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decided: February 24, 1977.


NO. 1322 C.D. 1974 NO. 1323 C.D. 1974 NO. 1386 C.D. 1974


Richard L. Bazelon, with him, of counsel, Dilworth, Paxson, Kalish & Levy, for Richard J. Fox. et al.

Lawrence E. Wood, for Ernest P. Raum, et al.

William H. Lamb, with him E. Craig Kalemjian, and Lamb, Windle & McErlane, for Tredyffrin Township.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Mencer, Rogers and Blatt. Judge Wilkinson, Jr. did not participate. Opinion by Judge Crumlish, Jr.

Author: Crumlish, Jr.

[ 29 Pa. Commw. Page 11]


[EDIT ]Presently before this Court is the Petition of Richard J. Fox, Greenview Associates and Picket Post Village, Inc. (Fox), seeking an order enforcing judgment previously entered sustaining the validity of zoning of certain tracts owned by Fox in Tredyffrin Township commonly referred to as the Chesterbrook tracts. Our opinion sustaining the validity of that zoning is reported as Raum v. Board of Supervisors of Tredyffrin Township, 20 Pa. Commonwealth Ct. 426, 342 A.2d 450 (1975). In that opinion, this Court validated the Township's amending of its comprehensive plan to designate a 1,000 acre portion of the Township as a Unified Development Area (U.D.A.) which resulted in an ordinance being passed implementing the U.D.A. concept with respect to lands owned by Fox. Timely appeal by local residents and a citizens group named Citizens Organized to Reclaim Chesterbrook (CORC) was taken to the Court of Common Pleas of Chester County, which reversed the zoning board and invalidated the ordinance. We, in turn, reversed the court below and validated the zoning as applicable to Fox. After our opinion was filed, a

[ 29 Pa. Commw. Page 12]

    petition for allocatur was filed in the Supreme Court and subsequently denied, finalizing our decree of the validity of the zoning of Chesterbrook.

Immediately following the denial of allocatur, the Township commenced what this Court views as a deliberate attempt to thwart the letter and spirit of our validation of the Fox zoning by unjustified refusals to grant certain permits, the enactment of harsh and unreasonable fee schedules pointed to Fox's development of the Chesterbrook tract, purposeful delays in acting upon applications for development submitted by Fox, and intimidation by advertising rezoning of Chesterbrook immediately following the Supreme Court's denial of allocatur. All of these actions are accurately described in both the Petition for Order to Enforce Judgment and the Supplement thereto, and the Township's and CORC's answers in response.

The Township's defense of these allegations of noncompliance with our prior order has been well presented by its solicitor, and essentially resolves to one of averring legitimate disputes in interpretation of ordinances and reasonable actions by the Board of Supervisors in exercise of their police power to insure effective planning and proper adherence to standards of development. Taken individually, some of the arguments presented on the Township's behalf would seem plausible, but for the overriding course of conduct of record, which exhibits a persistent intent to thwart our prior Order and in turn the meaningful development of Chesterbrook.

Prior to a disposition of the legal issues before this Court, it is necessary to set forth some basic foundations, and legitimate concerns of the parties litigant in this, and all zoning litigation of this nature.

This Court is not unaware of the controversies plaguing local municipalities which are all too often understaffed and underfunded and which, by no fault

[ 29 Pa. Commw. Page 13]

    of their own, must deal with certain developers who would prey on the lack of local sophistication to impose shoddy development on the municipality for increased profit to themselves. In large measure, the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10101, was the legislative response to such actions and was an attempt to formalize zoning substantive law and procedure into a modern workable model insuring orderly process in the development of lands in this Commonwealth.

Recently, however, we have noticed an ever increasing undercurrent of sentiment in local municipalities which has as its basis, the rejection of further development per se, regardless of the technical and/or social merit. This no growth status quo thinking surfaces in disputes not unlike the instant one. On one hand, we are presented with a developer, who, in our review of this protracted litigation, has presented plans and approaches of an impeccable nature to the Township for the orderly and constructive use of his tract. On the other hand, we are presented with local officials charged with the responsibility to review, comment upon, give constructive criticism to, and pass upon schemes of planning brought to them by developers, and we are not unsympathetic to the position in which supervisors and other local officials find themselves in discharging their responsibilities. Clearly, their duty is to actively oppose schemes of development unreasonably proposed and conceived, but likewise, their duty is to sanction well planned development.

Our sympathies are taxed, however, when local officials, for trifling, over-technical, or simply reasons unrelated to the law of zoning, oppose development otherwise judicially sanctioned. Most certainly, we must balance the vested rights of the landowner-developer

[ 29 Pa. Commw. Page 14]

    with the legitimate exercise of police power by local officials in the granting of permits, etc. And, there may well be cases in futuro where a township, and its officials, will be able to demonstrate the viability of the objections to the grant of permits and reasons for halting of development of tracts whose zoning in not in question. The record before us does not present such a case.

On December 22, 1976, we entered an Order granting the Fox prayer for enforcement of our previous Order, and the instant opinion is written in support thereof.

The parties to this proceeding have exhaustively set forth the facts and law relative to the present petition for order enforcing judgment, and further, the Township*fn1 has filed a Motion to Quash the instant petition. Prior to reaching the merits of the petition, we shall dispose of the Motion to Quash.

Motion to Quash

The Township has filed a Motion to Quash Fox's Petition for Order to Enforce Judgment. As we understand the basis of this motion, the Township is contesting Fox's ability to rely upon Pennsylvania Rule of Appellate Procedure 2951(b) (Pa. R.A.P.) to gain jurisdiction for enforcement of our prior Order. The Township would have us adopt a standard for this as yet judicially uninterpreted rule such that a petition show (1) that petitioner has no adequate remedy at law; (2) that petitioner has a clear legal right; (3) that there exists a corresponding duty in the Township; and (4) that the Township has acted in bad faith.

[ 29 Pa. Commw. Page 15]

In essence, the Township likens the instant prayer for relief to a prayer for extraordinary relief in mandamus arguing an adequate remedy at law under the procedural provisions of the MPC, no presently clear right and corresponding duty for relief, and lack of bad faith as factors precluding this Court from exercising its otherwise clear right to enforce the prior Order in this matter.

For the following reasons, we decline to accept such a standard and proclaim our jurisdiction to grant the requested relief.

Section 8(g) of The Commonwealth Court Act, Act of January 6, 1970, P.L. (1969) 434, as amended, 17 P.S. § 211.8(g), states in relevant part, "The court shall have the power to issue, under its judicial seal, every lawful writ and process necessary or suitable for the exercise of its jurisdiction given by this act and for the enforcement of any order which it may make. . . ." (Emphasis added.) Further, Pa. R.A.P. 2951(b) expressly codifies the ability of an appellate court to enforce an order entered by it.

Nor can we accept the notion that Fox's more appropriate remedy is appeal to the zoning board and thereafter to the local court of common pleas, for given the inherent delays in such a process, a party seeking to develop, once having had his zoning validated and reaching the stage of implementation by applications for permits, would surely be frustrated if it became necessary to follow the circuitous route each time a permit application was denied. We are impressed, however, with the adoption of a standard of showing bad faith in a Pa. R.A.P. 2951(b) proceeding such as the instant one, for the question of bad faith in the granting of permits is most certainly central to an inquiry into adherence with an outstanding order of court.

[ 29 Pa. Commw. Page 16]

The policy of this Court in exercising its jurisdiction to enforce orders in zoning cases depends on the rights which are deemed inherent in the zoning adjudication itself. Both this Court and the Supreme Court have emphasized that judicial decisions concerning the legality of zoning are not academic exercises, but rather confer upon the landowner the right to develop his land, subject only to the landowner's satisfying applicable legitimate regulations of the township concerning matters of site planning, improvements, etc. The extent of the rights conferred by a zoning adjudication are underscored by cases in which landowners successfully challenged their zoning. Even prior to the statutory provision authorizing courts to approve a successful challenger's plans, this Court and the Supreme Court ordered municipalities to permit development by a successful challenger and to issue necessary permits. Casey v. Zoning Hearing Board of Warwick Township, 459 Pa. 219, 328 A.2d 464 (1974), aff'g 8 Pa. Commonwealth Ct. 473, 303 A.2d 535 (1973); Township of Williston v. Chesterdale Farms, Inc., 462 Pa. 445, 341 A.2d 466 (1975). The Supreme Court explained this policy in Casey in the following manner:

Finally, we must determine whether a court has the power to grant an applicant-challenger definitive relief upon rendering a zoning ordinance constitutionally infirm. The appellee seeks a building permit for the erection of multi-family dwellings on his tract of land located in Warwick Township. This Court, pursuant to its disposition of the petition for enforcement of our order in Girsh Appeal has implicitly held that courts in this Commonwealth do have such power. Obviously, if judicial review of local zoning action is to result in anything more than a farce,

[ 29 Pa. Commw. Page 17]

    the courts must be prepared to go beyond mere invalidation and grant definitive relief.

Casey v. Zoning Hearing Board of Warwick Township, 459 Pa. at 230, 326 A.2d at 469. (Footnotes omitted.)

Where a zoning adjudication upholds existing zoning, the landowner's right to proceed should be even more clear, as this right is legislatively as well as judicially conferred, and there can be no question about the applicable zoning and development criteria. The rights conferred by an adjudication upholding zoning were demonstrated by Linda Development Corp. v. Plymouth Township, 3 Pa. Commonwealth Ct. 334, 281 A.2d 784 (1971), in which this Court, in upholding a landowner's zoning, at the same time struck down a subsequently enacted ordinance to change the zoning (and thereby prevent development), and also ordered that building permits issue "upon the filing by Linda Development Corporation of all required forms and plans."

The successful litigant's right to proceed by way of Pa. R.A.P. 2951(b) means that unjustifiable actions by a municipality to prevent him from proceeding are in direct conflict with the adjudication establishing the validity of the zoning.

The use which Fox makes of Pa. R.A.P. 2951(b) is precisely that use contemplated by the promulgation of that rule. With this express authority, and the inherent power of an appellate court to enforce its orders, we deny the pending Motion to Quash.

In light of our dismissing the instant Motion to Quash, we will reach and dispose of the merits of the petition to enforce judgment by entry of the following Findings of Fact and Conclusions of Law, together with a discussion of the law applicable thereto, as follows:

[ 29 Pa. Commw. Page 18]

    was formed to actively oppose the development of Chesterbrook, and is one of the parties which brought the present cases in which the zoning of Chesterbrook was challenged. Two of the supervisors who were not newly elected but continued on the Board had voted against every application for development that was submitted under the zoning for Chesterbrook, including the subdivision and related improvement plans which were approved by the Board in 1972 and 1973.

6. With the new composition of the Board in January, 1976, the only supervisor who did not have a publicly stated position of actively opposing the development of Chesterbrook under the zoning upheld by this Court was M. Scott Magargee, Esquire. He was the only supervisor called as a witness by the Board in this proceeding. There was no attempt made by the Board to refute the evidence concerning the publicly stated pledges of six of the seven members of the Board.

7. Within a few days of the date on which the Supreme Court denied allocatur petitions in these appeals, January 8, 1976, the Chairman of the Board announced that the Board would again hold hearings to rezone Chesterbrook to the R-1/2 classification. This announcement was made without any discussion of the matter having taken place at a public meeting of the Board.

8. On or about February 5, 1976, Petitioners filed with this Court a Motion to Hold the Record in the Commonwealth Court. Petitioners explained that their request was made "in order to facilitate consideration of applications necessary to prevent a nullification of this Court's adjudication."

9. On February 9, 1976, the Board of Supervisors adopted a resolution to advertise four separate ordinances to rezone the tract to the R-1/2 classification. Each ordinance concerned a separate area of the tract,

[ 29 Pa. Commw. Page 20]

    and the ordinances taken together would have rezoned the entire tract to the R-1/2 classification.

10. On February 10, 1976, the Board conducted a public hearing on its proposal to rezone Chesterbrook to the R 1/2 classification by a single ordinance applying to the entire tract.

11. On March 10, 1976, this Court granted Petitioners' Motion to Hold the Record in the Commonwealth Court and ordered that "the records in these appeals shall be retained in this Court and shall be remitted by the Chief Clerk on September 8, 1976, absent an Order of the Court to the contrary."

12. On August 9, 1976, the Board of Supervisors announced that it was instructing the Township Solicitor to draw a special ordinance to provide that the density for the Chesterbrook tract could not exceed 1.5 dwellings per acre. The density provided by the approved zoning is between 4 and 4.5 dwelling units per acre. On August 23, 1976, the Board of Supervisors announced a public hearing to consider the proposed ordinance. At the August 23rd meeting the Township Solicitor, without public discussion or any public action by the Board, stated that the ordinance he was drafting would limit development to 2.5 dwelling units per acre.

13. A public hearing on the ordinance to restrict development of the Chesterbrook tract was held on October 11, 1976. At this hearing, the Board announced that it would vote on the proposed ordinance on November 8, 1976.

14. The proposed ordinance, now pending before the Board provides:

(a) That the density of development of the Chesterbrook tract would be restricted to 2.5 dwelling units per acre, in direct contravention of the zoning districts within the Chesterbrook tract;

[ 29 Pa. Commw. Page 21]

(b) That 33% of the Chesterbrook tract must be left as open space;

(c) That development plans will not be approved if development would contribute to a level of service of "C" or lower at any intersection or a level of service of "B" or lower on any road (apart from intersections). Level of service "C" is the design criterion of PennDOT for new roads;

(d) That the developer may be required to post a bond prior to development to guarantee that the costs to the Township and School District resulting from development of the Chesterbrook tract would be "offset by tax and other revenues";

(e) That all structures in the Chesterbrook tract must be "compatible with Valley Forge National Park and other historic sites," and that "there be no construction or signs visible from said park";

(f) That final development plans will require approval by the Planning Commission and/or Board of Supervisors. This requirement is in addition to the review procedures presently provided by the Tredyffrin Township Zoning Ordinance, and applies only to the Chesterbrook tract and some ninety (90) acres contiguous to it.

15. Since the issuance by the Supreme Court of its orders denying the petitions for allocatur in these cases, the Board has held a number of nonpublic executive sessions for the purpose of discussing Chesterbrook. The record shows that there have been at least three such meetings in 1976 -- on January 31, June 14 and June 28. M. Scott Magargee, Esquire, the one supervisor who has testified in these proceedings, stated that he could not recall the matters discussed at any of these meetings, other than "matters involving the litigation surrounding Chesterbrook." The record also shows that at the time of the executive meetings, the litigation concerning the validity of

[ 29 Pa. Commw. Page 22]

    the zoning was, in fact, terminated and two of these executive sessions occurred shortly after Petitioners submitted their development plans and applications.

16. The Board has proceeded to advertise and consider various proposals to nullify the zoning of the Chesterbrook tract knowing of the extensive effort and expense of Petitioners in acquiring the tract and preparing for development, in reliance on the zoning. Ordinance No. 264 of Tredyffrin Township, to which we referred with approval in our prior opinion in these appeals (see 20 Pa. Commonwealth Ct. 426, 431 (1975)), recognizes the commitment and reliance of the Chesterbrook owners, and provides that " the developer, in turn, shall have a vested right to proceed according to the plans and zoning amendment or amendments." (Emphasis added.)

Board of Supervisors' Adoption of Fee Schedules for Review of Plans by Township

17. On January 5, 1976, the Board adopted a new fee schedule for development plans which must be reviewed through hearings before the Board of Supervisors or Zoning Hearing Board, or which require site plan review by the Planning Commission.

18. On January 26, 1976, the Board adopted a new fee schedule for review of subdivision plans and improvement construction plans. This schedule also sets forth separate fees for agreements (i.e., subdivision agreements, bonds, and deeds of dedication), permits (i.e., storm drain and watercourse permits and permits for street openings, sidewalks and curb cuts), inspections and tests.

19. The Board adopted the new fee schedules at precisely the time that Petitioners were undertaking the preparation of extensive development plans, i.e., after this Court had unanimously upheld the zoning for the Chesterbrook tract and after the time that the Supreme Court denied allocatur petitions.

[ 29 Pa. Commw. Page 2320]

. The application submitted by Petitioners on June 2, 1976 to subdivide the entire Chesterbrook tract into a number of large lots was an initial step in the development process for the Chesterbrook tract following the culmination of the zoning litigation. Petitioners needed to subdivide the tract in accordance with its zoning districts in order to prepare final plans for these districts and to obtain approval of development plans.

21. Petitioners were required to pay an application fee of $22,000.00 in order to submit their subdivision plan and application. This fee did not include the separate fees which were charged for the review of the improvement construction plans which were submitted in June and July, 1976. Nor did the subdivision plan include any development within the proposed lots.

22. Mr. Janasik, Assistant Township Manager, spent four or five hours a week for ten or eleven weeks reviewing the plans. Mr. Houtman, an independent engineer employed by the Township to aid in review of various plans, testified that he reviewed in a total time of just fourteen hours other plans which concerned roads, sewers, drainage, etc., which plans were more extensive, technical and detailed than the subdivision plans. Given the hours spent in review, the Township extracted from Petitioners approximately $488.89 for each hour of Mr. Janasik's time. The fee paid by Petitioners was more than Mr. Janasik's entire yearly salary.

23. Under the fee schedule in effect prior to the adoption of the new schedule on January 26, 1976, the fee for review of the same subdivision plans would have been $48.00.

24. Petitioners paid the $22,000.00 subdivision application fee under protest.

[ 29 Pa. Commw. Page 2425]

. The $22,000.00 fee which the Board required Petitioners to pay in order to process the subdivision application bore no relation to the expense of the Township in reviewing and otherwise processing the plan.

26. The parties have stipulated and supplemented the record with a list of fees charged by surrounding townships. Excepting those fees listed for Mr. Janasik of the township with respect to fees which this developer would have had to pay for a subdivision application, we find as follows:

Township Fee

Abington $59.00

Cheltenham $113.00

Lower Merion $13,505.00

West Goshen $145.00

Middletown $58.00

Easttown $3,720.00

Radnor $385.00

Upper Merion $385.00

Haverford $100.00

The median fee of these townships for reviewing Petitioners' subdivision application would be $145.00, and the average fee would be $2,052.00.

27. The subdivision application fees which would have been required for reviewing and processing Petitioners' plans by the seven townships bordering on Tredyffrin Township would have been as follows:

Township Fee

Schuylkill $240.00

Charlestown $1,100.00

Willistown $105.00

East Whiteland $115.00

Easttown $3,720.00

Radnor $385.00

Upper Merion ...

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