The opinion of the court was delivered by: Judge Leavitt
Argued: February 24, 2009
BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge.
Stingray, L.P. (Stingray) appeals an order of the Court of Common Pleas of Delaware County (trial court) that will allow Stingray to construct a private road and bridge over a creek that are needed to provide access to its proposed cluster residential development. The order will limit the number of homes in the development to five, i.e., the limit for a development served by a private road. Stingray asserts that because its private road will be built to the specifications of a public road, it should be exempted from this limit and allowed to build fifteen homes. The Panarellos, Mochockis and Pleibels (Objectors), who own land adjacent to Stingray's property, cross-appeal the trial court's decision to allow construction of the bridge, without which Stingray cannot build even five houses.
Stingray's property in Concord Township (Property) consists of approximately eighteen acres that Stingray seeks to develop as a cluster subdivision with fifteen half-acre lots and common open space. The Property lies between Mill Road and Evergreen Drive, but the developable portion of the Property does not front on either road. The Property would be landlocked except for a strip of land 50 feet wide and 800 feet long that connects the developable part of the Property to Mill Road. On this strip of land, Stingray proposes to build a road and a bridge over Chester Creek that will provide Stingray's proposed cluster development access to Mill Road. Part of the access road will cross land that the Township believes to be a floodplain.
The use of land located in a floodplain is regulated by the Concord Township Zoning Ordinance (Zoning Ordinance). The Zoning Ordinance permits, by special exception, the construction of private roads and bridges in a floodplain area. It states that within a floodplain the following uses are permitted by special exception:
(a) Dams, culverts and bridges approved by the Commonwealth of Pennsylvania, Department of Environmental Protection.
(b) Grading or regrading of lands, and the construction of retaining walls.
(c) Recreation use, including park, day camp, picnic grove, golf course, fishing and boating club.
(d) Private roads and driveways.
(f) The cutting, killing and destruction of trees over three inches in diameter.
(g) Other uses similar to the above, provided that the effect is not to alter the cross-sectional profile of the stream basin at the point ...