The opinion of the court was delivered by: Judge Cohn Jubelirer
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Hamilton Hills Group, LLC, (Group) appeals from an order of the Court of Common Pleas of Adams County (trial court), which affirmed the Hamilton Township Zoning Hearing Board's (Board) denial of the Group's request for a special exception under the Hamilton Township (Township) Zoning Ordinance (Ordinance). The Group's application called for the construction of 325 townhouse units on a parcel of land spanning three municipalities. Under the Ordinance, the Group was required to provide for 300 square feet of open space per unit. (Ordinance § 150-34A(8).) Finding that the Group failed to introduce sufficient evidence to establish that the proposed development contained the required amount of open space within the Township's borders, the Board denied the application. On appeal, the Group argues that, when viewed as a whole, the land on which the development was to be built contains sufficient open space, and it is irrelevant that the open space is located in neighboring municipalities.
The issue presented in this case is a novel one: in the absence of explicit language in a zoning ordinance directly stating that all requirements for a special exception must be satisfied by land within the borders of the enacting municipality, may a zoning hearing board refuse to consider land located outside its jurisdiction in determining whether the developer's plan satisfies the municipality's zoning requirements? Based on the plain language of the Ordinance in question, the limited nature of the zoning power, and the constitutional boundaries within which that power is exercised, we hold that a zoning hearing board may limit itself to the consideration of land located within the borders of the enacting municipality.
Over the past five years, the Group has been planning a large development of townhouses. If brought to completion, the development will be built on an 89.37 acre parcel of land (Property) owned by the Group. The Property spans three municipalities: the Township, Berwick Township (Berwick), and the Borough of Abbottstown (Abbottstown). However, the plan calls for all 325 of the proposed townhouse units to be built on the portion of the Property located in the Township. That portion of the Property is located in an R-3 Residential District, which permits moderate density residential uses. The proposed development is not a use permitted by right in that district.*fn1 (See Ordinance § 150-33.)
On October 23, 2008, the Group appeared before the Board to apply for a special exception under Section 150-34A of the Ordinance, which permits construction of townhome developments in the R-3 district, provided certain criteria are met.*fn2 (Ordinance § 150-34A.) Of the eleven requirements set forth in Section 150-34A, only one is at issue in this appeal: Subsection 8, which states that any development with more than 12 dwelling units must contain a "designated open space or recreation area," containing a minimum of 300 feet of open space per unit.*fn3 (Ordinance § 150-34A(8).)
At the hearing, Mr. Aiello, a consultant working for the Group, testified that, when viewed as a whole, the Property contained sufficient acreage to meet the Ordinance's open space requirement. (Board Hr'g Tr. at 41, October 23, 2008.)*fn4
However, Mr. Aiello also testified that, while all the townhouses would be built in the Township, he was unsure as to how much of the open space would be located in the Township, or whether there was sufficient open space to satisfy the requirement if the parts of the Property located in Abbottstown and Berwick were not considered. (Board Hr'g Tr. at 41.) The Board accepted public comment and testimony and, after several continuances, ultimately rejected the application. In its opinion, the Board stated that the Group failed to establish that its plan contained the required amount of open space within the Township.*fn5 (Board Op., Findings of Fact (FOF) ¶¶ 11-12.) The Group appealed to the trial court.
In an order issued on October 16, 2009, the trial court affirmed the Board's decision without taking additional evidence. The trial court held that, because municipalities have no authority to exert extraterritorial control, it would have been improper for the Board to consider the portions of the Property not located within the Township's borders. (Trial Ct. Op. at 3-4.) On November 12, 2009, the Group filed a notice of appeal from the trial court's order.*fn6
As a preliminary matter, we address the Board's*fn7 argument that the Group waived its right to raise any issue before this Court by failing to file a timely petition for review as required by Pa. R.A.P. 1512; a "general statement of . . . objections" pursuant to Pa. R.A.P. 1513(d)(5); or alternatively, a Concise Statement of Errors Complained of on Appeal pursuant to Pa. R.A.P. 1925(b). We conclude that the Group did not waive its right to raise any issue.
This Court has already addressed the timeliness issue, as well as the Group's failure to include a statement of objections. On March 10, 2009, the Board filed a Motion to Quash or Alternatively Dismiss Petitioner's Notice of Appeal (Motion) on the grounds that the Group's petition for review was untimely and improper under Chapter 15 of the Rules of Appellate Procedure. On March 16, 2010, this Court denied the Motion, finding that an appeal from a trial court order is taken by filing a timely notice of appeal in accordance with Pa. R.A.P. 903, and that the Group had complied with all the requirements of Chapter 9 of the Pennsylvania Rules of Appellate Procedure.*fn8 Hamilton Hills Group, LLC v. Hamilton Township Zoning Hearing Board (Pa. Cmwlth. No. 2224 C.D. 2009, filed March 16, 2010).
The Board also argues that the Group waived its issues by failing to file a 1925(b) Statement. However, the Board is mistaken as to the purpose of Pa. R.A.P. 1925(b). Rule 1925(b) authorizes trial judges who feel they need clarification as to the basis of an appellant's appeal before drafting a Rule 1925(a) opinion to order an appellant to file a 1925(b) statement. Pa. R.A.P. 1925(b). As no such order appears in the record, the Group was under no obligation to file a 1925(b) statement.
Having concluded that the Group did not waive any issues, we turn to the merits of its appeal. The Group argues that because the Ordinance does not unambiguously state that the open space requirement must be satisfied by land located within the Township's borders, the Board was ...