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Weiser v. Latimore Township

November 21, 2008

M. EVERETT WEISER
v.
LATIMORE TOWNSHIP, APPELLANT



The opinion of the court was delivered by: Judge Leavitt

Argued: September 11, 2008

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge, HONORABLE MARY HANNAH LEAVITT, Judge.

OPINION

Latimore Township appeals an order of the Court of Common Pleas of Adams County (trial court) vacating two decisions of the Township's Board of Supervisors (Supervisors) to deny approval of two final subdivision plans submitted by M. Everett Weiser. The principal issue we consider is whether a final subdivision plan, which is substantially similar to a deemed approved preliminary plan, must be approved notwithstanding any zoning concerns the Supervisors may have.

BACKGROUND

The facts of this case are largely undisputed. M. Everett Weiser and Olive L. Weiser own property along Old U.S. Route 15 in Latimore Township. Part of the Weiser property lies in a Commercial-Industrial District (CI District) and part lies in an Agricultural-Conservation District (AC District). In July 2001, part of the Weiser property along Old Route 15 was subdivided into three lots (2001 Subdivision).

In 2002, the Township amended its 1987 Zoning Ordinance by, inter alia, creating a new Agricultural-Conservation II District and reconfiguring the zoning districts in the Township to reduce the CI District along the Old Route 15 corridor.*fn1 The 2002 ordinance removed all of Weiser's property from the CI District and placed it, instead, in the AC District. Weiser, along with Terry Rickert and Robert Junkins, who were seeking to develop a lot they had purchased from Weiser, challenged the legality of the 2002 ordinance, and the ordinance was held to be void ab initio. Rickert v. Latimore Township Board of Supervisors, 869 A.2d 1086, 1094 (Pa. Cmwlth. 2005).

While the litigation on the 2002 ordinance was pending, Weiser submitted a preliminary subdivision plan (Preliminary Subdivision Plan 1) to the Supervisors for their review. The purpose of the plan was to create 13 lots, principally by subdividing one lot created in 2001. Adjoining land was also subdivided to add to the size of some of the proposed 13 lots. Under the 1987 Zoning Ordinance, Lot 1 of Preliminary Subdivision Plan 1 lies completely in the AC District; Lots 4, 5, 6 and 7 lie partially in the CI District and partially in the AC District; and the remainder of the Lots lie completely within the CI District.

At the same time, Weiser submitted a second preliminary subdivision plan (Preliminary Subdivision Plan 2) proposing to subdivide a different portion of his land, which has a gross area of 131.287 acres, into seven lots. Under the 1987 Zoning Ordinance, Lot 1 of Preliminary Subdivision Plan 2 lies in the AC District; Lots 2 and 3 lie partially in the CI District and partially in the AC District; and Lots 4-7 lie entirely within the CI District.

In September 2005, the Township Planning Commission recommended that the Supervisors deny Preliminary Subdivision Plans 1 and 2. The Supervisors did so on October 10, 2005, noting that the preliminary subdivision plans presented zoning problems. However, the Supervisors did not issue a written decision. Believing that his preliminary plans were deemed approved, Weiser filed a mandamus action against the Township. The trial court held that Section 508(3) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10508(3),*fn2 entitled Weiser to deemed approval of his Preliminary Subdivision Plans 1 and 2 and ordered the Supervisors to sign the plans.

On November 13, 2006, the Township adopted Ordinance No. 2006-4, which, like the earlier failed 2002 ordinance, amended the 1987 Zoning Ordinance to effect the same changes in the zoning districts. Weiser's property was again removed from the CI District and placed entirely in the AC District.

On November 14, 2006, Weiser submitted Final Subdivision Plans 1 and 2 to the Supervisors, and each final plan was essentially the same as each deemed approved preliminary plan.*fn3 Section 432.A of the 1987 Zoning Ordinance lists 24 permitted uses in the CI District, and Section 432.B lists 13 uses permitted in the district by special exception. Both the preliminary and the final subdivision plans contained a "List of Intended Uses," where Weiser listed 22 of the 24 permitted uses for the CI District. In addition, under "List of Intended Supplemental Uses," Weiser listed 9 of the 13 uses permitted in the CI district by special exception. Final Subdivision Plans 1 and 2 were forwarded to other agencies for comment.

In two letters dated November 21, 2006, Township Engineer John Shambaugh, who is also the Zoning Officer, provided the Planning Commission with comments concerning Final Subdivision Plans 1 and 2.*fn4 In the "Zoning Ordinance" portion of his letters, Shambaugh stated as follows:

1. Section 433.A-1.C-2 -- The minimum gross acreage for the proposed lots should be 2.75 acres as a result of the type of onlot system proposed.

2. Section 403.G-2 -- It is indicated on the plan that a subdivision took place in May 2001, therefore, this subdivision cannot take effect until May 2008.

Reproduced Record at 21a (R.R. ___).

In two December 4, 2006, memoranda, the Adams County Office of Planning and Development (County) provided comments on Final Subdivision Plans 1 and 2.*fn5 Specifically, the County expressed concern about how the subdivided lots would be used. With respect to Final Subdivision Plan 2, the County stated:

We previously indicated that, given minimum lot area and related requirements for various uses, some of the proposed lots would not be able to be developed with all of the uses listed in the "List of Intended Uses" and the "List of Intended Supplemental Uses." We recommended that these ...


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