Opposition Brief — Pocono Green, Inc. v. Board of Supervisors

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IN THE SUPREME COURT OF THE UNITED STATES

CTOBER TERM, 1990

POCONO GREEN, INC.,

Petitioner,

vs.

BOARD OF SUPERVISORS OF KIDDER

TOWNSHIP, PENNSYLVANIA,

Respondent

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

WILLIAM E. MCDONALD

113 West Ridge Street

Post Office Box 130

Lansford, Pennsylvania

18232

Attorney for Respondent

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... -

Ae

Il.

IIl.

IV.

VI.

THIS COURT LACKS SUBJECT

MATTER JURISDICTION .... .

BECAUSE THE ISSUES RAISED

BY POCONO GREEN WERE NOT

PRESENTED OR PASSED UPON

BELOW, THIS COURT SHOULD

DENY CERTIORARI .....-s. -

THERE ARE INDEPENDENT AND

ADEQUATE STATE GROUNDS TO

SUSTAIN THE DECISION BELOW.

THE PETITION FAILS TO

COMPLY WITH THE RULES

OF Zeeew Gis «8 eo 8h et te 8

POCONO GREEN'S PETITION

MISSTATES THE LAW... .

THE PETITION EXAGGERATES

THE IMPORTANCE OF THE ISSUES.

IN THE CONTEXT OF THE PRESENT

CASE, THESE ISSUES ARE OF

LITTLE SIGNIFICANCE TO

ANYONE OTHER THAN POCONO

ee ee ee ee ee

CONCLUSION .... + «© «© « «

CERTIFICATE OF SERVICE

13

15

23

26

TABLE OF AUTHORITIES

Cases Page

Altman v. Ryan, 435 Pa. 401, 257

A.2d 583 (1969) * ee Oe eae eee a?

Arlington Heights v. Metro-

politan Housing Develop-

ment Co., 429 U.S. 252

(1977) . . o *. . . e aa . . . . o

Bankers Life & Casualty Co.

v. Crenshaw, 486 U.S.

i: fia oe

Coniston Corp. v. Village of

Hoffman Estates, 844 F.2d

S62 (7G Gare Beeer 2 6 3 st 1D,

County Line Joint Venture v.

City of Grand Prairie, 839

F.2d 1142, 1145 (5th Cir.),

cert. denied, 109 S. Ct. 223

(1988) _ o . oe > . o . a. > = >.

Division 85, Amalgamated transit

Union v. Port Authority o

Allegheny County, 417 Pa. “es,

200. A.B Bee Cement ers sk 8

Harris v. County of Riverside,

904 F.2d 497 (9th Cir.

SOU 5a ea ee

Henry v. Mississippi, 379 U.S. 443,

rehearing denied, 380 U.S. 926

[aoe «ks eo eS ek. oe eS

Illinois v. Gates, 462 U.S. 213

cee) « «x a OS eS

wht

17

10

20

TABLE OF AUTHORITIES (CONT'D)

Cases Page

In _ re Do 's Estate, 309 Pa.

151, 163 A. 303, cert.

denied sub nom. Dorrance

v. Commonwealth of Penn-

sylvania, 287 U.S. 660

(1932), reargument denied,

172 A. 900 (Pa.), cert.

denied, 288 U.S. 617 (1933) 10,

Littlefield v. City of Afton, 785

F.2d 596 (8th Cir. 1986) .. a7,

Osborne v. Ohio, 110 S. Ct. 1691,

rehearing denied, 110 S. Ct.

PE: . 5 «6 6 6 6» 6 «6 e

Rogin v. Bensalem Township, 616

F.2d 680 (3d Cir. 1980),

cert. denied, 450 U.S. 1029

UTE Eo kh 6% ee es

South Gwinnett Venture v. Pruitt,

491 F.2d 5 (5th Cir.), cert.

dismissed, 416 U.S. 901,

cert. denied, 419 U.S. 837

is & 2 ss es «¢ se | SS,

Village of Euclid v. Ambler

Realty Co., 272 U.S. 365

[nhs «+ 6 6+ es 8 ee ls

Webb v. Webb, 451 U.S. 493

| a ae a a ee a a

-iii-

12

18

16

17

19

15

Statutes

ON SS SS Ce ee

ae | ee a a

Rules Court

Sup. Ce. R. 20.3 . > eo oc o > . o aS

Sup. oy R. 14.1 > . e >. >. . a + . 7

ee acme eee 96 ais & he 6 ee

-iv-

Petitioner Pocono Green, Inc.

("Pocono Green") has filed a petition

seeking a writ of certiorari to the Penn-

sylvania Supreme Court. Pursuant to Sup.

Ct. R. 15, Respondent Board of Supervi-

sors of Kidder Township, Pennsylvania,

("the Board") hereby submits this brief

setting forth the reasons why certiorari

should be denied.

I. THIS COURT LACKS SUB-

JECT-MATTER JURISDIC-

TION.

Pocono Green's petition invokes this

Court's jurisdiction under 28 U.S.C. §

1257(a). ee Petition for Certiorari at

' Section 1257 vests this Court with

i.

subject-matter jurisdiction to review

state court judgments where, in pertinent

"Page references to Pocono Green's

petition will be designated by the refer-

ence "Petition for Certiorari at."

Page references to the appendix attached

to Pocono Green's petition will be desig-

nated by the reference "(App. at ___)."

part, “any .. . right, privilege, or

immunity is specially set up or claimed

under the Constitution ... of .. . the

United States." Because of the require-

ment that any constitutional issue to be

addressed by this Court have been

"specially set up or claimed" in the pro-

ceedings sought to be reviewed, "[{i]t is

a long-settled rule that the jurisdiction

of this Court to re-examine the final

judgment of a state court can arise only

if the record shows either expressly or

by clear implication that the federal

claim was adequately presented in the

state system." Webb v. Webb, 451 U.S.

493, 496-97 (1981).

In the present case, Pocono Green

attempts to bait the hook of certiorari

with a procedural due process issue.

However, Pocono Green did not adequately

present, nor did the Pennsylvania Supreme

*

Court pass upon, this issue below.

In Pocono Green's three briefs be-

low--to the Court of Common Pleas, to the

Commonwealth Court, and to the Pennsyl-

vania Supreme Court*--Pocono Green did

not even hint at, let alone argue, the

existence of any due process issues aris-

ing under the due process clause of the

United States Constitution. The phrase

“due process" does not appear anywhere in

Pocono Green's briefs. Only once, in-

deed, is the word "constitution" even

mentioned, and this passing reference

occurs in the context of a discussion

concerning the interpretation of Penn-

“copies of these briefs are attached

in an appendix hereto. Because the at-

tached appendix supplements the appendix

accompanying Pocono Green's petition,

pages in these briefs will be designated

by the reference "(Supp. App. at __)."

sylvania zoning ordinances.* At each

step of the proceedings below, in other

words, Pocono Green relied exclusively on

Pennsylvania state law. Not surprising-

ly, therefore, all three of the opinions

below ruled exclusively on matters of

Pennsylvania state law.

The procedural due process theory

was drummed up as an afterthought. Not

until filing its application for reargu-

3In its brief to the Court of Common

Pleas, Pocono Green remarked, "in order

to remain constitutional, zoning ordi-

nances [are] required to have prean-

nounced, objective criteria so that

owners of land . . . know what [is], and

[is] not, permitted" (Supp. App. at A-24

to A-25). In context, this offhand al-

lusion appears to refer to the Pennsyl-

vania rather than to the United States

Constitution. But even if Pocono Green

meant to refer to the latter document,

the reference was too ambiguous to pre-

serve the issue. See Bankers Life &

Casualty Co. v. Crenshaw, 486 U.S. 71, 78

(1988) (“even if the Mississippi Supreme

Court understood appellant to be offering

a constitutional challenge, it may very

well have taken that challenge to be

anchored in the State Constitution").

ment with the Pennsylvania Suprere Court

did Pocono Green for the first tine raise

this issue (App. at 13a-14a). The Penn-

sylvania Supreme Court, without opinion,

denied the application (App. at 26a).

As illustrated by Bankers Life &

Casualty Co. v. Crenshaw, 486 U.S. 71

(1988), Pocono Green's last-minute ploy

was too little, too late. The petitioner

in Banker's Life sought to have this

Court review a punitive damages award on

the ground that the size of the award

violated several provisions of the United

States Constitution, among them the due

process clause. Id. at 76. In its ap-

peal to the Mississippi Supreme Court,

though, the petitioner had not mentioned

these constitutional issues. Only in its

petition for rehearing with the Missis-

sippi Supreme Court, which was denied

without opinion, did the petitioner raise

them for the first time. Id. at 75-76.

This Court declined to consider the

issues because "these claims were not

raised and passed upon in state court."

Id. at 76. Such is likewise the situa-

tion here.

II. BECAUSE THE ISSUES

RAISED BY POCONO

GREEN WERE NOT PRE-

SENTED OR PASSED UPON

BELOW, THIS COURT

SHOULD DENY CER-

TIORARI.

Admittedly, there exists some uncer-

tainty whether the "not raised or passed

upon" rationale for denying certiorari is

jurisdictional or merely prudential. See

Illinois v. Gates, 462 U.S. 213, 218-19

(1983). But even if the rationale were

deemed to be merely prudential, a number

of compelling policy factors identified

in Webb v. Webb, supra, 451 U.S. at 499-

501, compel the same result.

First, the principle of comity in

our federal system dictates that state

courts be afforded the initial opportu-

nity to pass upon issues which are later

urged as a basis for overturning the

state courts' judgments. Moreover, only

by insisting that issues be raised during

the state proceedings can this Court as-

sure that a record is developed suffi-

cient for the issues to be addressed ina

meaningful fashion later on. The "not

raised or passed pon" rationale also

insures that if there are independent and

adequate state grounds that would preter-

mit the federal issues, they will be

identified and ruled upon. Finally, if

the parties to state court litigation are

forced to present their federal claims to

the state tribunals in the first in-

stance, those issues will be adjudicated

by the state courts where necessary to

dispose of the case. In many instances,

such a judgment will be supported by an

opinion that may well obviate any need

for this Court to give plenary considera-

tion to the issues. As this Court ob-

served in Webb v. Webb, supra, this last

factor is "a very substantive matter" in

terms of managing this Court's workload.

451 U.S. at 501.

Pocono Green had ample opportunity

to raise its procedural due precess con-

cerns below, but elected not to do so.

Under these circumstances, it would be an

affront to the Pennsylvania state courts,

as well as a squandering of this Court's

time on an issue which could well have

been obviated if timely raised below and

which in any event lacks a sufficiently

developed record, to grant a writ of cer-

tiorari.

Ifl. THERE ARE INDEPENDENT

AND ADEQUATE STATE

GROUNDS TO SUSTAIN

THE DECISION BELOW.

"Tt is . ..a familiar principle

that this Court will decline to review

state court judgments which rest on in-

dependent and adequate state grounds."

Henry v. Mississippi, 379 U.S. 443, 446,

rehearing denied, 380 U.S. 926 (1965).

Specifically, where a petitioner fails to

raise a due process claim until on appeal

at the state court level, a state rule

that such a fail1re waives the claim is

an independent and adequate state law

ground precluding review by this Court.

Osborne v. Ohio, 110 S. Ct. 1691, 1703,

rehearing denied, 110 S. Ct. 2905 (1990).

Such a rule is applicable here, for Pa.

R. App. P. 302(a) provides that "[{i]ssues

not raised in the lower court are waived

and cannot be raised for the first time

on appeal." The Pennsylvania Supreme

-10-

Court has repeatedly held that federal

due process issues raised for the first

time on appeal cannot be considered.

Altman v. Ryan, 435 Pa. 401, 257 A.2d 583

(1969); Division 85, Amalgamated Transit

Union v. Port Authority of Allegheny

County, 417 Pa. 299, 208 A.2d 271 (1965)

(procedural due process). It is small

wonder that the Pennsylvania Supreme

Court summarily denied Pocono Green's

application for reargument.

A case bearing a remarkable proce-

dural similarity to the circumstances

here is In re Dorrance's Estate, 309 Pa.

151, 163 A. 303, cert. denied sub non.

Dorrance v. Commonwealth of Pennsylvania,

287 U.S. 660 (1932), reargument denied,

172 A. 900 (Pa.), cert. denied, 288 U.S.

617 (1933). In that case, the estate of

a decedent challenged the Commonwealth's

determination that the decedent had been

-ll-

a Pennsylvania domiciliary for inherit-

ance tax purposes. Like Pocono Green in

the case at bar, the estate took its dis-

pute up through the state court systen,

relying entirely on principles of Penn-

sylvania law. After an adverse decision

by the Pennsylvania Supreme Court, the |

estate filed a petition for certiorari

with this Court. In its petition, the

estate advanced issues of due process.

This Court denied certiorari because "the

Federal question was not properly pre-

sented to, and was not passed upon by,

the Supreme Court of Pennsylvania." 287

U.S. at 660. The estate then filed an

application for reargument with the Penn-

sylvania Supreme Court. Reargument was

denied because the estate's due process

arguments had not been submitted to the

court originally:

The executors now urge that we

pass on those questions .

-12-

and reconsider the appeal on a

theory not presented when the

case was argued here. ...

At the time that this

court decided the question of

fact--in its judgment, a matter

for decision according to the

law of Pennsylvania--it was

held, for the reasons stated in

the opinion filed, that John T.

Dorrance was domiciled in

Pennsylvania. As no federal

question was involved, or pre-

sented by the record or briefs

or in the oral argument, for

consideration in the decision

of the basic matter of fact,

none was considered or decided

and none remains for decision.

172 A. at 900. The estate again peti-

tioned for a writ of certiorari following

the Pennsylvania Supreme Court's refusal

to rehear the case, but again this Court

denied the writ.

The Dorrance case illustrates a

salient principle of Pennsylvania state

law--i.e., that "sandbagging" will not be

tolerated and that, in particular, an

application for reargument which raises

due process claims for the first time

-13-

will be denied. That is precisely what

Pocono Green attempted to co here. The

Pennsylvania Supreme Court's summary

denial of Pocono Green's application for

reargument thus simply reflects a well-

established tenet of Pennsylvania state

law. And, just as this Court denied the

estate's second petition for certiorari

in Dorrance, so likewise should it deny

Pocono Green's petition in the case at

bar.

IV. THE PETITION FAILS TO

COMPLY WITH THE RULES

OF THIS COURT.

Sup. Ct. R. 14.5 states that "(t]he

failure of a petitioner to present with

accuracy .. . whatever is essential to a

ready and adequate understanding of the

points requiring consideration will be a

sufficient reason for denying the peti-

tion." The Board respectfully submits

-14-

that Pocono Green's petition fails to

Gisclose to this Court a key fact that

has a dispositive bearing on whether the

issues merit certiorari: namely, that

the due process question was not timely

raised, and was never passed upon, below.

Pocono Green has thus violated Sup.

Ct. R. 14.1(h), which requires that, if

review of a state court judgment is

sought, a petition for certiorari shall

specify, inter alia, (1) the stage of the

proceedings, both in the court of first

instance and the appellate courts, where

the federal questions sought to be re-

viewed were raised, and (2) the manner in

which those issues were raised and passed

upon by those courts. For obvious rea-

sons, Pocono Green's petition is silent

as to all the foregoing information.

Pocono Green's failure to obey Rule

14.1(h) is no mere academic procedural

-15-

nicety. As this Court cautioned in Webb

v. Webb, supra, Rule 14.1(h) should be

applied with "vigor to make reasonably

certain that we entertain cases from

state courts only where the record clear-

ly shows that the federal issue has been

properly raised below." 451 U.S. at 499.

V. POCONO GREEN'S PETI-

TION MISSTATES THE

LAW.

Echoing the criteria for certiorari

suggested in Sup. Ct. R. 10.1(b), Pocono

Green tries to whet this Court's interest

by asserting that the holdings of lower

courts are in chaotic disarray concerning

the applicability of procedural due proc-

ess to zoning proceedings. That asser-

tion is untrue.

For example, Pocono Green cites

South Gwinnett Venture v. Pruitt, 491

F.2d 5 (5th Cir.), cert. dismissed, 416

-16-

U.S. 901, cert. denied, 419 U.S. 837

(1974), for the proposition that "[tjhe

Fifth Circuit has concluded that all zon-

ing board activity is legislative and,

therefore, the Due Process Clause imposes

no restrictions on the process utilized

by the zoning board in considering an

application under a zoning ordinance"

(Petition for Certiorari at 11-12). By

way of contrast, Pocono Green then cites

Rogin v. Bensalem Township, 616 F.2d 680

(3d Cir. 1980), cert. denied, 450 U.S.

1029 (1981), in which the Third Circuit

distinguished between administrative-type

zoning proceedings, which are limited by

procedural due process, and legislative-

type proceedings, which are not. But the

supposed contrast between these two rul-

ings is illusory, for the Fifth Circuit,

like the Third, has acknowledged that

certain zoning decisions are circum-

Bian.

-17-

scribed by procedural due process. See

County Line Joint Venture v. City of

Grand Prairie, 839 F.2d 1142, 1145 (5th

Cir.), cert. denied, 109 S. Ct. 223

(1988) (“circumstances may arise in which

the zoning decision of a governmental

body . . . may require some procedural

due process"). The Fifth Circuit in

South Gwinnett simply held that the par-

ticular type of proceeding there (an ap-

plication to amend the ordinance by re-

zoning a parcel of property) was legisla-

tive in nature.

To bolster its portrayal of con-

fusion among the lower courts, Pocono

Green cites the opinion in Littlefield v.

City of Afton, 785 F.2d 596 (8th Cir.

1986). According to Pocono Green, the

Eighth Circuit in Littlefield went awry

in the following manner:

There, the Eighth Circuit Court

of Appeals stated that Proce-

-18-

dural Due Process considera-

tions were relevant, but analy-

zed 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. Amber Realty, [272

U.S. 365 (1926)] and analyzed

the decision of the zoning

authority under the Substantive

Due Process standard of ar-

bitrariness and reasonableness.

(Petition for Certiorari at 12 (emphasis

in original).) But, in its zeal to have

a straw man to attack, Pocono Green has

utterly mischaracterized the Littlefield

opinion. The court there did not confuse

procedural with substantive due process.

Rather, the plaintiff had argued both

forms of due process, and the opinion

discusses each one separately. See 785

F.2d at 599-603 (discussing procedural

due process); id. at 603-08 (discussing

substantive due process). Furthermore,

not only did the Eighth Circuit not rely

-19-

on Village of Euclid v. Ambler Realty

Co., 272 U.S. 365 (1926), in its analysis

of the procedural due process claims, but

th ision is m ev

once in the opinion. The only confusion

is on the part of Pocono Green.

In fact, the lower courts' holdings

are quite harmonious. All courts that

have considered whether procedural due

process applies in zoning proceedings

appear to agree that procedural due proc-

ess applies where the proceedings are

judicial or administrative in nature, and

that it does not apply if the proceedings

are legislative in nature. As Judge Pos-

ner explained in Coniston Corp. v. Vil-

lage of Hoffman Estates, 844 F.2d 461,

468 (7th Cir. 1988), it is not the label

applied to a zoning decision which deter-

mines whether the decision is legislative

or adjudicative, but its function:

-20-

A legislature is not allowed to

circumvent the due process

clause by the facile expedient

of announcing that the state's

courts and administrative

agencies are henceforth to be

deemed legislative bodies even

though nothing in their powers

and procedures has changed.

But neither is the legislature

required to judicialize zoning,

and perhaps it would not be

well advised to do so. The

decision whether and what kind

of land uses to permit does not

have the form of a judicial

decision. The potential

criteria and considerations are

too open-ended and ill-defined.

Accord Harris v. County of Riverside, 904

F.2d 497, 501-02 (9th Cir. 1990). Legis-

lat: — decisions are broadly based. Be-

cause these decisions tend to affect a

relatively large class of persons, the

democratic constraints of electoral pres-

sure afford the affected persons a meas-

ure of protection without the need for

procedural due process. Administrative,

adjudicative, or judicial decisions, on

the other hand, affect far smaller groups

-21-

of individuals. Hence the need to insist

upon procedural due process. Coniston

Corp. v. Village of Hoffman Estates,

supra, 844 F.2d at 469.

To be sure, a scrutiny of the case

lawiin this area may well reveal some

disagreement concerning whether par-

ticular zoning decisions should be clas-

sified as legislative or adjudicative in

nature. However, that has not been

raised as an issue in this case. Fur-

thermore, if this Court were to take upon

itself the task of classifying the myriad

decisions that arise in land use regula-

tion, from rezonings to variances to

building permits, this Court would in

short order find itself transformed into

a super-zoning board.

Finally, even assuming arguendo that

other lower court cases are in every bit

as much disarray as Pocono Green would

-22-

have this Court believe, certiorari

should nonetheless be denied. After all,

what makes a state court decision "cert-

worthy," so to speak, is not that other

lower court decisions are in conflict,

but rather that the state court decision

for which review is sought has itself

"decided a federal question in a way that

conflicts" with those other decisions.

Sup. Ct. R. 10.1(b). In the case at bar,

the Pennsylvania Supreme Court did not

decide any federal question at all, let

alone one that conflicts with other lower

court rulings.

-23-

VI. THE PETITION EXAG-

GERATES THE IMPOR-

TANCE OF THE ISSUES.

IN THE CONTEXT OF THE

PRESENT CASE, THESE

ISSUES ARE OF LITTLE

SIGNIFICANCE TO ANY-

ONE OTHER THAN POCONO

GREEN.

Pocono Green suggests that proce-

dural due process is needed to force zon-

ing authorities to disclose the reasons

for their decisions, thereby easing the

evidentiary problem which this Court

identified in Arlington Heights v. Metro-

politan Housing Development Co., 429 U.S.

252, 266 (1977), as an impediment to es-

tablishing discriminatory motives for

zoning decisions. This "sunshine" func-

tion of procedural due process is an in-

triguing notion, but one that has nothing

whatsoever to do with the facts of the

present case.

There was nothing furtive or secret

about the Board's reasoning. As Pocono

-24-

Green has repeatedly emphasized (see

Petition for Certiorari at 4), and as the

record makes aburdantly clear (App. at

46a-47a, Findings 22 and 23; App. at

49a), the Board expressly stated the rea-

sons for its decision to reject Pocono

Green's development plan. Pocono Green

seeks to have this Court second-guess the

Board not because the Board failed to

articulate the basis for its decision,

but simply because, in Pocono Green's

view, the Board decided wrongly. See Pe-

tition for Certiorari at 2 ("[t]he

[Board] reached an incorrect decision

because it relied upon public opinion

rather than competent evidence"). This

case, in other words, does not implicate

significant constitutional issues. It

merely involves a disgruntled developer

attempting, quite literally, to make a

federal case of it.

-25-

The other two rationales offered by

Pocono Green as an enticement to the

grant of certiorari are equally bogus.

The first rationale is that procedural

due process promotes the effective ad-

ministration of zoning ordinances (Pe-

tition for Certiorari at 16). But so

what? This is hardly a consideration

worthy of this Court's interest. Since

when has the United States Constitution

been reduced to an adjunct to local land

control ordinances? This rationale does

not add significance to the present case;

it only serves to trivialize the Con-

stitution.

Pocono Green's second rationale is

that an effective national housing policy

requires the uniform application of due

process rights (Petition for Certiorari

at 18). This argument, however, is sim-

ply a reprise of Pocono Green's earlier

-26-

false assertion that lower court holdings

concerning procedural due process are in

disarray.

CONC ON

"This case presents a garden-variety

zoning dispute dressed up in the trap-

pings of constitutional law." Coniston

Corp. v. Village of Hoffman Estates,

supra, 844 F.2d at 467. Not until the

eleventh hour did Pocono Green conjure up

the constitutional issues which it would

now have this Court pass upon for the

first time. The fact that Pocono Green

overlooked these issues below is hardly

surprising, for they have neither sub-

stance nor significance in the context of

the facts of this case. It would be a

waste of this Court's docket time, and an

invitation to thousands of other ag-

grieved developers throughout the nation

-27-

to beseige this Court with certiorari

petitions, if this Court were to grant

Pocono Green's petition here. Certiorari

should therefore be denied.

Respectfully submitted,

WILLIAM E. MCDONALD

113 West Ridge Street

Post Office Box 130

Lansford, Pennsylvania 18232

(717) 645-2111

Attorney for Respondent

CERTIFICATE OF SERVICE

I hereby certify that three (3)

copies of the foregoing Brief in Opposi-

tion to Petition for Certiorari were

served upon counsel of record by posting

the same in the United States mail, post-

age prepaid, this 14th day of December,

1990.

WILLIAM E. MCDONALD

No.

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1990

POCONO GREEN, INC.,

Petitioner,

vs.

BOARD OF SUPERVISORS OF KIDDER

TOWNSHIP, PENNSYLVANIA,

Respondent

APPENDIX TO

BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI

TABLE OF CONTENTS

Page

Brief on Behalf of Appellant,

Pocone Green, Inc., to

the Court of Common

yf a a a a a ee ee ae ae aes |

Brief of Appellant, Pocono Green,

Inc., to the Commonwealth

COUrGe «6+ © e+ © © © © © 0 8 8 8G

Brief of Appeliee, Pocono Green,

Inc., to the Pennsylvania

Supreme Court ...-+-+«.+-+ - A=102

IN THE COURT OF COMMON PLEAS

OF CARBON COUNTY,

PENNSYLVANIA

POCONO GREEN, INC., NO. 85-0805 OF

1985

Appellant

CIVIL ACTION -

LAW

BOARD OF SUPERVISORS

OF KIDDER, TOWNSHIP,

<

Appellee ZONING APPEAL

BRIEF ON BEHALF OF

APPELLANT, POCONO GREEN, INC.

THE CASE

This matter is before the Court

on the developer's appeal from the action

of the Board of Supervisors of Kidder

Township from its refusal to grant Ten-

tative Approval for a Planned Unit De-

velopment known as "Pocono Green." The

property in question, which is part of a

larger tract, a portion of which is in

Kidder Township and a portion of which is

in the adjoining East Side Borough, is in

a district designated ”R-2” under the

Kidder Township Zoning Ordinance.’

On March 13, 1985, Pocono

Green, Inc., the developer, made applica-

tion to the Kidder Township authorities

for Tentative Approval for a Planned Unit

Development on Tannery Road.”

‘See page 1, § 2 of the Report of

the Supervisors. The part of the tract

in East Side Borough has been granted

Tentative Approval as a Planned Unit

Development which approval is not now

subject to appeal. Physically this is

one tract and one development through

which the boundary line runs separating

Kidder Township from East Side Borough.

The Report of the Supervisors

states that this is a request for a ”Pre-

liminary approval of a Planned Unit De-

velopment.” This terminology is in error

under Article VII of the Pennsylvania

Munici-palities Planning Code which gov-

erns planned unit developments. The

proper term is “Tentative Approval”.

That term is important because it gives

rise to very specific different rights

than a conventional “preliminary” sub-

division approval under conventional

zoning.

Pursuant to the application and

notice on the application for a Tentative

Approval, the plan was reviewed and re-

commended for Tentative Approval, with

conditions, by the Kidder Township Plan-

ning Commission. It was also reviewed by

the Carbon County Planning Commission

and, with certain comments, recommended

for approval.

Pursuant to appropriate public

notice a public hearing was held before

the Board of Supervisors of Kidder Town-

ship at the Municipal Building in Lake

Harmony on April 29, 1985. At that time

the Applicant (Appellant herein) appeared

represented by counsel, together with its

expert witnesses, and various members of

the public also appeared. Applicant’s

counsel conducted the hearing in its be-

half eliciting testimony from the wit-

nesses and various exhibits were intro-

duced into evidence. The testimony was

taken stenographically and transcribed.

On June 17, 1985, the Board of Super-

visors issued a written decision entitled

"Report of the Supervisors Pursuant to

Pennsylvania Municipalities Planning Code

in the Township Zoning, Subdivision and

Land Use Ordinances and the Township

Comprehensive Plan" which denied the

application for Tentative Approval for

only one stated reason.

A timely appeal was filed to

this Court in accordance with the Penn-

sylvania Municipalities Planning Code and

the required notices of such appeal

served.

It is the Appellant's position

that the decision of the Board of Super-

visors should be reversed and the Board

be ordered to issue the Tentative Ap-

proval as requested on the grounds that

the Supervisors committed an abuse of

discretion or an error of law or both.

II. ARGUMENT

A. THE SCOPE OF REVIEW OF THE

COURT COURT [sic] OF COMMON

PLEAS

The scope of review of the

Court of Common Pleas, where no addition-

al evidence is taken by it de novo, is to

determine whether the Board of Super-

visors abused their discretion or com-

mitted an error of law. Our appellate

courts have defined this on a number of

occasions but nowhere more cogently than

in Doran Investments v. Muhlenberg Town-

ship, et al., 10 Pa. Cmwlth. 143, 309

A.2d 450, 453 (1973), where Judge Rogers

writing for that Court en banc declared:

“(1] The court below cor-

rectly determined that, not

having taken additional tes-

timony, its duty was to deter-

mine whether the board of com-

missioners abused their discre-

tion or committed an error of

law. Brauns v. Swarthmore

Borough, 4 Pa. Cmwlth. 627, 288

A.2d 830 (1972); DeFeo v.

Brookhaven Borough, 3 Pa.

Cmwlth. 377, 283 A.2d 505

(1971). Ours is the same duty.

Doran contends that its

plan complies with all of the

requirements of Ordinance No.

106 and that it is entitled to

have its plan tentatively ap-

proved.”

Appellant submits that in the case at bar

the Board of Supervisors committed both

an abuse of discretion and a positive

error of law and consequently their ac-

tion in denying the Tentative Approval

should be reversed and an Order entered

directing them to issue that Tentative

Approval.

aa antcleieadealil

B. THE RIGHT TO OBTAIN A TENTATIVE

APPROVAL FOR A PLANNED UNIT

DEVELOPMENT IS DETERMINED BY

THE CRITERIA SET FORTH IN THE

PARTICULAR ORDINANCE PROVIDED

THAT THE ORDINANCE IS CONSIS-

TENT WITH THE ENABLING LEGISLA-

TION.

The law in this Commonwealth is

very clear with respect to the standards

by which a Planned Unit Development is to

be judged. The specific standards must

be set forth in the ordinance and the

ordinance must comply with the enabling

legislation. Once an applicant demon-

strates compliance with the applicable

criteria (provided they are consistent

with the enabling legislation) the ap-

plicant is entitled to obtain Tentative

Approval. The reason for this is rooted

in the evolution of zoning law in this

Commonwealth and is clearly set forth in

footnote 1 appearing in Doran Investments

v. Muhlenberg Township, supra, where our

Commonwealth Court declared:

. . .. “The practice of case

by case consideration condemned

in Eves [v. Zoni oard o

Adjustment, 401 Pa. 211, 164

A.2d 7 (1960)] is overcome by

the requirement that detailed

development standards appear in

the planned residential de-

velopment ordinance and by as-

suming that compliance with

those standards would lead to

approval, subject to the ad-

ditional feature, not usually

present in conventional zon-

ing, that the local planners

may attach conditions condu-

cive to the public interest.

If Article VII of the MPC were

to be construed to mean that a

plan adhering to the standards

of the ordinance may be disap-

proved by the governing body

whenever it concludes for any

reason that the plan is not in

the public interest, the legis-

lation would be identical to

that struck down in Eves,

Where a choice is present,

courts will adopt a construc-

tion which will render legisla-

tion constitutional, not one

which raises constitutional

questions.”

As Doran points out the ques-

tion is whether or not the plans and

other materials meet the applicable cri-

teria. Those criteria must be objective

be wes

= 2 an ET COR aor ek oe 8

A-9

and, as will be pointed out infra, if

those criteria can be met by the imposi-

tion of conditions, then it is appro-

priate to impose conditions and not re-

fuse the entire Tentative Approval. Both

the Supreme Court and Commonwealth Court

in various cases which followed the land-

mark case of Village Two at New Hope,

Inc. Appeals, 429 Pa. 629, 241 A.2d 81

(1968), stated that the Planned Unit

Developmen [sic] is the preferred method

of development.

In this case the Board of

Supervisors misapplied the law and im-

posed an improper legal standard upon the

Applicant which led directly to an im-

proper result. It is submitted that this

is reversible error. The principal

ground for the refusal to grant the

Tentative Approval in this case is the

conclusion of law which reads as follows:

"The evidence before the

Board of Supervisors is suffi-

ciently deficient in showing of

the feasibility of the proposed

sanitary waste disposal systen,

being a stream discharge sewage

treatment plan. A proposed

system which discharges into a

stream which often runs dry and

leads into a pond with no dis-

charge point is detrimental to

the environment, the immediate

residents of the area, and all

residents of Kidder Township in

general.”

(See pages 13-14 of the Report of the

Supervisors Pursuant to Pennsylvania Mu-

nicipalities Planning Code in the Town-

ship Zoning, Subdivision and Land Use

Ordinances and the Township Comprehensive

Plan, which is the decision from which

this appeal is taken.)

The record discloses no support

for this statement. The Applicant’s wit-

ness, Mr. John Burke, a registered pro-

fessional engineer of twenty-two years of

experience, testified that he had drawn

the plans and was responsible for doing

ne eee

the feasibility study for this develop-

ment. (N.T. 41, 45-48, 59). He further

testified that providing the central sew-

age necessary for this development was

not only feasible, in his opinion, but

had been the subject of review by the

Department of Environmental Resources of

the Commonwealth of Pennsylvania and

found by them to be feasible. Exhibit

"6" in the record is a copy of a letter

from the Department of Environmental Re-

sources, Bureau of Water Quality Man-

agement dated April 1, 1985, directed to

Mr. E. Kent Clark of the Kidder Township

Planning Commission unequivocally stating

that the preliminary plans for the dis-

tribution of sewage collection and treat-

ment and disposal were acceptable to the

Department. In pertinent part that let-

ter reads as follows:

“This Department has re-

viewed the preliminary plans

=

7

for Pocono Green Development,

located in Kidder Township and

East Side Borough, Carbon

County PA. The proposal sub-

mitted utilizing private water

supply and distribution and for

sewage collection, treatment

and disposai is acceptable to

the Department of Environmental

Resources.”

Our Commonwealth Court explored

the same issue as presented by the case

at bar on a prior occasion and came to

precisely the opposite conclusion as that

to which the Board of Supervisors came in

this case and so decided the issue as a

matter of law. In In Re Appeal of Mol-

nar, 64 Pa. Cmwlth. 518, 441 A.2d 487,

490, 491 (1982), the Court held that the

Borough Council’s denial of a Tentative

Approval on the basis that it did not

accept the applicant’s architect and hy-

draulic engineer’s testimony as to the

adequacy of proposal for storm water

sewers and drainage was improper. While

the opinion of the Court does not so re-

thd

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flect, one of the considerations in that

case was the uninformed opinion of some

lay protestants. The Court made clear

that there was no evidence to contradict

this assertion by the applicant as to

adequacy and further that only the FEASI-

BILITY of the proposal only [sic] was at

issue at this stage in the proceeding.

The Court there said:

“The Borough Council ob-

jected finally to the alleged

insufficiency of the devel-

oper’s plans for abatement or

containment of the presently

existing serious storm water

drainage problem at the site,

arguing that this situation

would be severely exacerbated

by the proposed development.

The developer proposed to deal

with the problem by means of a

twenty-five year interval storm

drainage basin or pond coupled

with a rerouting of the stream

which runs through the area.

The dimension of the basin

represented an increase in size

from that set forth in the ori-

ginal plan. The architect,

basing his opinion upon the

studies and earlier testimony

of Dr. John Verna, a hydraulic

engineer, testified to the ade-

enero re

quacy of the proposal. Several

weeks prior to the hearing, the

proposal and studies done by

Dr. Verna had been made avail-

able to the Borough’s planner

and engineer but neither was

called to testify or responded

at the hearing. There is,

therefore, nothing in the

record to support the Borough

Councils’ finding of the in-

adequacy of the storm drainage

plan. However, as noted by the

Borough Council, the area down-

stream from the site is subject

to flooding and an increase or

ill-chosen alteration in flow

of the stream would seriously

affect downstream properties.

Although the Borough cannot

burden the developer with re-

sponsibility for alleviation of

an existing problem, Michaels,

it can require the developer to

adopt appropriate storm control

measures to protect the com-

munity against further aggrava-

tion of the problem as a result

of construction of the PURD.

At this stage of the proceed-

ings, however, the developer is

required only to disclose the

feasibility of proposals for

the disposition of storm water,

Section 707(4)(v) of the MPC,

53 P.S. §10707(4)(v); specifi-

cations as to the precise pro-

jected relocation of the stream

are to be included in his ap-

plication for final approval.

Section 711(a) of the MPC, 53

P.S. §10711(a). (Emphasis sup-

foe Ae te ate

A-15

plied.)

In the prior Molnar case cap-

tioned Municipality of Bethel Park Ap-

peal, 51 Pa. Cmwlth. 128, 414 A.2d 401

(1980), the Court indicated that where

doubt existed as to whether or not a par-

ticular criteria could be complied with,

it was necessary to consider whether or

not a conditional approval was not more

appropriate than an outright refusal.

The Covrt did this by including virtually

its entire order in the prior Molnar case

in its opinion in the second case. Thus,

in this situation we come face to face

with the proposition that the Board of

Supervisors here not only erred, but

could have perhaps cured their error by

granting a Tentative Approval and con-

ditioning the same upon compliance with

the applicable Department of Environmen-

tal [sic] standards. They chose not to

A-16

do that, again we suspect, inter alia,

because it is a political body and chose

to satisfy its voting constituents.

The holding in Molnar, supra,

is in no way diminished or limited by

Rees v. ard of § isors o na

Township, Pa. , 513 A.2da 584

(1986). In that case the opinion was di-

rected to the approval of a stipulation

which had been entered into between an

Applicant-Developer and the Township as

to a proposed planned residential de-

velopment approval. There had been a

series of findings by the Board of Super-

visors of Indiana Township refusing a

Tentative Approval almost all of which

the court inferentially found totally

without merit. One finding dealt with

the adequacy of flow of a creek into

which the sanitary sewer outfall was to

run. The Municipality found that it was

Drown ences ens

“not acceptable” because of that. The

Court there did not rule upon the ques-

tion of whether or not such a refusal

was, in fact, valid but rather held that

it was the only issue in the case that

could be the subject of review. A read-

ing of the Record in that case clearly

shows that the Court never reached the

issue, but merely decided that since that

objection was no longer part of the case

(of the numerous ones made) there was no

need to even reach the issue.

In Rees, supra, the matter was

settled by interim negotiations between

the Township and the applicant. The in-

tervenor objected to the stipulation and

it was that objection which the Court

dismissed. In Rees the Court said that

all of the other objections to the PRD

(that the local sewer authority objected,

that it was not in harmony with the conm-

prehensive plan, that it would create

traffic problems at the particular inter-

section, that it violated other zoning

provisions not applicable to PRDs, that

the interior road network was not ade-

quate or safe) were invalid as objec-

tions. The Record and the paper books

show that the Court never reached the

question as to whether, under the facts

in Rees, the sewage question was properly

decided. Somewhat inartfully, perhaps,

the Court there was saying that it was

the only objection to be reviewed by the

Court, but it was not necessary to do the

same because of the settlement. Addi-

tionally there the Applicant-Developer

had access to public sewers and for some

reason was originally unwilling to hook

into them. (See Rees Record, p.260a.)

The Kidder Township Planned

Unit Development Ordinance itself con-

min ‘ _

cre ee

oe oo |

A-19

j

tains no criteria with respect to sewage

except that any residential development

must be “attached to a centralized water

supply system and a centralized sewage

disposal system.” There being no speci-

fic criteria in the Ordinance against

which such "feasibility” must be

measured, the standards then applicable

are those that are imposed by the Common-

wealth of Pennsylvania, Department of

Environmental Resources, which is the

governmental authority charged with the

duty of regulating permits, overseeing

construction, operation and maintenance

of such facilities.* In this case, the

*There is no question about the Com-

monwealth’s paramount interest in con-

trol-ling sewage plants and discharge

points. All plans must be approved by

the Department of Environmental Re-

sources, but to operate without a permit

subjects the operator to the exposure of

significant penalties. The Act of

October 10, 1980, P.L. 894, No. 157, §1,

35 P.S. 691.207 (pocket parts) states:

Department having made an uncontradicted

and unrebutted statement as to the feasi-

Ҥ691.207. Approval of plans,

designs, and relevant data by

the department

All plans, designs, and

relevant data for the construc-

tion of any new sewer system,

or for the extension of any

existing sewer system, by a

municipality, or for the erec-

tion, construction, and loca-

tion of any treatment works or

intercepting sewers by a person

or municipality, shall be sub-

mitted to the department for

its approval before the same

are constructed or erected or

acquired. Any such construc-

tion or erection which has not

been approved by the department

by written permit, or any

treatment works not operated or

maintained in accordance with

the rules and regulations of

the department, is hereby also

declared to be a nuisance and

abatable as herein provided.

Section 202 of the same Act (35 P.S.

691.202) subjects all sewage disposal

into the waters of the Commonwealth to

the continuing jurisdiction of the De-

partment of Environmental Resources.

Absent other objective criteria, these

(and these alone) govern this and all

other applications.

cbmc oa

ADA AE ts, BD see EHN HE .0c8

i a re ee

bility of the proposal for both water

distribution and sewage collection, that

determination of the Department should

control. In addition, however, there was

the testimony of Mr. John Burke, a regis-

tered professional engineer, who did the

preliminary design which was submitted to

the Department of Environmental Re-

sources, who testified that in his

opinion, the system was feasible. There

was no evidence whatsoever that this was

not the fact.

The Board of Supervisors, how-

ever, misconstrued two lay people who

were in the audience (and whom one could

perhaps characterize as opponents) who

testified that there was an insufficient

amount of water in the stream into which

the sewage disposal plant would be dis-

charging the treated effluent. Testimony

was given to a Mr. Les Herling and it

appears at pages, N.T. 64-65.° The sec-

ond witness was a Mr. Richard Beam, who

brought forward a Mr. Brady who lived

approximately a mile downstream from the

point at which this effluent would enter

the stream and who also was concerned

that the stream might periodically go

dry. They were not experts and were not

even qualified observers. Mr. Brady was

also concerned that the children who

skate on the ice on the pond at his

property (approximately a mile away)

might eat some of the ice which he feared

might be contaminated. (See N.T. 68-

71). Needless to say that it is the re-

sponsibility of the Department of En-

vironmental Resources to see to it that

“Not to be confused with the next

witness Mr. Chris Herling who was more

concerned with whether the developer had

any plans to make a donation to the

volunteer fire company of Kidder Township

of which he was a part.

the sewage disposal plant is designed and

built to be safe. It is regularly in-

spected and tested by them to prevent any

malfunction. However, Mr. Beam and Mr.

Brady’s “petition” with seventy-nine

names on it obviously weighed more with

the Board of Supervisors than the facts

and law.”

The Report of the Board of

Supervisors on its face indicates that

this is the only basis on which the Board

of Supervisors refused the tentative ap-

plication. On closer reading, however,

it is possible that there are certain

other matters which went into their de-

liberations and may have influenced the

decision to deny the Tentative Approval.

Whether or not these are make-weights or

not is impossible to determine from their

Report. Having addressed what appears to

*See N.T. 68 and Township Exhibit 1.

be the overriding reason and, it is sub-

mitted, having amply demonstrated that

the Supervisors improperly denied the

application for Tentative Approval for

the stated reason, the Appellant devel-

oper will show that the other factors are

equally without merit.

Cc. THE PENNSYLVANIA MUNICIPALITIES

PLANNING CODE REQUIRES THAT THE

ORDINANCE SET FORTH ALL STAND-

ARDS, CONDITIONS AND REGULA-

TIONS UNDER WHICH THE APPLICA-

TION FOR A PUD IS TO BE JUDGED.

The legislature in writing the

PUD provisions of the Code was mindful of

the Supreme Court’s opinion in Eves v.

Zoning Board of Adjustment, 401 Pa. 211,

164 A.2d 7 (1960), which had disapproved

“flexible” “selective” zoning. The im-

port of that decision was that, in order

to remain constitutional, zoning ordi-

nances were required to have pre-

announced, objective criteria so that the

Sida Sie a baa

2k em ed ana ele 6 se

owners of land would know what was, and

was not, permitted. This found expres-

sion in the requirement in §705 (53 P.S.

10705) which states:

"Section 705. Standards

and Conditions for Planned

Residential Development. --

Every ordinance adopted pur-

suant to the provisions of this

article shall set forth all the

standards, conditions and regu-

lations by which a proposed

planned residential development

shall be evaluated, and said

standards, conditions and regu-

lations shall be consistent

with the following provisions:

(a) The ordinance adopted

pursuant to this article shall

set forth the uses permitted in

a planned residential develop-

ment, which uses may include

and shall be limited to:

(1) Dwelling units

in detached, semi-detached,

attached or multi-storied

structures, or any combination

thereof; and

(2) those nonresi-

dential uses deemed to be ap-

propriate for incorporation in

the design of the planned resi-

dential development. The ordi-

nance may establish regulations

setting forth the timing of

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26

development among the various

types of dwellings and may

specify whether some or all

nonresidential uses are to be

built before, after or at the

same time as the residential

uses.

(b) The ordinance adopted

pursuant to this article shall

establish standards governing

the density, or intensity of

land use, in a planned residen-

tial development. The stand-

ards may vary the density or

intensity of land use, other-

wise applicable to the land

under the provisions of a zon-

ing ordinance of the municipal-

ity within the planned residen-

tial development in considera-

tion of:

(1) The amount, lo-

cation and proposed use of com-

mon open space;

(2) The location,

and physical characteristics of

the site of the proposed plan-

ned residential development;

and

(3) The location,

design, type and use of struc-

tures proposed.”

Where the Ordinance does not

supply such “standards, conditions and

regulations” it can only be taken to mean

ere ey n

that there are none or that those under

other governmental jurisdiction apply.

In the case at bar, the Or-

dinance does not set forth standards,

conditions or regulations for water sup-

ply, sewage disposal, storm water, soil

erosion control or the financial viabil-

ity of the private companies which oper-

ate the water and sanitary sewage com-

panies. This is altogether appropriate

because the Commonwealth has pre-emptive,

all embracing regulatory mechanisms for

the licensure, planning, construction and

operation of sewer plants as discussed

infra. It has similar controls for water

(25 Pa. Code 109.1, et seq.) and for soil

erosion control (25 Pa. Code §102.2).

Rates and economics are governed by the

Public Utility Commission. No other body

or party has jurisdiction of such mat-

ters.

The feasibility of water and

sanitary sewer supply to the proposed

development was amply demonstrated by the

engineering testimony and the Department

of Environmental Resources letter in the

Record. Erosion control mechanisms such

as plans and permits are done when FINAL

APPROVALS are sought for construction,

not at the time of TENTATIVE APPROVAL.

Before any building permits can be is-

sued, an application must be made to the

Department, plans must be submitted and

approved. The relevant portion of the

Pennsylvania Code (25 Pa. Code 102.42 and

102.43) are:

”"§102.42. Notification of ap-

plication for build-

ing permits.

Any local governing body

which issues building permits

shall notify the Department or

its designee immediately upon

receipt of an application for a

building permit involving an

earth-moving activity which

affects five acres or more of

land.”

”“§102.43. Withholding building

permits.

A local governing body

shall not issue a building per-

mit to those engaged in earth-

moving activities requiring a

Department permit until the

Department has issued the per-

mit pursuant to §§102.41 --

102.42 of this title (relating

to responsibilities of local

governing bodies).”

Clearly these cannot legally be

grounds for refusal, if indeed they are,

since the only applicable “standards,

conditions and regulations” have been met

or will be met when the appropriate time

comes.

D. IN THIS CASE THE BOARD OF

SUPERVISORS COMMITTED REVER-

SIBLE ERROR WHEN THEY APPLIED

STANDARDS NOT MANDATED BY THE

ENABLING LEGISLATION AND THEIR

OWN ORDINANCE.

The Pennsylvania Municipalities

Planning Code (Pa.MPC) 53 PCA 10101 et

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30

seq. is the governing framework for all

zoning, subdivision and planning within

the Commonwealth of Pennsylvania. This

enabling legislation does exactly what

the term “enabling” means. It enables

political subdivisions in the Common-

wealth to enact zoning, subdivision and

planning ordinances, IF, AND ONLY IF,

THEY COMPLY WITH BOTH THE SUBSTANTIVE AND

PROCEDURAL SAFEGUARDS SET FORTH IN THE

CODE. For example, in Abel v. Middletown

Township, 7 Pa. Cmwlth. 6, 297 A.2d 525

(1972), the Township of Middletown at-

tempted to impose by ordinance an addi-

tional procedural step which was not ex-

pressly provided for in the Pa.MPC. In

that case the Township of Middletown re-

quired a “sketch” plan to be submitted

prior to a request for a Tentative Ap-

proval for a planned residential develop-

ment or a planned unit residential devel-

Ne ee

opment. Our Commonwealth Court held that

the municipality was not at liberty to

change the procedural steps set forth in

the Code. It is not obligatory that

every municipality have a planned unit

development or planned unit residential

development district or that it make pro-

vision for that kind of development,

Kauffman and Broad, Inc. v. Board of

Supervisors of West Whiteland Township,

20 Pa. Cmwlth. 116, 340 A.2d 909, 376

A.2d 305 (1975). If, however, it elects

to avail itself of those provisions, then

it must comply with the standards set

forth in the enabling act, Abel, supra.

The Municipalities Planning

Code sets forth quite particularly the

kind of information which the applicant

developer must submit and it limits what

the Ordinance may require. The relevant

provisions are contained in §707 and read

as follows:

"Section 707. Application

for Tentative Approval of Plan-

ned Residential Development.

--In order to provide an ex-

peditious method for processing

a development plan for a plan-

ned residential development

under the terms of an ordinance

adopted pursuant to the powers

granted herein, and to avoid

the delay and uncertainty which

would arise if it were neces-

sary to secure approval, by a

municipality of local proce-

dures, of a plat of subdivision

as well as approval of a change

in the zoning regulations

otherwise applicable to the

property, it is hereby declared

to be in the public interest

that all procedures with re-

spect to the approval or disap-

proval of a development plan

for a planned residential de-

velopment and the continuing

administration thereof shall be

consistent with the following

provisions:

* * *

(4) The ordinance shall

require only such information

in the application as is rea-

sonably necessary to disclose

to the governing body or its

designated agency: (i) the

location, size and topography

of the site and the nature of

the landowner’s interest in the

en ORS PN ae a

land proposed to be developed;

(ii) the density of land use to

be allocated to parts of the

site to be developed; (iii) the

location and size of the common

open space and the form of or-

ganization proposed to own and

maintained [sic] the common

open space; (iv) the use and

the approximate height, bulk

and location of buildings and

other structures; (v) the

feasibility of proposals for

the disposition of sanitary

waste and storm water; (vi) the

substance of covenants, grants

of easements or other restric-

tions proposed to be imposed

upon the use of the land,

buildings and structures in-

cluding proposed easements or

grants for public utilities;

(vii) the provisions for park-

ing of vehicles and the loca-

tion and width of proposed

streets and public ways; (viii)

the required modifications in

the municipal land use regula-

tions otherwise applicable to

the subject property; (viii.1)

the feasibility of proposals

for energy conservation and the

effective utilization of renew-

able energy sources; and (ix)

in the case of development

plans which cal) for develop-

ment over a period of years, a

schedule showing the proposed

times within which applications

for final approval of all sec-

tions of the planned residen-

tial development are intended

to be filed and this schedule

must be updated annually, on

the anniversary of its ap-

proval, until the development

is completed and accepted; (As

amended 1982 P.L. 613, No.

173.)” (Emphasis supplied)

In its reports the Supervisors

admitted that all of the requirements of

§707 were met except for three. Para-

graph 4 of the Findings of Fact at pages

3 and 4 list in detail all of the

material required by the Pennsylvania

Municipalities Planning Code and admit

that the application contained all of the

information required. In paragraph 5 of

the Findings the Board of Supervisors

mentioned three which, they assert, were

required by the Municipalities Planning

Code but which were not included. These

were:

Ain cn neti Aed ante in has at OOTs ate

RE "rel Bee WED Melde Coe +

(a) the height of the

buildings proposed,°

(b) feasibility proposals

for energy conservation and effec-

tive utilization of renewable energy

sources, and

(c) the required modifi-

cation of municipal land use regula-

tions.

Appellant vigorously disputes all of

these.

The plans and sketches sub-

mitted to the Board of Supervisors in the

*The Findings of Fact are clearly

contradictory because in Finding of Fact

number 19, the Board of Supervisors found

that all height requirements of the zon-

ing ordinance will be met. Finding of

Fact number 19 (at page 9) reads as fol-

lows:

"19. The developer has

shown clustered housing and all

height requirements of the zon-

ing ordinance will be met.

There appears adequate light

and air in proper building

spacing.”

application clearly shows [sic] the

height of the buildings as being within

the permissible limits. In addition,

Finding of Fact number 19 (p.9) admits

that the height limitation has been met.

As to the feasibility proposals

for energy conservation and effective

utilization of renewable energy re-

sources, since the enactment of the Ordi-

nance the Pa.MPC there has been legisla-

tion mandating energy conservation mea-

sures.’

’By Federal regulation, the develop-

er is required to disclose to any buyer

in the sales agreement the R valve, type

and the thickness of insulation installed

in each part of the house. 16 CFR Ch. 1

§460.16 (1-1-86 Ed.). Further, this

development is served by Pennsylvania

Power and Light (PP&L) which is one of

the companies in the Federal Residential

Energy Conservation Program providing for

energy audits and means of conservation

for the Residential Conservation [of

Energy] Service. See 10 CFR Ch. 11 §456

et seq. and particularly Subpart E,

§456.501 et seq. PPL has an outstanding

record in this regard.

sorccae tl

>

|

37

-As to the required modification

of municipal land use regulations, the

Board of Supervisors admitted in its

Finding of Fact number 5 that evidence of

this was produced at the public hearing.

BAe Le rire lls teh Nat ny cai et BAP a ea

The fact that there were depar-

tures from the conventional Township zon-

: ing ordinances has no bearing on the ap-

proval of a Planned Unit Development or a

Planned Residentia) Development. It can-

not be the basis for a refusal. This was

the subject of a significant comment by

atte ieee ibe

our Commonwealth Court in Michaels Devel-

opment Company, Inc. v. *Benzinger Town-

ship Board of Supervisors, 50 Pa. Cmwlth.

281, 413 A.2d 743, 747 (1980), where that

| Court held that it is the very essence of

| _. a Planned Unit Development that it depart

] from conventional lot-by-lot standards.

It there said:

“Departures from the town-

ship zoning ordinance have no

Significant bearing on the ap-

proval of the PRD application.

A PRD application is not to be

judged by the standards of the

township zoning ordinance, for

“(ijt is the very essence of a

planned residential development

that it may diverge from zoning

requirements.” Doran, supra,

10 Pa.Cmwlth. at 155, 309 A.2d

at 457. Instead, a PRD must

meet the requirements cf the

particular Ordinance. Here,

all have agreed that the Devel-

oper has so complied.”

Therefore this statement, if it was part

of the basis of the refusal is without

merit.

In its Finding of Fact number

11A the Supervisors misconstrued their

own zoning Ordinance. That Finding reads

as follows:

“11. The Plan documents

depart from the Kidder Township

Subdivision and Land Develop-

ment Ordinance (1971) and the

Kidder Township Zoning Or-

dinance provisions (other than

Article 4, Subsection 4.403 Use

Class 14 - Planned Unit Devel-

opment) as follows:

A. The rear set back

requirement of thirty (307)

rene ee eta ee detunncion

>

'

39

feet as [sic] not been met.

The Plan must show sufficient

rear set back from the property

lines as to not adversely ef-

fect [sic] adjacent property

owners. This requirement would

be a condition of any tentative

preliminary plan approval;”

The Supervisors were apparently under the

impression that they could incorporate by

reference the rear setback requirement of

the conventional zoning ordinance which

would require rear yards of a mini

thirty feet. No such requirement

in their Planned Unit Development

nance. Under Michaels, supra, the con-

ventional zoning ordinance is not rele-

vant to the Planned Unit Development type

of ordinance unless it is specifically

set forth as a standard as required by

§705 of the Pennsylvania Municipalities

Planning Code. We have searched the en-

tire Ordinance and have been unable to

find any rear yard requirement for a PUD

development. If the refusal is, in part,

>

'

40

bottomed on this premise it is also

fatally defective as a matter of law.

The Supervisors found that the

plan provided adequately for pedestrian

and vehicular safety except for a portion

of the entrance to the development.

There the Supervisors criticized the plan

on two grounds. The first was the ade-

quacy of ingress and egress in Finding

11C which states:

"C. The Plan depicting a

main cul-de-sac roadway vio-

lates the provisions for cul-

de-sac streets under the Kidder

Township Subdivision and Land

Development Ordinance. We find

this to create a serious prob-

lem 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 ap-

proval would have to provide an

alternative roadway system for

vehicular traffic other than

the main roadway ending in a

cul-de-sac as shown on the

all

present Plan.”

The Supervisors [sic] comments

in paragraph 11C relates [sic] to ingress

and egress and their finding that the

road system created a “serious problem.”

They go on to equate this to a danger to

life and property because there is no

“alternate roadway.” While this has a

certain amount of surface appeal, the

problem with this Finding is that it is

JUST NOT A FACT. The Supervisors here

either did not understand the testimony

and the drawings or they were looking for

a reason to deny the application.

This parcel of ground is ir-

regular. It is almost bisected by the

line between East Side Borough and Kidder

Township. The East Side Borough portion

which as been granted a PUD tentative

approval pursuant to East Side’s Or-

dinance shows the means of ingress and

egress through Kidder Township. It is

obvious that because of the various con-

straints, a Planned Unit Development of

the site is the most rational approach

since a conventional “cookie cutter” kind

of subdivision would obviously destroy

much of the attractiveness of the

tract.”* A conventional approach would

compel the destruction of almost all of

the trees on the site.

No responsible developer today

would attempt to foist off a plan that

was unsafe or presented a danger to life

or property, and that was not done here.

The consulting engineer came up with an

extremely ingenious and practical way of

meeting the problem of a long, narrow

"This was assumed by the Township’s

planning consultant as-can be deduced

from her letter of April 26, 1985 which

is part of the Record as Exhibit 7. She

found it “consistent with the comprehen-

Sive plan” of 1968.

A-43

tract by creating two (not one as the

Board wanted to--and did--find) all-

weather paved means of ingress and egress

in the event of any emergency.”® Mr.

>

*There are actually three means of

ingress and egress in the event of an

emergency, two are paved and one is not.

This problem arose in the East Side Bor-

ough application for Tentative Approval

and was reviewed by the Carbon County

Planning Commission for them and found to

be quite acceptable. Under date of Sep-

tember 17, 1985 Mr. Bruce Conrad said in

a letter to East Side Borough:

NEW CONDITIONS

It was the opinion of this

Commission that the boulevard

entrance way, with the second-

ary loop system, would provide

adequate secondary access with-

in this subdivision for emer-

gency purposes. If the Kidder

Township portion is not going

to be developed at this time,

some sort of secondary emer-

gency access way must be devel-

oped from the end of the boule-

vard entrance way to the begin-

ning of the secondary loop sys-

tem in East Side Borough. The

Subdivider has indicated a wil-

lingness to do so. This would

not have to be a paved surface

Since the nrobability of its

ever being used is extremely

| ,

James S. Carr, 1 registered architect in

twenty-two states, a partner in a major

architectural and planning firm with some

fifteen years of experience, who was re-

sponsible for the design, so testified.*®

Mr. John A. Burke, the consulting en-

gineer, also testified about the dual

system. By making a boulevard of the

entrance, dividing the entrance by a

raised, curbed, green-planted medial

strip, two roads are created. Each lane

is 11’ wide with a 9’ stabilized

shoulder, a total of 20 feet. The medial

is 10’ wide. Normally the lanes would be

one way. If one lane was blocked and the

shoulder could not be used, however, the

small.”

This letter is not of Record in this

case, but is part of the East Side Bor-

ough Record.

"See N.T. 25-26 for his credentials

and authority; N.T. 32 as to the dual

system and an explanation on p.36-37.

oo eee

es

45

>

!

alternate would be to use the other lane

on the other side of the boulevard or the

other shoulder.” This was designed so

that ther2 could be no “choke point” at

the entrance without paved alternatives

as well as the shoulders.

Once beyond the boulevard, re-

sort must be had to the plan (Applicant’s

Exhibit 8) to understand how simple and

effective the system is in reality and

how it solves the problem. The planned

road system provides both normal and al-

ternate emergency ingress and egress to

and from every dwelling in the PUD by two

(2) separate routes. The main thorough-

fare through the development is a 22-foot

wide paved, limited-access roadway, with

a 9-foot shoulder on each side, for a

total improved width of forty (40) feet.

This thoroughfare is the primary traffic

MSsee N.T. 43; 56-57.

route, providing efficient and uninter-

rupted access to all parts of the devel-

opment. In addition to the main thor-

oughfare, the plan provides for a series

of loop roads through the parking areas

which serve the dwelling clusters. All

of the loop roadways are located so that

any obstruction in either the main

thoroughfare or any of the loops (such as

a stalled vehicle) can be —_ by

swinging through a well defined bypass,

through and ot the other side. Attached

hereto as Appendix “A” and incorporated

herein is a copy of the April 18, 1985

Plan (Applicant’s Exhibit 9), which il-

lustrates the flow of the primary and

secondary road systems. (The markings

have been superinposed [sic] on the Ex-

hibit for ease of exposition.) The en-

tire development is served by these two

parallel all-weather paved routes which

’

the plans amply demonstrated and the tes-

timony reinforced. Thus, at least two

means of ingress and egress which are

all-weather are provided. Any finding to

the contrary just is not supported by the

Record.

- As part of the Carbon County

Planning Commission’s review of the pro-

posed Pocono Green PUD, its Director,

Bruce Conrad, and Deputy Director, Eugene

Butler, made an on-site inspection of the

subject tract for the purpose of deter-

mining whether the tract and the planned

PUD provided safe and adequate access.

Their findings are set forth in a report

which was submitted to Kidder Township

and the Township Planning Commission as

part of their sketch plan review. That

report was not contained in the record

certified to the Court by the Township in

this matter, but is part of the files of

‘

eee i Ea.

A-48

the Carbon County Planning Commission,

Kidder Township and the Kidder Township

Planning Commission regarding the pro-

posed Pocono Green PUD. A true and cor-

rect copy of that official communication

is attached hereto as Appendix ”B” and

incorporated herein. That report, at

pages 3 and 4 thereof, states as follows:

“It was the primary inten-

tion of this site inspection to

determine if the proposed ac-

cess could be reasonably ex-

pected to be able to be kept

open in an unforeseen emer-

gency. And, if not, if there

could be ad hoc emergency ac-

cess from another direction if

it were closed for any reason.

"We concluded, from our

on-site inspection, that the

secondary circulation system

proposed within the Subdivision

would be adequate to keep ac-

cess open in the event that the

throughroad would be blocked

for any reason. Therefore, any

potential severance of access

could only occur in the ap-

proximate 400 linear foot en-

trance road across the Pocono

Hershey Golf Course. This area

is not steeply sloping, does

not contain any water courses

and is immediately adjacent to

a Pennsylvania Department of

Transportation storage depot.

It is highly unlikely that this

road would ever be severed ex-

cept by possible drifting snow

about which seasonal precau-

tions could be taken.

We also noted that both in

the area of the access road and

in the area at the end of the

cul-de-sac, there were cart-

roads on the Pocono Hershey

Golf Course over which an am-

bulance could travel in an ex-

treme emergency. It is clear,

however, that this same alter-

nate would not work for fire

trucks. It was also clear from

conversations we had with man-

agement at Pocono Hershey that,

in the once in a hundred year

possibility of the Subdivi-

sion’s main road being blocked,

they would not block such ac-

cess in a true emergency.”

The Board of Supervisors

commented about what they misperceived as

a problem and “threw it into the pot,” so

to speak. It is submitted that it has no

place in their consjderation. The pro-

posed roadway separates two portions of

the Pocono Hershey Resort Golf Course and

>

'

50

its patrons shortcut (trespass) over this

area driving golf carts across what is

proposed to be the main roadway. The

problem with the Supervisors [sic] find-

ing on this subject is that the Township

apparently seeks to impose upon the Ap-

plicant here the duty of preventing a

hazard which is caused by the trespassing

of others. The Applicant established

early on in the proceedings its right to

fee title to the premises. That was part

of its burden under §107(12) of the

Pa.MPC. This it accomplished by both

testimony and exhibits which the Board

admits. In Finding of Fact number 2 it

concedes that Pocono Green, Inc. was the

equitable owner of all the land shown on

the development plan and the landowner as

defined by the Code. Nowhere on this

record was any adverse interest es-

tablished despite the fact that a repre-

sentative of Pocono Hershey Resort Golf

Course (guests and business visitors of

theirs being the offending parties) was

at the hearing and testified. (See Find-

ing of Fact 9A.) The landowner should

not suffer having his plan for develop-

ment refused because of the action of

others who trespass upon his land now.

While the Supervisors may wish to have

some assurance that protective measures

will be taken to prevent accidents, they

cannot refuse to permit development on

grounds that others (who have no interest

in the land) are playing fast and loose

with the developer’s property. Even if

this was a conventional development of a

standard subdivision, the rights to

create an entry road and subdivide the

parcel could not, be refused on grounds

that trespassers might be injured if the

development was permitted.

To the same extent the grat-

uitous comment in Finding of Fact number

16 that the recreation area is far re-

moved from Kidder Township and the in-

ference that the Supervisors would re-

quire compliance with the open space and

density requirements would be necessary

before Tentative Approval was granted is

12

in error. The Supervisors own Finding

“The two findings are:

"12. The Kidder Township

Zoning Ordinance, as amended,

Article 4, Basic District Regu-

lations: Section 4.300 Use

Classes and Zoning Districts,

Use Class 14 Planned Unit

Development 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 devel-

opment of 30%, being 27.4% in

this P.U.D. The public recrea-

tion area requirement is three

hundred (300) square feet per

house unit and the development

meets this requirement by pro-

viding three hundred fifty nine

(359) square feet per dwelling

unit."

a yD Ming i wee Ee

number 12 admits that all of the open

space and density requirements have been

met.

The Supervisors also took ex-

ception to what they infer is the inade-

quacy of storm drainage plans and storm

"16. The purpose of com-

mon open space is to provide

for separation of various clus-

ters of houses, visual enjoy-

ment, separation for circula-

tion 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 cer-

tain active recreational uses.

We find that the recreational

area located in Kidder Town-

ship but not adjacent to the

development to be minimumly

adequate to meet the recrea-

tional and common open space

needs of development located in

Kidder Township. The "Recre-

‘ation Area C" as shown on the

preliminary plan is far removed

from Kidder Township. The com-

mon open space requirement of

twenty-five (25%) percent for

each residential district (com-

mon open space as defined by

the Zoning Ordinance) has been

met in Kidder Township."

water erosion noting that complete ero-

sion and sediment control plans would be

required as a condition of any Tentative

Approval. They noted that there was no

certification by the Applicant’s engineer

that the surface and subsurface condi-

tions would not cause damage to property

or life and, while not expressly so stat-

ing, inferred that this was a reason for

disapproval. The problem with those

Findings are [sic] no such certifications

are required. The only thing that is re-

quired is that the developer demonstrate

the “feasibility of proposals for the

disposition of storm water” under

§707(4)(v) of the Pennsylvania Municipal-

ities Planning Code. The uncontradicted

and unrebutted testimony of Mr. Burke,

the engineer, established that the storm

drainage plans and the erosion and sedi-

mentation controls would not cause any

ee

danger and are feasible (N.T. 44, 45).

Finally, soil erosion and storm

sewers are gone into in great detail at

the time when FINAL APPROVAL IS SOUGHT,

NOT AT THE TENTATIVE STAGE. The plans

for handling storm sewage were submitted

at the time of the original application.

The Kidder Township Planning Commission

had an opportunity to review them, as did

the Carbon County Planning Commission.

Presumably the Township engineer had an

opportunity to review them. No question

was raised as to the feasibility of those

proposals. No document was submitted

which in any way indicates that the pro-

posals are not feasible. No witness

questioned the feasibility of the propo-

sal for storm water. There is no re-

quirement for soil and erosion control

plans in either the Kidder Township Plan-

ned Unit Development Ordinance nor [sic]

>

1

56

in the Pennsylvania Municipalities Plan-

ning Code. There are overriding soil and

erosion controls enforced’ by the Depart-

ment of Environmental Resources which

must be met and which are generally cov-

ered by an application process to that

Department and supervision by them which

obviously the developer will have to com-

ply with at that time.’* They are not,

however, relevant or material at the Ten-

tative Approval stage of the proceeding.

The Board of Supervisors also

erred in Finding of Fact number 20 which

states that the plan showed a general

commercial area and the developer Ap-

plicant failed to advise the Township of

the specific uses that would be made of

that area. The Developer is not required

See §711 of the Pa.MPC, 53 P.S.

10711 for the second step of the two-

step procedure required by the Enabling

Act.

iii sirens Pee

,

to state what specific uses will be made

of a building at the tentative stage.

The uses are controlled by the township

zoning ordinance and the developer cannot

predict which one of the number of uses

permitted will show up as a prospective

user, tenant or purchaser. It is only

after permits are granted or the build-

ings are erected that this question can

wbe resolved. Obviously nothing can be

done in the commercial area, in terms of

use, which does not meet the terms of the

zoning ordinance.

Finding of Fact number 22 deals

with the sewage question which has been

the subject of this Brief, supra. The

Finding by the Supervisors as to whether

the stream runs dry or not is totally

gratuitous and not based upon the evi-

dence.

In Findings of Fact numbers 25

and 26 the Township again stepped outside

of the authority vested in it and at-

tempted to invest itself with the author-

ity which has been granted to the Public

Utility Commission of the Commonwealth.

The Township here raised concerns as to

what might happen and how it might appor-

tion the cost in the event the public

utility company which operates the plant

“becomes defunct or is unable to properly

operate the sewage treatment plant and

system.” The Public Utility Commission

of the Commonwealth has sole jurisdiction

over the rights and manner in which pub-

lic utilities operate. Springdale Twp.

v. Allegheny County, 76 Pa. Cmwlth. 305,

463 A.2d 1257 (1983); Morrow v. Bell

Telephone Co. of Pa., 330 Pa. Super. 276,

479 A.2d 548 (1984), 66 P.S. 501. The

Municipality has a right to be repre-

tei

59

>

I

sented at any hearings held by the Public

Utility Commission and to make requests

of them, but it is in the sole discretion

of the Public Utility Commission to

grant, deny or condition such request.

The same is true of Finding of

Fact number 26 regarding the water sys-

tem. The water system is solely within

the scope of competence of the Department

of Environmental Resources, which has

indicated its approval of the proposed

system at the current stage of the ap-

provals process.

Finally, the Board of Super-

visors refused the Tentative Approval on

only one ground and that was the feasi-

bility of the proposed sanitary waste

disposal system. As hereto indicated,

this matter was substantially put to rest

by reason of the uncontradicted and un-

rebutted testimony of Mr. John Burke and

the letter from the Department of En-

vironmental Resources indicating the

feasibility of the proposed system.

There was no contrary evidence what-

soever. It is also interesting to note

in this connection that the Township

engineer, who forwarded a number of com-

ments (Township Exhibit ”4”) (but did not

testify), did not question the feasibil-

ity of the sanitary sewer system.

III. SUMMARY

For all of the foregoing rea-

sons the Appellant moves the Court to

reverse the decision of the Board of

Supervisors of Kidder Township and to

order the granting of Tentative Approval

for the planned unit development known as

Pocono Green.

OF COUNSEL:

Respectfully submitted,

ROGER N. NANOVIC /s/

Attorney I.D. No. 01683

Attorney for Appellant,

Pocono Green, Inc.

Nanovic Law Offices

57 Broadway

Jim Thorpe, Pennsylvania

19229-0356

(717) 325-2774

LENARD L. WOLFFE

Attorney I.D. No. 14519

Attorney for Appellant,

Pocono Green, Inc.

Pechner, Dorfman, Wolffe,

Rounick & Cabot

Three Parkway

Philadelphia, Pennsylvania

19102

(215) 561-7100

IN THE

COMMONWEALTH COURT OF

PENNSYLVANIA

NO. 1549 C.D. 1987

POCONO GREEN, INC.,

Appellant

Vv.

BOARD OF SUPERVISORS

OF KIDDER TOWNSHIP

(CARBON COUNTY),

Appellee

BRIEF OF APPELLANT,

POCONO GREEN, INC.,

APPLICANT BELOW

Appeal from the Order

dated June 19, 1987,

of the Court of Common Pleas

of Carbon County

No. 85-0805

Filed:

Lenard L. Wolffe, Esquire

Pechner, Dorfman, Wolffe,

Rounick & Cabot

Three Parkway

Philadelphia, PA 19102

(215) 561-7100

Attorney for

Pocono Green, Inc.

A-64

TABLE OF CONTENTS

Page

TABLE OF CITATIONS ...... i [A-65]}

STATEMENT OF JURISDICTION... 1 [A-67]

ORDER APPEALED FROM .... . 2 [A-68]

STATEMENT OF QUESTION

peo, a 3 [A-69]

STATEMENT OF THE CASE .... 4 [A-71]

SUMMARY OF ARGUMENT ..... 7 [A-76]

ARGUMENT FOR APPELLANT .... 9 [A-79]

A. The Scope of Review .. 9 [A-79]

B. The Right to Obtain a

Tentative Approval for

a Planned Unit Develop-

ment is Determined by

the Criteria Set Forth

in the Particular

Ordinance Provided

That the Ordinance is

Consistent With the

Enabling Legislation . . 11 [A-82]

CONCLUSIONS AND RELIEF

SOUGHT. . . . « © © « « « 21 [A-98]}

TABLE OF CONTENTS [sic]

Cases

Abel _v. Township of Middletown,

7 Pa. Comwlth. 6, 297

A.23G@ S25 (i972) . « « «

Brauns v. Swarthmore Borough,

4 Pa. Comwlth. 627, 288

Meoee GSO CiBT2Z) « 2 «

Commonwealth v. Stanley, 498

Pa. 326, 446 A.2d 583

(1982) > . . . . . .

De Foe v. Brookhaven Borough,

3 Pa. Comwlth. 377, 283

A.2d 505 (1971) .. °

Doran Investments v. Muhlen-

berg Township, et al.,

10 Pa. Comwilth. 143, 309

A.2d 450 (1973) ...

In Re Appeal of Molner,

64 Pa. Comwlth. 515,

414 A.2d 487 (1982).

[A-86, A-87,

Lily Penn Foods v. Pennsyl-

vania Milk Marketing

Board, 80 Pa. Comwlth.

266, 472 A.2da 715

ee

a . 7

[A-79,

A3°

A-88,

(Aso,

9, 11

A-82]

15, 18

A-96]

9-10

A-81)

TABLE OF CONTENTS [sic]

Cases

Rees v. Bo Su isors

of Indiana Township,

Pa. Comwlth. » Bas

A.2d 584 (1986) ....

[A-92, A-93,

Snelling v. Department of

Transportation, 27 Pa.

Comwlth. 276, 366

A.ed 1298 (1976). ...

Statutes and Ordinances

Pennsylvania Municipali-

ties Planning Code...

[A-5, A-83,

Kidder Township Zoning

GORGANENGG 1 2. 2 6 st 8

Other Authorities

Webster's Ninth New Colle-

giate Dictionary

(Copyright, 1986) .

Webster's Unabridged Second

Edition (Copyright,

SS oo6 46 eee

A-94,

. ~

A-84,

17-18

A-95]

11-13

A-85]

..« «4

{A-71]

fy ee

[A-97]

a

[A-97]

>

\

67

I. STATEMENT OF JURIS

This Court has jurisdiction

over this matter pursuant to Section 762

of the Judicial Code, Act of July 9,

1976, P.L. 586, No. 142, as amended, 42

Pa. C.S.A. Section 762.

II. RDER F

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 De-

velopment, is AFFIRMED.

Costs on Appellants.

pers tie AEA natn

p=

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69

IIt. TATEME (e) STION Vv

In a zoning case where the re-

fusal of an application for tentative

approval of a Planned Unit Development

turns upon a question of the "“feasibil-

ity” of a sanitary sewage system which

has been professionally designed and has

met with preliminary approval of the De-

partment of Environmental Resources and

where the ordinance contains no other

standard or criteria is it not an abuse

of discretion to deny the Tentative Ap-

proval when the only evidence to the con-

trary is that of two protestant, lay wit-

nesses to the effect that the stream into

which the system was to discharge period-

ically runs dry’ (Such testimony is ir-

relevant since stream flow is frequently

not required.) Under these circum-

stances, has the Board of Supervisors not

capriciously disregarded the competent

evidence and thus committed an abuse of

discretion in disregarding the the [sic]

written preliminary approval of the De-

partment empowered to pass upon such mat-

ters and the testimony of Applicant’s

engineer in favor of irrelevant state-

ments by two interested lay witnesses?

Answered in the negative by the

Court below.

A-71

IV. STATEME OF T CAS

This matter is before the Court

on the developer’s appeal from the deci-

sion of the Court of Common Pleas of Car-

bon County (per President Judge Lavelle)

affirming the action of the Board of

Supervisors of Kidder Township in refus-

ing to grant Tentative Approval for a

Planned Unit Development known as “Pocono

Green.” The property in question, a por-

tion of which is in Kidder Township and a

portion of which is in the adjoining East

Side Borough, is ina district designated

"R-2” under the Kidder Township Zoning

Ordinance.** The part of the tract in

East Side Borough has been granted Tenta-

tive Approval as a Planned Unit Develop-

ment which approval is not now subject to

appeal. Physically this is one tract and

“See page 1, 42 (R 10a.) of the

Report of the Supervisors.

one development through which runs the

boundary line separating Kidder Township

from East Side Borough. The East Side

Borough tract is landlocked so that the

only means of ingress and egress is

through Kidder Township.

On March 13, 1985, Pocono

Green, Inc., <hne developer, made applica-

tion to the Kidder Township authorities

for Tentative approval for a Planned Unit

Development on Tannery Road.’°

“The Report of the Supervisors

states that this is a request for a ”Pre-

liminary approval of a Planned Unit De-

velopment.” (R10a.)

This terminology is in error under

Article VII of the Pennsylvania Munici-

palities Planning Code which governs

planned unit developments. The proper

term is “Tentative Approval”. That term

is important because it gives rise to

very specific and different rights in the

planned residential sections of the Penn-

sylvania Municipalities Planning Code

quite different than a conventional “pre-

liminary” subdivision approval under

conventional zoning.

>

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ve

Pursuant to the application and

notice on the application for a Tentative

Approval, the plan was reviewed and

recommended for Tentative Approval, with

conditions, by the Kidder Township Plan-

ning Commission. It was also reviewed by

the Carbon County Planning Commission

and, with certain comments, recommended

for approval.

A public hearing was held be-

fore the Board of Supervisors of Kidder

Township at the Municipal Building in

Lake Harmony on April 29, 1985. At that

time the Applicant (Appellant herein)

appeared represented by counsel, together

with its expert witnesses, and various

members of the public also appeared.

Applicant’s counsel conducted the hearing

in its behalf eliciting testimony from

the witnesses and various exhibits were

introduced into evidence. The testimony

was taken stenographically and trans-

cribed. (R. 3la. - 134a.). On June 17,

1985, the Board of Supervisors issued a

written decision entitled “Report of the

Supervisors Pursuant to Pennsylvania Mun-

icipalities Planning Code in the Township

Zoning, Subdivision and Land Use Ordi-

nances and the Township Comprehensive

Plan” (R10a. - 23a.) which denied the

application for Tentative Approval for

only one stated reason which was that the

application had failed to prove the

“feasibility” of its proposed sewage dis-

posal system. (R22a. ~- 23a.)

A timely appeal was filed to

the Court of Common Pleas. (R135a.) That

Court heard the matter on argument with-

out taking additional evidence and af-

firmed the action of the Board of Super-

visors in denying the application for

Tentative Approval.

It is the Applicant’s position

that the decision of the Court below and

the Board of Supervisors should be re-

versed and the Board be ordered to issue

the Tentative Approval as requested on

the grounds that the Supervisors com-

mitted an abuse of discretion or an error

of law or both.

V. SUMMARY OF ARGUMENT

This is a zoning case in which

the Board of Supervisors of Kidder Town-

ship refused an application for Tentative

Approval of a Planned Unit Development

based on its Finding that the “evidence

before the Board is sufficiently defi-

cient in showing the feasibility of the

proposed sanitary sewer system.”’® This

Finding of Fact which led directly to a

conclusion of law that the Applicant had

not met its burden of proof, is a classic

case of abuse of the Board of Supervisors

[sic] discretion in that it was a capri-

cious disregard of the competent evidence

which led directly to an error of law.

The uncontradicted evidence of

Record adduced by the Applicant’s profes-

‘“The Board of Supervisors apparent-

ly abandoned any other makeweight objec-

tions before the Court of Common Pleas

and only briefed and argued this one.

sional engineer (who did the preliminary

design) showed that the Department of

Environmental Resources (the agency

charged by law with the power to approve

or disapprove) had given preliminary

written approval of the feasibility of

the system. The only contrary evidence

was testimony of two lay protestants who

asserted that the stream into which the

system was to discharge periodically ran

dry. This protestant “evidence” is ir-

relevant because the state of the art now

in sewage disposal systems is such that

the effluent outfall can be made as clean

or cleaner than the incoming water in a

potable water system. In any event, it

is the Department of Environmental Re-

sources’ criteria and judgment which gov-

ern here since the ordinance in question

has no objective standards of its own.

Hence, the Board of Supervisors

committed an abuse of discretion in

denying Applicant Tentative Approval and

the lower court erred in sustaining the

Board’s action.

The decision should be reversed

and the Board directed to issue the

Tentative Approval as requested, at most

with a caveat or condition that the Ap-

plicant’s developer comply with all of

the Department of Environmental Resources

regulations.

>

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79

VI. ARGUMENT FOR APPELLANT

ae dad ee

A. THE SCOPE OF REVIEW

The scope of review of the

Courts, where no additional evidence is

CeCe ME oe eee

taken de novo, is to determine whether

the Board of Supervisors abused their

discretion or committed an error of law.

This was most cogently stated in Doran

Investments v. Muhlenberg Township, et

Lape Pent ELSE ALLE Mes ATT teh Mal Ne ee wd Ne tn eat Ny

al., 10 Pa. Cmwlth. 143, 309 A.2d 450,

453 (1973), where Judge Rogers, writing

for this Court en banc, declared:

”“{1]) The court below cor-

rectly determined that, not

having taken additional tes-

timony, its duty was to deter-

y mine whether the board of com-

‘ missioners abused their discre-

tion or committed an error of

law. Brauns v. Swarthmore Bor-

; ough, 4 Pa. Cmwlth. 627, 288

: A.2d 830 (1972); Defeo v.

Brookhaven Borough, 3 Pa.

Cmwlth. 377, 283 A.2d 505

(1971). Ours is the same duty.

Doran contends that its

plan compiies with all of the

requirements of Ordinance No.

106 and that it is entitled to

4

=

5

80

>

'

have its plan tentatively

approved.”

An abuse of discretion is de-

fined as basing a conclusion upon wholly

arbitrary grounds in capricious disregard

of competent evidence. It was succinctly

put by this Court in Lily Penn Food v.

Pennsylvania Milk Marketing Board, 80 Pa.

Comwlth. 266, 472 A.2d 715, 718, 719

(1984) where the majority of the court en

banc, speaking through Judge Craig, de-

clared:

"We may only review the discre-

tionary acts of public offi-

cials upon a showing of fraud,

bad faith, capricious action,

or abuse of discretion, Snell-

ing v. Department of Transpor-

tation, 27 Pa. Commonwealth Ct.

276, 286, 366 A.2d 1298, 1304

(1976); we have applied that

standard to board decisions in

the past, Lily Penn II, 68 Pa.

Commonwealth Ct. at 605, 437

A.2d at 490; Lily Penn I, 42

Pa. Commonwealth Ct. at 97, 400

A.2d at 663-64. To constitute

an abuse of discretion, the

board must have based its con-

clusion upon wholly arbitrary

grounds, in capricious dis-

‘

re, ——"

ABE Nk aS Oey Lp Wie eet

»

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81

regard of competent evidence.

Li enn I, 42 Pa. Common-

wealth Ct. at 97, 400 A.2d at

664. Here, the board abused

its discretion by a capricious

disregard of the only material

cost evidence pertinent to the

issue of lower minimum prices

for lowfat and skim milk.

Appellant submits that in the

case at bar the Board of Supervisors com-

mitted an abuse of discretion in capri-

ciously disregaring [sic] the only conm-

petent evidence and consequently their

action in denying the Tentative Approval

should be reversed and an Order entered

directing them to issue the Tentative

Approval for which the application was

made.

B. THE RIGHT TO OBTAIN A

TENTATIVE APPROVAL FOR A

PLANNED UNIT DEVELOPMENT

IS DETERMINED BY THE CRI-

TERIA SET FORTH IN THE

PARTICULAR ORDINANCE PRO-

VIDED THAT THE ORDINANCE

IS CONSISTENT WITH THE

ENABLING LEGISLATION. _

The law in this Commonwealth is

very clear with respect to the standards

by which a Planned Unit Development is to

be judged. The applicant must show that

the plan complies with the specific cri-

teria set forth in the Planned Unit

Development Ordinance. The ordinance in

turn must comply with the enabling legis-

lation. Once an applicant demonstrates

compliance with the applicable criteria

(provided they are consistent with the

enabling legislation) the applicant is

entitled to obtain Tentative Approval.

Doran Investments, supra; Abel v. Town-

ship of Middletown, 7 Pa. Comwlth. 6, 297

A.2d 525 (1972).

OT ee ee

ere eee eRe ean eee ere Poet ty Sree ee

05 6 he SIO na 20

;

2

’

The criteria in the ordinance

must be objective and, as will be pointed

out infra, if those criteria can be met

by the imposition of conditions, then

this Court has said it is appropriate to

impose conditions and not refuse to grant

the Tentative Approval.

In this case the Applicant met

or exceeded all of the criteria set forth

in Article VII Pennsylvania Municipali-

ties Planning Code (Pa MPC)53 PCA (0701,

et seq. and Use Class 14 of the Kidder

Township Zoning Ordinance which is the

Planned Unit Development Section except,

the Township alleges, subparagraph i,

which reads as follows:

i. No residential use of the

type herein specified shall be

allowed uniess said Planned

Unit Development is attached to

a centralized sewage disposal

system before inhabitation of

any portion of the development.

There are no definitions in the

ordinance of the word "centralized."

There are no standards in the ordinance

governing "centralized" sewage systems.

The word "feasible" is not used in the

ordinance. The above quoted section is

the ONLY reference to sewage disposal in

Planned Unit Developments in the Kidder

Township Ordinance.

The ONLY place the term "fea-

sible" is used is in Section 707(4) of

the PaMPC (53 PCA 10707(4)), which places

limitations upon the contents of an ap-

plication for Tentative Approval of a

Planned Residential Development which can

be imposed on an applicant. That sec-

tion, in pertinent part reads:

(4) The ordinance shall re-

quire only such information in

the application as is reason-

ably necessary to disclose to

the governing body or its

designated agency: (i) the

location, size and topography

- « «of (ii) the location and

sar eis Xiah be. Ube ah cei

Palle nl WN Mee RN Rend Mel AS | Baal aa Se

Prat ane

size of the common open space

- » of (iv) the use and the

approximate height, bulk and

location of buildings . .

(v) the feasibility of pro-

posals for the disposition of

sanitary waste and storm water;

(vi) the substance of cove-

nants, grants of easements or

other restrictions . ..; (vii)

the provisions for parking of

vehicles proposed streets and

public ways; (viii) the re-

quired modifications in the

municipal land use regulations

» « ef (vVilii.1l) the feasibility

of proposals for energy conser-

vation . . .; (ix) in the case

of development plans which call

for development over a period

of years, a schedule

(Emphasis supplied).

The Board’s abuse of discretion

turned precisely on this issue. The

lower court said that there were no def-

initions of the term “feasible” in the

Act or in any Pennsylvania case.’’

‘The lower court’s opinion reads,

in part, "The threshold issue here is the

meaning of the term “feasibility” as tha.‘

term is contemplated in the Act. Our

independent research has reveased [sic]

that neither the Act nor any Pennsylvania

appellate case law provide a definition

of that term to guide us. We are, there-

>

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86

We submit this is incorrect

because guidance was supplied by this

Court in In Re Appeal of Molnar 64 Pa.

Comwlth. 515, 441 A.2d 487, 480 [sic],

491 (1982) which was cited and quoted by

the Applicant in its Brief to the lower

court. (Applicant’s Lower Court Brief

pp. 7, 8 and 9). In that case this Court

at pp 480[sic]-491 of 441 A.2d said:

The Borough Council objected

finally to the alleged insuf-

ficiency of the developer’s

fore, guiued by the polestar principle

that, where a statutory term is not de-

fined, we must look to the common and

approved usage of that term. 1 Pa.C.S.A.

Sec. 1903; Commonwealth v. Stanely [sic],

498 Pa. 326, 446 A.2d 583 (1982).

Black’s Law Dictionary defines the term

feasible, the root of feasibility, as

“{c]japable of being done, executed, or

affected or accomplished. Reasonable

assurance of success.” BLACK’S LAW DIC-

TONARY, p. 549 (Fifth Edition, 1979).

Feasible is also defined, inter alia, as

“{cjapable of being utilized or dealt

with successfully; suitable.” THE AMERI-

CAN HERITAGE DICTIONARY OF THE ENGLISH

LANGUAGE, p. 480 (1971). (Opinion of

June 19, 1987 at p. 5)

— a ee

a

(eee ta EY GR av lathe

arr

plans for abatement or contain-

ment of the presently existing

serious storm water drainage

problem at the site, arguing

that this situation would be

severely exacerbated by the

proposed development. The

developer proposed to deal with

the problem by means of a

twenty-five year interval storm

drainage basin or pond coupled

with a rerouting of the stream

which runs through the area.

The dimension of the basin rep-

resented an increase in size

from that set forth in the

original plan. the [sic] arch-

itect, basing his opinion upon

the studies and earlier testi-

mony of Dr. John Verna, a hy-

draulic engineer, testified to

the adequacy of the proposal.

Several weeks prior to the

hearing the proposal and

studies done by Dr. Verna had

been made available to the Bor-

ough’s planner and engineer but

neither was called to testify

or responded at the hearing.

There is, therefore, nothing in

the record to support the Bor-

ough Council’s findings of the

inadequacy of the storm drain-

age plan. However, as noted by

the Borough Council, the area

downstream from the site is

subject to flooding and an in-

crease or ill-chosen alteration

in flow of the stream would

seriously affect downstream

properties. Although the Bor-

ough cannot burden the devel-

oper with responsibility, for

alleviation of an existing

problem, Michaels, it can re-

quire the developer to adopt

appropriate storm control meas-

ures to protect the community

against further aggravation of

the problem as a result of con-

struction of the PURD. At this

stage of the proceedings, how-

ever, the developer is required

only to disclose the feasibil-

ity of proposals for the dis-

position of storm water, Sec-

tion 707(4)(v) of the MPC, 53

P.S. Section 10707(4) (v);

specifications as to the pre-

cise projected relocation of

the stream are to be included

in his application for final

approval. Section 711l(a) of

the MPC, 53 P.S. Section

10711(a).

Molnar, in many ways is identi-

cal to the case sub judice. There the

expert testimony of the Applicant’s en-

gineer and architect was rejected in

favor of unfounded fears of lay witnesses

as to storm drainage. (Counsel here was

counsel there). This court held such

reliance to be an abuse of discretion.

Ciel TLL Bia Sbebaey, a

PS Res ARN BLT A

PBR, lia ye wah

The Board of Supervisor’s deci-

sion turned upon their rejection of the

Applicant’s engineer’s testimony (Mr.

Burke) that the proposed sewage treatment

system was feasible and their adoption of

the testimony of two lay protestants that

the outflow of the sewage plant went into

a stream which had little water in it and

sometimes went dry. Mr. Burke was ap-

parently unaware of this “fact”. Mr.

Burke had testified that the proposed

sewage plant was feasible, that he had

submitted preliminary plans for it to the

Department of Environmental Resources

and, that they had preliminarily approved

those plans. Entered in evidence as Ex-

hibit 6 (R26a. - 30a.) was a letter from

the Department of Environmental Re-

sources. The DER letter reads, in per-

tinent part as follows:

This Department has reviewed

the preliminary plans for

Pocono Green Development, lo-

cated in Kidder Township and

East Side Borough, Carbon

County PA. The proposal sub-

mitted utilizing private water

supply and distribution and for

sewage collection, treatment

and disposal is acceptable to

the Department of Environmental

Resources. (R26a. )

The error is that, even assum-

ing that the Board of Supervisors is cor-

rect in believing the two lay witnesses

(Messrs. Les Herling and Brady) that the

stream runs dry, THIS DOES NOT IMPEACH OR

CONTRADICT THE DEPARTMENT OF ENVIRONMEN-

TAL RESOURCES’ REVIEW OR THE ENGINEER, MR

[sic] BURKE’S TESTIMONY. Today, the

technology of these well designed sewage

plants is such that the waste water com-

ing out of them is of better quality than

ordinary rain water runoff and stream

water. The Board’s opinion leaves one

with the impression (based on the obser-

vation of two lay protestants) that the

é

discharge will cause a fetid mess in this

¥ ERM Cp SE RY Sh Neh Sivw PRN Cm

>

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91

stream. The Board jumps to this con-

clusion without giving any credence to

the fact that it is the DER’s standards

which govern here. The Township has none

except those quoted above. In fact, the

DER had reviewed the Applicant’s plans

and had stated that Applicant’s proposed

sewage treatment plant is acceptable to

them and this preliminary approval has

been given no credence by the Board.

The error in the Supervisor’s

Findings is the implied assumption that,

just because there is a low flow (if

there is), there is no technology to ob-

viate the problem. That is a totally

unwarranted assumption both as a matter

of law and fact. As a matter of law, the

Board is in error because the jurisdic-

tion te make findings regarding the fea-

Sibility of a sewage treatment system

absent the enactment of their own stand-

>

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92

ards, is legally vested in the DER.

As a matter of law, Judge

Lavelle of the lower court bottomed his

opinion upon Rees v. Board of Supervisors

of Indiana Township, Pa. Comwlth.

, 513 A.2d 584 (1986) which reliance,

it is submitted, is in error. The facts

in Rees are simply inapposit [sic].

There the Board of Supervisors refused an

application for Tentative Approval of a

Planned Development for a number of

reasons which the Court found to be in-

adequate reasons for denial. In Rees,

there was testimony from residents that

the creek into which the sewage system

discharged flowed only “intermittently”

during the summer months. Between the

time of Refusal and the disposition of

the case, the developer in Rees entered

into an agreement to use the Township’s

sewage system and a settlement on that

yon ee kas il ie

>

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93

basis was approved by the lower court.

The settlement agreement was attacked by

the objecting parties, its validity was

upheld by the lower court and affirmed by

this Court.

The principal differences be-

tween Rees and this case are at once ob-

vious. First, all that this Court said

there was that evidence of the possible

discharge of effluent into a stream which

flows only intermittently RAISED A QUES-

TION of the feasibility of the proposed

on-site system. Secondly, there was NO

Departmental approval in Rees. This is a

very critical difference. The Rees court

pointedly said that it was not called

upon to decide whether or not this would

be sufficient grounds to sustain a denial

or would merit remand to consider other

appropriate alternatives.*®

Secondly, and most important,

in Rees there was no showing of prelimi-

nary approval of the system by the De-

partment of Environmental Resources as

there is here. This is a most important

fact because the expertise of the Depart-

‘“The quote from Rees, supra at p.

102 and 103 of 39 D&C 3rd used by the

Court reads more fully as follows:

"We agree with the board that

testimony from residents in-

dicating that the creek into

which appellant planned to dis-

charge effluents flows only

intermittently during the sum-

mer months raised a question as

to the feasibility of the pro-

posed private on-site sewage

disposal system. However, ap-

pellant has agreed to use of

the township’s public sanita-

tion 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 sus-

tain the denial of the applica-

tion or would instead merit

remand to the board to consider

other appropriate alterna-

tives.” (Emphasis added.)

hd AMS whe « nas Aes ES Mee

ment can hardly be aenied and, if it

should be in error, there is always a

right of appeal from its decision. The

record of Rees, lodged with this Court,

is absolutely silent on the question of

DER approval. In the case sub judice,

extensive efforts were made to insure

that the system would be feasible by

seeking the advice of the Department

charged with the oversight of such mat-

ters and obtaining their opinion in writ-

ing that the system would pass muster.

That opinion and the DER’s preliminary

approval are in documentary form, before

this Board of Supervisors, as it had been

before the Board of Supervisors (Com-

missioners) of East Side Borough which

had approved this system and found it

“feasible”.

It is also important to note

that the technology of these sewage

systems has advanced to the point where

it has been demonstrated that the system

can be so constructed that effuent [sic]

leaving the plant is drinkable (potable).

As against this highly proba-

tive evidence the Board in this case de-

cided that, as a matter of law, the

statements of two lay persons as to the

status of the flow in the stream was suf-

ficient to establish the lack of fea-

sibility of a system which did not neces-

sarily depend upon stream flow. These

statements stood in stark contrast

against a showing by a registered profes-

sional engineer who designed the system

and the Department of Environmental Re-

sources that it was feasible. This is in

conflict with the directions of this

court in Molnar, supra.

It is submitted that such a

finding based upon such meager un-

|

a

et

deat

Pie WP Aesicg ef be

qualified testimony could not sustain a

conclusion that the Applicant developer

did not sustain its burden of proof with

respect to the feasibility of the pro-

posed sewage system.””

'~he Court's attention is called to

the definition of "feasible" which is as

follows:

fea'si-ble, a. (Ofr faisable,

that may be done, from faire,

to make, do.] 1. that may be

done, performed, executed, or

effected; practicable, pos-

Sible. 2. likely, reasonable,

probably; as a feasible story.

3. that may be used or dealt

with successfully; as, land

feasible for cultivation.

Webster's Unabridged Second Edition p.

669, Copyright 1983.

fea-si+ble \fe*ze*bel\ adj. [ME

faisble, fr., MF, fr. fais -

stem of faire to make, do, fr.

L. facere -- more at DO] (15(c)

1: capable of being done or

carried out <a plan> 2: cap-

able of being used or dealt

with successfully: SUITABLE 3:

REASONABLE, LIKELY syn see pos-

sible.

Webster's Ninth New Collegiate Dictionary

p. 1453 (1983) copyright 1986.

VII. CONCLUSIONS AND RELIEF SOUGHT

In this case, the record clear-

ly establishes that the only reason for

the Board's refusing the Tentative Ap-

proval here requested was its conclusion

that statements by two uninformed lay

witnesses that the stream occasionally

ran dry were sufficient to overcome the

evidence of preliminary approval of Ap-

plicant's proposed sewage treatment sys-

tem by the Department of Environmental

Resources, the agency of the Commonwealth

charged with determining these facts, and

a qualified professional engineer. Re-

liance upon such statements, without

more, to form the basis for a vital Find-

ing of Fact which leads to a determina-

tive Conclusion of Law was an abuse of

discretion on the part of the Board of

Supervisors of Kidder Township and is not

supportable upon review. This is not

>

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99

simply a matter of the Board weighing

credibility of testimony of equally qual-

ified witnesses, but rather of its rely-

ing on witnesses who merely testified to

a fact which, in lay terms may raise an

inference, but is insufficient to rebut

head on the official action of the agency

charged with the responsibility of ad-

ministering such matters.

Accordingly, the Order of the

lower court should be reversed, and the

Board of Supervisors of Kidder Township

should be directed to issue the Tentative

Approval requested, perhaps with the

caveat that all regulations of the De-

A-100

partment of Environmental Resources be

complied with.

Respectfully submitted,

Lenard L. Wolffe /s/

Counsel for Applicant-

Appellant

PECHNER, DORFMAN, WOLFFE,

ROUNICK & CABOT

Three Parkway

Philadelphia, PA 19102

(215) 561-7100

oat! Sait tee aly «tee rN D

A-101

SUPREME COURT OF

PENNSYLVANIA EASTERN

DISTRICT

ee ee ee ee ee ee ee ee ee X

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

: Appeal

Appellee, Docket 1989

-against-

BOARD OF SUPERVISORS

OF KIDDER TOWNSHIP $

(CARBON COUNTY),

Appellant.

-<ae“cem ew em eee wwe ew wm eww ww we oe xX

BRIEF OF APPELLEE

POCONO GREEN, INC.

Appeal from the Order of the

Commonwealth Court, Docket

Number 1549 C.D. 1987

LEONARD L. WOLFE

45 Darby Road

Paoli, Pennsylvania 19301

(215) 647-6200

Attorney for Appellee

Pocono Green, Inc.

A-102

CONTENTS

TABLE OF CASES ...e«-e««e di

SUMMARY OF ARGUMENT ..... 1

COUNTER-STATEMENT OF THE

CABR ee ce cece eee eo &

a ee ee 2 oe ee oe a ee

zs

Il.

BECAUSE KIDDER TOWNSHIP

HAS COMPLETELY DEFERRED

TO STATE STANDARDS ON SEW-

AGE TREATMENT, D.E.R. AP-

PROVAL OF POCONO GREEN'S

PRELIMINARY PLANS ES-

TABLISHES COMPLIANCE WITH

TOWNSHIP REQUIREMENTS. 13

THE SUPERVISORS' STATED

REASONS FOR DENYING TEN-

TATIVE APPROVAL ARE

LEGALLY DEFICIENT .. . 20

A. The Board's Factual

Findings are Legally

Insufficient to Sup-

port its Decision . 21

B. The Board of Super-

visors Failed to Pro-

vide Specific Objec-

tions to Pocono

Green's Plan... 24

c. The State's Require-

ment of Obtaining

Final D.E.R. Approval

Fully Protects The

Public Interest .. 26

[A-104]

[A-107]

[A-111]

[A-126]

[A-127]

[A-140]

[A-140]

[A-140]

[A-149]

_ Suthatth.

Fess eons A Conia Saas the ee

A-103

CONTENTS CONTINUED

III. THE SUPERVISOR'S

FINDINGS ARE NOT SUP-

PORTED BY SUBSTANTIAL

EVIDENCE .... . 29 [A-154]

CONCIUISION .....--.-- - 31 (A-158)

A-104

TABLE OF CASES

Akin v. South Middleton Town-

ship Zoning Hearing Board,

547 A.2d 883 (Pa. Commw.

ee ae es eae ce ow we «ae

[A-136]

Coretsky v. Board of Super-

visors of Butler Town-

ship, No. 88 W.D. 1987,

_ Pa. __, 1989 West-

law 17244 (March 3,

00s) 6 a So Sea oe so ee

[A-136]

Council of the Borough of

Baldwin v. Nernburg,

71 Pa. Commw. 642, 455

A.2d 773 (1983) » * 29,-.242

[A-139, A-148]

Council of Middletown Town-

ship v. Benham, 514 Pa.

176, 523 A.2da 311

Qo! Ce ae: a) a

[A-127, A-133, A-138, A-145]

Doran Investments v. Muhlen-

berg Township Board of

Commissioners, 10 Pa.

Commw. 143, 309 A.2d

450 (1973) ya ee hoe. 3, 23, 26

{[A-137, A-148, A-150]

Eckert v. Pierotti, 553

A.2d 114 (Pa. Commw.

1989) i a oe Le eh ee oe ee

{[A-133]

G

:

4

é

4

4

a

i

¢

|

e

g

;

;

A-105

Hakim v. Board of Commissioners

of O'Hara Township, 19 Pa.

Commw. 661, 339 A.2d 905

tT eee re rteare a se 88

[A-149]

Lawner v. Engelbach, 433 Pa.

312, 249 A.2G@ 295 (1969) ...- i2

[A-126]

Michaels Development Co. v.

Benzinger Township Board

of Supervisors, 50 Pa.

Commw. 281, 413 A.2d 743

(oeeee- co a sss SR, 22, 22, 28, 32

[A-136, A-141, A-142. A-154, A-157]

Mitchell Energy Corp. v.

Zoning Hearing Board,

108 Pa. Commw. 113,

529 A.2d 585 (1987) ...... 18

[A-136]

Montgomery Township v. Fran-

chise Realty Interstate

Corp., 54 Pa. Commw. 535,

422 A.2d 897 (1980) “ie a a ee ae |

[A-136]

Pocono Green, Inc. v. Board

of Supervisors of Kidder

Township, 117 Pa. Commvw.

396, 543 A.2d 1253

PED pre tee Sik” 1, 11-12, 31

{[A-107, A-123, A-124, A-125, A-126,

A-158]

Pomona Hill Associates, Ltd.

v. East Bradford Township,

24 Chest. 319 (1976) ... 19, 26

[A-138, A-150}]

A-106

Rees v. Board of Supervisors

of Indiana Township; 99 Pa.

Commw. 452, 513 A.2d 584

(1986) . . > . 7 o s 7 +. + .

Stein v. Easttown Township Board

of Supervisors, 110 Pa.

Commw. 293, 532 A.2d 906

(20085 2 5 4 eee

Stewart v. Zoning Hearing Board

of Radnor Township, 110 Pa.

Commw. 111, 531 A.2d 1180

[8007). «.a)f 8 218s

Yownship of Plymouth v. Cbunty

of Montgomery, 550 A.2d

1033 (Pa. Commw. 1988) .

Valley View Civic Association

v. Zoning Board of Adjust-

ment, 501 Pa. 550, 462 A.2d

G37 (3963) 66 bcd a eee

oe = 27

[A-151]}

* 2 27

[A-150]

ae

[A-133]

. 28

[A-153]

; 29

[A-154]

aac aL nien 0 20 HL nt BT

A-107

SUPREME COURT OF

PENNSYLVANIA EASTERN

DISTRICT

ee ew ww we we we ww ww www wwe = X

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

: Appeal

Appellee, Docket 1989

-against-

BOARD OF SUPERVISORS

OF KIDDER TOWNSHIP

(CARBON COUNTY),

Appellant.

a X

BRIEF OF APPELLEE

POCONO GREEN, INC.

SUMMARY OF ARGUMENT

The Commonwealth Court correct-

ly held that the Kidder Township Board of

Supervisors "committed an error of law"

and “abused its discretion" in denying

Pocono Green, Inc.'s application for ten-

tative approval of a planned residential

development. Pocono Green, Inc. v. Board

of Supervisors of Kidder Township, 117

A-108

Pa. Commw. 396, 543 A.2d 1253, 1254

(1988). Pocono Green complied with the

only requirements in the Township's or-

dinances with regard to provisions for

sewage treatment in an application for

tentative approval of a PRD: (1) Pocono

Green's preliminary plan provides for the

construction of a sewage treatment plant

to serve the entire development (App.

138, 149; see Zoning Ord. § 4.403 (Use

Class 14(i)), App. 36); and (2) the Penn-

sylvania Department of Environmental Re-

sources has determined that Pocono

Green's “proposal .. . for sewage col-

lection, treatment and disposal is ac-

ceptable to [D.E.R.]." (App. 155; see

Subd. Ord. § 3.304(k)(2), App. 99). De-

spite Pocono Green's compliance with all

applicable Township regulations, the

Supervisors concluded that Pocono Green's

plans for sewage treatment are not fea-

;

a

;

A-109

sible,” purportedly on the ground that

the proposed sewage treatment plant will

discharge treated effluent "into a stream

which runs dry and leads into a pond that

does not discharge . . . except in flood-

ing." (App. 170)

‘ The Commonwealth Court correct-

ly ruled that tentative approval should

be granted. First, under settled law, a

local governing body cannot deny tenta-

tive approval to a PRD plan by relying on

standards not contained in its ordi-

nances.

rhe Supervisors now state that

they "concur[{ ] with the Common Pleas and

Commonwealth Courts' definition of the

term 'feasibility.'" (Brief p. 7) But

in their Petition for Allowance of Appeal

to this Court, the only general legal

question that the Supervisors raised was

that "the standard of feasibility under

- - « [53 P.S. § 10707] has never been

addressed by" this Court. (Petition p.

3) By abandoning without explanation this

purported basis for their appeal, the

Supervisors raise a serious doubt about

their good faith in invoking the Court's

discretionary jurisdiction.

A-110

Second, D.E.R.'s comprehensive,

statewide regulations explicitly provide

that a sewage treatment plant can dis-

charge effluent into a stream that runs

dry, and D.E.R. imposes no separate stan-

dards based on whether the stream flows

into a pond or how such a pond drains.

Furthermore, the Supervisors did not even

explain why it is unsafe to discharge

treated effluent into a stream that runs

dry or a stream that flows into a pond

that discharges by "flooding." Nor did

the Supervisors explain why the state-

imposed requirement of final D.E.R. ap-

proval is inadequate to protect the

public interest. The Township has no

regulations restricting use of the pro-

posed receiving stream on the grounds

advanced by the Supervisors, and any at-

tempt to enact such Township regulations

would be preempted by the applicable

A-111

D.E.R. regulations.

Finally, the Supervisors' find-

ing of nonfeasibility is incompatible

with D.E.R.'s classification of the re-

ceiving stream as a "high quality cold

water fishery." 25 Pa. Code § 93.9 (List

D), p. 93-28. D.E.R. requires that

treated effluent discharged into such a

stream must meet D.E.R.'s most stringent

criteria for effluent quality. See id. §

93.7, pp. 93-13, 14; § 93.7(e). Because

D.E.R. has certified, pursuant to those

criteria, that Pocono Green's sewage

treatment proposal "is acceptable to

[D.E.R.]" (App. 155), the Supervisors'

finding of nonfeasibility is erroneous as

a matter of law.

COUNTER-STATEMENT OF THE CASE

Four years ago, on March 13,

1985, Pocono Green, Inc., a corporation

A-112

organized under the laws of Pennsylvania,

submitted an application for approval of

a preliminary plan for a planned residen-

tial development ("PRD") to the Planning

Commission of Kidder Township, Carbon

County. (App. 137)?" The proposed

development, “Pocono Green," is to be

Situated on a partially wooded tract of

88.769 acres adjacent to the Pocono Her-

shey Resort golf course. Approximately

51 acres of the tract are Kidder Town-

ship, and the rest of the tract is in

East Side Borough. “* (App. 142-52)

The application to Kidder Town-

ship contains various information that an

“Tan appendix ("App.") submitted

with Pocono Green's brief contains mater-

ials from the record before the Board of

Supervisors.

The portion of the development

located in East Side Borough was the

subject of a separate application. East

Side Borough has granted tentative ap-

proval.

ite Ket te

6 Rete Me A eS ead Ae OD AR

A-113

applicant for approval of a PRD must sub-

mit under Section 707 of the Pennsylvania

Municipalities Planning Code ("MPC"), 53

P.S. § 10707, and Kidder Township's Zon-

ing Ordinance ("the Zoning Ordinance")

and Subdivision and Land Development Or-

dinance ("the Subdivision Ordinance") --

including, relevant to this appeal,

Pocono Green's “Report on Sewage and

Water Facilities." (App. 138) That re-

port explains that because there are no

available municipal central sewage treat-

ment facilities, Pocono Green will have

its own. The facility will use the "ex-

tended air process" method of treatment,

and will discharge "final treated ef-

fluent . . . to an unnamed tributary of

the Lehigh River . . . located at

41°-03'-00" N latitude and 75°-45'-00" W

longitude." (App. 139-40) The report

also summarizes D.E.R. standards for the

A-114

release of effluent into that stream, and

further states that those standards "are

within the capability" of the proposed

sewage treatment system. (App. 140)

On the basis of the application

and supporting materials submitted by

Pocono Green, the Township Planning Com-

mission issued a report and recommenda-

tion to the Board of Supervisors, as re-

quired by section 3.202(d) of the Sub-

division Ordinance. (App. 92-93) The

Planning Commission recommended that the

application be "given tentative ap-

proval." A condition of the Commission's

recommendation was that Pocono Green "pr-

— - « + Pennsylvania D.E.R. ap-

provals for sewage and water systems" to

the Board of Supervisors. (App. 160)

Section 3.304(k)(2) of the Sub-

division Ordinance provides: "When the

subdivision is to be served by a private

—— sin —a

ati RA Rl RP SINE RAR rll ah al DON A AD Dad Aan

cits ies vee Snes Paes "

A-11i5

central sewage disposal system, the de-

veloper shall submit two copies of a let-

ter from [D.E.R.] which states that the

system meets the State of Pennsylvania's

minimum requirements." (App. 99) Other

than this requirement of D.E.R. approval,

the Township's ordinances do noc list any

additional standards that a preliminary

subdivision plan must meet with regard to

the feasibility of plans for central sew-

age crennen and disposal.

On April 29, 1985, the Board of

Supervisors of Kidder Township held a

public hearing on Pocono Green's applica-

tion. At the hearing, Pocono Green pre-

sented its preliminary plan, which in-

cluded, in accordance with section

3.304(k) (2) of the Subdivision Ordinance,

a letter dated April 1, 1985 from the

D.E.R. Bureau of Water Quality Management

to the Planning Commission. (App.

A-116

153-56) In that letter, D.E.R. stated

that it had reviewed Pocono Green's pre-

liminary sewage and water plans and found

them acceptable:

This Department has reviewed

the preliminary plans for

Pocono Green development, lo-

cated in Kidder Township and

East Side Borough, Carbon Coun-

ty, Pa. The proposal submitted

utilizing private water supply

and distribution and for sewage

collection, treatment and dis-

posal is acceptable to the De-

partment of Environmental Re-

sources.

(App. 155) (emphasis added)

Three witnesses for Pocono

Green, Inc. appeared at the hearing.

James S. Rothstein, a practicing attorney

from Berks County and the President of

Pocono Green, Inc., gave an overview of

the development and discussed the anti-

hse cipated market for it. (Hearing 8-24,

97-102) James S. Carr, who is a partner

in a major national architecture and land

planning firm and prepared the prelimi-

Seo

Sarees

B~12'7

nary plan, discussed various design and

land use-aspects of the plan. (Id. 25-

40, 93-96) John A. Burke, a registered

professional engineer from Luzerne Coun-

ty, discussed the technical aspects of

the preliminary plan: road construction,

storm water drainage, soil conditions,

water supply, fire protection, and facil-

ities for sewage treatment and disposal.

(Id. 41-86)

Concerning sewage treatment,

Burke stated that D.E.R. had informed

Pocono Green, Inc. of the D.E.R. require-

ments for discharging t: sated sewage ef-

fluent into the proposed receiving stream

at Pocono Green. Burke further explained

that, taking the D.E.R. requirements into

account, Pocono Green's sewage treatment

plans “are feasible from an engineering

standpoint." Burke referred the Super-

visors to the April 1, 1985 letter from

A-118

D.E.R., and he explained that Pocono

Green had submitted it to the Supervisors

in “response to the requirements of the

subdivision and land planning regula-

tions of the Township which require an

opinion in writing from [D.E.R.] that the

proposed methods of .. . sewage disposal

are ... proper.” (Id. 45-47)

Two Township residents raised

concerns at the hearing about the ability

of the receiving stream to absorb the

treated effluent. They stated that the

stream sometimes runs dry and that it

flows into a pond that drains "only when

you have a flood." (Id. 64, 70) Also, a

group of residents presented a signed

"protest against Pocono Green Developers

dumping sewage from their proposed plant

into what is called Shantyhouse Creek, or

Slaughterhouse Creek." (App. 157; Hear-

ing 68)

A-119

In response, Burke acknowledged

that "[t]here ha[{d] been some discussion

at . . . Planning Commission meetings

concerning the ability of that stream to

absorb the discharge." He noted, how-

ever, that D.E.R. had informed Pocono

ee vera

Green that the D.E.R. criteria take "high

water flow" and "low water flow" condi-

tions into account, and that Pocono Green

will have to meet those criteria in order

to obtain a final permit. He also

: pointed out that the stream runs "almost

a mile" from the proposed effluent dis-

charge point to the pond, and that "there

is a good deal of renovation that occurs

oe ARO abt Ode WO

in that distance." Burke explained

further that if the stream runs dry,

D.E.R. may take that into account in set-

ting standards for the effluent that can

Bion i beet a ence DS Vo

be discharged into the stream. Finally,

Burke assured those present at the hear-

A-120

ing that in order to obtain final ap-

proval from D.E.R. for a sewage treatment

plant, Pocono Green will need "to demon-

strate that the receiving stream will be

able to handle the flow. . . in high

water and low water times." (Id. 47-49,

59, 70)

Only one other witness testi-

fied -- the golf professional from the

Hershey Pocono resort, who was called by

the Township to testify about the flow of

traffic across Pocono Green between two

sections of the golf course. (Id. 86-

93) The Township did not call any expert

witnesses to testify about the prelim-

inary plan's provisions for sewage treat-

ment. Nor did the Township's attorney

cross-examine Mr. Burke about the D.E.R.

letter submitted by Pocono Green.

On July 17, 1985 the "Report of

A-121

the Supervisors pursuant to Pennsylvania

Municipalities Planning Code and the

Township Zoning, Subdivision and Land Use

Ordinances" was issued. (App. 161) The

Supervisors' report states that Pocono

Green's application for preliminary ap-

proval of a planned unit development con-

tains, as required by the MPC, 53 P.S. §

1071 et seq., “[i]Jnformation on the fea-

sibility of proposals for the disposition

of sanitary waste." (App. 163) The re-

port also states that as required by

article 4 of the Township Zoning Ordi-

nance, the application includes plans for

a centralized sewage disposal system.

(App. 169) The Supervisors did not, how-

ever, report that the application in-

cludes, as required by the Subdivision

Ordinance, “a letter from [D.E.R.] which

states that the system meets the State of

Pennsylvania's minimum requirements."

LA AEA et ttn a eee ae aateee tetapaie tee ee

A-122

Subd. Ord. § 3.304(k) (2) (App. 99).

The report states that at the

hearing before the Supervisors, "({s]tate-

ments . . . were made by residents in the

area" that the stream designated to re-

ceive the treated effluent "runs dry and

leads into a pond that .. . does not

discharge except in flooding." Without

citing any evidence other than these

statements by two residents at the hear-

ing, the Supervisors concluded "that the

feasibility of the proposal for the dis-

position of sanitary waste has not been

shown by the developer." (App. 169-70)

The Supervisors made absolutely

no findings as to why, if the proposed

receiving stream runs dry and flows into

a pond that discharges by flooding,

Pocono Green's proposed sewage treatment

system will not be able to operate safely

and effectively under these conditions.

|

i

j

4

3

‘

A-123

Moreover, the Supervisors did not even

mention the letter submitted to them in

which D.E.R. stated that it had deter-

mined that Pocono Green's "proposal...

for sewage collection, treatment and dis-

posal is acceptable to the Department of

Environmental Resources." (App. 155)

Nor did the Supervisors address the com-

prehensive D.E.R. regulations that estab-

lish specific standards for the quality

of treated sewage effluent tnat may be

discharged into each body of water in

Pennsylvania. Nevertheless, the Super-

visors denied tentative approval on the

sole basis of "a lack of showing of fea-

sibility of the proposed sanitary waste

system." (App. 174)

On July 16, 1985, Pocono Green

filed a notice of appeal in the Court of

Common Pleas, Carbon County, seeking to

overturn the Supervisors' denial of ten-

A-124

tative approval. The Court of Common

Pleas did not receive additional evi-

dence, and in an order entered June 19,

1987, affirmed the Supervisors' decision.

The Commonwealth Court re-

versed. In a decision published at 117

Pa. Commw. 396, 543 A.2d 1253 (1988), the

court first noted that D.E.R., "which is

charged with the duty to approve or dis-

approve, gave its preliminary approval

for the feasibility" of the Pocono Green

sewage treatment plans. 543 A.2d at

1253. Further, the court recognized that

by submitting plans for a centralized

sewage treatment system, together with

the D.E.R. letter of approval of those

plans, Pocono Green "conform{ed] with

- « 53 P.S. § 10701 .. . and the local

ordinance." 543 A.2d at 1254. The court

stated that the approval by D.E.R., and

"the testimony of .. . a professional

ee ee ee ee eee ee

:

:

:

§

1

3

{

A-125

engineer .. . that the proposed sewage

system was 'feastible from an engineering

standpoint,'" constitute "substantial

evidence" of the "feasibility" of the

plans, and that the statements at the

public hearing before the Supervisors by

the two residents about the receiving

stream are insufficient as a matter of

law to overcome the "substantial evi-

dence" that Pocono Green adduced. Id.

For these reasons, the Common-

wealth Court held that the Board of

Supervisors “committed an error of law"

and “abused its discretion in concluding

that the developer had failed to sustain

its burden of proving that the proposed

sanitary waste disposal system was

feasible." Id. Thus, the decision of

the Court of Common Pleas was reversed,

and the case was remanded with instruc-

tions “to enter an order directing the

A-1i26

Board of Supervisors of Kidder Township

to grant preliminary approval of the

developer's planned unit development."

Id. This appeal by the Board of Super-

visors followed.

ARGUMENT

The standard of review to be

applied by this Court is well settled.

When an appeal is taken from a decision

by the Commonwealth Court, the decision

should be upheld if the Commonwealth

Court properly applied the governing

legal principles. Lawner v. Engelbach,

433 Pa. 311, 315, 249 A.2d 295, 297

(1969). The Commonwealth Court, in turn,

correctly applied the rule that a board

of supervisors' denial of tentative ap-

proval for a PRD application must be

overturned if the board “abused its dis-

cretion or committed an error of law."

Pocono Green, 543 A.2d at 1254. See,

——

iti...

A-127

e.g., Council of the Borough of Baldwin

v. Nernberg, 71 Pa. Commw. 642, 643, 455

A.2d 773 (1983). As shown below, the

Commonwealth Court's decision ordering

tentative approval must be affirmed for

several independent and equally

sufficient reasons.

I

BECAUSE KIDDER TOWNSHIP HAS

COMPLETELY DEFERRED TO STATE

STANDARDS ON SEWAGE TREATMENT,

D.E.R. APPROVAL OF POCONO

GREEN'S PRELIMINARY PLANS

ESTABLISHES COMPLIANCE WITH

TOWNSHIP RE ENTS.

As this Court recently observed, the

General Assembly has established a "com-

prehensive . . . statewide regulatory

scheme" setting standard for the con-

struction of community sewage treatment

facilities and for the control of water

pollution from such facilities. Council

of Middletown Township v. Benham, 514 Pa.

176, 182, 523 A.2d 311, 314 (1986). That

A-128

"comprehensive . . . statewide regulatory

scheme" consists of the Sewage Facilities

Act, the Clean Streams Law, and the regu-

lations that D.E.R. has promulgated pur-

suant to those statutes. 514 Pa. at 181-

82, 523 A.2d at 313-14.

Under the Clean Streams Law,

D.E.R. is the authority responsible for

setting standards for the discharge of

effluent from sewage treatment facilities

into "the waters of this Commonwealth,"

which are defined to include "all. .

streams .. . [and] ponds." 35 P.S. §§

691.1, 691.202. The Clean Streams Law

assigns to D.E.R. "the power and...

duty" to

{[e]stablish policies for effec-

tive water control .. . and be

responsible for the development

and implementation of compre-

hensive public water supply,

waste management and other

water supply plans.

Id. § 691.5(b)(2) (emphasis added) See

mcg @iiims

A-129

also id. § 691.4(5) (policies of Clean

Streams Law require "a comprehensive pro-

gram of watershed management and

control") (emphasis added).

The Clean Streams Law further

provides that the discharge of effluent

from sewage treatment facilities into the

waters of the Commonwealth is permitted

only if “authorized by the rules and

regulations of [D.E.R.] or .. . permit

from [D.E.R.]." Id. § 691.202. Simi-

larly, both the Clean Streams Law and the

Sewage Facilities Act require that a

person seeking to build a sewage treat-

ment plant that will discharge its ef-

fluent into waters of the Commonwealth

must first obtain D.E.R. approval of the

plans and designs of the proposed treat-

ment system, as well as the proposed lo-

cation. Id. § 691.207 (Clean Streams

Law), § 750.7(a) (Sewage Facilities

A-130

Act) .*

D.E.R. has promulgated exten-

sive regulations pursuant to the Clean

Streams Law and the Sewage Facilities

Act. For example, D.E.R. has prescribed

detailed engineering standards for sewage

disposal facilities, see 25 Pa. Code

Chapter 73, and of central importance in

this case, D.E.R. has issued comprehen-

sive regulations classifying all of the

streams in the Commonwealth, including

the stream that Pocono Green proposes to

use. Those regulations establish, for

each class of stream, standards fcr the

quality and volume of effluent that a

sewage treatment facility can discharge,

according to various criteria, such as

the aquatic life that the stream supports

and the stream’s use for industry, agri-

_

**Tocal authorities do not have the

power to issue such approval. Id.

eto Rhy ally sal” Rall te are

owe Ae

We ee

Hees eb. SSE it Nr see

‘4 Ce ee een eee

A-131

culture, or recreation. See 25 Pa. Code

Chapter 93.

In deference to the "compre-

hensive . . . statewide regulatory

scheme" established by the legislature

and D.E.R., Benham, supra, Kidder Town-

ship has refrained from enacting- any of

its own specifications for the design of

sewage treatment facilities or the qual-

ity or volume of effluent that they can

discharge into waters of the Commonwealth

that are located in the Township.

Rather, Kidder Township has explicitly

deferred to D.E.R. in these matters.

Thus, in its ordinance prescribing "de-

sign standards" for "multi-family dwell-

ing subdivisions and developments."

Subd. Ord. § 4.400 (App. 120), Kidder

Township simply incorporates D.E.R. sew-

age treatment standards, without embel-

lishment by the Township. See Subd. Ord.

eet

A-132

§ 4.401 (“sewage systems .. . proposed

to serve said developments shall comply

with requirements of [D.E.R.]") (App.

120); Subd. Ord. § 4.204 ("subdivisions

and land developments shall be served

with . . . an adequate sewage system

- » ». acceptable to the appropriate State

agency") (App. 109); Subd. Ord. §

4.204(b) ("Every sewage collection and

treatment system shall be organized in

such a way as to be bought under the

jurisdiction of the appropriate State

agency") (App. 109-10).

Similarly, the only requirement

concerning sewage disposal in the Town-

ship Zoning Ordinance's provisions for

PRDs is that they must be "attached to

- . a centralized sewage disposal sys-

tem," Zon. Ord. § 4.403 (Use Class

14(i)), (App. 36), which the Township

defines as a "system designed to collect,

resi) nba Frm Manatee eee ee ee

eg ee

Pea hee sen AE ale CR ECS AE IE tel 8 TM

6 ean. be Hd ee EEA

Si eed rr Ronn Aba *

A-133

centrally treat, and dispose of sewage

from customers in compliance with

[D.E.R.] regulations." Subd. Ord. §

2.230 (App. 85). See also Zon. Ord. §

2.145 (App. 15). In sum, other than

“The Township's ordinances purport

to reserve authority to enact regulations

"more stringent" than D.E.R.'s. Id.

However, any attempt to do so would be

invalid on preemption grounds. First, a

local board does "not have jurisdiction

as to the type of sewage system to be

installed" at a particular site. Stewart

v. Zoning Hearing Board of Radnor Town-

ship, 110 Pa. Commw. 111, 116-17, 531

A.2d 1180, 1183 (1987). See Benham, 514

Pa. at 181-82, 523 A.2d at 313 (local

role limited to enforcement and ad-

ministration of Sewage Facilities Act);

Eckert v. Pierotti, 553 A.2d 114 (Pa.

Commw. 1989).

Second, by assigning to D.E.R. "the

power and. . . duty" to establish a

"comprehensive" water quality program

under the Clean Streams Law, 35 P.S. §§

691.4(5), 691.5(b) (2), without assigning

any role to local authorities, the legis-

lature “has retained all regulatory and

legislative power for [the state], and no

local legislation is permitted," Benham,

514 Pa. at 181, 523 A.2d at 313, con-

cerning standards for effluent discharge.

Cf. id. n.6 (distinguishing Clean Streams

and Sewage Facilities provisions).

In any event, the Court does not

need to reach the preemption issue, be-

SU a” gi

A-134

the state standards to which its ordi-

nances explicitly defer, Kidder Township

has adopted no standards on which the

Supervisors could have lawfully relied on

considering the feasibility of Pocono

Green's plans for sewage treatment and

disposal.

The Township's deferral to

D.E.R. substantive standards for sewage

treatment facilities is reflected in its

procedures for obtaining approval of a

preliminary subdivision plan. The only

information concerning sewage treatment

that is required in a preliminary sub-

division plan submitted for approval in

Kidder Township is "a letter from the

Pennsylvania Department of Environmental

Resources which states that the [sewage

disposal] system meets the State of Penn-

cause the Township has not even attempted

to enact regulations more stringent than

D.E.R. ‘Ss.

A-135

sylvania's minimum requirements." Subd.

Ord. § 3.304(k)(2) (emphasis added)

(App. 99). Pocono Green has satisfied

the Township's requirement by submitting,

as part of its preliminary plan, a letter

in which D.E.R. certified that Pocono

Green's "proposal .. . for sewage col-

lection, treatment and disposal is ac-

ceptable to [D.E.R.]." (App. 155) Be-

cause Pocono Green has submitted this

letter, the Supervisors abused their dis-

cretion by denying approval on the ground

that Pocono Green's sewage treatment

plans are not feasible.”

“Because Kidder Township's regula-

tions on PRD applications totally defer

‘to D.E.R. sewage treatment standards, and

compliance with those standards therefore

establishes the "feasibility" of a pre-

liminary PRD plan in Kidder Township, the

Court does not need to determine what

"feasibility" means under 53 P.S. § 1707.

But even if the Court were to address

that question, and even if the Super-

visors had not conceded it, see supra

note 1, the Commonwealth Court's defini-

tion should be adopted: "The term fea-

|

3

A-136

It is well established that a

municipality cannot deny approval of a

PRD application on the basis of "a stand-

ard not in its regulations." Montgomery

Township v. rranchise Realty Interstate

Corp., 54 Pa. Commw. 535, 538, 422 A.2d

897, 899 (1980); accord Akin v. South

Middleton Township Zoning Hearing Board,

547 A.2d 883, 885 (Pa. Commw. 1988) ;

Michaels Development Co. v. Benzinger

Township Board of Supervisors, 50 Pa.

Commw. 281, 288, 413 A.2d 743, 747

(1980). Only a few weeks ago, this Court

forcefully upheld that rule in a closely

related context. In Coretsky v. Board of

Supervisors of Butler Township, No. 88

sibility means that there is substantial

evidence to support a finding that the

solution of a problem is likely to suc-

ceed." 543 A.2d at 1254. See Mitchell

Energy Corp. v. Zoning Hearing Board, 108

Pa. Commw. 113, 122, 529 A.2d 585, 588

(1987) (undefined words in land use stat-

utes "must be given their plain, ordinary

meaning").

A-137

W.D. 1987, __—- Pa. ___, 1989 Westlaw

17244 (March 3, 1989), the Court ruled

that if a governing board denies approval

for a subdivision, and its decision fails

to cite explicitly the provisions in the

ordinance on which denial is based, the

application is deemed approved, even if

all parties understood which provision

the board had in mind.

Similarly, because municipali-

ties have been given the power to enact

"detailed development standards .. . [in

a] planned residential development

ordinance," it is “assum[(ed]) that com-

pliance with those standards...

lead({s] to approval." Doran Investments

v. Muhlenburg Township Board of Commis-

sioners, 10 Pa. Commw. 143, 148 n.1, 309

A.2d 450, 453 n.1 (1973). A governing

body must not consider applications of

approval of PRD plans on a "case by case"

A-138

basis, and cannot deny approval "whenever

it concludes for any reason that the plan

is not in the public interest." Id.

"Having ventured into the area of unit

development, the township cannot be per-

mitted to change the rules of the game."

Pomona Hill Associates, Ltd. v. East

Bradfo ownship, 24 Chest. 319, 323

(1976). These principles follow from the

"longstanding rule," reaffirmed in Ben-

ham, that "zoning ordinances should be

strictly construed" against the munici-

pality, i.e., in a way that "will least

restrict the owner's use of the land,"

because they "are in derogation of [the]

common law" presumption that any use is

proper in the absence of a specific pro-

hibition. Benham, 514 Pa. at 185, 523

A.2d at 315-16.

Under these principles, because

Kidder Township has explicitly deferred

OO ————————

~ TC, Fie NE I ee AED

A-139

to Pennsylvania's “comprehensive...

statewide regulatory scheme" governing

sewage treatment and disposal, Benham, by

requiring D.E.R. approval of a PRD's sew-

age treatment plans -- without adding any

Township specifications -- and because

D.E.R. has certified that Pocono Green's

plans for sewage disposal satisfy D.E.R.

requirements, Pocono Green's preliminary

plan is entitled to tentative approval.

By denying tentative approval, even

though Pocono Green has complied with all

applicable state and Township regula-

tions, the Board of Supervisors "abused

its discretion" and "committed an error

of law." Council of the Borough of Bald-

win v. Nernberg, 71 Pa. Commw. 642, 643,

455 A.2d 773 (1983). Therefore, this

Court should affirm the decision of the

Commonwealth Court.

A-140

II

SS EO eee ae ee A

.

THE SUPERVISORS' STATED

REASONS FOR DENYING TENTATIVE

APPROVAL ARE LEGALLY DEFICIENT.

Even assuming, arguendo, that

D.E.R. approval of Pocono Green's prelim-

inary plans for sewage treatment is not

in and of itself sufficient to require

tentative approval because of Kidder

Township's deferral to D.E.R. standards,

the Commonwealth Court's decision should

be affirmed on the additional ground that

the Supervisors' stated reasons for deny-

ing tentative approval are deficient as a

matter of law.

A. The Board's Factual Findings

are Legally Insufficient to

Support its Decision.

The Supervisors found that

Pocono Green's sewage treatment plans are

not feasible because, according to the

Board's decision, "the proposed sewage

treatment plant .. . will discharge into

,

A-141

a stream which runs dry and leads into a

pond that does not discharge ... except

in flooding." (App. 170) A conclusion

of nonfeasibility based on such a finding

has no support in the Township's land use

ordinances and flatly contradicts D.E.R.

regulations.

As explained above, a munici-

pality cannot deny approval of a PRD ap-

plication on grounds not contained in its

ordinances. Supra pp. 18-19. For ex-

ample, in Michaels Development Co. v.

Benzinger Township Board of Supervisors,

50 Pa. Commw. 281, 413 A.2d 743 (1980),

the developer's plan complied with the

township's PRD ordinance, but the board

of supervisors nevertheless denied ap-

proval because it found that the location

of the common open space envisioned in

the plan was not in the public interest.

The court emphatically rejected the

A-142

board's position: "The Board's objection

cannot be upheld; the Ordinance contains

no standards regarding location [of com-

mon open space]." 50 Pa. Commw. at 288,

413 A.2d at 747. Therefore, the court

ordered tentative approval granted. 50

Pa. Commw. at 290, 413 A.2d at 748.

Kidder Township's land ordi-

nances use do not contain any restric-

tions regarding discharge of effluent

into the stream indicated in Pocono

Green's plan. Nor do the Township's

ordinances contain any general restric-

tion on discharging effluent into streams

that run acy or flow into ponds, regard-

less of how such ponds drain. In the

absence of such restrictions in the Town-

ship's ordinances, "[{t]he Board's objec-

tion cannot be upheld." Michaels,

naan er

A-143

Supra.

Furthermore, the Board's specu-

lation that it is unfeasible to discharge

treated effluent into a stream that runs

dry, or a stream that flows into a pond

that drains by flooding, flatly con-

tradicts D.E.R. regulations. As noted

above (supra pp. 14-15), D.E.R. has clas-

sified all the waters of the Commonwealth

and has established, for each class of

stream, standards for discharging treated

effluent. See 25 Pa. Code Chapter 93.

Under D.E.R. regulations, those standards

are based on what D.E.R. calls "design

flow" -- a long-range, highly stream-

protective view of data that D.E.R. has

assembled on the flow of water in each

stream -- the "lowest 7-consecutive-day

“even if Kidder Township were to

attempt to enact an ordinance imposing

such restrictions, such an ordinance .

would be invalid on preemption grounds.

See supra note 5.

A-144

average flow that occurs once in 10

years." 25 Pa. Code § 93.5(b). D.E.R.'s

explanation of its use of design flow

data explicitly takes into account that

some streams occasionally run dry:

Where the lowest 7-consecutive-

day average flow that occurs

once in 10 years is zero, the

Department shall specify the

design flow based on the ident-

ified or estimated flow at that

point where a use identified in

§ 93.4 (relating to statewide

water uses) becomes possible.

Id. (emphasis added). Section 93.4, in

turn, lists various uses of streams, such

as support of warm-water aquatic life,

removal of water for irrigation or in-

dustry, and assorted recreational uses.

Id. § 93.4(a). D.E.R. allows discharge

of effluent into streams having all of

those uses, whether or not such streams

run dry. See § 93.7 (Table 5) Further-

more, D.E.R. makes no distinction -- in-

sofar as the ability to accommodate ef-

A-145

fluent is concerned -- between streams

that flow into ponds, regardless of how

such ponds drain, and streams that flow

elsewhere. See 25 Pa. Code Chapter 93.

In sum, D.E.R. regulations

specifically allow sewage treatment

plants to discharge effluent into streams

that run on: and D.E.R. does not re-

strict such discharge if a stream flows

into a pond, regardiess of how the pond

drains. Because the Supervisors' deci-

sion is based on pure speculation that

such conditions would create a hazard,

and because such speculation is contrary

to the "comprehensive .. . statewide

regulatory scheme" established by D.E.R.,

Benham, the Commonwealth Court correctly

held that the Supervisors' decision was

an error of law.

A-146

B. The Board of Supervisors Failed to

Provide Specific Objections to

Pocono Green's Plan.

An independent ground for af-

firming the Commonwealth Court's decision

is that the Board of Supervisors' con-

clusion -- that Pocono Green's proposed

sewage treatment system is unfeasible --

is based on several unarticulated assump-

tions, leaving many essential questions

unanswered as to how the Supervisors

reached their conclusion. Under settled

case law that has developed specifically

in the area of land use, such a failure

by a municipality to substantiate its

decision is itself grounds for reversal.

The Supervisors did not make

any specific findings concerning the

characteristics of the stream and pond in

question, or the effects of the proposed

sewage treatment plant on them. How

often dpes the stream run dry? What uses

A-147

of the receiving stream should be pro-

tected? What, if any, damage might the

effluent cause to such uses? What qual-

ity or volume of effluent would be ac-

ceptable? What is the pond's normal

level? At what level does it "flood,"

and how often does it thereby drain?

Where does the outflow from the pond go?

Is the outflow a hazard now? How would

the sewage treatment system create a haz-

ard or exacerbate an existing hazard?

Why is the "renovative" effect of the

stream between the discharge point and

the pond (testimony of J. Burke, Hea-ing

70) insufficient?

These questions go to the heart

of the Supervisors' conclusion on feasi-

bility. By leaving them unanswered, the

Supervisors failed to show whether their

conclusion has any rational basis.

A-148

The MPC requires that when a

municipality denies tentative approval

for a PRD plan, the municipality must

"set forth with particularity in what

respects the development .. . would not

be in the public interest." 53 P.S. §

10709(b). The courts have rigorously

applied this provision, and have required

governing boards "to advance public in-

terest objections . . . of an exceptional

and specific nature." Council of the

Borough of Baldwin v. Nernberg, 71 Pa.

Commw. 642, 644, 455 A.2d ’73, 774 (1983)

(affirming decision to Judge (now Jus-

tice) Papadakos). The board must "tell

why a hazard would result [and] exactly

why [the plan's] provisions for [the

potential hazard] are not adequate,"

rather than nhnianaineei’ - » « in vague

generalities." Doran Investments v. Muh-

lenberg Township Board of Commissioners,

A-149

10 Pa. Commw. 143, 159-160, 309 A.2d 450,

458-59 (1973).

Here, by leaving the questions

noted above unanswered, the Supervisors

failed to comply with the dictates of the

MPC. The Commonwealth Court's decision

ordering tentative approval should there-

fore be affirmed.

C. The State's Requirement of Obtaining

Final D.E.R. Approval Fully Protects

The Public Interest.

It is well settled that even

when a governing board adequately sub-

stantiates potential problems in a PRD

preliminary plan -- which in this case

the Supervisors utterly failed to do --

the proper action for the board to take

is not to deny tentative approval, but to

grant approval subject to the condition

that the final plan must address the po-

tential problems that the board has

raised. See, e.g., Hakim v. Board of

A-150

Commissioners of O'Hara Township, 19 Pa.

Commw. 661, 667-68, 339 A.2d 905, 909

(1975); Doran, 10 Pa. Commw. at 148 n.1,

160, 309 A.2d at 453 n.1, 458.

In Pomona Hill, 24 Chest. 319

(1976), for example, tentative approval

was ordered for a PRD plan whose provi-

7]

sions for sewage treatment were much less

complete than the Pocono Green plan:

The Board .. . found that a

Sewer Authority was considering

providing sewage treatment ser-

) vice and that the developer, in

: the alternative, would apply

for permission to build a

4 treatment plant. The Board

a concluded that since neither

alternative had in fact been

approved, the provision was

inadequate. Again the Board

ignores . . . the fact that

only tentative approval is

sought . . . {[S]uch approvals

Oe, Pe Re ee ee ee ee eee

s fe) be subject

f li t * t t t t ’

| Vv besis fo

1 j * ]

Id. at 324 (emphasis added). See Stein

Vv. W ownshi a =

visors, 110 Pa. Commw. 293, 306, 532 A.2d

ee ee ee eee ee

l co

A-151

906, 912-13 (1987) (where D.E.R. approval

is applied for but not yet obtained, it

is "more reasonable to condition final

subdivision approval upon the issuance of

this . . . permit than to abort the plan

at conception") .°*”

The grounds for ordering tenta-

tive approval are even more compelling in

this case than in Pomona Hill and Stein.

Here D.E.R. has already certified that

Pocono Green's “proposal .. . for sewage

"similarly, in Rees v. Board of

Supervisors of Indiana Township, 99 Pa.

Commw. 452, 513 A.2d 584 (1986), the

court held that tentative approval was

properly granted on the basis of the

applicant's undertaking to "adequately

provide for the public health, safety and

welfare, and remedy" objections concern-

ing sewage disposal. 99 Pa. Commw. at

456, 513 A.2d at 586. The Supervisors’

reliance (Brief p. 8) on a passing remark

in Rees concerning the validity of the

objection is unavailing. That remark was

dictum (the court affirmed the grant of

tentative approval); there is no indica-

tion that the applicant had obtained

D.E.R. approval; and the court was not

called upon to address the applicable

D.E.R. regulations.

A-152

collection, treatment and disposal is

acceptable to [D.E.R.]." (App. 155) An

explicit condition of final D.E.R. ap-

_ proval is unnecessary, because, as ex-

plained above, the Clean Streams Law and

the Sewage Facilities Act require that

any central sewage treatment facility

must be built pursuant to a D.E.R. permit

and must comply with those statutes and

the regulations promulgated pursuant to

them. Supra pp. 14-15. These state-

imposed conditions ensure that Pocono

Green's sewage treatment facility will

operate in a manner consistent with the

public interest. Because the Supervisors

failed to address the protections pro-

vided by state law, the Commonwealth

Court correctly held that the Super-

visors' denial of tentative approval was

an abuse of discretion.

, A-153

These considerations are

especially critical because of the time

that has passed since Pocono Green sub~

mitted its application. The remarks of

the Commonwealth Court, in a case that

consumed approximately three years from

the time of application until that

court's decision, are pertinent here:

The time has come .. . for the

Township to cease its foot-

dragging, nit-picking, and

logic-chopping. If the [devel-

oper] is not granted prompt and

comprehensive relief, its...

legal victories in this pro-

longed litigation will be in-

Gistinguishable from defeat.

W ° Vv nt-

gomery, 550 A.2d 1033, 1040 (Pa. Comnw.

1988). Thus, because of the protections

provided by state law, and in light of

the time that has passed since Pocono

Green submitted its application, it would

be especially improper to permit the

Supervisors to impose any explicit condi-

A-154

tions concerning sewage treatment. The

Commonwealth Court's order should be af-

firmed in-its entirety.

— III

THE SUPERVISORS' FINDINGS ARE NOT

SUPPORTED BY SUBSTANTIAL EVIDENCE.

The Commonwealth Court's deci-

sion should be affirmed for the addition-

al reason that the Supervisors did not

provide legally sufficient evidentiary

support for their factual findings. It

is well within this Court's scope of re-

view to reverse the Supervisors’ findings

if they "are not supported by substantial

evidence." Valley View Civic Association

v. Zoning Board of Adjustment, 501 Pa.

550, 555, 462 A.2a 637, 640 (1983). This

Court has defined "substantial evidence"

as "such relevant evidence as’a reason-

able mind might accept as adequate to

support a conclusion." Id. See also

Michaels, 50 Pa. Commw. at 286, 413 A.2d

ain A Se AO ln te

A-155

at 747 (public interest objections to PRD

plan must have "legitimate basis in law

and fact"). As shown below, the Super-

visors' findings contradict D.E.R.'s

findings and in any event are not sup-

ported on the record.

The Report on Sewage and Water

Facilities submitted to Kidder Township

by Pocono Green as part of the applica-

tion fer approval of its preliminary plan

describes the receiving stream as fol-

lows: "Final treated effluent will be

discharged to an unnamed tributary of the

Lehigh River," and the "point of effluent

discharge is located at 41°-03'-00" N

latitude and 75°-45'-00" W longitude."

(App. 139-40)" That stream and other

niin

erhe Supervisors assert that the

Sewage and Water Report was not "in-

troduced at the hearing." (Brief p. 8)

In fact, Pocono Green's engineer stated

at the hearing that D.E.R.'s letter was a

response to plans submitted to D.E.R.

(Hearing 46) Moreover, it is indis-

A-156

Lehigh tributaries in the same area have

been classified in D.E.R. regulations as

"high quality cold water fisheries." 25

Pa. Code § 93.9 (List D), p. 93-28; id. §

93.3."

D.E.R. requires that treated ef-

fluent discharged into such a stream must

meet D.E.R.'s most stringent criteria for

effluent quality. See id. § 93.7, pp.

93-13, 14; § 93.7(e). Because D.E.R. has

certified, pursuant to those criteria,

that Pocono Green's sewage treatment pro-

posal "is acceptable to [D.E.R.]" (App.

putable that the Report was part of the

application submitted to the Supervisors.

(See Pocono Green Appendix 137; B

This text is long and has been trimmed here. Open the source document for the complete record.