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In re Appeal of Heritage Building Group

July 24, 2009


The opinion of the court was delivered by: Senior Judge Friedman

Argued: June 10, 2009



Plumstead Township Board of Supervisors (Board) appeals from the November 13, 2008, order of the Court of Common Pleas of Bucks County (trial court), which reversed the decision of the Plumstead Township Zoning Hearing Board (ZHB) to deny Fieldstone Farm of Sladek Road and its agent, Heritage Building Group, Inc., (together, Heritage) a zoning permit to place twenty-two controlled fill piles on a seventy-three acre tract of land known as Tollgate Farm. We affirm.

Tollgate Farm is located in the RO Rural Residential zoning district of Plumstead Township (Township). In 2001, Heritage filed a preliminary subdivision and land development plan seeking approval for a twenty-four lot subdivision. The subdivision plan designated twenty-three of the lots as single-family detached dwellings. The twenty-fourth lot was designated as an E-1 Utility Use, the intended site for construction of a centralized sewage system to serve both Tollgate Farms and Fieldstone Farm, an adjacent subdivision. Heritage has waived its right to a decision on its plan within ninety days as provided by section 508 of the Pennsylvania Municipalities Planning Code (MPC),*fn1 and has granted the Township an indefinite extension of time to act on its subdivision application, revocable by either party upon thirty-days notice. (R.R. at 200a.)

Heritage proposed the centralized sewage system because soil testing revealed that the ground was not suitable for elevated or subsurface sewage disposal; a municipal sewage collection system was not considered a viable alternative due to the distance of interceptors from the project site. (R.R. at 143a-53a.) A centralized sewage system is permitted as an E-1 Utility Use in the RO zoning district as a special exception, and, after submitting its subdivision application, Heritage applied for a special exception to construct the centralized sewage system. In order for the special exception to be granted, the proposed use must comply with all other zoning ordinance provisions. (R.R. at 221a.) Accordingly, Heritage also applied for several variances. While the application for a special exception and variances was pending, the Township Engineer twice sent review letters to Heritage suggesting that Heritage perform additional testing to determine whether on-lot sewage systems were a feasible alternative to the proposed centralized sewage system. (R.R. at 180a, 198a.)

In August 2003, the ZHB denied Heritage's special exception application. The ZHB found that Heritage can develop a significant and reasonable number of lots with on-lot sewage systems in conformity with the Zoning Ordinance and concluded that Heritage was not entitled to the necessary variances. (R.R. at 201a-23a.) The ZHB also concluded that the proposed centralized sewage facilities would be injurious to the public health, safety and welfare. Heritage filed an appeal with the trial court, which, in April 2006, remanded the matter to the ZHB. On January 17, 2007, after taking additional evidence related to the Fieldstone Farm development, the ZHB again denied Heritage's special exception application. (R.R. at 288a-93a.) Heritage appealed to the trial court, and that appeal remains pending.

Heritage subsequently decided to pursue a four-year fill plan on twenty-two lots at Tollgate Farm, with the intent that, after four years, the addition of fill will have rendered the earth suitable to support an on-lot sewage disposal system. The four-year fill process involves identifying an appropriate area on each lot, scarifying the area (by means of scraping a backhoe several inches into the earth) and depositing a pile of fill onto the lot. In furtherance of the four-year plan, Heritage applied for and received a National Pollution Discharge Elimination System (NPDES) permit and approval of an erosion and sedimentation control plan to allow the placement of fill piles on the property. As required by the permitting process, Heritage notified the Township of its application for a NPDES permit.

Thereafter, Heritage received a copy of a February 2, 2007, letter from the Township's Engineer to the Township Manager, advising that Heritage also was required to obtain a zoning permit for the proposed earth disturbance. (R.R. at 244a-45a.) The Township Engineer's conclusion was based on the language of section 2-2802 of the Township's 2001 zoning ordinance (2001 Ordinance), which states that no property may be altered, graded, disturbed or cleared of trees without a zoning permit. It is undisputed that section 2-2802 of the 2001 Ordinance took effect after Heritage submitted its subdivision application on June 27, 2001, and that no similar provision existed in the 1991 zoning ordinance (1991 Ordinance) that was in effect when Heritage filed its subdivision plan.

On May 11, 2007, Heritage filed a revised preliminary subdivision plan, which was essentially identical to the original plan but allowed for either a centralized wastewater treatment plant or the on-lot sewage disposal systems. The revised plan was placed on the Planning Commission's agenda, but consideration of the subdivision plan was postponed at Heritage's request. (R.R. at 104a.)

In light of the Township Engineer's February 2007 letter, Heritage filed an application for a zoning permit to place twenty-two piles of fill on the property. (R.R. at 276a.) In its cover letter, Heritage indicated that the zoning permit application was in furtherance of the currently pending subdivision plan and, therefore, did not address permit requirements that came into effect after the subdivision plan was filed. (R.R. at 267a-68a.)

Although not cited in this letter, Heritage relied on section 508(4)(i) of the MPC, which states as follows:

From the time an application for approval of a plat, whether preliminary or final, is duly filed as provided in the subdivision and land ordinance, and while such application is pending approval or disapproval, no change or amendment of the zoning, subdivision or other governing ordinance or plan shall affect the decision on such application adversely to the applicant and the applicant shall be entitled to a decision in accordance ...

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