The opinion of the court was delivered by: Judge Simpson
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JOHNNY J. BUTLER, Judge.
We granted reconsideration in this land use appeal to again analyze whether the Board of Supervisors of Charlestown Township (Board) erred in denying the application of Robal Associates, Inc. (Robal) for tentative approval of a Planned Residential Development (PRD) and for associated conditional uses. As part of our grant of reconsideration, we withdrew our prior opinion, which affirmed the decision of the Court of Common Pleas of Chester County (trial court). Essentially, the trial court determined that the Board's denial decision was substantially incomplete, and it remanded the matter to afford Robal an opportunity to revise its plans and to allow the Board to more fully address numerous issues.
Much of the background in this hotly contested litigation is set forth in our prior opinion and can be summarized as follows. In April, 2004, Robal filed an application with the Board seeking tentative approval of a PRD. The PRD would include 10 single family detached dwellings and 40 townhouses on approximately 30 acres of unimproved land (property).
After hearings on the PRD commenced, Robal filed an application for conditional uses to permit the construction of multiple uses associated with the PRD in high ground water areas and open space. Thereafter, the Board combined the hearings with respect to both applications.
Ultimately, in June, 2007, the Board rendered its decision rejecting the tentative plan. The Board found that at the time of the PRD application the property was located in the PRD-1 zoning district. The zoning was thereafter changed, and that it is now located in the Farm Residential FR-1 zoning district. The Board applied the prior zoning provisions to the application.
The property is bound by two access ways. Sycamore Lane is to the northeast and Broadwater Lane is to the southwest. Sycamore Lane is a cul-de-sac street as defined by the Township Zoning Ordinance (Ordinance). Broadwater Lane is a private lane. Although it contains 30 acres, the property is shaped in a peculiar cross-like configuration. The property is predominately wooded, and the northeastern portion of the property adjacent to Sycamore Lane contains areas of high ground water. The property is surrounded by 14 adjacent residential properties.
Robal proposed accessing the PRD by construction of Road A and Road C, which both enter onto Sycamore Lane. Robal proposed to widen Sycamore Lane by 10 feet along the property's frontage to a width of 24 feet.
The Board made findings of fact and conclusions of law with respect to the applications. The Board determined that although Robal presented several revisions to its original PRD, and despite multiple issues being raised, Robal failed to comply with the objective criteria of the Ordinance for PRD approval. Notwithstanding the unusual configuration of the property, Robal could have complied with the Ordinance requirements. Robal instead chose to maximize the number of units at the expense of compliance with the Ordinance.
Significant for current purposes, the Board determined that the PRD plan did not contain sufficient "open space" as required by Section 605 of the Ordinance. Specifically, the tentative plan did not set aside at least 50% of the land for qualifying open space. Bd. Op., Findings of Fact (F.F.) Nos. 39-52. In this regard, the proposed sledding hill near several residential buildings and roads did not qualify as open space. Removing 1.718 acres representing the areas of grading for buildings and roads from open space calculations reduced to under 50% the area devoted to qualifying open space. F.F. Nos. 34, 50-52.
Further, the tentative plan did not devote at least 25% of open space to acceptable active recreation and associated facilities, an open space performance standard set forth in Section 1504.E of the Ordinance. F.F. Nos. 60-82. The open space performance standard was not met because the proposed Frisbee Golf Course and the sledding hill near the residential buildings did not demonstrate safe and acceptable active open space.
Also, the Board found that proposed Road A and Road C were structures as defined in the Ordinance, and would violate a perimeter setback requirement. Additionally, the Board concluded that Robal failed to provide for adequate stormwater controls. As to Robal's conditional use applications, the Board denied them without detailed fact-finding. It concluded that because the conditional uses were proposed in conjunction with the PRD, and the PRD did not meet objective requirements of the Ordinance, the proposed conditional uses could not be considered to be in compliance.
On appeal, the esteemed trial court issued an extensive opinion and an order affirming in part, reversing in part and remanding to the Board for proceedings on both the PRD application and the conditional use applications. Generally, the trial court noted the contentious nature of the process,*fn1 and the lack of findings supporting the Board's disposition of many issues.
Of particular concern for our review, the trial court addressed the open space issues. It observed that the deficiencies noted by the Board were driven by its belief that the property is being asked to accommodate more housing units than are reasonably feasible at the expense of required open space and active recreation facilities needed to serve the PRD's residents. As to the 50% minimum open space requirement, the trial court determined that the Ordinance does not allow "[c]ut and fill other than in association with any uses related to [open space]" to be counted toward the minimum. Thus, cut and fill related to housing units, such as cut and fill associated with the "sledding hill," need not be counted toward the open space minimum. Because the Board's position on this point was consistent with the unambiguous Ordinance provisions, the trial court deferred to the Board. Tr. Ct., Slip Op., 9/26/08, at 26. The significance of this determination is the trial court agreed that by not counting the area of cut and fill associated with housing units as open space, the tentative plan did not meet the 50% minimum open space requirement.
Regarding the 25% open space performance standard, the trial court acknowledged the findings pertaining to the "sledding hill" immediately to the rear of housing units: it was not designed as a recreational use, but rather was created from grading required to permit construction of housing units; and, it is located in such close proximity to those units as to create a safety hazard. Tr. Ct., Slip Op., 9/26/08, at 28-29. After discussing this and other open space performance standard issues, the trial court stated, "On this record, however, I cannot conclude that the Board exceeded its authority or abused its discretion in making these findings and conclusions, nor may I substitute my judgment for the Board's." Tr. Ct., Slip Op., 9/26/08, at 29. The significance of this determination is the trial court agreed that at least the "sledding hill" did not meet open space performance standards.
The trial court thoroughly discussed all issues raised by the parties, including the design and placement of roads, sufficiency of stormwater controls and the conditional use application. It ruled either that the Board erred or that there were insufficient findings to support the Board's decision on these issues. The trial court reasoned that the Board's failure to make findings and conclusions and the failure to describe the criteria it relied upon in making certain determinations violated Section 913.2(b)(1) of the Pennsylvania Municipalities Planning Code,*fn2 53 P.S. §10913.2(b)(1) (when application for conditional use denied, governing body shall attach to decision findings of fact and conclusions based thereon) warranting a remand. The trial court further stated, "If the ...