The opinion of the court was delivered by: Senior Judge Feudale
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE BARRY F. FEUDALE, Senior Judge
OPINION BY SENIOR JUDGE FEUDALE
Rapho Township (Township) appeals the October 5, 2010 order of the Court of Common Pleas of Lancaster County (trial court) sustaining Maibach, LLC's (Applicant) appeal of a decision of the Rapho Township Board of Commissioners (Board). The Board granted Applicant's conditional use application, subject to 98 conditions, to operate an ethanol production facility in the Township. The trial court determined that Condition 66, below, constituted an impermissible impact fee under the Pennsylvania Municipalities Planning Code (MPC).*fn1 On appeal, the Township alleges that the Condition was not an impact fee but a valid exercise of the Board's discretion. The Township further contends the trial court should have imposed a similar condition to which Applicant agreed during negotiations, taken additional evidence, or remanded the matter to the Board for additional evidence. We affirm.
Applicant owns 34 acres of land in the Township located at the intersection of Maibach Lane and Route 230; the property is zoned industrial. Applicant currently operates a propane gas storage/distribution facility on the property. In 2009, Applicant filed a conditional use application seeking approval to construct an "agri-energy center" on its property. The "agri-energy center" would process energy beets into ethanol gas and the residual waste into electricity and fertilizer. Given its location, the Borough of Mount Joy Fire Department (Fire Department) is the first responder to emergency calls for the property.
The Board held hearings on the application in June and July 2009. During this time, Applicant, the Township, and the Fire Department negotiated a number of conditions to be imposed if the Board granted Applicant's application. Later, Applicant and the Township negotiated a more comprehensive list of conditions, which the parties agreed Applicant would submit to the Board. The relevant condition to this appeal provided (with emphasis added):
Applicant shall, in recognition of the on-going cost to provide emergency response services, pay one-quarter cent ($0.0025) for each gallon of ethanol produced at the facility to an emergency response fund to be created by the Township beginning on the date 36 months after the Township issues the first occupancy certificate. The Township shall not use less than 75% of the emergency response fund for the purchase of equipment or required training for [the Fire
Department] or, if the Township establishes a police department, contracts for police services, and/or becomes part of a regional police department, the Township may not use more than 23% of such a fund to defray the costs of police protection services and equipment relating to the Property and shall provide 2% to the Township Emergency Management Agency. Applicant shall make payment of the contribution to the Township on a quarterly basis, on or before the 20th day of January, April, July, and October for the prior calendar quarter. If the Township imposes a real estate tax in the future, the amount of the contribution required by this Condition shall be decreased by the amount which Applicant pays to the Township in real estate taxes. (Trial Ct. Op.,10/5/10, at 9).
Applicant submitted the agreed-upon conditions to the Board, which granted Applicant's conditional use application. The Board did not impose the above condition which the parties negotiated. It imposed Condition 66 as follows:
Applicant shall, in recognition of the ongoing cost to provide emergency response services and to address other issues impacting the general public infrastructures of the Township from the project, pay one-half cent ($0.0050) for each gallon of ethanol produced at the facility to the Township beginning on the date 48 months after the Township issues the first occupancy certificate. The funds shall be administered by the Township. Applicant shall file a quarter-annu[a]l report with the Township identifying the number of gallons of ethanol produced at the facility and the total amount of ethanol shipped from the facility and make payments of the contribution on a quarterly basis on or before the 30th day of January, April, July, and October for the prior calendar quarter. The quarter-annual report shall also be filed on the same dates. If the Township imposes a real estate tax in the future, the amount paid in real estate taxes for the Agri-Energy Center shall be reduced from the payments out of the one-half cent ($0.0050) per gallon charge. (Emphasis added). (Id. at 2).
Thus, the parties' negotiated condition and the Board-imposed condition differ in that the Board 1) increased the price per gallon from a quarter cent to a half cent, 2) evidenced an intent to use the funds for expenses other than those associated within on-going emergency response services, 3) deleted the requirement that the Township use at least 75% of the funds for the purchase of emergency response equipment and/or training, 4) deleted the restriction that not more than 23% of the funds be used to defray the costs of police protection services in the event the Township establishes its own police department or becomes part of a regional force, and 5) deleted the requirement that 2% of the funds be provided for the Township's Emergency Management Agency.
Applicant appealed Condition 66 to the trial court seeking an order striking the Condition or modifying it on the basis that the MPC prohibits impact fees unless the governing body has passed an ordinance permitting such fees.
Applicant further maintained the record did not support the Board's imposition of a half-cent per gallon fee. The Township and the Fire Department intervened.
The trial court sustained Applicant's appeal and struck Condition 66 as an impact fee. It rejected the Township's and Fire Department's assertion that the Condition was an exercise of the Board's power to impose reasonable conditions upon approval of conditional use applications. The court noted that the Condition was to be placed in the Township's general fund and was not for site- specific improvements. The latter observation ...