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May 12, 1997


Appealed From No. 95-00138. Common Pleas Court of the County of Chester. Judge WOOD.

Before: Honorable Rochelle S. Friedman, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles A. Lord, Senior Judge. Opinion BY Judge Friedman. Judge Leadbetter Dissents.

The opinion of the court was delivered by: Friedman


FILED: May 12, 1997

Warwick Land Development, Inc. (Property Owner) appeals from an order of the Court of Common Pleas of Chester County (trial court) dismissing Property Owner's appeal from the denial of its Application for Preliminary Subdivision Approval (Application) by the Board of Supervisors of Warwick Township (Board of Supervisors).

Property Owner sought subdivision approval to modify a 23.7 acre parcel of land (Steepleview Parcel) located in an R-3 Residential Zoning District on the south side of Troop Road in Warwick Township (Township). The Steepleview Parcel contains a lawful nonconforming mobile home park with 29 mobile home sites, as well as one single-family detached dwelling. Use of the Steepleview Parcel for mobile homes predated the current Township Zoning Ordinance, which now permits mobile home parks in R-3 Districts as conditional uses requiring Planned Residential Development (PRD) approval and a minimum lot size of thirty-five (35) contiguous acres in the R-3 District. (Township Zoning Ordinance at § 701D.4, R.R. at 117a; § 902B, R.R. at 120a.)

Under its subdivision plan (Steepleview Plan), dated January 20, 1994, Property Owner proposed subdividing the Steepleview Parcel into eight lots, confining the currently existing mobile home sites and single-family dwelling to one lot of 14.9 acres and creating single-family detached dwellings on the seven remaining lots. *fn1 At a December 6, 1994 meeting, the Board of Supervisors denied Property Owner's Application, primarily on grounds that it increased the level of non-conformity of the mobile home park by reducing its lot area from 23.7 to 14.9 acres.

In order to create a lot large enough for a PRD, Property Owner had proposed adding a portion of an adjacent 26 acre parcel of property (Troop Hill Parcel), also in the R-3 District, to that portion of the Steepleview Parcel containing the mobile homes, so that the combined properties would fulfill the 35 acre minimum requirement for a PRD. The Township Zoning Ordinance defines a PRD as:

A contiguous area of land to be developed as a single entity for a number of dwelling units, the development plan for which must comply with the lot size, bulk or type of dwelling, density, lot coverage, required open space and other provisions of article 9.

(Township Zoning Ordinance § 201, R.R. at 111a.) Article 9 provides that each PRD "shall have a minimum contiguous area of thirty-five (35) acres within the R-3 District." (Township Zoning Ordinance § 902B, R.R. at 120a.) The Township Zoning Ordinance does not define contiguous; thus, as part of its Application, but without actually filing a PRD application, Property Owner asked the Board of Supervisors to confirm whether these portions of the Steepleview and Troop Hill Parcels are "contiguous" for the purpose of qualifying as a PRD under section 902B of the Township Zoning Ordinance.

In disapproving the Application, the Board of Supervisors rejected this approach, concluding that the Steepleview and Troop Hill Parcels are not under common ownership, *fn2 nor under common control pursuant to a written agreement that development will be under a single plan with common responsibility and authority. *fn3 (See Township Zoning Ordinance § 902A, R.R. at 120a.) The Board of Supervisors also denied approval based on its interpretation of the term "contiguous," concluding that, because the two parcels are divided by a public highway, Troop Road, they are not contiguous and, thus, could not be combined to satisfy the minimum acreage requirements for a PRD. (Appellant's brief, Appendix 2 at 2, Trial ct. op. at 2.)

The Township Solicitor formally advised Property Owner of the Board of Supervisors' denial in a letter dated December 7, 1994 (Denial Letter). In its entirety, the Denial Letter provides:

This is to formally advise that the Board of Supervisors of Warwick Township voted to deny the application of Warwick Land Development, Inc. for the subdivision known as "Steepleview" at its regular monthly meeting on December 6, 1994. Because you were at the meeting, you know of the action by the Board and this letter serves as the writing required under Section 508 of the Municipalities Planning Code.

The Board denied the application for the reasons set forth in the review letter of Yerkes Associates, Inc. dated February 9, 1994, a copy of which is attached hereto and incorporated by reference herein. The Board further denied the subdivision on the basis of the Warwick Township Planning Commission recommendations of March 28, 1994, which were adopted by the Board of Supervisors and a copy of which is attached hereto and incorporated by reference herein.

As you know, the Zoning Hearing Board of Warwick Township rendered its opinion on September 28, 1994 wherein your request for zoning relief was denied. That opinion was delivered to you on or about September 28, 1994 and is incorporated by reference herein.

In addition to the plan objections set forth in the three documents referenced above, the issue which you raised and pressed to the Board regarding the provision of Section 902.B are addressed in the attached November 25, 1994 correspondence from Board Member Robert Johnson to fellow Board Members. As set forth therein and as determined by the Board of Supervisors at its December 6 meeting, the Board has made a determination that Section 902.B does not apply and that the provisions of Section 201 wherein the terms "lot" and "lot line" are defined control the application for Steepleview and require its denial.

Because the property in question fails to meet the minimum lot size of 35 acres for its current use, because the Zoning Hearing Board has denied your variance application, and because this property is defined by the terms of the Ordinance, as a separate and distinct lot, the subdivision request is denied.

(Appellant's brief, Appendix 1, p. 1-2.)

Property Owner appealed to the trial court, *fn4

which dismissed the appeal following oral argument on the matter. In doing so, the trial court explained that it could not say that two properties divided by a public roadway were contiguous as a matter of law. Further, the trial court determined that the reports incorporated in the Denial Letter contained adequate references to the code sections relied upon by the Board of Supervisors to deny Property Owner's Application and, thus, the Denial Letter satisfied the requirements of section 508(2) of the Pennsylvania Municipalities Planning Code (MPC). *fn5 (Trial court op. at 4-6.)

In its appeal to this court, *fn6 Property Owner argues that the Board of Supervisors abused its discretion and/or committed an error of law by determining that the Steepleview and Troop Hill Parcels are not contiguous and denying Property Owner's Application on that basis. *fn7 Property Owner also contends that the December 7, 1994 Denial Letter fails to satisfy the requirements of section 508(2) of the MPC and/or fails to otherwise provide legally sufficient and proper bases for denial of Property Owner's Application, thereby entitling Property Owner to deemed approval of its Application pursuant to section 508(3) of the MPC, 53 P.S. § 10508(3). On the other hand, the Board of Supervisors asserts that the question of whether the two parcels are contiguous is not even before this court because Property Owner never applied for a PRD. *fn8 Moreover, the Board of Supervisors asserts that the Denial Letter complies fully with section 508(2) of the MPC. However, after careful review of the record and the relevant case law, we conclude that the Denial Letter fails to satisfy section 508(2) requirements, and, on that basis, we reverse.

Section 508(2) of the MPC provides that, with respect to a preliminary or final land development application:

When the application is not approved in terms as filed the decision shall specify the defects found in the application and describe the requirements which have not been met and shall, in each case, cite to the provisions of the statute or ordinance relied upon.

53 P.S. § 10508(2). It is well-settled that this provision is mandatory, and enumerated defects without citation to the provisions of the statute or ordinance relied upon cannot support a denial of an application. Rosanelli v. Quakertown Borough Council, 43 Pa. Commw. 420, 402 A.2d 1115 (Pa. Commw. 1979). Moreover, section 508(3) provides that:

Failure of the governing body or agency to render a decision and communicate it to the applicant within the time and in the manner required herein shall be deemed an approval of the application in terms as presented. ...

53 P.S. § 10508(3) (emphasis added).

Initially, we note that the Denial Letter itself does not specifically cite any statute or ordinance provision which Property Owner's subdivision plan is said to have violated; indeed, the Denial Letter includes only two citations, sections 201 and 902B of the Township Zoning Ordinance, neither of which set forth any reason sufficient to deny Property Owner's Application.

The inclusion of section 201 cannot serve to notify Property Owner of any reason that the subdivision plan was defective because that section contains no subdivision plan requirements; it only provides the definitions of terms used in the Township Zoning Ordinance. *fn9 Moreover, the Denial Letter does not explain the relationship between this cited provision and any plan defects, as required by section 508(2), but merely states that utilization of the cited provision requires denial of the Application. See Stein v. Easttown Township Board of Supervisors, 110 Pa. Commw. 293, 532 A.2d 906 (Pa. Commw. 1987) (stating that denial of a preliminary land development plan is not justified based on the board of supervisors' ruling that a plan component was "not acceptable" without explaining why it is unacceptable); Whiteland Manor Homes v. Borough of Downingtown, 32 Pa. Commw. 274, 378 A.2d 1311 (Pa. Commw. 1977) (holding that, in order to comply with section 508(2) of the MPC, a decision to reject a subdivision plan must not only cite the statutory authority relied upon but must also specify the defects in a plan and describe the requirements which have not been met).

With regard to section 902B of the Township Zoning Ordinance, the Board of Supervisors once again fails to satisfy the mandate of section 508(2). In citing this provision, the Board of Supervisors does not identify any specific defect in the preliminary subdivision plan; in fact, the Board of Supervisors includes the citation only to inform Property Owner that this particular section does not even apply to the question of subdivision approval. Thus, standing alone, the Denial Letter clearly fails to comply with section 508(2) requirements.

However, the Board of Supervisors attempts to incorporate other documents into the Denial Letter by reference. According to the Board of Supervisors, these documents list dozens of deficiencies in the subdivision plan, each with appropriate reference to a specific ordinance section, thereby ensuring that the Denial Letter fully satisfies the dictates of section 508(2) of the MPC. We cannot agree.

Initially, we note that the Board of Supervisors, citing Rouse/Chamberlin, Inc. v. Board of Supervisors of Charlestown Township, 94 Pa. Commw. 413, 504 A.2d 375 (Pa. Commw. 1986), maintains that this court "has held that incorporation by reference satisfies the requirements of § 508(2)." (Board of Supervisors' brief at 12.) This court has never so held. In fact, in Rouse/Chamberlain, we stated:

Following a February 1, 1982 hearing, the Board voted to reject the plan for the reasons outlined in the Planning Commission report and for reasons to be set forth in a written letter. The letter, dated February 12, 1982, informed appellant of the formal reasoning behind the rejection. The grounds for rejection were separated into nine delineated areas and each problem was supported by a citation to specific provisions of the Charlestown Township, Pennsylvania, Zoning Ordinance of 1979...; the Charlestown Township, Pennsylvania, Subdivision and Land Development Ordinance of 1970...; and the Charlestown Township Erosion, Sedimentation and Grading Control Ordinance of 1974....

504 A.2d at 376. Thus, contrary to the claim of the Board of Supervisors here, in Rouse/Chamberlain, section 508(2) requirements were not met through the incorporation of documents by reference; rather, the rejection letter itself set forth the reasons for rejection with citation to specific ordinances and statutes, and so independently satisfied the requirements of section 508(2). Indeed, we noted precisely that when we stated, "the statute is amply satisfied by an oral decision followed by a letter setting forth the reasons for rejection with citation to specific ordinances and statutes." Id. at 378, citing Noll v. Stewart, 57 Pa. Commw. 559, 427 A.2d 710 (Pa. Commw. 1981).

Moreover, we have stressed the mandatory nature of section 508(2), stating:

Where an application is denied, the test is not whether the applicant had actual knowledge of the particular defects in his plan, the requirements which have not been met and the specific sections of the statute or ordinance relied upon but whether this information is contained within the four corners of the written decision itself.

Bensalem Township v. Blank, 115 Pa. Commw. 281, 539 A.2d 948, 951 (Pa. Commw. 1988). In Malone v. West Marlborough Township Board of Supervisors, 145 Pa. Commw. 466, 603 A.2d 708 (Pa. Commw. 1992), we considered whether the rejection of a revised subdivision plan violated section 508(2) requirements where the rejection letter did not restate, but simply incorporated by reference, the objections made in the letter denying the initial preliminary plan. Citing Blank as authority, we held that "the mere reference to the reasons for rejecting the preliminary plan was insufficient under the MPC because the 'applicant' for a subdivision plan must have actual notice of the reasons for the rejection within the four corners of the document." 603 A.2d at 712 n. 6.

Property Owner seizes on this holding from Malone to stand for the broad proposition that incorporation by reference cannot be used to satisfy section 508(2) requirements under any circumstances. The Board of Supervisors, however, reasons differently. Noting that, in Malone, the court does not say that the referenced letter actually was enclosed along with the subsequent rejection letter, the Board of Supervisors concludes that incorporation by reference does satisfy the requirements of section 508(2) where, as here, the incorporated documents are not only referenced and expressly adopted, but copies of those documents also accompany the Denial Letter itself.

We decline to read Malone as broadly as Property Owner suggests. However, without indicating whether, or under what circumstances, incorporation by reference can be used to meet section 508(2) requirements, we must conclude that the Board of Supervisors does not satisfy this statutory mandate under the circumstances presented by this case.

Here, the Denial Letter refers to four different documents which, in turn, list numerous objections to Property Owner's subdivision plan. The Board of Supervisors, however, makes no attempt to identify with any particularity which of the many concerns set forth in these documents form the basis for the Application denial and why. Instead, the Board of Supervisors sweeps together the entire list of objections, indiscriminately labelling them all as reasons to deny the subdivision request without ever citing a single one of these reasons in the Denial Letter itself. Although it may well have valid grounds to deny Property Owner's subdivision plan, the Board of Supervisors' resort to this type of indeterminate approach does not in our view satisfy the specificity requirements of section 508(2) of the MPC, particularly where so many of the objections seem wanting or otherwise fail to justify denial at this preliminary stage. *fn10 Thus, we cannot conclude that the written decision here offers Property Owner the meaningful notice that section 508(2) was designed to provide.

Because the Board of Supervisors failed to comply with section 508(2) of the MPC in disapproving Property Owner's Application, the preliminary subdivision plan must be deemed approved pursuant to section 508(3) of the MPC. Accordingly, we reverse the decision of the Board of Supervisors to deny approval of Property Owner's preliminary subdivision plan, and we remand to the Board of Supervisors with directions to approve the Application. *fn11


Judge Leadbetter Dissents.



AND NOW, this 28th day of May, 1997, it is ORDERED that the opinion filed May 12, 1997, shall be designated OPINION rather than MEMORANDUM OPINION and that it shall be reported.


AND NOW, this 12th day of May , 1997, the order of the Court of Common Pleas of Chester County, dated May 22, 1996, is hereby reversed. The case is remanded to the Board of Supervisors of Warwick Township with directions to approve the preliminary subdivision plan submitted by Warwick Land Development, accordance with this opinion.

Jurisdiction relinquished.


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