie v. Connecticut, supra., Justice Harlan recognized this role of

Due Process in American society:

“At its core, the right to due process reflects a fundamental value of our

American Constitutional system ... Perhaps no characteristic of an organized

society is more fundamental than its erection and enforcement of a system of

rules defining the various rights and duties of it members, enabling them to

govern their affairs and definitively settle their differences in an orderly, predict-

able manner Without such a ‘legal system’, social organization and cohesion are

virtually impossible; with the ability to seek regularized resolution of conflicts

individuals are capable of interdependent action that enables them to strive to

achievements without the anxiety that would beset them in a disorganized

society.” 401 U.S. at 374,91 S.Ct at__, 28 L.Ed. 2d at 117.

Planned developments require large initial investments in land acquisi-

tion, planning, and engineering costs. If the builder does not know that,

upon meeting certain known requirements in the zoning ordinance, he

will be able to build the proposed community, the risk will be too great to

permit investment. If the municipality is allowed to reject development

projects without being able to state reasons supported by evidence,

then the climate for building housing is too uncertain to allow reason-

able investment in housing projects affordable to middle and working

class families. Procedural Due Process enforces the requirement of

certainty and fairness that makes decent housing possible in the United

States.

CONCLUSION

Zoning and land use regulation necessarily infringe on a

fundamenial property right -- the right to use one’s land freely. The

application of zoning ordinances to particular properties or devel-

opment projects is essentially a judicial and administrative function.

These functions must be undertaken only within the framework of

the Procedural Due Process protections that have been fashioned

to protect individuals from arbitrary and unwarranted government

interference.

The Third Circuit has most clearly identified the separate

legislative and administrative functions of the zoning agency. The

Third Circuit has also identified that Procedural Due Process prin-

cipals apply when the zoning agency acts in its administrative role.'*

The Petitioner urges the Court to adopt and develop the reasoning

of the Third Circuit in Rogin v. Bensalem Township. The Court

should identify procedural elements that must attend the applica-

tion of the zoning ordinance, thereby clarifying this important area

of the law for the Circuits and the states, which are presently in

confusion and conflict.

Procedural Due Process promotes both fairness and accu-

racy. It mitigates against discrimination and exclusion. Application

of Procedural Due Process principals to zoning decisions effectuates

the rights the Court has identified in Warth v. Seldin and Village of

Arlington Heights, supra.

18 Rogin v. Bensalem Township, supra.

The Court should grant a writ of certiorari to review and

reverse the decision of the Supreme Court of Pennsylvania.

Respectfully submitted,

*Stephen B. Lieberman

Barry W. Sawtelle

Lieberman & Rothstein, P.C.

635 Walnut Street

Reading, PA 19601

(215) 376-7217

Counsel for Petitioner

Of Counsel:

Lenard L. Wolffe

Houpt, Wolffe, and

Huganir, Lid.

45 Darby Road

Paoli, PA 19301

*Counsel of Record

APPENDIX A

SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

POCONO GREEN, INC.

v. : NO. 3 ELD.

: Appeal Docket 1989

BOARD OF SUPERVISORS

OF KIDDER TOWNSHIP

(CARBON COUNTY),

Appellant

JUDGMENT

ON CONSIDERATION WHEREOF, it is now here or-

dered and adjudged by this Court that the Order of the COMMON-

WEALTH COURT, be, and the same is hereby reversed, and the order

of the Court of Common Pleas of Carbon County be and is hereby

reinstated.

Marlene F. Lachman, Esq.

Prothonotary

Dated: January 16, 1990

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

POCONO GREEN, INC., : No. 3 E.D. Appeal Docket

Appellee, : 1989

v. : Appeal from the Order of

: the Commonwealth Court

BOARD OF SUPERVISORS: dated June 29, 1988, at

OF KIDDER TOWNSHIP : Docket No. 1549 C.D.

(CARBON COUNTY), : 1987, reversing the order

Appellant : of the Court of Common Pleas

: of Carbon County at 85-0805,

: dated June 19, 1987.

:_ Comwith Ct. ___,

> A.2d _s (1988)

: ARGUED: October 26, 1989

OPINION OF THE COURT

MR. JUSTICE FLAHERTY FILED: January 16, 1990

On March 13, 1985, a real estate developer, Pocono Green,

Inc., submitted an application for approval of a preliminary plan of

a planned residential development (PRD) to the Planning Commis-

sion of Kidder Township, Carbon County. The application contains

information required for a PRD by section 707 of the Pennsylvania

Municipalities Planning Code, 53 P.S. Section 10707, Kidder Town-

ship’s Zoning Ordinance, and the township’s Subdivision and Land

Development Ordinance. Among the required materials was Pocono

Green’s “Report on Sewage and Water Facilities,” which ex-

plained that because no municipal central sewage treatment facili-

ties were available, the Pocono Green development would have its

own facility which would discharge “final treated effluent . . . to an

unnamed tributary of the Lehigh River . . . located at 41 degrees,

three minutes N. latitude and 75 degrees, forty-five minutes W. lon-

gitude.”

The Planning Commission then issued a report and recom-

mendation to the Supervisors, as required by the Subdivision Ordi-

nance, recommending that the application be given tentative ap-

proval, conditioned upon the approval of the Pennsylvania Depart-

ment of Environmental Resources (D.E.R.) for sewage and water

systems. On April 29, 1985 the Board of Supervisors conducted a

public hearing at which Pocono Green presented its preliminary

plan. At this hearing, Pocono Green’s engineer testified that the

sewage treatment plant was “feasible from an engineering stand-

point.” Additionally, as required by the Subdivision Ordinance, the

developer included in its preliminary plan a letter from D.E.R.

Stating that Pocono Green’s preliminary plans for sewage disposal

were acceptable to the agency.'

Two local residents testified that the stream into which

Pocono Green proposes to dump treated sewage sometimes runs

dry and that the stream flows into a pond which does not drain

except when there is a flood. Although Pocono Green’s engineer

was unfamiliar with the stream, he acknowledged that if the stream

runs dry and does not flow from the pond,” there might be some

' The letter of preliminary approval, dated April 1, 1985, from the Bureau of Water Quality

Management, Department of Environmental Resources, stated:

This department has reviewed the preliminary plans for Pocono Green

Development , located in Kidder Township and East Side Borough, Carbon

County PA. The proposal submitted utilizing private water supply and distribu-

tion and for sewage collection, treatment and disposal is acceptable to the

Department of Environmental Resources.

This letter constitutes concurrence by the Department of Environ-

mental Resources, Bureau of Water Quality Management, of the preliminary

proposal only, and should not be construed to represent a permit of any nature. It

is still necessary that . . . planning modules, indicating approval of this proposal

or a revision to the official plans of the municipalities involved, be submitted to

the Department of Environmental Resources for review and approval. More

detailed plans and specifications of the water supply, sewage collection and

treatment will also be reviewed at a later date as part of other permit applica-

tions. Any additional Federal, State and local planning and/or permit require-

ments must be met.

2 There was also testimony that the stream runs through the front yard of at least ane property

owner near the proposed development site.

difficulty getting a final D.E.R. approval. As he put it: “Well, you

could see the problems we would have with D.E.R., getting this

worked oui, no doubt about it.” N.T. 77a.

On June 17, 1985, the Supervisors issued their report deny-

ing Pocono Green's application based on the following findings of

fact and conclusions of law.

FINDINGS OF FACT

* * 7

22 Article 4 of the Kidder Township Zoning Ordinance provides there can be no

habitation of any portion of the development until the residential use types are attached to a

centralized water system and a centralized sewage disposal system. The Municipalities

Planning Code indicates that municipalities shal] determine the feasibility of proposals for the

disposition of sanitary waste and storm water as being in the public interest. We find that the

feasibility of the proposal for the disposition of sanitary waste has not been shown by the

developer.

An issue was raised at the public hearing that the stream into which the developer

proposes an effluent discharge goes dry. A second issue was raised that said stream runs wo a

pond from which there is no discharge of water. The testimony of developer's engineer in

addressing both of these issues is moonclusive and contradictory. Statements (as found in the

record) were made by residents in the area of the stream on record that it does run dry and the

pond does not discharge except in flooding.

2 We find after review of all evidence presented that the developer failed to show that

the proposed sewage treatrnent plant which will discharge into a stream which runs dry and

leads into a pond that does not discharge to be feasible.’

CONCLUSIONS OF LAW

The evidence before the Board of Supervisors is sufficiently deficent in showing of

poerenm Ae bony pms ape system, being a stream discharge scw-

age treatment plant. A proposed system which into a stream which often runs dry

and leads into a pond with no discharge pomi is detrimental to the environment, the immediaic

resklents of the area, and all residents of Kidder Township in general.

DECISION

It is decided that the preliminary plan of Pocono Green as submitted is rejected

based on the foregoing Findings of Fact and Conclusions of Law with respect to a lack of

showing of feasibility of the proposed sanitary waste disposal system .. .

3 Apparently this means that the developer's sewage treatment plan has not been demon-

strated to be feasible.

On July 16, 1985 Pocono Green filed a notice of appeal in

the Court of Common Pleas of Carbon County. On June 19, 1987

the court affirmed the Supervisors’ decision without taking addi-

tional testimony. Pocono Green then appealed to Commonwealth

Court, which reversed.

Commonwealth Court reasoned that the board had abused

its discretion in determining that the developer had failed to sustain

its burden of proving the feasibility of the proposed sanitary waste

disposal system. The court indicated that although Pocono Green's

engineer was unfamiliar with the flow of sewage into the creck and

pond, the approval by D.E.R. and the testimony of a professional

engineer that the proposed sewage system was “feasible from an

engineering standpoint” constituted substantial evidence of the

feasibility of the plan. The board filed a Petition for Allowance of

Appeai, and this Court granted allocatur to address the question of

whether Commonwealth Court was correct in determining that the

board abused its discretion.

Pocono Green argues that the Supervisors’ decision was in

error in that the township's regulations on PRD applications defer to

D.E.R. sewage treatment standards, and compliance with those

standards, as evidenced by the D.E.R. preliminary approval, consti-

tutes “feasibility” of a preliminary PRD plan. We disagree.

Section 10707 of the Municipalities Planning Code, 53 P.S.

Section 10707, provides that an application for tentative approval of

a development plan for a PRD shall be filed before the planning

agency or the governing body of the municipality, and the applica-

tion shall disclose:

(v) the feasibility of proposals for water supply and the disposition of sanitary waste and storm

water....

53 P.S. Section 10707 (4Xv). Section 10709 further provides that

the governing body or planning agency may either grant or deny

tentative approval of the development plan as submitted. 53 P.S.

Section 10709 (a).

The “feasibility” of the proposed sanitary waste plan, which the

local agency is authorized to decide, is determined, according to

Commonwealth Court, by “substantial evidence to support a find-

ing that the solution of a problem is likely to succeed.” The burden,

of course, is on the developer to prove the feasibility of his plan, and

the local agency must determine feasibility by reference to the

material presented by the developer.

With these principals in mind, we return to the claim that

D.E.R.’s preliminary approval of the sewage treatment plan consti-

tutes “feasibility” of the plan. Accepting Commonwealth Court's

definition of “feasibility” as a showing by substantial evidence that

the plan is likely to succeed, it is apparent that a preliminary agency

approval is irrelevant to the plan's likelihood of success where the

developer's expert indicates that he is not familiar with the stream

into which the treated sewage would flow and that it will be difficult

to persuade D.E.R. to issue a final approval of the sewage treatment

proposal. At issue is not whether the sewage treatment plant,

considered in a vacuum, is technically adequate, as is indicated by

D.E.R.’s preliminary approval. Rather, of course, at issue is the

feasibility of the developer's plan as it wil! operate at this particular

location.

The approval of PRD applications by local agencies is not

intended to be an academic exercise in creating drawing-board

images to be considered in isolation from the circumstances in

which they will function, but rather a determination of whether a

particular drawing-board image will work as it was intended in a

particular location in the real world. That is why the approval is

contingent upon the feasibility of the plan, not merely upon the

acquisition of a preliminary approval from D.E.R.

Further, the statute clearly places the burden of establish-

ing this feasibility on the developer, who must submit substantial

evidence that the plant will function properly where it is to be

located. When the developer cannot answer questions about how

the facility will operate at this location, the township may properly

determine, indeed must determine, that the developer has not proved

the feasibility of its plan by substantial evidence. For these reasons,

the claim that D.E.R.’s preliminary approval should constitute

“feasibility” under the statute is obviously without merit."

Next, the developer contends that the Supervisor's rea-

sons for denying approval are legally deficient. In particular, the

developer argues that the township may not deny approval of a

PRD application on grounds not contained in its ordinances. The

grounds complained of are the township's findings that the proposal

requires the discharge of treated sewage into a stream that runs dry

leading in to a pond that does not discharge. These grounds,

according to the developer, are not present in the township's land

use Ordinance. We understand this argument to mean that because

the township has no ordinance prohibiting the discharge of sewage

into streams that run dry leading to ponds with no outlet, such

* Pocono Green cites our recent decision in Coretsky v. Board of Commissioners of Butler

Township, 520 Pa. 513,555 A.2d 72 (1989), in suppart of the angument that the township cannot

deny approval of a PRD application on the basis of a standard not in its regulations. In Coretyty

the township, pursuant to section 10508 of the Municipalities Planning Code, was required to

specify the section of the statute or ordinance upan which its denial of approval was based:

(2) When the application is not approved... the decision shall specify the defects found in the

application and describe the requirements which have nat been met and shall, in each case, cile

to the provisions of the statute or ordinance relied upon.

53 PS. Section 10508 (2). The township did not specify the statutory provision upan which its

denial of approval was based, and this Court held that the denial was, therefore, improper.

Coretsky has no application to the present case. In this case, the

township is authorized by section 10707 of the Municipalities Planning Code to determine the

feasibility of the developer's plan for sewage treetment. Such a determination, of course, must

be made an the basis of information submitted by the developer. When that information docs

not support the feasibility of the sewage disposal plan, the township is suthorized to disapprove

of the application.

grounds may not be used to support a denial. Thus, according to the

developer, because the township's ordinance contains no sewage

requirements except that the treatment plan be approved by D.E.R.,

and because D.E.R. has issued a preliminary approval, the denial

was in error. This argument is actually only a variation on the first

argument, and also is completely meritless. The developer over-

looks that the burden of presenting substantial evidence of feasibil-

ity is with him, and when he is unable to answer objections to his

plan, and, in fact, indicates that he may have difficulty with the

approval, tne mere possibility that D.E.R. will finally approve his

plan falls short of meeting that burden.°

Finally, the developer argues that the denial was in error

because the township's findings were not supported by substantial

evidence. According to the developer, it will have to meet D.E.R.'s

most stringent criteria for effluent quality because the stream into

which it proposes to discharge treated sewage is classified as a

“high quality cold water fisher[y].” Since the township failed to

make any findings as to the capabilities of the developer's proposed

method of treatment, the engineering characteristics of the treat-

ment plant, or the specific effect of the treatment plant on the

stream, the developer contends that the township's determination

was unsupporied by substantial evidence. This argument, too, is

without merit. Once again, the burden is on the developer to

establish the feasibility of the sewage treatment plan, not on the

township to establish its nonfeasibility. When the developer fails to

meet that burden by substantial evidence, the township has no

alternative but to determine that the plan is not feasible.

> The developer also makes two additional related claims. First, it asserts that the Supervisors

failed to provide specific objections to the plan. We disagree. The specific objections to the plan

are that the developer did not mect his burden of establishing “feasibility” by presenting

substantial evidence that the plan was likely to succeed.

Next, the developer claims that the requirement of D.E.R. approval is

adequate in itself to protect the public interest, and therefore, that the board improperly

withheld approval. Whether D.E.R.'s approval is sufficient to protect the public interest is an

argument more appropriaicly addressed to the legislature than to this Court. The General

Assembly specifically chose to empower local governing bodies to approve or disapprove the

feasibility of certain components of planned residential developments, and the developer may

not usurp this statutory scheme by substituting its opinion for that of the General Assembly as

to how the public interest should be protected.

It is true that the township, pursuant to section 10709 of the

Municipalities Planning Code, is required to set forth reasons for the

denial “with particularity in what respect the development plan

would or would not be in the public interest, including, but not limited

to, findings of fact and conclusions on the following:

(4) the physical design of the development plan and the manner in which

said design does or does not make adequate provision for public services, .. . and

further the amenities of light and air, recreation and visual enjoyment;

(5) the relationship, beneficial or adverse, of the proposed planned resi-

dential development to the neighborhood in which it is proposed to be estab-

lished; ....

53 P.S. Section 10709 (b) (4), (5). It should go without saying, however,

that when a developer has proposed a sewage treatment plan unsup-

ported by substantial evidence demonstrating the feasibility of dumping

treated sewage into a stream that runs dry, ending in a pond with no

outlet, the public interest is at risk, the physical design of the proposal is

deficient, the manner of the deficiency of public service is obvious, and

the relationship to the neighborhood is adverse. The township was

certainly not, therefore, derelict in its findings or its conclusions of law

supporting the denial.

The order of Commonwealth Court is reversed. The order of

the Court of Common Pleas of Carbon County is reinstated.

Mr. Justice McDermott did not participate in the consideration

or decision of this case.

Mr. Justice Larsen files a dissenting opinion, which is joined by

Mr. Justice Zappala.

DISSENTING OPINION

JUSTICE ROLF LARSEN FILED: January 16, 1990

I dissent. Although there is some emotional appeal to Mr.

Justice Flaherty’s majority opinion in this case, there is absolutely

no legal basis for the Court's reversal of Commonwealth Court.

The Pennsylvania Municipalities Planning Code, Section

11005-A provides in relevant part:

10a

. .. If the record below includes findings of fact made by the governing body, board or agency

whose dicision or action is brought up for review and the court does not take additional

evidence or appoint a referee to take additional evidence, the findings of the goveming body,

board, or agency shall not be disturbed by the court if supported by substantial

evidence....

53 P.S. Section 11005-A. There is no evidence of record that the

unnamed tributary of the Lehigh River into which appellee, Pocono

Green, Inc., planned to discharge treated effluent runs dry occa-

sionally or that it flows into the pond with no outlet. The record

herein reveals that appellee, during the public hearing on its applica-

tion for preliminary approval of a planned residential development,

produced 1) the sworn testimony of a registered professional engi-

neer stating that appellee’s plans for a central sewage treatment

and disposal were feasible, and 2) a letter from the Department of

Environmental Resources (DER) giving preliminary approval to

those plans. The residents who spoke at the public hearing regard-

ing the condition of the Lehigh River tributary into which appellee

proposed discharging treated effluent were not sworn in as witnesses

and were not subject to cross-examination during the proceedings.

Thus, it is clear that the determination of the Board of Supervisors, i.e.,

that the sewage treatment proposal was not feasible because the tribu-

tary ran dry at times and ended in a pond with no outlet, was not

supported by substantial evidence.’

Additionally, a stream that flows intermittently can indeed

serve as a recipient of treated waste, as can a pond with a “deten-

tion time of 14 days or more.” See 25 Pa.Code Section 95.6(a)

Discharges to lakes, ponds, and impoundments; Abraham v.

Commonwealth of Pennsylvania, Department of Environmental

Resources, 1980 EHB 146 (DER can require “very high degree of

treatment” to sewage where receiving stream does not flow year

round).

As appellee met its burden of proving that the proposed

sewage treatment and disposal system was feasible, appellant, the

Board of Supervisors of Kidder Township, abused its discretion in

denying preliminary approval to appellee’s application. The DER has

' A court may take judicial notice of geographical facts; however, the extent of flow or

navigability of a given watercourse must “be established by proof.” See, Brush v. Lehigh

Valley Coal Co., 290 Pa. 322, 138 A. 860 (1927).

lla

the expertise to determine whether or not a permit can be issued to

appellee based upon the conditions existing at the site. And, indeed, a

permit will not issue and the planned residential development will not be

constructed if appellee’s plans are in any way inadequate or constitute

a threat to the environment. It is not for the Board of Supervisors or for

this Court to determine, on the basis of unsworn statements of lay

persons, that a particular sewage treatment and disposal system is not

feasible.

Accordingly, I would affirm the decision of Commonwealth

Court.

Mr. Justice Zappala joins in this dissenting opinion.

12a

APPENDIX B

SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

POCONO GREEN, INC., : No. 3 E.D. Appeal

Docket 1989

Appellee,

Appeal from the Order

: of the Commonwealth

-against- Court dated June 29,

: 1988, at Docket No. 1549

C.D. 1987, reversing the

BOARD OF SUPERVISORS : order of the Court of

OF KIDDER TOWNSHIP Common Pleas of

(CARBON COUNTY), : Carbon County at No.

Appellant 85-0805, dated June 19,

: 1987

Comwlth Ct. ;

___ — A.2d (1988)

ARGUED:

October 26, 1989

DECIDED:

January 16, 1990

APPLICATION FOR REARGUMENT OF

APPELLEE POCONO GREEN, INC.

Application of Appellee for Reargument from

Judgment of Supreme Court of Pennsylvania

of January 16, 1990

12a(1)

TABLE OF CONTENTS

Table of Citations

Order Sought To Be Reargued

Reasons for Reargument

Points of Law Overlooked or Misapprehended

Points of Fact Overlooked or Misapprehended

Significant Public Policy Concerns

These Issues Should be Decided by as Full

a Court as Possible

12a(2)

TABLE OF CITATIONS

Appeal of M.A. Kravitz Co., 501 Pa. 200, 460 A.2d 1075 (1983)

Bello v. Walker, 840 F.2d 1124 (3d. Cir, 1988)

Concord Township Appeal, 439 Pa. 466, 268 A.2d 765 (1970)

Council of Middletown Township v. Benham, 514 Pa. 176, 523

A.2d 311 (1987)

Herrington v. Sonoma County, 834 F.2d 1488 (9th Cir., 1987)

National Land and Investment Co. v. Easttown Township Board

of Adjustment, 419 Pa. 504, 215 A.2d 597 (1965)

Thompson v. Louisville, 326 U.S. 199, 4 L.Ed. 2d 654, 80 S.Ct.

624 (1960)

Village 2 at New Hope, Inc. 429 Pa. 626, 241 A.2d 81 (1968)

Pennsylvania Municipalities Planning Code, 53 P.S. Section

10101, et. seq.

Pennsylvania Clean Sireams Law, 35 P.S. 691.1 et. seq.

25 Pennsylvania Code, Chapters 91-93

13a

APPLICATION OF APPELLEE FOR REARGUMENT

I. ORDER IN QUESTION

Pursuant to Rules 2542-2544 of the rules of this Court,

Appellee Pocono Green, Inc. respectfully moves for reargument of

this Court’s Order filed January 16, 1990, in which the Court, by a

vote of 3-2 (one Justice withdrawn and one vacancy), reversed the

Order of the Commonwealth Court and reinstated the Order of the

Court of Common Pleas of Carbon County in a case which will have

a great impact on the cost of middle income housing throughout the

Commonwealth.

II. REASONS FOR ALLOWANCE OF REARGUMENT:

A. POINTS OF LAW OVERLOOKED OR MIS-

APPREHENDED:

1. THE COURT OVERLOOKED OR MIS-

APPREHENDED THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION.

a. The decisions by this Court’s majority

that (i) “the stream runs dry, ending in a pond with no outlet,” (ii)

“the public interest is at risk,” (iii) “the physical design of the

proposal is deficient,” and (iv) “the relationship to the neighbor-

hood is adverse” (Opinion, p.11) are not based upon competent and

admissible evidence on the record. The first decision referenced

above [(i)] was not based on competent evidence (See II.A. (1) (b),

infra.). Decisions (ii) through (iv) above were based on absolutely

no evidence. As such, those decisions are irrational, arbitrary and

capricious and, therefore, a denial of Appellee’s right to due proc-

ess.

Approvals from political subdivisions of

the States, which are required before a party’s land can be im-

proved or developed constitute “property” under the Fourteenth

Amendment and are subject to due process protections. Bello v.

Walker, 840 F. 2d 1124 (3d Cir., 1988); Herrington v. Sonoma

l4a

County, 834 F. 2d 1488 (9th Cir., 1987). Deprivation of property will

not be allowed where there is no evidence to support it. Thompson

v. Louisville, 362 U.S. 199, 4 L. Ed. 2d 654, 80 S. Ct. 624 (1960).

b. The Township's failure to place the ob-

jectors under oath, followed by the Township’s consideration, as

evidence, of their unswom statements, not subject to cross-exami-

nation, violates Appellee’s right to due process. The lack of due

process is no mere academic exercise in this case. It has resulted

in this Court resting its decision, in large part, upon erroneous

“facts”. The stream in question does not “end in a pond with no

outlet.” The statements of the objectors in that regard which were

relied upon by the Township and this Court were false or mislead-

ing. (See Sections II.B.2 (c) and (d) and Exhibits “A” and “B”

attached hereto).

c. The Pennsylvania Department of Envi-

ronmental Resources (“DER”) standards absolutely control all

facets of design and operation of sewage treatment systems. Council

of Middletown Twp. v. Benham, 514 Pa. 176, 523 A.2d 311 (1987).

The Township expressly adopted the standards of DER as the only

standard to be met in all matters involving sewage (See Appellee’s

Appendix, pp. 15, 120, 109, 110, 36, and 85), and the record shows

that the sewage treatment system proposed by Appellee is feasible

according to DER. (Appellee’s Appendix, p. 155). The Township’s

denial of tentative approval based upon Appellee’s purported fail-

ure to satisfy the more indefinite standard of “feasibility” refer-

enced in Section 709(4)(v) of the Municipalities Planning Code

(“MPC”) is arbitrary, capricious, and irrational, and a denial of due

process.

2. THIS COURT OVERLOOKED OR MIS-

APPREHENDED SECTION 1005-A OF THE MUNICIPALI-

TIES PLANNING CODE, 53 P.S. 11005-A, WHEN IT FAILED

TO OVERTURN THE FINDING OF THE TOWNSHIP THAT

THE STREAM RUNS DRY AND ENDS IN A POND WITH

NO OUTLET, IN THE ABSENCE OF SUBSTANTIAL, OR

ANY, EVIDENCE.

This Court has, on numerous occasions, stated that

where the Court of Common Pleas takes no additional evidence,

1Sa

the appellate courts are limited to a determination of whether the

board committed an abuse of discretion or error of law. National

Land and Investment Co. v. Easttown Township Board of

Adjustment, 419 Pa. 504, p. 523, 215 A.2d. 597, p. 607 (1965);

Appeal of M. A. Kravitz Co., 501 Pa. 200, 460 A.2d. 1075 (1983).

“The court may not disturb the findings of the board if the record

indicates the findings are supported by substantial evidence. 53 P.S.

Section 11010.” Kravitz, 460 A.2d. p. 1081.

There is absolutely no competent evidence of record

to support the finding that the stream in question runs dry and ends in a

pond with no outlet. The only mention of these alleged characteristics

of the stream is unsworn testimony which was not subject to cross-

examination. The Appellee never had the opportunity, obligation, or

duty to refute these unsworn statements. It is a violation of the MPC,

53 P.S. 11005-A (formerly 53 P.S. 11010), for the board to base a

finding upon those unswom statements.

3. THIS COURT OVERLOOKED OR MIS-

APPREHENDED THE CHOICES AVAILABLE TO THE

TOWNSHIP UNDER SECTION 709 OF THE MUNICIPALI-

TIES PLANNING CODE.

The Court states that “Section 10709 [sic] further

provides that the governing body or planning agency may either

grant or deny tentative approval of the development plan as submit-

ted. 53 P.S. Section 10709 (a).” (Opinion, p. 6, emphasis added)

Section 709 of the MPC actually provides for a third alternative,

which may be the most practical, and most just, manner of resolving

the dispute between the parties in this case. That third alternative

is for the Township to “grant tentative approval! subject to specified

conditions not included in the development plan as submitted.” 53

P.S. Section 10709 (a)(2).

16a

B. POINTS OF FACT OVERLOOKED OR MISAP-

PREHENDED

1. THE COURT MISAPPREHENDED DER’S

PRELIMINARY APPROVAL AS BEING THE RESULT OF A

TECHNICAL, ACADEMIC EXERCISE THAT DID NOT

EVALUATE THE PROPOSED SEWAGE TREATMENT

PLANT AS IT WILL OPERATE AT THE PARTICULAR

LOCATION PROPOSED BY THE APPELLEE.

This Court misapprehended the significance of DER’s

preliminary approval when the court concluded that it was not

substantial evidence of the feasibility of Appellee’s sewage treat-

ment plan. The court evidenced this misunderstanding when it

Stated:

“AL issue is not whether the sewege treatment plant, considered in a vacuum, is technically

adequate, as is indicated by D.E.R.’s preliminary approval.” (Opinion of the Court, p.7)

The Court overlooked the fact that DER reviewed Ap-

pellee’s development plans before issuing its preliminary approval.

(Appellee’s Appendix, p. 155) Those plans specify the number of

dwellings which the treatment plant would service, the water sup-

ply and distribution system, the sewage collection and disposal

system, the exact latitude and longitude of the discharge into the

stream, and the quality and anticipated volume of the treated efflu-

ent. (Appellee’s Appendix, p.p. 137-140)

The Court overlooked the public record showing that

DER was familiar with the stream in question. Under the Clean

Streams Law, DER is authorized to survey and catalog all of the

waters of the Commonwealth and set water quality standards for

each body of water. 35 P.S. Section 691.394. DER did that survey,

prepared water quality standards for all of the waters of the Com-

monwealth, including the present stream, and codified that survey

in the Pennsylvania Code, 25 Pa. Code Chapter 93. The classifica-

tion of the subject stream is found at 25 Pa. Code Chapter 93.9, List

D, p. 93-28. When DER granted preliminary approval of Appellee’s

pians, it did so knowing full well the stream and its characteristics.

17a

2. THE COURT MISAPPREHENDED

THE EVIDENCE OF RECORD REGARDING THE STREAM

AND POND.

a. The Court misapprehended the comments

of Appellee’s engineer. The comment of Appellee’s engineer,

which the Court emphasized in upholding the Supervisors’ finding

of lack of feasibility, is in the subjunctive (Opinion, p. 3). That

comment has absolutely no significance in the absence of a finding,

by substantial evidence, that the stream runs dry and does not flow

from the pond. At a later point in the hearing, the engineer put his

prior comment in context when he stated:

“*_.we are not going to have a permit to build anything there unless we can demonstrate about

the stream, and, if it is as bad as you say it is, then the requirements for treatment

at that location are going to be more stringent.” (Appellant's Reproduced

Record, pp. 86a, 87a, emphasis added.)

b. The Court overlooked the statement of

Appellee’s engineer in his Report on Sewage and Water Facilities

that the “[flinal treated effluent [from the sewage treatment plant}

will be discharged to an un-named tributary of the Lehigh River

which flows into the river 0.8 miles downstream at a point opposite

Tannery.” (Appellee’s Appendix, p. 140) This statement was

uncontroverted by competent evidence and shows the engineer’s

familiarity with the stream. The stream, obviously, cannot both

flow into the Lehigh River and “end in a pond with no outlet”.

Cc. The fact that the stream does not end in a

pond with no outlet is evidenced by the Affidavit of Christopher L.

Borton, a professional engineer. The Affidavit is attached hereto,

marked Exhibit “A” and incorporated herein.

d. The fact that the stream does not end in a

pond with no outlet is further evidenced by the United States

Department of the Interior Geological Survey map for the White

Haven Quadrangle (“USGS map”). The USGS map shows the

stream which is the focus of this case as a solid blue line from the

proposed discharge point at latitude 47 degrees 03’00", longitude 75

degrees 45’00" to the pond, and then from the pond to the Lehigh River.

18a

The official USGS map for the White Haven quadrangle is attached to

the original of this Application for Reargument as Exhibit “B” and

incorporated herein. This Court can take judicial notice of the USGS

map.

3. THE COURT MISAPPREHENDED

THE PERMITTING PROCESS FOR APPELLEE’S TREAT-

MENT PLANT.

The Court misapprehended the process by which

Appellee must ultimately obtain a National Pollution Discharge

Elimination System (“NPDES”) permit to build and operate its

sewage treatment plant. DER’s regulations for obtaining an NPDES

permit require extensive review by DER, public notice of the permit

application, and public hearings on the application. (25 Pa. Code

Chapter 92) The final decisions of DER are subject to judicial review.

A SIGNIFICANT PUBLIC POLICY CON-

CERNS:

This is a Planned Residential Development case

which is: (a) a preferred method of development sanctioned by

both case law and statute, and (b) the method under which a

significant amount of middle income townhouses are built in this

Commonwealth, as is this one. 1 The holding in this case will cause

a significant increase in the cost of such development and throw a

' Planned Unit Development (or Planned Unit Residential Development) was sanctioned by

this Court in Village 2 at New Hope, Inc., 429 Pa. 626, 241 A.2d 81 (1968) and

that holding was carried over and codified as Article VII of the Pennsylvania

Municipalities Planning Code. Later this kind of development was given a further

imprimatur of approval by this Court in Concord Township Appeal, 439 Pa. 466,

268 A.2d 765 (1970).

? One of the most significant parts of the decision-making process to go ahead with large scale

development, to undertake to spend the huge sums of “front end” maney and to obtain the

necessary financing, is the ability to engineer out all of the uncertainties in order to project costs

and retums on investment. The more uncertainty, the more risk; the more risk, the less gets

dane. In this case it is not one of the superfluous products of American industry, but principally

housing for the middle and working classes of Pennsylvania. The issue here involved the

affordability of that housing which is again stirring controversy here and elsewhere. See

19a

strong element of uncertainty into the planning process. Both

effects will drive up costs for a class or group of citizens already

squeezed by declining industrial jobs, higher interest rates, and the

export of work to lower wage countries.

The Planned Unit Development concept subsumed

certain things which turned out to be true. The first was that large

scale development is inherently different from small scale develop-

ment. Because of that, there could be certain economies which

could be shared between the producers, consumers and munici-

palities. The municipalities would get greater aggregates of open

land, fewer roads, sidewalks, pipelines, etc. to maintain. The pro-

ducers would get less road to build, higher densities and a better

product to sell. The consumer would get better housing, more

innovatively designed, in better surroundings at a lower price.’

Almost all of the Planned Residential Developments in Pennsylva-

nia, as elsewhere, are townhouse or substantially townhouse de-

velopments.

In this case the Court has created, by a one vote

margin, a terrible dilemma for the producer which must inevitably

adversely impact the consumer. By statute, the approval process is

in two stages; the first stage is a preliminary one (which is called

“Tentative Approval”) and the second stage is called “Final

Approval.” In the Tentative Approval stage, all that is envisioned

is that the plan, as presented, meets the legal criteria of the ordi-

nance and that it is “feasible”, that is capable of being done. The

purpose of setting the “feasible” standard is to keep down the huge

costs of “up front” engineering studies, surveys, borings, etc. The

difference between the feasibility studies and final engineering can

be hundreds of thousands of dollars. The protection to the local

authorities is that Final Approval, upon which actual building per-

mits are graé@ed, cannot be obtained until the final engineering is

done and pré—proven to be appropriate and effective. Final Ap-

proval is not given until all plans, specifications and details are fully

3 These are in contrast to “cookie cutter” subdivisions which are not only environmentally

unsound, but very expensive to build and, hence, to sell. Even one acre subdivisions virtually

require that almost every inch of the land be bulldozed. When constructed, Planned Develop-

ment obviates much of this.

20a

and completely engineered, reviewed and approved. Tentative

Approval merely gives the producer an assurance that if the plan

complies with all of the safeguards, Final Approval will be forth-

coming. The key is that it is the Tentative Approval, and that

assurance, which permits him to get financing, in most instances.

That is not something at which to be sneezed! [t is the vital link in the

housing industry.

In this case, and traditioually, the determination of

whether or not a sewer system will or will not work, or whether it

will be approve or not approved, is determined by DER which acts

under the guidelines of the Federal Environmental Protection Agency

(EPA) and the Clean Streams Law.‘ Ultimately, the licensure of a

sewer plant is DER’s responsibility as is its continued operation,

which is monitored by frequent inspections.’ Here DER in effect

gave its “Tentative Approval” and against that all that appears of

record is that two lay persons stand up out of the audience, un-

sworn, neither parties nor witnesses, and voice unverified opinions

as to an irrelevant fact which is used for the basis of the only Finding

of Fact leading to the only Conclusion of Law that is fatal to the

application.

The record shows that a registered professional

engineer says the sewage system will work (Appellant’s Repro-

duced Record, p. 53a) and DER says it will work. If this kind of

refusal is to be affirmed in every application for Planned Residen-

tial Development, then any unfounded fear (to satisfy the “no

development” types present in every community) may be relied

upon by a municipality to deny otherwise perfectly legitimate hous-

ing Opportunities. The only way the producer can avoid this is either

not to go into Planned Unit Development, or to overload the “front

end” and thus increase the cost to the consumer. Neither is good

for the people of this Commonwealth and both are contrary to the

* Act of June 22, 1937, P.L. 1987, 35 PS. Sections 691.1 0 691.1001.

5 See Council of Middletown Twp. v. Benham, 514 Pa. 176,523 A.2d 311 (1987).

21a

announced public policy of both the Courts and the legislature.

D. THESE ISSUES SHOULD BE DECIDED BY

AS FULL A COURT AS POSSIBLE:

As noted, this was a 3-2 case. The decision here

involves the affordability of housing to a major segment of our

population and one of the dominant forms of that housing. It should

have the attention of as full a court as possible. This case deserves

as thorough an exegesis of the legal, social and economic issues as

is possible under the circumstances. While the majority’s decision

turns on seemingly narrow grounds, those grounds have profound

effects on the cost of housing, how much is built, how it is built and

into which market; upper income, middle income, or working class

income those housing dollars will flow. The ability of the present

system to meet these needs is at stake. This decision is an important

one and it deserves all the respect and attention it can be given.

Respectfully submitted,

(s/ Lenard L. Wolffe

Lenard L. Wolffe

45 Darby Road

Paoli, Pennsylvania 19301

(215) 647-6200

Attorney for Appellee,

Pocono Green, Inc.

22a

AFFIDAVIT

Commonwealth of Pennsylvania

County of Luzerne

I, the undersigned Christopher L. Borton, being duly sworn

according to law, doth depose and say that:

1. I am a principal in the firm of Borton-Lawson

Engineering, a registered professional engineer, licensed by the

Commonwealth of Pennsylvania by License No. PE 031473-E, and

have been so licensed since 1982;

r J I am familiar with the requirements of the Pennsyl-

vania Department of Environmental Resources (“DER”) with

regard to stream discharges from sewage treatment plants;

> I have personally viewed the stream located at

latitude 41 degrees 03’00, longitude 75 degrees 45°00", in Kidder

Township, Carbon County, Pennsylvania;

4. On January 28, 1990, I personally observed said

stream from the aforesaid latitude and longitude to where it flows

into the Lehigh River;

» Said stream does not end in a pond with no outlet;

6. Said stream flows from latitude 47 degrees 03’00",

longitude 75 degrees 45’00" to an impoundment (commonly known

as a “pond”) created by a railroad embankment, which then dis-

charges through a concrete arch culvert to the Lehigh River. On

January 28, 1990, I observed an outlet flow of water from that

impoundment into the Lehigh River approximately equivalent to the

flow of water entering the impoundment;

7. Assuming, for hypothetical purposes, that said

stream were to become dry at times, it is my professional opinion

that, using available technology and equipment, it is feasible to

construct and operate a sewage treatment plant that discharges

treated effluent into said stream at said latitude and longitude which

(i) will meet the applicable standards of the DER and (ii) will not be

detrimental to the environment, the residents of the area where the

stream is located, or all residents of Kidder Township, nor will such

effluent place the public interest at risk or have an adverse effect on

Exhibit "A"

23a

the neighborhood surrounding the proposed planned unit develop-

ment known as Pocono Green or said stream;

8. Said stream is shown on the map of the United

States Department of the Interior Geological Survey (“USGS

map”) for the White Haven Quadrangle as a solid blue line from

the aforesaid latitude and longitude to where it enters the east

end of a pond or impoundment. At the west end of said pond the

USGS map shows, by a solid blue line, a stream from said pond

to the Lehigh River; and

9. Attached hereto as Appendix “A” are photo-

graphs which I took on January 28, 1990, showing the point of

discharge from the aforesaid impoundment, or pond, into the

concrete arch culvert and then into the Lehigh River.

ls/ Christopher L, Borton

Christopher L. Borton

Sworn to and subscribed

before me this 29th day

of January, 1990

/s/

Notary Public

nal

24a

CONFLUENCE OF STREAM WITH LEHIGH RIVER, LOOKING WEST

Appendix "A"

} -_|

{ > > |-

4 *.

<8" =|

“

i ~~

‘

‘ ee \

Exhibit B

(Area circled in yellow and stream highlighted in blue on original of Exhibit B

are shown here in black-and-white only, within boxed area.)

(Exhibit C was not reproducible.)

(HICKORY RUN)

5866 1/ SW

26a

APPENDIX C

SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

August 29, 1990

Lenard L. Wolffe, Esquire

PROTNOFF, HOUPT & WOLFFE, LTD.

45 Darby Road

Paoli, Pa. 19301

RE: Pocono Green, Inc. v. Board of Supervisors of

Kidder Township, Appellant

No. 3 E.D. Appeal Docket 1989

Dear Mr. Wolffe:

This is to advise you that the following Order has been

endorsed on your Application for Reargument of Appellee

Pocono Green, Inc., filed in the above captioned matter:

“August 22, 1990.

Denied.

Per Curiam”.

Mr. Justice Larsen would grant reargument.

Very truly yours,

/s/ Marlene F, Lachman, Esq.

Marlene F. Lachman, Esquire

Deputy Prothonotary

/ma

cc: William E. McDonald, Esquire

Roger Nanovic, Esquire

Loudon L. Campbell, Esquire

(neat a

27a

APPENDIX D

POCONO GREEN, INC., : INTHE COMMONWEALTH

: COURT OF PENNSYLVANIA

Appellant

BOARD OF SUPERVISORS

OF KIDDER TOWNSHIP,

Appellee : No. 1549 C.D. 1987

BEFORE: HONORABLE JOSEPH T. DOYLE, Judge

HONORABLE MADALINE PALLADINO, Judge

HONORABLE JACOB KALISH, Senior Judge

ARGUED: February 25, 1988

OPINION

BY SENIOR JUDGE KALISH FILED: June 29, 1988

Pocono Green, Inc. (developer) appeals from an order of

the Court of Common Pleas of Carbon County which affirmed the

Board of Supervisors of Kidder Township’s (Board) denial of

preliminary approval of its planned unit development. We reverse

and remand.

The developer filed its application for preliminary approval

of a planned unit development which contained information con-

cerning the “feasibility” of proposals for the disposition of sanitary

waste, and storm water. According to the developer’s application

for tentative approval, a privately-owned sewage plant would be

installed at the development to handle all wastewater generated

there.

The Department of Environmental Resources (DER), which

is charged with the duty to approve or disapprove, gave its prelimi-

nary approval for the feasibility of the program. The developer

relied on the testimony of John A. Burke, a professional engineer

28a

who testified that the proposed sewage system was “feasible from

an engineering standpoint.” Notes of testimony at 47. However,

his testimony indicated that he was not familiar with the flow of the

sewage into the creek and pond. The Board of Supervisors of

Kidder Township found that the stream into which the developer

proposes an affluence discharge goes dry and that the stream runs

into a pond from which there is no discharge of the water.

The developer contends that the Board abused its discre-

tion in determining that the developer had not met its burden of

showing feasibility. The court of common pleas, without taking

additional testimony, sustained the Board.

Our scope of review is to determine whether the Board

abused its discretion or committed an error of law. Doran Invest-

ments v. Muhlenberg Township, 10 Pa. Commonwealth Ct. 143,

309 A.2d 450 (1973). An abuse of discretion occurs where the

result is manifestly unreasonable as upon a showing of fraud, bad

faith, capricious action or is in capricious disregard of competent

evidence. Lily Penn Food Stores, Inc. v. Pennsylvania Milk Mar-

keting Board, 80 Pa. 266, 472 A.2d 715 (1984). Once an applicant

shows compliance with the necessary criteria, it is an abuse of

discretion to deny preliminary approval.

In support of its position, the developer argues that the

Board had no authority to deny tentative approval to the develop-

ment because the state preempted this field. In Council Middle-

town Township v. Benham, 514 Pa. 176, 523 A.2d 311 (1987),

where this issue was raised, the court held that in analyzing the

Sewage Act, the legislature did not intend to preempt this field.

Here, the proposed plan shows that a sewage plant will be

installed at the development to handle all generated waste, thus

conforming with requirements of section 701 of the Pennsylvania

Municipalities Planning Code,' and the local ordinance. In addition, a

letter from DER states that the proposal submitted, utilizing private

water supply and distribution and for sewage treatment, is acceptable

to DER.

The term feasibility means that there is substantial evi-

dence to support a finding that the solution of a problem is likely to

succeed.

1 Act of July 31, 1968, PL. 805, as amended, 53 P.S. Section 10701.

————e—————~iCe

29a

The evidence that the developer presented on the question

of sewage disposal consisted of the testimony of Mr. Burke and the

approval of the system by DER, as contrasted to the testimony of

two laypersons.

The Board abused its discretion in concluding that the

developer had failed to sustain its burden of proving that the pro-

posed sanitary waste disposal system was feasible. There was

substantial evidence to support a conclusion of feasibility.

Accordingly, this matter is reversed and remanded to the

common pleas court with instructions to enter an order directing the

Board of Supervisors of Kidder Township to grant preliminary

approval of the developer’s planned unit development.

s/ Jacob Kalish. Senior Jud

JACOB KALISH, Senior Judge

30a

APPENDIX E

IN THE COURT OF COMMON PLEAS OF CARBON

COUNTY, PENNSYLVANIA

CIYIL ACTION - LAW

POCONO GREEN, INC.,

Appellant

VS. : No. 85-0805

BOARD OF SUPERVISORS OF

KIDDER TOWNSHIP,

Appellee

Roger N. Nanovic, Esquire

and Lenard L. Wolffe, Esquire Counsel for Appellant

William E. McDonald, Esquire Counsel for Appellee

OPINION

LAVELLE, P. J. - June 19, 1987

This is an appeal from a refusal to tentatively ap-

prove a subdivision plan.

On March 13, 1985, in accordance with Article VII

of the Municipalities Planning Code, Act of July 31, 1968, P.L. 805,

as amended, 53 P.S. Section 10701 et seg. (hereafter “Act’”),

Pocono Green, Inc. (hereafier “Developer”) submitted an appli-

cation to the Kidder Township Board of Supervisors for tentative

approval of a proposed Planned Unit Development called Pocono

Green (hereafter “Development”). After holding a public hearing

on April 29, 1985, the Board concluded that there was “a lack of

showing of feasibility of the proposed sanitary waste disposal

‘ical

3la

system” and denied tentative approval of the Development. Repoit

of the Supervisors Pursuant to Pennsylvania Municipalities Plan-

ning Code and the Township Zoning, Subdivision and Land Use

t Ordinances and the Township Comprehensive Plan (hereafter

“Report of the Supervisors”), p. 14. On appeal, the Developer

challenges this conclusion as erroneous.

The matter was submitted to us on the record

created before the Board. After reviewing the record, and after

considering the briefs and oral arguments of counsel, we find that

the Board committed no reversible error. We shall therefore deny

the appeal and affirm the decision of the Board.

FACTS OF THE CASE

Pocono Green, Inc. (hereafter “Developer”) is the

equitable owner of an 88.769 acre tract of land (hereafter “tract’”)

in Carbon County, Pennsylvania. The tract is an irregularly shaped

parcel which straddles the border of two political subdivisions:

51.076 acres of the tract are in Kidder Township and 37.753 acres

of the tract are in East Side Borough. The proposed Development

’ would consist of two hundred (200) units in Kidder Township and

two hundred and sixty-five (265) units in East Side Borough.

According to the Developer’s Application for ten-

lative approval, a privately owned “stream discharge” sewage

treatment plant will be installed at the Development to handle all

waste water generated therein. After the effluent is treated at the

plant, it will be discharged into Slaughterhouse Creek (hereafter

“creek”). It is the ability of this creek to handle the flow of effluent

emanating from the proposed sewage treatment plant which is the

focal point of this dispute.

DISCUSSION

On appeal from a decision by a governing body

denying tentative approval of a Planned Unit Development, our

scope of review is the same as in zoning cases. Brauns v. Swarthmore

Borough, 4 Pa.Cmwlth. 627, 288 A.2d 830 (1972); DeFeo v.

Brookhaven Borough, 3 Pa.Cmwith. 377, 283 A.2d 505 (1971).

Therefore, since we neither heard testimony nor received addi-

32a

tional evidence on this matter, our standard of review is limited to

determining whether the Board committed an error of law or an

abuse of discretion. Nascone v. Ross Township Zoning Hearing

Board, 81 Pa.Cmwith. 482, 473 A.2d 1141 (1984); Doran Invest-

ments v. Muhlenberg Township et al., 10 Pa.Cmwith. 143, 309 A.2d

450 (1973).

In the present case, the Developer claims that the

Board manifestly abused its discretion and committed positive

errors of law in concluding that the Developer had failed to sustain

its burden of proving that the proposed sanitary waste disposal

system was feasible The Developer also contends that the Board

lacked the authority to undertake an independent determination of

the feasibility of the sewage system because: 1) this subject matter

has been preempted by state law; and 2) the township has no

ordinance which specifies the criteria by which the instant applica-

tion could be judged. We will address these issues seriatum.

1. Feasibility of proposed sewage system

The Board made the following Findings of Fact

concerning the feasibility of the proposed sewage system:

22. ... We find that the feasibility of the proposal for the disposition of sanitary waste has not

been shown by the developer.

An issue was raised at the public hearing that the stream which the developer proposes an

effluent discharge goes dry. A second issue was raised that said stream runs to a pond from

which there is no discharge of water. The testimony of developer's engineer in addressing

both of these issues is inconclusive and contradictory. Staternents (as found in the record)

were made by residents in the area of the strearn on record that it does run dry and the

pond does not discharge except in flooding.

23. We find after review of all the evidence presented that the developer failed to show that

the proposed sewage treatment plant which will discharge into a stream which runs dry

and leads into a pond that does not discharge [is] feasible.

Repont of the Supervisors, p. 14.

Further, in its Conclusions of Law, the Board

stated:

The evidence before the Board of Supervisors is sufficiently deficient in showing the

feasibility of the proposed sanitary waste disposal system.

Repont of the Supervisors, p. 14.

33a

The Developer challenges these Findings of Fact

as an abuse of discretion and the Conclusion of Law as erroneous.

The Developer argues that, on the contrary, “(t]he feasibility of

Appellant’s proposed sanitary waste disposal system was estab-

lished by competent and relevant evidence by the Appellant’s

engineer and the [Pennsylvania] Department of Environmental

Resources...[and] [t]here was no relevant and competent contrary

evidence whatsoever.” Appellant’s Notice of Appeal, p. 3. We

disagree.

The threshold issue here is the meaning of the term

“feasibility” as that term is contemplated in the Act. Our independ-

ent research has revealed that neither the Act nor any Pennsylva-

nia appellate case law provide a definition of that term to guide us.

We are, therefore, guided by the polestar principle that, where a

Statutory term is not defined, we must look to the common and

approved usage of that term. 1 Pa.C.S.A. Section 1903; Common-

wealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982).

Black’s Law Dictionary defines the term feasible,

the root of feasibility, as “[c]apable of being done, executed, or

affected or accomplished. Reasonable assurance of success.”

BLACK’S LAW DICTIONARY, p. 549 (Fifth Edition, 1979).

Feasible is also defined, inter alia, as “[c)apable of being utilized or

dealt with successfully; suitable.” THE AMERICAN HERITAGE

DICTIONARY OF THE ENGLISH LANGUAGE, p. 480 (1971).

An Oregon court, in determining whether to grant

preliminary approval to a Planned Unit Development has defined

the term feasibility to mean more than possibility from a technical

engineering perspective. Meyer v. City of Portland, 67 Or.App.

274, 678 P.2d 741 (1984). Instead, feasibility means that there is

substantial evidence supporting a finding that the solution to certain

problems posed by a project are possible, likely and reasonably

certain to succeed. /d. Finding these definitions logical and rele-

vant, we adopt them.

Here, to establish the feasibility of the proposed

sewage system, the Developer relied on the testimony of John A.

Burke, a registered professional engineer. Mr. Burke testified that

the proposed sewage system was “feasible from an engineering -

standpoint”. (N.T. 4/29/85, p. 47). However, as we have already

concluded in this Opinion, feasibility as contemplated in the Act

34a

means more than mercly feasible from a technical engineering

perspective. Rather, it means that solutions to problems posed by

whether there was substantial evidence that the proposed sewage

system was feasible, we must closely examine the remainder of

Mr. Burke's testimony.

The Board permitted several nearby residents who

attended the public hearing to question Mr. Burke. The record

reveals the following:

BY MR. LES HERLING:

... Llive directly alangsice the crock they are ulking about pumping sewage down...So it's

going to be a stagnant pand down there.

MR. BURKE: Doean't it discharge from the pond’?

Q: It doesn't have encugh water in it It's going to lay there. You are going w have a source

of water laying there. If you want to take a ride and check the creek now, there is barely a

tickle of water going through it now.

MR. BURKE: Yea, we will have to do that, certainly.

Q: That creck goes right into « pond, right at the Tannery.

MR. BURKE: | think I noticed that.

NT. 429185, pp. 64.68.

MR. BRADY: ‘The creck you are speaking of does run into my pond and there is no outlet, only

when you have a flood, because when the creck goes dry, the pnd goes dry, so if your creck

goes dry —-

MR. BURKE: Right now, isn't there same discharge out of that pond?

MR. BRADY: No.

MR. BURKE: Well, you could sce the problems we would have with DER, getting this

worked out, no doubt about it

NT. 42985, pp. 69-71.

Mr. Burke's testimony indicates that he was not

fully aware of the year round flow of the creek and the discharge

from the pond. This lack of knowledge in this fundamental area

seriously impaired his credibility as a witness and the Board could

have rejected his testimony completely. The Board could have

properly found that Mr. Burke had not fully investigated all the

potential problems the proposed sewage treatment plant would

pose and concluded that there was considerable doubt as to the

likelihood of its success. Since the Developer relied on Mr. Burke's

testimony to show that the proposed sewage system was feasible,

the Board committed neither an error of law nor an abuse of

discretion in concluding that the Developer had failed to present

subsiantial evidence that the sewage system is feasible. Although

the Developer also submitied into evidence a letter from D.E.R.

(Applicant's Exhibit No. 6) which stated that the Developer's

preliminary proposal was “acceptable”, this letter specifically stated

that any other state and local requirements had to be met. This letter

did not support the Developer's contention that the sewage system

was feasible.

The Developer contends that the Board errone-

ously relied on incompetent “testimony” from two area residents

who attended the meeting and questioned Mr. Burke about the

creck and pond. However, we need not reach any issue regarding

the testimonial competence of the questions posed to the engineer

by the residents because it is unnecessary to our disposition here.

As the Board correctly stated, the testimony of Mr. Burke was

“sufficiently deficient” without reference to any other testimony,

competent or not. Mr. Burke's testimony, standing alone, simply

failed to supply substantial evidence to support a finding that the

creck was capable of handling the effluent discharged from the

proposed sewage treatment plan.

Although we found no Pennsylvania appellate cases

on point, there is language, albeit dicta, from the appellate courts

which, in our view, supports our conclusion here. The instant case

is factually similar to Rees v. Board of Supervisors of Indiana

Township, recently addressed by our distinguished colleague,

Administrative Judge Emil Narick, sitting in the Allegheny Court of

Common Pleas. In that case, the Board denied the application for

lentative approval of a Planned Unit Development because, inter

36a

alia, “the proposed sewage disposal plant is not acceptable be-

cause of a serious question as to the flow of Rawlins Run Creek

which is not deemed appropriate to accept the effluent”. Rees v.

Board of Supervisors of Indiana Township, __ Pa. CmwIth. ;

513 A.2d 584 (1986).

The Board’s decision was appealed to the Court of

Common Pleas. Jd. However, after the filing of the appeal, the

appellant and the Board negotiated an Agreement under which the

Board would grant tentative approval provided certain conditions

were met. /d. In light of this Agreement, Judge Narick opined:

The only substantial objection cited by the Board in its decision to deny the application has been

satisfied by one of the conditions set forth in the settlement agreement. We agree with the

Board that the testimony from residents indicating that the creek into which appellant planned

to discharge effluents flows only intermittently during the summer months raised a question as

to the feasibility of the private on-site sewage disposal system. However, appellant has agreed

to use the township’s public sanitation system, rather than the proposed private system. We

therefore need not decide whether possible problems with the adequacy of the private system

would be grounds to sustain the denial of the application...

Rees v. Board of Supervisors of Indiana Township, 39 D. & C.3d

101, 102-103 (Allegheny Co. 1985). (emphasis ours)

On appeal, the Commonwealth Court stated:

[W]e agree with the [trial court], that aside fram the sewage disposal issue, the Board exred in

determining that a PRD [Planned Residential Development] was not permitted in the location

im question. (Citations omitted). We likewise agree that the trial court was correct when it held

that the Agreement satisfied the only valid objection tw the PRD (the matter of sewage

disposal) and property held that the Agreement was legally sufficient to authorize approval of

the PRD.

Rees v. Board of Supervisors of Indiana Township, Pa.

Cmwith. , 513 A.2d 584, 586 (1986).

This language indicates that both the Court of

Common Pleas of Allegheny County and the Commonwealth Court

considered not feasible a sewage system which flowed into an

intermittently dry creek. We find Rees to be apposite to the present

case.

2. Preemption

The Developer also contends that the Board had no

authority to deny tentative approval to the Development because

37a

the field of sewage regulation has been preempted by the legisla-

ture’s enactment of the Sewage Facilities Act nd the Clean Streams

Law. In support of this contention, the Developer submitted a post-

argument Memorandum of Law citing the Pennsylvania Supreme

Court’s recent Opinion in Council of Middletown Township v.

Benham, Pa. , 523 A.2d 311 (1987). Benham is factu-

ally similar to the case at bar because it also dealt with an application

for tentative approval of a Planned Unit Development. The Devel-

oper’s interpretation of Benham, however, is clearly erroneous.

Benham specifically held that “the legislature’s

enactment of the Pennsylvania Sewage Facilities Act [Act of

January 24, 1966, P.L. 1535, as amended, 35 P.S. Sections 750.1 -

750.20]...and the provisions of the Clean Streams Law [Act of June

22, 1937, P.L. 1987, as amended 35 P.S. Section 691.1001] which

deal with sewage systems have not wholly preempted these fields

from local zoning regulations”. Jd. at ___, 523 A.2d at 312.

The Benham Court, specifically addressing the

Sewage Facilities Act, concluded that “the legislature plainly in-

tended to combine state and local power into a comprehensive

regulatory scheme for sewage disposal”. Jd. at ___, 523 A.2d at

313. Further, although the Developer cites Benham for the principle

that enactment of the Clean Streams Law has limited the powers of

a municipality in the area of sewage disposal to certain specified

ministerial tasks, such as, inter alia, inspection of sewage facilities

(See Developer’s Memorandum of Law, pp. 2-3), in our view, no

portion of the Benham decision can be reasonably cited for this

principle. Although the Benham Court included the Clean Streams

Law in its “no preemption” holding, quoted supra, that Court specifi-

cally declined to further address that Law stating that it did “not believe

that that law [was] germane to the preemption discussion”. /d.at___,

523 A.2d at 313, ftnote 6.

Benham makes undeniably clear that the legislature, in

enacting both the Sewage Facilities Act and the Clean Streams

Law, has not placed the field of sewage disposal regulation beyond

the pale of local regulation. Indeed, Benham re-emphasizes that a

local municipality’s power to regulate in this field is part and parcel

of the overall state legislative scheme.

38a

3. Absence of ordinance

The Developer also argues that the lack of specific

provisions in any Kidder Township ordinance as to the require-

ments a Developer must meet to show feasibility for a proposed

sewage system means that only the standards of state agencies are

applicable, and thus, if the sewage system is approved by the

Department of Environmental Resources, the Board does not have

the authority to undertake an independent determination of the

feasibility of the sewage system. We disagree.

Article VII of the Municipalities Planning Code,

Act of July 31, 1968, P.L. 805, as amended, 53 P.S. Section 10701 et

seq., was enacted by the legislature to “encourage innovations in

residential development”. 53 P.S. Section 10701 Section 702 of that

Act provides that “[t]he governing body of each municipality may

enact, amend and repeal ordinances fixing standards and condi-

tions for planned residential development”. 53 P.S. Section 10702.

(emphasis added). |

Section 702, by its own unambiguous language,

does not mandate that every municipality must enact an ordinance

prescribing standards for granting tentative approval of an applica-

tion for a Planned Unit Development. Kaufman and Broad, Inc. v.

Board of Supervisors of West Whiteland Township, 20 Pa.Cmwlth.

116, 340 A.2d 909 (1975). The “creation of a PRD section in an

ordinance is left to the discretion of the [municipality]” and “no one

can compel their enactment”. /d. at 122, 340 A.2d at 912. Instead,

the Act merely prohibits a municipality, which chooses to enact

such an ordinance, from imposing conditions on the grant of tenta-

tive approval which are inconsistent with those provided in the Act.

See 53 P.S. Sections 10705, 10707.

Admittedly, Kidder Township does not have a specific

ordinance promulgated under Article VII detailing the requisites for

making a showing of feasibility of a proposed sewage disposal

system, which makes this case one of first impression in this

Commonwealth. However, contrary to the Developer’s argument,

in our view, it was not the legislature’s intent in enacting Article

VII to give a Developer, in the absence of such an ordinance,

39a

carte blanche in meeting the statutory requirements for securing

tentative approval. In this vein, we note that even where there is _

such an ordinance, and all the requirements contained therein have

been met, a municipality may still deny tentative approval if it serves

the public interest. See Doran Investments v. Muhlenberg Town-

ship, supra. Therefore, we hold that, even in the absence of an

ordinance detailing the requirements for showing feasibility of a

proposed sewage system under Section 702, a Developer must

show the feasibility of a proposed sewage system by competent

and relevant evidence before tentative approval can be granted to

a Planned Unit Development. As we stated previously in this

Opinion, the Developer failed to meet this burden in the instant case.

For the foregoing reasons, we enter the following

ORDER

AND NOW, this 19th day of June, 1987, it is hereby

ORDERED and DECREED that the Appeal of

Pocono Green, Inc. is DENIED and the Decision of the Board of

Supervisors of Kidder Township, denying tentative approval to a

Planned Unit Development is AFFIRMED.

Costs on Appellants.

BY THE COURT:

ls/ John P. Lavelle

P.J.

40a

APPENDIX F

BEFORE THE SUPERVISORS OF KIDDER TOWNSHIP,

CARBON COUNTY, PENNSYLVANIA

In re: Application for Tentative Approval of a Planned Unit

Development known as “Pocono Green”

by Pocono Green, Inc.

REPORT OF THE SUPERVISORS PURSUANT TO PENN-

SYLVANIA MUNICIPALITIES PLANNING CODE AND

THE TOWNSHIP ZONING, SUBDIVISION AND LAND USE

ORDINANCES AND THE TOWNSHIP COMPREHENSIVE

PLAN

The following report is being submitted upon con-

sideration of the entire record made in connection with the applica-

tion for preliminary approval of the Planned Unit Development

known as “Pocono Green”. This record includes, inter alia, the

application forms, plans, notes of testimony and exhibits offered at

the public hearing on application for preliminary approval, duly

advertised, and held on April 29, 1985.

The proposed development is in a R-2 zoning dis-

trict and is situate on a total 88.769 acre tract. 51.016 acres are

located in Kidder Township and 37.753 acres are located in East

Side Borough. The development is located immediately south and

west of Pocono Hershey Golf Course, which is west of Tannery

Road (L.R. 13040) and south of U.S. Interstate I-80, and is situate

between the Pocono Hershey Resort Golf Course, Commonwealth

of Pennsylvania State Game Lands, and private individual owners.

The plan encampasses four hundred sixty five (465) dwelling units

consisting of two hundred (200) units Kidder Township and two

4la

hundred and sixty-five (265) units in East Side Borough with vari-

ous amenities for the residential users.

The Kidder Township Planning Commission, upon

consideration and review, recommended tentative approval of the

application subject to various conditions as listed in its letter dated

April 22, 1985 (Township Exhibit No. 5).

FINDINGS OF FACT

Based upon the testimony and other evidence re-

ceived at the public hearing, we enier the following Findings of

Fact:

1. An application for preliminary approval of a

Planned Unit Development known as “Pocono Green” was filed

with Township of Kidder under the terms and provisions of the

Pennsylvania Municipalities Planning Code (Pa. M.P.C.), Act of

July 31, 1968, P.L. 805, Art. VII, Section 701, 53 P.S. 10701, et seq.,

as amended, the Kidder Township Subdivision and Land Develop-

ment Ordinance, as amended, the Kidder Township Zoning Ordi-

nance, as amended, and the Kidder Township Comprehensive Plan.

2. The application was made by the Developer,

Pocono Green, Inc., as equitable owner of all land shown on the

Development Plan and as the “land owner” as defined by the Pa.

M.P.C., Section 107 (12).

3. The land which is the subject of this application

is one (1) tract containing a total of 88.769 acres. 51.076 acres are

located in Kidder Township and 37.753 acres are located in the East

Side Borough. The tract is depicted on the Plan documents.

4. The application contained the following infor-

mation as required by the Pa. M.P.C.;

A. The location, size and topography of the

site;

B. The nature of the land owner’s interest

in the land proposed to be developed;

C. The density of the land use to be allo-

aici ieee

42a

cated to parts of the site to be developed;

D. The location and size of the common

open space being 29.98 acres throughout.

E. The entity proposed to own and main-

tain the common open space;

F. The use, approximate bulk and location

of buildings and other structures which consist of low-rise units as

defined by the Ordinance arranged in clustered design patterns;

G. Information on the feasibility of propos-

als for the disposition of sanitary waste and storm water;

H. The substance of grants of easements

for public utilities;

I. The provisions for parking of vehicles;

J. The location and width of proposed

streets and public ways;

K. A written statement by the land owner

setting forth the reasons why, in its opinion, a PUD would be in the

public interest and would be consistent with the comprehensive

plan for the development of the municipality.

5. The application did not contain the following

information as required by the Pa. M.P.C.:

A. Height of buildings;

B. Feasibility of proposals for energy con-

servation and effective utilization of renewable energy sources;

C. The required modifications of munici-

pal land use regulations, although evidence in this regard was

submitted at the public hearing on this matter.

6. A public hearing was held before the Kidder

Township Board of Supervisors on April 29, 1983, in accordance

with Pa. M.P.C., Section 708.

7. The applicant appeared, represented by counsel

who entered his appearance of record for the land owner-appli-

cant.

8. The following witnesses appeared for the appli-

cant in support of the application:

43a

A. James Rothstein, Esquire, President and

principal owner of Pocono Green, Inc., said corporation being the

developer and equitable land owner for the proposed development;

B. James Carr, of the Martin Organization,

Philadelphia, Pennsylvania, architect and land planner;

C. John Burke, registered professional en-

gimeer and registered land surveyor of the firm Smith, Miller and

A-esociates, Engineers and Architects of Kingston, Pennsylvania.

9. The following witnesses appeared for the

Township with reference to the application:

A. Gary Sohosky, golf professional at the

Hershey Pocono Resorts.

10. The development is consistent with the com-

prehensive plan for the development of Kidder Township in that the

housing units, roads and utilities have been arranged with respect to

the slope and recommended uses for the area, it being in an R-2

residential zone.

11. The Plan documents depart from the Kidder

Township Subdivision and Land Development Ordinance (1971)

and the Kidder Township Zoning Ordinance provisions (other than

Article 4, Subsection 4.403 Use Class 14 - Planned Unit Develop-

ment) as follows:

A. The rear set back requirement of thirty

(30') feet as not been met. The Plan must show sufficient rear set

back from the property lines as to not adversely effect adjacent

property owners. This requirement would be a condition of any

tentative preliminary plan approval;

B. The minimum lot characteristics for area

serviced by central water and central sewer facilities is thirteen

thousand (13,000) square feet with a minimum eighty (80') foot width.

The Plan would convey only land area beneath the dwelling units and a

minimal in front and rear. We find the adequate provision for common

open space and recreational area on the Plan available to each dwelling

unit to suffice for minimum lot requirements under the conventional

zoning regulations;

C. The Plan depicting a main cul-de-sac

= |

44a

roadway violates the provisions for cul-de-sac streets under the

Kidder Township Subdivision and Land Development Ordinance.

We find this to create a serious problem for ingress and egress to the

within development in the event it is blocked at any given point. In

the instance of fire or other emergency, this situation could create

a serious danger to life and property and thus would not be in the

public interest. Any plan to be given tentative approval would have

to provide an alternate roadway system for vehicular traffic other

than the main roadway ending in a cul-de-sac as shown on the

present plan.

12. | The Kidder Township Zoning Ordinance, as

amended, Article 4, Basic District Regulations: Section 4.300 Use

Classes and Zoning Districts, Use Class 14 Planned Unit Develop-

ment would apply in the present case. The P.U.D. meets the

requirements of maximum land coverage by building of 20%, being

11.7% in this P.U.D. and land coverage by all development of 30%,

being 27.4% in this P.U.D. The public recreation area requirement

is three hundred (300) square feet per house unit and the develop-

ment meets this requirement by providing three hundred fifty nine

(359) square feet per dwelling unit.

13. In compliance with Article 4 of the Kidder

Township Zoning Ordinance for Planned Unit Developments, we

find from the evidence submitted that there is a sufficient market

for the type, size and character of the development proposed.

14. Easements for electric, telephone and cable

services will be provided by the regulated utilities in the normal and

usual manner.

15. The Plan provides for adequate pedestrian

and vehicular circulation facilities including roadways, driveways,

sidewalks and landscaped areas, except for the portion of the

entrance to the development which intersects the Pocono Hershey

Resort Golf Course. We find that vehicular and/or pedestrian

traffic in that vicinity is extremely hazardous because of the use

made by patrons of the golf course driving golf balls and golf carts

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across the main roadway. Any tentative approval would be subject

to a condition that the developer make assurances to the Township

that it will take whatever means are necessary to eliminate hazard

to vehicular and/or pedestrian traffic using the main artery road-

way into the development from Legislative Route 13040. ‘lise soads

shown on the Plan are of the correct right-of-way and pavement

width.

16. The purpose of common open space is to

provide for separation of various clusters of houses, visual enjoy-

ment, separation for circulation of air and light. a sense of privacy

and to preserve as much of the natural terrain and tree growth as

possible. The common open space also serves the purpose as a site

for certain active recreational uses. We find that the recreational

area located in Kidder Township but not adjacent to the develop-

ment to be minimumly adequate to meet the recreational and

common open space needs of development located in Kidder

Township. The “Recreation Area C” as shown on the preliminary

plan is far removed from Kidder Township. The common open

space requirement of twenty-five (25%) percent for each residen-

tial district (common open space as defined by the Zoning Ordi-

nance) has been met in Kidder Township.

A condition of any tentative preliminary plan ap-

proval would require compliance with common open space and

density requirements of our Ordinance once recreational facilities

and all parking spaces related thereto are specified on a plan.

17. All the common open space with the exception

of water and sewer facilities will be owned by applicant and the plan

covenants make provision for permanent maintenance and preser-

vation of such common open space including recreation space. The

developer has indicated that the common open space will be placed

in a trust providing for permanent maintenance and preservation

(Note: A trust agreement in its entirety must be satisfactory to the

Supervisors before any final approval of any plan).

18. The plan proposes that all roads are to be

paved. We find pertinent questions have been raised conceming

the adequacy of surface drainage in the area of the entrance to the

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development as well as adequacy to handle storm water erosion

and dust formation throughout the entire development. These

questions have not been satisfactorily answered at this time by

developer’s engineer. A complete erosion and sediment control

plan would be a condition of any tentative preliminary approval of

this plan. There has been no certification by applicant’s engineer

that the surface and subsurface conditions of development will not

cause damage io property or life and this likewise would be a

condition of any tentative preliminary plan approval.

19. The developer has shown clustered housing

and all height requirements of the zoning ordinance will be met.

There appears adequate light and air in proper building spacing.

20. The Plan shows a general commercial area.

The specific use of that commercial area must be represented to

the Township and fall within the Kidder Township Zoning Ordi-

nance Article 4 Use Class 14 (k) Commercial Uses.

21. In accordance with Zoning Ordinance, Article

4,the Plan calls for natural features and existing trees to be pre-

served whenever possible.

22. Article 4 of the Kidder Township Zoning Ordi-

nance provides there can be no habitation of any portion of the

development until the residential use types are attached to a cen-

tralized water system and a centralized sewage disposal system.

The Municipalities Planning Code indicates that municipalities shall

determine the feasibility of proposals for the disposition of sanitary

waste and storm water as being in the public interest. We find that

the feasibility of the proposal for the disposition of sanitary waste

has not been shown by the developer.

An issue was raised at the public hearing that the

stream into which the developer proposes an effluent discharge

goes dry. A second issue was raised that said stream runs to a pond

from which there is no discharge of water. The testimony of

developer’s engineer in addressing both of these issues is inconclu-

sive and contradictory. Statements (as found in the record) were

made by residents in the area of the stream on record that it does run

dry and the pond does not discharge except in flooding.

ON Wee ts thei

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23. We find after review of all evidence presented

that the developer failed to show that the proposed sewage treat-

ment plant which will discharge into a stream which runs dry and

lead into a pond that does not discharge to be feasible.

24. The area designated for “support facilities” on

the Plan is not owned by applicant and any tentauve preliminary

plan approval would be subject to written documents submitted for

review by the Township allowing that area to be used for support

facilities of the development in perpetuity.

25. Since the sewage disposal system is one sys-

tem proposed for both East Side Borough and Kidder Township,

with the sewage treatment plant to be located in Kidder Township,

before there is any joint hookup it would be a condition of any

preliminary approval that an agreement be reached between East

Side Borough and Kidder Township (or if such an agreement is not

made that a court has made a determination) as to the rights and

responsibilities of each municipality in the event the utility estab-

lished by the developer becomes defunct or is unable to properly

operate the sewage treatment plant and system. Such requirement

would be in accordance with the provisions of both the Borough

Code and the Second Class Township Code.

26. The Plan suggests a centralized water system.

Proof that the configuration of the system itself would be adequate

to serve the development would be a condition of any tentative

preliminary plan approval. Also, a hydrological study and any other

reasonable proof the Township feels necessary would be required.

Such evidence would indicate that the water table in the area,

considering existing water use in that area, is sufficient to provide

adequate water to the entire development (located in both East Side

Borough and Kidder Township since wells are proposed in Kidder

Township only). This water supply must be adequate to accommo-

date domestic water use, water for fire fighting, and water for the

proper operation of the sewage treatment plan and sewage system

proposed. In addition, certifications and permits from all appropri-

48a

ate agencies as to the adequacy of the sewage disposal system and

the water supply system (including any permit from the Delaware

River Basin Authority) would be required prior to any final ap-

proval.

27. The proposed development is located between

the Pocono Hershey Resort Golf Course and state game lands as well

as other vacant land owned by private owners. The Township finds

this developrnent not out of character with the neighboring areas.

28. With respect to Article 4 of the Kidder Township

Zoning Ordinance Use Class 14 Planned Unit Development, off-street

parking is provided for by the Plan at a two-to-one ratio with each

space to be ten feet by twenty feet (10' X 20°) as required. We find

certain parking areas too far removed from the respective housing

units and would require their placement closer to the units in any plan

approval.

29. The tax impact of the proposed development will

not be adverse to the Township, School District or County and, in fact,

should be a benefit.

30. We find the comments of the Township engineer

in his letter of March 27, 1985 (Township Exhibit No. 4) to be well

founded and would require compliance with those objections as a

condition of any tentative preliminary plan approval.

31. We find from the evidence presented that serious

questions exist as to the adequacy of the fire protection system pre-

sented. However, the system was represented by developer’s engi-

neer as being in compliance with the National Fire Protection Associa-

tion standards. Since the entire system would be delineated in a final

en inten Sea

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plan submission, a condition of any tentative preliminary plan approval

would require a certification from the National Fire Protection Asso-

ciation that the proposed fire system is in compliance with its Code

requirements for the type of clustered housing shown on the develop-

ment plan.

CONCLUSIONS OF LAW

The proposed planned unit development known as

“Pocono Green” meets some of the criteria as set forth in Article

Vil of the Pennsylvania Municipalities Planning Code, the Kidder

Township Comprehensive Plan, the Kidder Township Subdivision

and Land Use Ordinance (1971), and the Kidder Township Zoning

Ordinance specifically Section 4, Use Class 14, Planned Unit De-

velopment, as amended. However, there are certain criteria of that

Act and Ordinances specified above that are noi met and would be

conditions, as previously discussed, of any tentative preliminary

plan approval.

The evidence before the Board of Supervisors is

sufficiently deficient in showiig the feasibility of the proposed

sanitary waste disposal system, being a stream discharge sewage

treatment plant. A proposed system which discharges into a stream

which often runs dry and leads into a pond with no discharge point

is detrimental to the environment, the immediate residents of the

area, and all residents of Kidder Township in general.

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DECISION

It is decided that the preliminary plan of Pocr:.0

Green as submitted is rejected based on the foregoing Findings

of Fact and Conclusions of Law with respect to a lack of show-

ing of feasibility of the proposed sanitary waste disposal system.

Accordingly, the Township Secretary is directed

to certify a copy of these Findings of Fact, Conclusions of Law

and Decision and mail the same to the land owner.

Dated this 17th day of June, 1985.

KIDDER TOWNSHIP BOARD OF

SUPERVISORS

By:/s/ Kenneth J. McGeehan

Kenneth J. McGeehan

Chairman

s/ H. Elizabeth Davi

H. Elizabeth Davis

Charles Getz

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.