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05/28/97 FRANCIS ICE v. CROSS ROADS BOROUGH

May 28, 1997

FRANCIS ICE, ROBERT BEER AND ALICE BEER
v.
CROSS ROADS BOROUGH, APPELLANT



Appealed From No. 93-SU-05530-08. Common Pleas Court of the County of York. Judge CASSIMATIS.

Before: Honorable Dan Pellegrini, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Samuel L. Rodgers, Senior Judge. Opinion BY Senior Judge Rodgers.

The opinion of the court was delivered by: Rodgers

OPINION BY SENIOR JUDGE RODGERS

FILED: May 28, 1997

Cross Roads Borough (Borough) appeals from an order of the Court of Common Pleas of York County that ordered the Borough not to interfere with Francis Ice's, Robert Beer's and Alice Beer's (Plaintiffs) use of their driveways or maintain any enforcement proceedings and/or fines against Plaintiffs. We reverse.

The following findings of fact were issued by the trial court, based on a stipulation entered into by the parties and on testimony given at trial. On May 18, 1992, Plaintiffs purchased a property located in Holly Tree Court development, the lot being formerly known as Lot 1 of the final subdivision plan approved by the Borough. In October of 1992, Plaintiffs began construction of a duplex in the center of the property facing Main Street, a state highway, but constructed a driveway that accessed Holly Tree Court, a subdivision road. The general notes on the subdivision plan state, inter alia, that Lots 1 and 5 are to ingress and egress onto Holly Tree Court and not onto Main Street *fn1 and that a highway occupancy permit is required pursuant to Section 420 of the State Highway Law, Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. § 670-420, before access to a state highway is permitted. Neither the deed to the property nor the declaration of restrictions for the development contained a covenant or condition restricting Lot 1 from accessing Main Street.

Prior to erecting the duplex, Plaintiffs were issued a building permit by the Borough's Codes Enforcement Officer. The permit included the statement that "DRIVEWAY MUST BE ON HOLLY COURT." (Reproduced Record (R.R.), p. 18a.) In a letter, dated November 10, 1992, Plaintiffs acknowledged that the driveway entrance to their property must merge with Holly Tree Court and not Main Street. (R.R. p. 20a.) However, on August 30, 1992, Plaintiffs appealed to the Department of Transportation (Department) requesting permission to construct two driveways providing access to Main Street. The Department issued the permits and Plaintiffs constructed the two driveways.

On December 9, 1992, the Borough's zoning officer notified Plaintiffs that the construction of the new driveways were in violation of Section 404(e) of the Borough's Subdivision and Land Development Ordinance. Plaintiffs filed a declaratory judgment action requesting that the trial court determine that the Borough had no basis to interfere with Plaintiffs' right to use their driveways as granted by the Department and that the Borough be prohibited from proceeding with enforcement actions and/or fines related to the use of the driveways. The Borough filed a motion for judgment on the pleadings, which was denied by the trial court, based upon a Conclusion that the state regulations indicate a preemption regarding the location of entrances to state highways.

After a non-jury trial, the trial court concluded that: (1) the Department had exclusive authority and jurisdiction over access to a state road from adjoining properties; (2) the Department's power to regulate access to state highways from adjoining properties cannot be limited by township ordinances; (3) an agreement by a subdivider to a condition of subdivision approval to prohibit access from abutting subdivided lots to a state highway is not binding upon the Department nor enforceable in the face of the Department's issuance of a permit to such property holder; and (4) the Borough may not interfere with Plaintiffs' use of their driveways to the state highway or maintain any enforcement proceeding and/or fines against Plaintiffs. The trial court's final decree was entered after the Borough's post-trial motions were denied.

The Borough now appeals to this Court, *fn2 arguing that it cannot be prevented from enforcing a condition on a subdivision plan that restricts access to a state highway, i.e., the law giving the Department authority over state highways has not provided for the preemption of the field. The Borough does not dispute that regulation of state highways is the province of the Department, but suggests that Plaintiffs' right to obtain a highway access permit has been waived.

The Borough relies on Section 508(4)(ii) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 744, as amended, 53 P.S. § 10508, which permits the imposition of conditions on subdivision approvals. The Borough cites Teeling and Bonner v. Upper Makefield Township, 142 Pa. Commw. 205, 597 A.2d 196 (Pa. Commw. 1991), for the proposition that the MPC specifically permits the imposition of agreed upon conditions on subdivision approvals. Moreover, once the condition is accepted and the plan is recorded the condition runs with the land and binds all subsequent purchasers even if the condition is not specifically set forth in the deed conveying the lot created by the subdivision. Teeling. Based upon the above statements of the law, the Borough argues that the trial court erred in holding that the State Highway Law preempts Section 508 of the MPC.

The Borough contends that the Department's authority is not voided because the original developer agreed to the restriction, only that the developer waived his right and the rights of subsequent purchasers to invoke the Department's authority. Thus, the Borough believes that its right to enforce the subdivision restriction cannot be abrogated by the issuance of the permits by the Department.

In response, citing Carlino v. Whitpain Investors, 52 Pa. Commw. 145, 415 A.2d 461 (Pa. Commw. 1980), aff'd, 499 Pa. 498, 453 A.2d 1385 (1982) and Bethel Park Minimall, Inc. v. Borough of Bethel Park, 16 Pa. Commw. 97, 326 A.2d 670 (Pa. Commw. 1974), a case relied upon in Carlino, Plaintiffs argue that the regulation of state highways is the province of the Department and cannot be limited by municipal zoning actions. Although the Carlino court makes this statement, Plaintiffs misconstrue the effect of the court's reasoning. Carlino concerns an issue about "contract zoning" and the opinion notes that Pennsylvania courts have held that an individual cannot by contract abridge the police powers of the state which protect the general welfare and the public interest. However, the opinion also notes that no restrictive covenant or equitable servitude was alleged in the complaint, as it was here.

The court in Bethel Park explained that the municipality could not condition its approval of a site plan on letters from the Department issued on a different traffic plan submitted two years earlier and that the Department, not the municipality, had the authority to control traffic patterns on state highways. However, the decision in Bethel Park hinged on the erroneous basis for the municipality's conditional approval. Again this case did not decide whether a restriction in a subdivision ...


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