IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lyons Borough Municipal Authority, : Appellant : : v. : No. 1961 C.D. 2013 : Argued: June 20, 2014 Township of Maxatawny, Apollo : Point, L.P., Saucony Creek, L.P., : and East Penn Manufacturing : Company : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI FILED: July 10, 2014 Lyons Borough Municipal Authority (LBMA) appeals the order of the Court of Common Pleas of Berks County (trial court) dismissing its appeal of the Township of Maxatawny s Board of Supervisors (Board) grant of Landowners 1 preliminary subdivision and land development plan. We affirm. 1 Apollo Point, L.P. (Apollo Point), and Saucony Creek, L.P. (Saucony Creek) (collectively, Landowners) filed the motion to quash LBMA s appeal and a petition to require LBMA to post an appeal bond. (Reproduced Record (R.R.) at 85a-100a, 104a-115a). The Township filed its own motion and joined in Landowners motion to quash. (Id. at 101a-103a). However, Apollo Point and Saucony Creek later filed a praecipe to withdraw their motion to quash and petition to post bond without prejudice. (Id. at 352a-357a).
Saucony Creek owns two contiguous parcels of property in Maxatawny Township (Township) totaling approximately 37.7 acres. Multifamily housing is a permitted use in the zoning district in which the property is located. In December 2012, Apollo Point, the equitable owner of the property, submitted a Preliminary Land Development Plan (Plan) 2 to construct a 192-unit apartment complex on the property composed of four buildings with two and four bedroom units. The plan also proposed a 7,200 square foot community center consisting of a clubhouse and fitness center and a paved parking lot. The plan included a sewage flow estimated by a consulting engineer of 26,942.96 gallons per day at full occupancy. (R.R. at 783a-790a). Regarding sewage treatment capacity, in March 1997, LBMA, the Township, and the Township s Municipal Authority (Authority) had entered into an agreement under which the Authority would provide sanitary sewage collection 2 Section 508 of the [Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended], 53 P.S. 10508, prescribes the procedure for obtaining approval of a proposed development plan. An application for both a preliminary and final plan must be made to the governing body. [In Section 107(10), t]he governing body is defined as a board of supervisors. 53 P.S. 10107(10). Once a preliminary application has been approved, the application is entitled to final approval in accordance with the original preliminary application. Thus, final approval of a subdivision plan is automatic unless the final plan is different from the preliminary plan. Significantly though, 508(4) does permit the governing body to place conditions upon the approval of either the preliminary or final plan with the applicant s acceptance. (emphasis in original); Kohr v. Lower Windsor Township Board of Supervisors, 910 A.2d 152, 158 n.10 (Pa. Cmwlth. 2006) ( As the party seeking approval, the landowner has the burden of proving that it meets the objective requirements of a subdivision and land development ordinance. If a landowner does not satisfy these requirements, then the Board will disapprove the plan and cite to the specific provisions of the ordinance that were not satisfied pursuant to Section 508(2) of the MPC, 53 P.S. 10508(2). ) (citation omitted). See also Graham v. Zoning Hearing Board of Upper Allen Township, 555 A.2d 79, 81 (Pa. 1989). 2
and treatment. (R.R. at 277a-308a). The Township purchased 37,313 gallons of average daily flow with an option to buy additional capacity and no further extensions or connections to the sewer main were permitted without a further agreement of the parties. In March 2007, the Township and LBMA agreed to the purchase of an additional 12,687 gallons of average daily flow into LBMA s treatment plant for a total of 50,000 gallons. (Id. at 313a). The Township is currently using a peak sewage flow of 21,150 gallons per day with a remaining available capacity of 28,850 gallons of flow per day. (Id.). In December 2012, Landowners entered into an agreement with the Authority to use its remaining sewage flow capacity for the development. (Id. at 528a-537a). In March 2013, the Board granted conditional approval of the Plan subject to 161 conditions that were attached to its decision in the form of letters from the Township s Code Enforcement Officer and Consulting Engineers to the Township s Planning Commission, which outlined the deficiencies in the preliminary plan that was submitted. (R.R. at 811a-834a). Included were conditions relating to: compliance with the sections of the Township s Subdivision and Land Development Ordinance (SALDO) relating to storm water management (id. at 814a-821a); sanitary sewer system and water distribution system requirements (id. at 822a-829a); and compliance with additional zoning ordinance and SALDO requirements as well as additional required approvals by the Berks County Planning Commission, the Berks County Conservation District, the 3
Department of Environmental Protection, the Department of Transportation and the Township s Solicitor. (Id. at 830a-834a). 3 conditions: 3 Specifically, with respect to the sanitary sewer system, the Board imposed the following 1. This development will connect to the public sewer system and the Lyons Sewage Treatment Plant. A will-serve letter from [LBMA] should be provided to the Township. 2. A [Department of Environmental Protection (DEP)] Planning Module Application Mailer must be submitted to DEP to determine required sewerage planning. 3. Submit calculations showing proposed sewage flows for capacity analysis. 4. Add the following notes to the Record Plan(s): * * * c. All sanitary sewer easements are to be provided in the name of [the Township s] Municipal Authority, and shall remain level and free of fences, trees, shrubs, and other obstructions. * * * g. Approval of these plans does not in any way constitute a commitment of wastewater collection, conveyance, or treatment capacity. * * * 6. Show existing sanitary sewer easements on the adjacent Schwoyer property. 7. Provide 20 wide (min.) easements for the public portion of the sanitary sewers, including the easement across the Schwoyer property for connection to the existing sewers. (Footnote continued on next page ) 4
In April 2013, LBMA appealed the Board s conditional approval to the trial court 4 alleging that the Board erred in approving the Plan because under its regulations, each residential dwelling unit must have one equivalent dwelling unit (EDU) of treatment plan capacity, approximately 225 gallons per day, requiring 43,200 gallons of sewage flow per day for the development so the Plan did not have sufficient sewage capacity and there is no agreement for the Township to purchase increased capacity. (R.R. at 9a-10a). LBMA also alleged that there is no agreement for connection to the sewer main and no easement across neighboring property for the connection to the sewage system. (Id. at 10a). Finally, LBMA argued that the Board erred in granting approval because no easements across private property for connection to LBMA s public water system appear in the Plan and there is no agreement with LBMA for connection to that system. (Id.). 5 Landowners intervened and filed a motion to quash the appeal and a motion to require an appeal bond, alleging that LBMA s appeal was frivolous (continued ) (R.R. at 823a-824a). With respect to the water system distribution, the Board required that [t]his development will be served by public water connecting to an existing line in Lyons Road, and required adding the following note to the Grading and Utility Plan(s), [p]rovide 20 wide (min.) easements for the public portion of the water main, including the easement across the Weaver & Clare property for connection to the existing water system. (Id. at 825a, 827a). 4 East Penn Manufacturing Co., Inc. (East Penn), an adjoining landowner, intervened in the appeal before the trial court, but is not a party in the instant appeal. 5 LBMA also argued that multi-family dwellings were only permitted by conditional use in the zoning district and that Landowners did not get the required approval, but later withdrew that claim because it was based on a prior version of the Township s zoning ordinance that was repealed. 5
because the sewer or water planning process and issues involving the related easements are beyond the scope of preliminary plan consideration 6 and that the notice of appeal 7 did not cite any specific SALDO provisions that had been violated. (Id. at 85a-100a, 104a-115a). As noted above, the Township filed its own motion and joined in Landowners motion to quash. (Id. at 101a-103a). The trial court held two hearings to determine if LBMA s appeal was frivolous which involved testimony concerning sewage treatment capacity. Landowners presented the testimony of LBMA Board Member Bonnie Moyer, who testified that she voted to authorize the land use appeal against the Township and identified letters from LMBA s Solicitor, the Township s Solicitor, and the Authority regarding a number of deficiencies in the Plan, including sewage and 6 Section 1003-A(d) of the MPC, added by Act of December 21, 1988, P.L. 1329, 53 P.S. 11003-A(d), states, in pertinent part: If the appellants are persons who are seeking to prevent a use or development of the land of another, whether or not a stay is sought by them, the landowner whose use or development is in question may petition the court to order the appellants to post bond as a condition to proceeding with the appeal. After the petition for posting a bond is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous. At the hearing, evidence may be presented on the merits of the case. It shall be the burden of the landowners to prove the appeal is frivolous. After consideration of all evidence presented, if the court determines that the appeal is frivolous, it shall grant the petition for posting a bond. (Emphasis added.) 7 Section 1003-A(a) of the MPC states, in pertinent part, that Land use appeals shall be entered as of course by the prothonotary or clerk upon the filing of a land use appeal notice which concisely sets forth the grounds on which the appellant relies. 53 P.S. 11003-A(a). 6
storm water issues and requests for information regarding the development. (R.R. at 241a, 244a-245a, 309a-311a). Landowners also presented the testimony, affidavit and spreadsheet of the developer, Gregory Sarangoulis, to establish the purported losses caused by the delay in developing the property due to LBMA s appeal, (id. at 248a-265a, 267a-272a), and the March 1997 sewage agreement between LBMA, the Township, and the Authority. (Id. at 273a-308a). During cross-examination, LBMA entered exhibits demonstrating ownership of the property; that a Planning Module had not been started as of April 2013; occupancy in the development could be limited and vacancy increased if there was insufficient sewage capacity; and a transcript of the Board s June 12, 2013 public meeting at which it approved the final subdivision and land development plan for the development, again subject to a number of conditions. 8 (Id. at 251a, 255a, 257a-258a, 264a, 320a-351a). 8 The Board s conditional approval of the final plan does not moot the instant appeal of the Board s conditional approval of the Plan. See Narberth Borough v. Lower Merion Township, 915 A.2d 626, 633 (Pa. 2007) ( [I]f approval of the second or third step of a three-step approval process mooted the preceding steps without regard to those steps unique requirements, a municipality that wished to hasten approval of a particular development could expedite review of later steps in the process to avoid an objector s right to judicial review of the prior step or steps in the process. Given that this right to review is enshrined in the MPC itself, such a ruling would be counterintuitive, and run counter to our well-established principles of statutory construction. 1 Pa. C.S. 1922(1) ( [T]he General Assembly does not intend a result that is absurd, impossible of execution or unreasonable. ). Accordingly, we reject Merloc s claim that Narberth s challenge to the tentative sketch plan was mooted by the Board s approval of the preliminary plan and our refusal to review same, and we proceed to address the timeliness issue as to which we granted review. ) (footnote omitted). 7
At a July 2013 hearing, East Penn presented the testimony of its Vice President of Facility Management, its Director of Environmental Affairs, and the Authority s Consulting Engineer, and copies of the agreements between East Penn and LBMA, to establish that: LBMA s plant has a total capacity of 300,000 gallons per day; it has agreements with LBMA to supply a total of 215,000 gallons per day from its plant; it currently uses 160,000 to 170,000 gallons per day; the Township only has 50,000 gallons per day reserved in the plant; and the Township currently uses 16,000 gallons per day leaving roughly 34,000 gallons per day available for the development; and that its main concern with the proposed development is that the development will take some of its reserved capacity in LBMA s plant. (R.R. at 362a, 364a-367a, 377a-448a). Because it received this additional evidence, the trial court stated in an August 2013 order that it would review the merits of the Board s approval of the Plan and it would consider the additional testimony taken in the hearing on the Motions to Post Bond and Quash Appeal by reviewing the Plan de novo and making its own findings of fact and conclusions of law. Both parties filed proposed findings of fact and conclusions of law regarding the merits of the appeal. On October 22, 2013, the trial court issued an order granting the Motion to Quash and dismissing LBMA s appeal. 9 On November 12, 2013, the 9 The trial court s October 22, 2013 order states the following, in pertinent part: It is clear to this court that [Landowners] have a difficult, expensive, and time consuming job ahead to obtain approval of its (Footnote continued on next page ) 8
trial court issued another order denying LBMA s motion for reconsideration, but within that order clarified its October 22 nd order by specifically adopting the (continued ) final plan since the preliminary plan requires meeting dozens of substantive conditions. The fact that so many conditions required for approval are expensive and time consuming leads this court to this conclusion, because any single unsatisfied condition could lead to rejection by [the Township] of the entire final plan; however, no such condition exists at this time that [Landowners], in theory, could not accomplish, and this court must therefore grant [the Township] the benefit of the doubt in its conclusion that the final plan, if the conditions are met, may survive further public scrutiny at future hearings to be scheduled. Time will tell, but this court at this time cannot doubt the approval, conditioned on so many requirements, being fully and satisfactorily completed before approval of the final land use appeal. Thus, this court will not reverse the preliminary review plan approved by the Township[ s Board] subject to the successful completion of all those conditions. The trial court explained the reasoning for its order in its Pa. R.A.P. 1925 opinion: Without a doubt, [the Township] thoroughly scrutinized the preliminary plan in the case sub judice, because it made final approval subject to so many conditions being met. This court expressed in its [October 22 nd order] that [Landowners] have a difficult task ahead to fulfill all of these conditions, but [the Township] had the right to grant conditional approval rather than to reject the plan outright. [LBMA] raises issues that are relevant to final plan approval, if [Landowners] fail to meet all the conditions. [Landowners] are not getting a free ride; they must meet all the conditions that have been placed on them to obtain final plan approval. Therefore, [the Township] did not commit any error in granting conditional approval. (Trial Court 12/12/13 Opinion at 4-5). 9
Township s proposed findings of fact as its own. 10 After LBMA took an appeal, in the Pa. R.A.P. 1925(a) opinion filed in support of its October 22 nd order dismissing relevant part: 10 The Township s proposed findings of fact that were adopted by the trial court state, in (R.R. at 484a-485a). 13. LBMA states two issues in its Notice of Appeal: a. Apollo Point failed to obtain conditional use approval for its proposed multi-family apartment dwellings before proceeding with its application of preliminary land development approval. b. The Apollo Point dwellings, if all of the dwellings approved are built and occupied, will result in the flow of sewage from the dwellings exceeding the 50,000 gallons per day sewage treatment capacity purchased by [the Township and the Township s Municipal Authority] in the LBMA s sewage treatment plant. 14. Multi-family housing is a permitted use in the zoning district in which the Apollo Point project is located and LBMA has abandoned this basis of appeal. 15. LBMA has neither sought nor obtained approval to supplement its Notice of Appeal. 16. The only remaining issue of sewage capacity to serve the Apollo Point dwellings, together with an alternative dispute resolution process, is fully addressed in a 1997 agreement between LBMA[, the Township, and the Township s Municipal Authority] (Notice of Appeal Exhibit F). Regarding its adoption of the Township s proposed findings, the trial court explained: [LBMA] s fourth contention is that it was error for this court to not make its own findings of fact and conclusions of law, instead of adopting [the Township] s findings of fact. This contention is meritless. This court adopted [the Township] s (Footnote continued on next page ) 10
LBMA s appeal, the trial court explained that [t]his court mistakenly stated in the order that the motion to quash the land appeal was granted; however, it also dismissed the appeal in the same order. [T]he part of the order granting the motion to quash was a nullity, the motion having been withdrawn. The intent of this court was to dismiss the appeal and sustain [the Township] s decision. The parties understood this, and the order resulting from [LBMA] s Motion for Reconsideration made it clear that this court denied the appeal. (Trial Court 12/12/13 Opinion at 5). In this appeal, 11 LBMA argues that the trial court erred in quashing and dismissing its appeal because the Plan was substantively incomplete and failed (continued ) proposed findings of fact because it considered them to be correct. [LBMA] also presented proposed findings of fact which it wanted this court to adopt; presumably, [LBMA] would have accepted this court s findings of fact, if it had adopted those instead of [the Township] s fact findings. The additional testimony did not elicit any new evidence that was pertinent. [LBMA] wants the preliminary plan denied immediately instead of allowing [Landowners] to fulfill the many conditions imposed by [the Township]. Ultimately, the [Board] may deny the final plan if any or some of the conditions are not met. This court found that at this time, [the Township] has not abused its discretion or committed an error of law. (Trial Court 12/12/13 Opinion at 4-5). 11 Where, as here, the trial court receives additional evidence, this Court s scope of review is to determine whether the trial court committed legal error or abused its discretion. LHT Associates, LLC v. Township of Hampton, 809 A.2d 1072, 1075 n.1 (Pa. Cmwlth. 2002). 11
to comport with the Township s SALDO and the trial court failed to enter independent findings of fact and conclusions of law. We do not agree. Section 301.4 of the Township s SALDO states that [t]he Sketch Plan should depict significant utility easements that may affect development of the Site. (R.R. at 889a). Section 302.1 states, in relevant part: The Preliminary Plan shall include all information as required for Sketch Plan and shall be drawn to the same scales and presented on the same sheet size required for the Sketch Plan. In addition, the following information shall be shown: * * * j. All existing sewer lines, water lines and other significant man-made or natural features within the proposed subdivision and fifty (50) feet beyond the boundaries of the proposed subdivision. * * * m. The full plan of proposed development, including: 1.Location and width of all easements, and rights-of-way, with a statement of any conditions governing their use, and suggested types, i.e., collector, major, minor, etc. 2. Suggested utility easement locations. * * * 7. Water supply, sanitary and/or storm sewers (and other drainage facilities) with the size and material of each indicated, and any proposed connections with existing facilities. 12
(Id. at 890a-891a). In its appeal to the trial court, LBMA alleged 12 that Landowners Plan did not meet the foregoing requirements because the Plan did not have sufficient sewage capacity and there is no agreement for the Township to purchase increased capacity; there is no agreement for connection to the sewer main and no easement across neighboring properties for the connection to the sewage system; and there are no easements across neighboring properties for connection to LBMA s public water system or an agreement with LBMA for connection to that system. (R.R. at 9a-10a). However, as outlined above, each of the foregoing deficiencies are specifically addressed in the conditions imposed by the Board in approving Landowners Plan. (Id. at 823a-824a, 825a, 827a). It is well settled that where a preliminary plan fails to comply with the substantive requirements of the SALDO, its rejection under Section 508(2) of the MPC or its conditional approval under Section 508(4) is within the discretion of the governing body. Morris v. South Coventry Township Board of Supervisors, 836 A.2d 1015, 1020 (Pa. Cmwlth. 2003), appeal denied, 860 A.2d 126 (Pa. 2004). Under Section 508(4), [a] governing body may attach such reasonable conditions in approval of a land development plan as the applicant will accept. Id. (citation 12 LBMA was limited to the grounds stated in the notice of appeal that it filed pursuant to Section 1003-A of the MPC. See Perin v. Board of Supervisors of Washington Township, 563 A.2d 576, 579 (Pa. Cmwlth. 1989) (holding that the trial court properly disregarded the appellants supplemental filing to their notice of appeal where the supplemental filing occurred outside of the 30-day appeal period and it sought to add grounds that did not exist in the initial notice of appeal). 13
and footnote omitted). With submitted estimates of the development s average daily sewage flow and an agreement in place to service that flow through the Township s Authority s lines and LBMA s plant, (see R.R. at 528a-537a, 783a- 790a), the Board properly exercised its discretion in granting Landowners Plan conditioned on their obtaining a will-serve letter from LBMA regarding connection to its sewage and water systems; additional calculations showing proposed sewage flows for capacity analysis; and proof of 20 foot easements across neighboring properties for connection to LBMA s existing sewage and water systems. As this Court explained in Kohr, 910 A.2d at 159: There is no requirement that the sewer planning process be completed prior to the granting of preliminary subdivision plan approval, only that the process be commenced. It is more reasonable and consistent with the mandate of Section 508(2) of the MPC to condition final approval of the development plan from obtaining all the required permits from the DEP [regarding proposed sewage disposal facilities], rather than rejecting the [preliminary] plan outright. CACO Three, Inc. v. Board of Supervisors of Huntington Township, 845 A.2d 991, 996-97 (Pa. Cmwlth.[), appeal denied, 860 A.2d 491 (Pa. 2004)]. In this case, even though Landowner only had an agreement to agree with Suburban to organize a public utility to operate a sewage facility plant to serve the proposed land development, the Township should have approved the preliminary plan conditioned on Landowner and Suburban obtaining all the necessary permits from DEP and the Pennsylvania Public Utility Commission for final plan approval. (Footnote omitted). [13] 13 See also Baker v. Board of Supervisors of the Township of Hilltown, 668 A.2d 635, 637-38 (Pa. Cmwlth. 1995) ( The Township argues that before it grants approval of a subdivision project, it has the right to know that existing sewage collection treatment systems (Footnote continued on next page ) 14
Simply, LBMA s allegations in the proceedings in the trial court regarding the sewage and water service to the development and the suggested related easements are not bases to disturb the Board s decision conditionally approving the preliminary plan for the development. Moreover, the trial court properly adopted the Township s proposed findings of fact in disposing of this matter. 14 The trial court s consideration of the evidence that it received and its orders and Pa. R.A.P. 1925(a) opinion demonstrate that it conducted de novo review and sufficiently expressed its rationale underlying its order so that this Court can conduct effective appellate review thereby eliminating the need for a remand. LHT Associates, LLC, 809 A.2d at 1075 n.1; Sabatine v. Zoning Hearing Board of Washington Township, 651 A.2d 649, 652 (continued ) have sufficient capacity, or that adequate alternative treatment sources exist. [However, h]ere, [the landowner] is seeking only preliminary approval of his subdivision plan conditioned upon receiving the approval of DER for a sewer extension and subject further to the availability of public sewer service and public water service from the municipality prior to final subdivision approval. Therefore, the trial court did not abuse its discretion or commit an error of law in granting Baker preliminary approval of his subdivision plan. (Emphasis in original). 14 See Eighth North-Val, Inc. v. Parkinson, 773 A.2d 1248, 1251-52 (Pa. Super. 2001) (finding no error where trial court adopted many of the appellant s proposed findings of fact); Com. ex rel. Bloomsburg State College by Nossen v. Porter, 610 A.2d 516, 518 (Pa. Cmwlth. 1992), appeal denied, 627 A.2d 181 (Pa. 1993) (finding no error when court adopted plaintiff s findings of fact and stating that [n]othing in the [Rules of Civil Procedure], however, precludes a court from adopting those findings and conclusions proposed by a party. In fact, the contrary is implied ) (quoting Sotak v. Nitschke, 449 A.2d 729, 733 (Pa. Super. 1982)); Reinstadtler v. Workmen s Compensation Appeal Board (Egler, Anstandig, Garrett & Riley), 599 A.2d 266, 267 (Pa. Cmwlth. 1991), appeal denied, 607 A.2d 258 (Pa. 1992) (noting that without more, it would be conjecture on our part to conclude that the referee could not or did not review the record prior to his adoption of Employer s findings of fact. ). 15
(Pa. Cmwlth. 1994); Pantry Quik, Inc. v. Zoning Board of Adjustment of the City of Hazleton, 274 A.2d 571, 572-73 (Pa. Cmwlth. 1971). Accordingly, the trial court s order is affirmed. DAN PELLEGRINI, President Judge 16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lyons Borough Municipal Authority, : Appellant : : v. : No. 1961 C.D. 2013 : Township of Maxatawny, Apollo : Point, L.P., Saucony Creek, L.P., : and East Penn Manufacturing : Company : O R D E R AND NOW, this 10 th day of July, 2014, the order of the Court of Common Pleas of Berks County, dated October 22, 2013, at No. 13-4868, is affirmed. DAN PELLEGRINI, President Judge