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.
Latimore Township appeals an order of the Court of Common Pleas of Adams County (trial court) vacating the decision of the Latimore Township Board of Supervisors (Supervisors) to deny approval of a final land development plan submitted by Terry Rickert and Robert Junkins. The Township also appeals an order of the trial court ordering the Township to post a $100,000 bond as a condition of appeal to this Court. In this case, the principal issue we are asked to determine is whether a final land development plan, which is substantially similar to a deemed approved preliminary plan, must be approved notwithstanding any zoning concerns the Supervisors may have.
Rickert and Junkins are the owners and developers of 45.008 acres of land located in Latimore Township along Old U.S. Route 15. The property was purchased from M. Everett Weiser and is shown as Lot 2 on Weiser's subdivision plan, which was approved by the Township in July 2001. Lot 2 is split zoned; part lies in the Commercial Industrial District (CI District) and part lies in the Agricultural Conservation District (AC District). Commercial uses cannot be conducted in the AC district. Rickert and Junkins own a utility contracting business called Mid-Atlantic Utilities, Inc. and seek to develop Lot 2 for use by their business.
In 2002, the Township amended its 1987 Zoning Ordinance by adding a new Agricultural-Conservation II District and reconfiguring the zoning districts in the Township to reduce the size of the CI District along the Old Route 15 corridor. Rickert v. Latimore Township Board of Supervisors, 869 A.2d 1086, 1088 (Pa. Cmwlth. 2005). The 2002 ordinance removed Lot 2 from the CI district. Rickert and Junkins, along with Weiser, challenged the legality of the 2002 ordinance, and the ordinance was held to be void ab initio. Id.
While the litigation on the 2002 ordinance was pending, Rickert and Junkins submitted a preliminary land development plan for Lot 2, proposing to build "4 construction equipment and material storage buildings" on the north side of Old Route 15, which is in the CI District. The plan also proposed an office building for the south side of Old Route 15, which is partly in the CI District and partly in the AC District, along with parking, landscaping, and stormwater management facilities. Reproduced Record at 73a (R.R. ___). The buildings on the north side of Old Route 15 were identified on the plan as three storage buildings and one service building.*fn1 Two driveways were proposed for the office building. One driveway in the CI District provided access to Old Route 15, and the other driveway, located in the AC District, provided access to Baltimore Road. The plan proposed to serve the structures on Lot 2 with on-site water and sewage disposal systems and to site a detention/infiltration basin on that part of Lot 2 located in the AC District.
The parties agreed to defer a review of the preliminary plan until the litigation on the 2002 ordinance concluded, which occurred in September 2005 when the Pennsylvania Supreme Court denied the Township's petition for allowance of appeal. In October 2005, the Supervisors voted to deny approval of the preliminary plan, but they did not issue a written decision. Believing that their preliminary plan was deemed approved, Rickert and Junkins 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 Rickert and Junkins to a deemed approval of their preliminary plan and ordered the Supervisors to sign the preliminary plan.
On September 14, 2006, Rickert and Junkins filed a final land development plan that was essentially identical to the deemed approved preliminary plan.*fn3 The Planning Commission forwarded the final plan to other agencies for comment.
Township Engineer John Shambaugh, who is also the Zoning Officer, offered comments on the final land development plan in a letter to the Planning Commission. That letter contained a section entitled "Zoning Ordinance;" therein Shambaugh offered no criticisms of the proposed use of Lot 2 or the location of any of the structures proposed for the AC District.
The Adams County Office of Planning and Development (County) also provided comments on the final plan in a memorandum. The County made the following relevant comments:
1. Part III.1.A: We reiterate our comment from Part III.1.A of our December 30, 2003 review letter than [sic] contracting businesses are not specifically listed as permitted uses in the Commercial-Industrial (CI) District of the Latimore Township Zoning Ordinance.
*** 3. Part III.1.I: We again question, as we did in Part III.1.I of our December 30, 2003 review letter, whether infrastructure necessary to support a use in the CI District portion of the site may be located in the Agricultural Conservation (AC) portion of the site.*fn4
County Memo, November 16, 2006, at 2.
The Township Planning Commission met on December 26, 2006. Acting upon the concerns raised by the County, the Planning Commission recommended (1) that the Supervisors approve the final plan with the condition that Rickert and Junkins obtain zoning approvals of their proposed use, and (2) that the Supervisors disapprove the plan because certain commercial type uses were proposed for a portion of Lot 2 located in the AC District.
At its meeting on January 2, 2007, the Supervisors accepted the Planning Commission's recommendation. They voted to approve Rickert's and Junkins' final plan with two conditions: (1) that Rickert and Junkins obtain all necessary zoning approvals or variances for their proposed development; and (2) that Rickert and Junkins remove all commercial type development proposed for the portion of Lot 2 located in the AC District. Rickert and Junkins were given seven days to accept both conditions and advised that failure to accept the conditions would result in a denial of the final plan. When the Supervisors received no response, they gave Rickert and Junkins an extra day to respond. When there was still no response, the Supervisors issued a decision denying the final land development plan for Lot 2.
The Supervisors explained their denial in a written decision on January 16, 2007, in which they found that Rickert and Junkins failed to produce clear and convincing evidence that the Township granted [them] a preliminary opinion on zoning or has otherwise determined that the Property's proposed principal use (i.e., office and storage space for a utility contracting business) complies with the Township's zoning ordinance.
Supervisors' Decision, January 16, 2007, Finding of Fact 46; R.R. 11a. The Supervisors found that the proposed use, i.e., construction of "4 construction equipment and material storage buildings . and a primary office building," was permitted under Section 432.A of the Zoning Ordinance. However, these buildings would house a utility contracting business, which is not specifically permitted by the Ordinance.*fn5 Although the Supervisors recognized that a final plan similar to an approved preliminary plan must be approved, they stated their belief that as a matter of law all zoning requirements must be satisfied before a final plan can be approved. Because Rickert and Junkins did not obtain these zoning approvals, the Supervisors denied the final plan.*fn6
Rickert and Junkins appealed, and the trial court sustained their appeal. In its opinion, the trial court held that the Supervisors erred in denying approval of the final land development plan. Finding the Supervisors' statements on whether the final plan was the same as the preliminary plan to be "somewhat nebulous," the trial court found that the two plans were substantially the same. Relying on Annand v. Board of Supervisors of Franklin Township, 634 A.2d 1159 (Pa. Cmwlth. 1993), the trial court held that the Supervisors were required by the MPC to approve the final plan because it was substantially the same as the previously approved preliminary plan.
The trial court gave short shrift to the Supervisors' attempt to inject zoning issues into the planning process, suggesting that it had been done to "avoid the ramifications of a deemed approved preliminary plan by raising zoning issues as a charade for disapproval of an identical final plan." Trial Court Opinion, December 7, 2007, at 9; R.R. 124a. Nevertheless, the trial court addressed the zoning issues raised by the Supervisors and found them not supported by substantial evidence. The trial court noted, in particular, that the Township's zoning officer did not identify any zoning issues when reviewing either the preliminary or the final plans. The trial court concluded that neither ...