IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
September 28, 2011
THE PIPER GROUP, INC., CHARLES E. SIGETY, KATHARINE S. SIGETY, NERO ENTERPRISES, SIGETY TRUST C/O TRUSTEES CHARLES BIRGE SIGETY AND KATHARINE K. YON, PIPERLANDS PROPERTIES, L.P., 110 DARK HOLLOW ROAD, LLC., ROBERT G. SIGETY, CORNELIUS E. SIGETY, ELIZABETH D. SIGETY, AND ROBERT G. SIGETY, AS TENANTS BY THE ENTIRETIES AND ROBERT G. SIGETY GRAT C/O TRUSTEE CORNELIUS E. SIGETY, APPELLANTS
BEDMINSTER TOWNSHIP BOARD OF SUPERVISORS AND BEDMINSTER TOWNSHIP, APPELLEES
Appeal from the Order of the Commonwealth Court at No. 1824 CD 2009 dated March 12, 2010, Reconsideration Denied May 10, 2010, Affirming the Order of the Bucks County Court of Common Pleas, Civil Division, at No. 07-03457-29-5 dated August 27, 2009
The opinion of the court was delivered by: Mr. Justice Baer
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
ARGUED: May 11, 2011
Appellants, the Piper Group, et al.,*fn1 filed a constitutional challenge to a 1996 zoning ordinance enacted by Bedminster Township. In support of this challenge, Piper relied on an opinion from this Court that had been announced a mere six days earlier, pertaining to the same ordinance: C&M Developers, Inc. v. Bedminster Twp. Hearing Bd., 820 A.2d 143 (Pa. 2002). In C&M, this Court invalidated the Township's ordinance because it contained certain requirements that unconstitutionally restricted a landowner's development rights. Relying heavily on C&M, Piper identified those same constitutional defects and sought permission to develop its land at a significantly higher density than would have been permissible under the invalidated ordinance. The Board of Supervisors, the trial court, and the Commonwealth Court all rejected Piper's proposed cure to the unconstitutionality and held that Piper could develop its land in accordance with the Township's alternative amended ordinance which cured the constitutional defects in the 1996 ordinance as identified in C&M and allowed increased development, but not to the extent requested by Piper. On appeal to this Court, Piper argues that the lower courts improperly denied Piper the full relief it requested. Specifically, Piper argues that the decisions below violate the Municipalities Planning Code ("MPC") and the "pending ordinance doctrine" as set forth in Casey v. Zoning Hearing Bd. of Warwick Twp., 328 A.2d 464 (Pa. 1974) and its progeny.*fn2 We disagree and therefore affirm.
The procedural history of the case is somewhat complex. On August 12, 1996, the Township adopted Ordinance 118 (the "AP Ordinance") establishing an Agricultural Preservation District (the "AP District"). The AP Ordinance, designed to preserve the prime agricultural assets of the Township, contained numerous restrictions on the development of residential properties. Three notable restrictions applied to developers who owned tracts larger than 10 acres: (1) effectively, at least 50% of that land had to be set aside for preservation of agricultural soils; (2) on the remaining buildable land, the minimum lot size for a residential property was to be one acre; and (3) that minimum one-acre buildable area could not include wetlands, lakes, or ponds (the "one good acre requirement").*fn3
On August 20, 1996, C&M Developers ("C&M") filed a "validity challenge" with the Township Zoning Hearing Board pursuant to Section 916.1(a)(1) of the MPC, 53 P.S. § 10916.1(a)(1).*fn4 C&M challenged both the agricultural set-asides and the buildable-land requirements, claiming that they unreasonably restricted C&M's right to build single-family homes. After holding twenty-nine hearings, the Board rejected the challenge and upheld the ordinance. The trial court and the Commonwealth Court affirmed, but this Court granted allocatur and reversed. We recognized the general validity of AP districts, and the specific agricultural set-aside restrictions in the AP Ordinance. We concluded, however, that the one-acre "minimum lot size requirement is an unreasonable restriction on a landowner's right to use his property and not substantially related to the Township's interest in preserving its agricultural lands." C&M, 820 A.2d at 158-159. This Court did not mandate any particular relief in the C&M case. Instead, we simply declared that the AP Ordinance was invalid.
We announced C&M on November 1, 2002. Six days later, on November 7, 2002, Piper filed a "cure challenge" with the Bedminster Township Board of Supervisors ("Board") pursuant to Sections 609.1 and 916.1(a)(2) of the MPC, 53 P.S. §§ 10609.1 and 10916.1(a)(2)*fn5 Piper challenged the "one good acre" and minimum lot size requirements that this Court had already struck down in C&M. The cure challenge consisted of a proposed new ordinance, as well as proposed development plans ("Cure Plans") in accordance with that ordinance. Piper proposed, for its own land, the construction of a total of approximately 350 units on approximately 400 total acres, with a minimum lot size of 6,500 square feet (approximately 0.15 acres) and a density of one unit per base-site acre.*fn6
On November 14, 2002, the Township held its next regularly scheduled meeting. In response to this Court's C&M decision, the Township declared the AP Ordinance invalid, and proposed to prepare a curative amendment to address the invalidity. This "declaration and proposal" procedure is authorized by Section 609.2 of the MPC, 53 P.S. § 10609.2.*fn7 On April 30, 2003, the Township enacted Ordinance 149 to cure the defects that this Court identified in C&M. Among other changes, Ordinance 149 eliminated the "one good acre" requirement, reduced the minimum lot size from one acre (43,650 square feet) to 32,000 square feet, allowed a maximum of .5 dwelling units per acre, and eliminated the building envelope requirement.*fn8
From May 12, 2003 until January 15, 2007, the Board held over 50 hearings on Piper's cure challenge.*fn9 In the midst of these hearings, the Township entered into a private settlement agreement with C&M.*fn10 On March 26, 2007, the Board issued an adjudication, along with extensive findings of fact and conclusions of law. The Board found that Ordinance 149 cured the defects identified in C&M and was reasonable because it allowed for increased building density while preserving the substantial public benefits of an AP District. At the same time, the Board rejected Piper's cure challenge, finding that it was unreasonable and unsupported in many respects.*fn11 The Board suggested that Piper's challenge may have had merit to the extent that it pointed out the same defects identified by this Court in C&M. The Board concluded, however, that Ordinance 149 provided adequate relief. Adjudication at 51, ¶ 22 ("To the extent that Piper's Curative Amendment has any merit, the site may be developed in accordance with Ordinance 149, as amended").
Piper appealed to the Court of Common Pleas of Bucks County. The trial court agreed with the Board that Piper's proposed curative ordinance was unreasonable, and that Ordinance 149 adequately cured the defects identified in C&M while maintaining a reasonable development plan. The trial court rejected Piper's argument that under Casey the court had to permit Piper to develop its land according to the full measure of its proposed plans because it filed its proposed curative ordinance prior to the Township's proposed curative ordinance. The trial court interpreted Casey's pending ordinance doctrine as granting "automatic" relief only to an original successful challenger such as C&M, and not to a subsequent "piggy back" challenger such as Piper. Tr. Ct. Op. at 10, 11. The court reasoned that the Casey rule was designed to protect the original challenger from retaliatory zoning by a local municipality, not to permit a flood of piggyback challenges the moment that an ordinance is judicially declared invalid. The court reasoned that if a judicial decision invalidates an ordinance, landowners are placed on constructive notice that the township will act to cure the defect. The court found that in the instant case, Piper was not entitled to automatic approval of the full measure of its development plans because the Township acted "quickly" to cure the defect by announcing its intention to do so at the next available public meeting.
Piper then filed an appeal to the Commonwealth Court, which affirmed based on the trial court's opinion. Piper filed a petition for allocatur with this Court, raising the following issue:
Whether the Commonwealth Court erred in allowing the Township to use a municipal cure that was declared after the cure challenge was filed as a basis to dismiss the cure challenge because the Township "acted quickly."
Piper Group, Inc. v. Bedminister Twp. Bd. of Supervisors, 10 A.3d 897 (Pa. 2010) (per curiam).
Piper argues that this case is fundamentally no different from Casey. According to Piper, Casey and its progeny hold that "a municipality cannot thwart a validity challenge to its zoning ordinance by invoking a municipal cure after the challenge is filed." Piper's Brief at 11. Piper stresses that it filed its cure challenge on November 7, 2002, one week before the Township set into place its own procedures to cure the invalidity of the AP Ordinance by adopting Ordinance 149. Piper argues that under the pending ordinance doctrine, set forth in Casey and discussed in full infra at 18-20, the Board is precluded from using Ordinance 149 to thwart Piper's cure challenge to the AP Ordinance.*fn12 Piper further contends that the lower courts' "acting quickly" standard is unsupported by either case law or the MPC. According to Piper, Section 609.2(3) of the MPC provides that the Board may ignore a landowner's challenge only if it is filed after the municipality files its own declaration and proposal. Piper complains that the lower courts have now blurred that once-clear dividing line by letting governing bodies ignore private challenges that are filed before the municipal declaration and proposal, so long as the municipality acts quickly. Piper argues that this new, ad hoc rule violates Casey and creates the potential for unchecked mischief. Piper further claims that the Legislature explicitly considered the facts of this case when deciding whether to allow a moratorium period for municipalities to consider how to respond to a court order striking down a zoning ordinance, which the Legislature ultimately rejected. Legislative Journal, 2007 session, 191st General Assembly No. 113, December 11, 2007. Indeed, Piper notes that the MPC formerly contained a moratorium provision, but it has long been repealed.*fn13
Next, Piper argues that "[t]he retroactive application of the Township's declaration on the previously filed cure challenge violates the Open Courts Clause of [Article I, Section 11] of the Pennsylvania Constitution[*fn14 ] and principles of fundamental fairness." Piper's Brief at 23. Specifically, Piper argues that because it filed its challenge at the time that it did, Piper had an accrued cause of action and a vested right to relief, which cannot be destroyed retroactively by way of the Township's later amendment. Piper asks this Court to "grant definitive relief by ordering the approval of the Cure Plans." Id. at 29.
The Township counters that that this Court may affirm even if we do not adopt or approve an "acting quickly" standard, which the Township claims was merely dicta in the trial court's opinion as adopted by the Commonwealth Court. Instead, the Township urges this Court to affirm because Casey is distinguishable given that this case is controlled by Section 609.1(c), which was adopted after our decision in Casey.
The Township observes that Section 609.1(c) was adopted in 1988 and thus did not exist when Casey was decided. It asserts that the Board did not, as Piper alleges, invoke Section 609.2(3) of the MPC to ignore Piper's challenge categorically, based upon the timing of Piper's challenge. Instead, the Township avers that the Board addressed Piper's cure challenge properly under Section 609.1(c). The Board held over fifty hearings to examine the merits of both the Township's and Piper's proposals and concluded that Piper's curative amendment was unreasonable and that Ordinance 149 cured the defects in the original AP Ordinance. See supra at 8 n.11. It further distinguishes Casey, discussed in detail infra at 18-20, where this Court sought to protect a challenger from a municipality retaliating by zoning around the successful challenger, from this case where the Township cured the flaw in the AP Ordinance by enacting Ordinance 149.
It notes that unlike the retaliatory zoning in Casey, Ordinance 149 applied to the entire AP District, including the challenger Piper's lands, such that Piper received the benefit of the cure. Township additionally observes that Piper was not the original challenger, but instead waited for C&M's legal battle to resolve before filing its proposed curative amendment. As discussed in more detail below, Township also recognizes that unlike in Casey where the municipality cured a de jure exclusionary ordinance but thwarted site-specific relief to the successful challenger, this case involves a de facto exclusion cured by severing portions of the ordinance, which, as mentioned, granted relief in the entire AP District, including Piper's lands. Finally, the Township argues that Piper's Open Courts Clause argument is waived, because Piper raised it for the first time in its brief to this Court.
Piper filed a reply brief, asserting that the Open Courts Clause argument is not waived because it is an extension of the primary issue in the case. Piper again contends that, as challenger, it is entitled to "site-specific relief" which would allow it to develop its land in accordance with the plans it submitted to the Board, subject to compliance with valid extant general regulations. According to Piper, this site-specific relief is available independent of any broader regulatory scheme, including Ordinance 149 and Piper's proposed curative amendment. Piper's Reply Brief at 11 ("Piper's curative amendment is not at issue on this appeal."). Piper submits that it is entitled to site-specific relief under section 1106-A of the MPC, 53 P.S. § 11006-A, a provision that grants trial courts the power to allow development on a challenger's land if the court determines that the challenge is valid.*fn15
Piper does not challenge the Board's exercise of discretion; rather, Piper argues that it is entitled to relief as a matter of law. Piper's arguments relate to the proper construction of the MPC, and the application of decisional law to the facts of this case. Thus, Piper raises pure issues of law, for which our scope of review is de novo and our standard of review is plenary. Commonwealth v. Wright, 14 A.3d 798, 814 (Pa. 2011). In Wright, we recently recited familiar principles of statutory construction:
[O]ur paramount interpretative task is to give effect to the intent of our General Assembly in enacting the particular legislation under review. See 1 Pa.C.S.A. § 1921 (a) ("The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions."); Nationwide Ins. Co. v. Schneider, 599 Pa. 131, 143, 960 A.2d 442, 448 (2008). Generally, the best indication of the General Assembly's intent may be found in the plain language of the statute. Martin v. Commonwealth Dep't of Transp. Bureau of Driver Licensing, 588 Pa. 429, 438, 905 A.2d 438, 443 (2006). In this regard, "it is not for the courts to add, by interpretation, to a statute, a requirement which the legislature did not see fit to include." Commonwealth v. Rieck Investment Corp., 419 Pa. 52, 59-60, 213 A.2d 277, 282 (1965). Consequently, "[a]s a matter of statutory interpretation, although one is admonished to listen attentively to what a statute says[;] [o]ne must also listen attentively to what it does not say." Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co., 567 Pa. 514, 525, 788 A.2d 955, 962 (2001) (internal quotations omitted).
Piper's primary argument is that, pursuant to Casey, the Board may not thwart, disregard, or ignore Piper's challenge, because the challenge was filed before the Township's declaration and proposal. Piper contends that the lower courts adopted an "acting quickly" standard that is unsupported by Casey and Section 609.2 of the MPC.
Before we address Piper's contentions that the "acting quickly" standard violates Section 609.2, we must first consider the applicability of Section 609.2 to this situation in the first instance. As noted above, Section 609.2(1) provides that if a municipality determines that its zoning ordinance is invalid, it shall so declare, and it shall also propose that it will take steps to cure the invalidity. Subsection (3) provides the following protection if a municipality takes this course:
(3) Upon the initiation of the procedures, as set forth in clause (1), the governing body shall not be required to entertain or consider any landowner's curative amendment filed under Section 609.1 nor shall the zoning hearing board be required to give a report requested under Section 909.1 or 916.1 subsequent to the declaration and proposal based upon the grounds identical to or substantially similar to those specified in the resolution required by clause (1)(a). Upon completion of the procedures as set forth in clauses (1) and (2), no rights to a cure pursuant to the provisions of sections 609.1 and 916.1 shall, from the date of the declaration and proposal, accrue to any landowner on the basis of the substantive invalidity of the unamended zoning ordinance for which there has been a curative amendment pursuant to this section.
53 P.S. § 10609.2(3). The first sentence of this subsection states that "upon the initiation" of a municipality's declaration procedures, the governing body need not entertain or consider a landowner's curative amendment under Section 609.1. In other words, after a municipality begins its declaration procedures, the governing body is free to focus on the municipality's cure without considering subsequently filed private challenge(s) at the same time.*fn16 Thus, in the instant case, if the Board had entirely disregarded or failed to consider Piper's cure challenge based on Section 609.2, the Board would have violated the plain language of that section, because Piper's cure challenge was filed before the Township issued its declaration and proposal.
On the other hand, the record reflects that the Board did not ignore or decline to consider Piper's cure challenge. To the contrary, the Board considered Piper's cure challenge under Section 609.1 (providing for landowner curative amendments), held over 50 hearings thereon, issued detailed findings of fact and conclusions of law, and ultimately determined that Piper's proposed amendatory ordinance was unreasonable. See supra at 8, n.11. The Board also considered the Township's curative Ordinance 149, pursuant to Section 609.1(c), and determined that it cured the defects in the AP Ordinance recognized in C&M. Finally, the Board did not entirely deny substantive relief to Piper. Instead, the Board determined that Piper could develop its land in accordance with Ordinance 149, which cured the defects in the AP Ordinance and reasonably provided for higher-density development than the AP Ordinance, while still furthering the laudatory purposes of an AP district.
In short, the Board never invoked Section 609.2(3), providing that a governmental body is not required to consider a landowner's curative amendment filed after it issues its declaration and proposal. Rather, it treated Piper's challenge as what it was: a proposed curative amendment to the AP Ordinance to be considered in accord with Section 609.1(c). After following the procedure established by the statutory section, the Board reached a supportable result. Thus, we agree with the Township that Section 609.2(3) simply has no bearing on this case.
We do note, however, that we accepted allocatur to determine whether the lower courts erred in applying an "acting quickly" standard. As set forth above, the lower courts suggested that municipalities are entitled to a moratorium period to consider the impact of a new court decision, free from a stampede of savvy landowners rushing to file piggyback challenges, so long as the municipality acts quickly. We agree with Piper that no such provision exists in the MPC. When construing a statute, we must consider not only its tones, but also its silences. Wright, 14 A.3d at 814. The MPC, by its plain terms, does not provide any such moratorium period. Indeed, the Legislature repealed such a moratorium provision, and has chosen not to re-enact it. In light of the Legislature's actions and inactions, we may not engraft or create our own moratorium period. Accordingly, we hold that the lower courts erred to the extent that they created and applied an "acting quickly" standard.*fn17
The Township argues that once the confusion of Section 609.2 and the "acting quickly" standard is stripped away, this Court may affirm based on a straightforward application of Section 609.1 of the MPC. Specifically, as noted above, the Township contends that the Board properly followed the standard procedures to evaluate a landowner's curative amendment challenge pursuant to Section 609.1. The Township further argues that on the merits, the Board did not err by rejecting Piper's proposal and approving Ordinance 149. For the reasons discussed, we agree with the Township that this case is controlled by Section 609.1, which supports the actions taken by the Board, and not by Section 609.2(3), as argued by Piper.
Although we reject Piper's claims to the extent they are premised on the language of the MPC, we must still resolve Piper's contention that the Board's actions violate Casey and its progeny. Piper argues that Casey mandates that Piper is entitled to site-specific relief, through approval of its Cure Plans in their entirety, because it filed a valid challenge to the constitutionality of the AP Ordinance before the Township filed its declaration and proposal.
In Casey, 328 A.2d 464, a landowner challenged a Warwick Township, Bucks County, zoning ordinance because it failed to provide for multi-family housing.*fn18 Two days later, the planning commission recommended adopting a curative ordinance that would provide for multifamily housing in the township, but not in the specific district where the challenger's land was located. Approximately two weeks later, the Board gave public notice of the proposed amendment. It was enacted three weeks thereafter. The zoning board then dismissed the landowner's challenge. The court of common pleas affirmed, reasoning that the amended ordinance cured the defect. The Commonwealth Court reversed, holding that the amended ordinance could not be considered because it was not pending at the time of the landowner's challenge.
This Court affirmed the Commonwealth Court, and in doing so considered the pending ordinance doctrine, as it applied to the Casey factual scenario. We noted that in the typical pending ordinance case, a landowner seeks a building permit for a particular use permitted under the current ordinance but prohibited under a new ordinance pending when the landowner files its application. In that situation, courts will look to the new ordinance, rather than the prior one, if the ordinance was "pending": i.e., if the governing body had "resolved to consider a particular scheme of rezoning and has advertised to the public its intention to hold public hearings on the rezoning" before the landowner sought the permit. Casey, 328 A.2d at 467.
In Casey, we applied those same principles of the pending ordinance doctrine from the building permit application cases to the scenario of ordinance challenges. Id. As in the building-permit situation, the new ordinance would be considered if it was pending at the time of the landowner's challenge to the ordinance. However, the converse is true as well: "we cannot allow a municipality to thwart a valid challenge to its zoning ordinance by adopting a curative provision, which was not considered or advertised prior to the time of the challenger's application." Id. at 469. The reason for the Casey rule is simple: it would be inequitable to "penalize the successful challenger by enacting an amendatory ordinance designed to cure the constitutional infirmity, but also designed to zone around the challenger." Id. at 468. Otherwise, the process as a whole would be a "farce," where the landowner who takes the time and effort to file a valid challenge is thwarted by a "retributory township." Id. at 468-469.*fn19 Instead, we held that a successful challenger is entitled to "definitive relief" so long as the challenger complies with other reasonable extant zoning restrictions.
We came to the same conclusion in Fernley v. Board of Supervisors, 502 A.2d 585 (Pa. 1985). There, a Schuylkill Township ordinance banned all multifamily housing, as in Casey. Landowners applied for an amendatory ordinance to permit construction of multifamily housing. Id. at 586. The Commonwealth Court concluded that the ban was not unconstitutionally exclusionary. Citing Girsh Appeal and Casey, this Court reversed and held that the ban was unconstitutional. On the issue of relief, the township argued that an amended ordinance, passed after the initial challenge, adequately cured the defect. The amended ordinance would permit multifamily housing on some tracts, but (again) not on the challengers' land. This Court rejected that argument, citing Casey and repeating its rationale. In keeping with Casey, we held that the challengers were entitled "to develop their property as proposed, subject to certain reasonable restrictions, regardless of how that land is currently zoned." Id. at 589.*fn20
Our decisions in both Casey and Fernley turned on the facts that (1) the challenge had substantive merit; and (2) the municipality had inappropriately attempted to cure the problem for the municipality as a whole, but not for the challenger, after the challenge was filed. We held that the challenger was entitled to definitive relief in the form of a cure of the defect, as applied specifically to the challenger's land. When we held that the challenger could "develop their property as proposed," this was another way of saying, "develop their property free of the constitutional defect on the challenger's land." Notably, we did not grant the challengers carte blanche to develop however they wished; rather, the challengers were still subject to reasonable regulation as to those aspects of development that did not involve the constitutional defect.
We explained these limits of the Casey/Fernley rule in H.R. Miller & Co. Inc. v. Board of Supervisors, 605 A.2d 321 (Pa. 1992). In that case, a landowner operated a quarry on twenty-nine acres of land. The area had been zoned residential, but the quarry was permitted as a pre-existing, nonconforming use. The landowner then purchased additional acreage in the residential area, hoping to expand its quarry operations.
The township's ordinance, on its face, permitted quarrying operations, but only in industrial districts. The landowner contended that certain industrial-district provisions, including a 500-foot setback, were so restrictive as to make quarrying de facto impossible in the township. The court of common pleas held that the industrial district restrictions did indeed create an unconstitutional de facto ban on quarrying. The court held that the defect could be cured by eliminating the 500-foot setback. Thus, the landowner was permitted to expand its quarrying operations, but only if it purchased and developed land for that purpose in the industrial zone. Relying on Fernley, the landowner argued that, as the successful challenger, it was entitled to site-specific relief in the form of expanded quarrying operations on the residential site that it currently owned.
This Court rejected the landowner's argument. We explained that both Casey and Fernley involved total, de jure, bars on permitted activity (multifamily housing).
"Since the illegality lies in the total exclusion of a legitimate use, the sole remedy is to allow the use somewhere in the municipality, and equity dictates that this opportunity fall to the successful litigant/landowner." Id. at 324-325.*fn21 We further explained that under Casey and Fernley, "the municipality could not be permitted to modify or amend its ordinance in such a way that the defect was cured but the landowner who had raised the challenge obtained no relief." Id. at 324.
In contrast, we held in H.R. Miller that where the ban is de facto, it may be possible to amend effectively the ordinance and permit the use by striking an unlawful exclusion (the 500-foot setback) without invalidating the ordinance as a whole. Id. at 325. We further explained that in such a situation, the landowner is not necessarily entitled to a windfall in the form of site-specific relief simply because he identified a curable defect in the ordinance:
It must be emphasized that the focus of the inquiry in all cases is the constitutionality of the ordinance, whether the ordinance is a proper exercise of the police power, and not whether the landowner "deserves" to be able to make a particular use of his property. If the ordinance can be "saved" from unconstitutionality by severance of an offending provision, if the ordinance as severed is constitutional, the landowner/litigant is not entitled to proceed with his proposal as a reward for having pursued the litigation. To the extent that his "success" in the litigation was limited, his relief is limited as well; he will have the opportunity to acquire and develop property in the zone where the use is permitted.
Id. at 325.
H.R. Miller teaches that courts should pay close attention to the nature of the constitutional defect when addressing the related issue of relief. In Casey and Fernley, the nature of the defect was a categorical failure to provide for multifamily housing anywhere in the municipality. The proper remedy was to provide for multifamily housing in a portion of the township and specifically on the challenger's property. In H.R. Miller, the nature of the defect was more subtle: namely, a 500-foot setback that effectively precluded a legitimate industrial operation in industrial zones. The proper remedy was to cure the specific defect by eliminating the setback on industrial zones, by severing the offending portions of the ordinance, but not to grant a windfall by specifically permitting industrial operations on the challenger's residential lands.
In the instant case, the exclusionary one-acre minimum lot requirements in the AP Ordinance unconstitutionally restricted, but did not entirely preclude, a landowner from developing residential properties. C&M, 820 A.2d 143. Piper identified those defects in its cure challenge. The proper remedy, as in H.R. Miller, was to eliminate the offending portions of the ordinance as applied to the entire AP District. H.R. Miller, 605 A.2d at 325 ("If the ordinance can be 'saved' from unconstitutionality by severance of an offending provision, if the ordinance as severed is constitutional, the landowner/litigant is not entitled to proceed with his proposal as a reward for having pursued the litigation."). Piper is entitled to this remedy not only because Ordinance 149 happened to provide it, but also because Piper filed a valid challenge to those defects before the Township filed its declaration and proposal and the cure challenge was properly evaluated under Section 609.1. See id.
At the same time, we cannot ignore that Ordinance 149 cured the defects by severing the unconstitutional aspects of the AP Ordinance, not only with respect to the AP District as a whole, but also with respect to Piper's land in particular. Thus, this case is distinguishable from Casey and Fernley. In those cases, the municipality purported to cure the de jure defect by permitting the multifamily housing in some sections of the municipality, but still attempted to deny any relief to the successful challenger. Here, in contrast, the Township cured the de facto defects in the AP District that included Piper's land. While Piper was "thwarted" from developing at the specific density that it proposed, that remedy need not be automatically provided, because it would provide a windfall beyond what is necessary to cure the constitutional defects. See H.R. Miller, 605 A.2d at 325 ("To the extent that his 'success' in the litigation was limited, his relief is limited as well; he will have the opportunity to acquire and develop property in the zone where the use is permitted.").*fn22
We also note that the full automatic, site-specific judicial relief sought by Piper is not found in the governing scheme of the MPC. Under 53 P.S. §10916.1(c)(1), a challenger electing to proceed by way of curative amendment must also supply site-specific plans regarding a landowner's proposed use of the property. Under § 10916.1(c)(5), if the governing body determines that the landowner's challenge has merit, it shall proceed according to Section 609.1. Under that section, if the governing body determines that the challenge has merit, it "shall consider" the site-specific plans, "and shall also consider" a wide variety of impacts that those plans may have on the area as a whole, including roads, sewer facilities, water supplies, housing needs, natural features, soils, slopes, wetlands, and agriculture. 53 P.S. § 10609.1(c)(1)-(5). In other words, while the governing body must cure the defect, it need not provide carte blanche development rights.
In summary, we affirm not based upon the trial court's "acting quickly" analysis, but because the Board followed the procedure under Section 609.1, which does not violate Casey and its progeny.
We may dispose of Piper's remaining arguments summarily. First, Piper contends that the township "retroactively" extinguished Piper's "vested right" to relief, in violation of the Open Courts Clause of Article I, Section 11 of the Pennsylvania Constitution, as well as notions of fundamental fairness. Piper's Brief at 23. This issue is waived, because it was not raised in the trial court. Pa.R.A.P. 302(a) ("Issues not raised in the trial court are waived and cannot be raised for the first time on appeal.").*fn23
Finally, in a reply brief, Piper argues that it is "entitled to site-specific definitive relief pursuant to Section 1006-A of the MPC." Piper's Reply Brief at 15. Assuming arguendo that this issue is preserved and fairly encompassed within our grant of review, it is meritless.*fn24 Section 1006-A provides, in relevant part:
(c) If the court finds that an ordinance or map, or a decision or order thereunder, which has been brought up for review unlawfully prevents or restricts a development or use which has been described by the landowner through plans and other materials submitted to the governing body, agency or officer of the municipality whose action or failure to act is in question on the appeal, it may order the described development or use approved as to all elements or it may order it approved as to some elements and refer other elements to the governing body, agency or officer having jurisdiction thereof for further proceedings, including the adoption of alternative restrictions, in accordance with the court's opinion and order.
53 P.S. § 11006-A(c). Far from supporting Piper's position, this subsection emphasizes the degree of flexibility and discretion that a court has in fashioning appropriate relief when it determines that a zoning challenge is valid. Under the plain language of this subsection, the court has the option to order that the challenger's use be approved in its entirety; however, this is not mandatory. Instead, the court may approve only certain portions of the challenger's plans, while subjecting the remainder to additional restrictions. Here, the trial court took this second option by approving the adoption of Ordinance 149. This approach provided appropriate constitutional relief to Piper while at the same time placing additional restrictions on Piper's described development. To the extent that Piper argues that it is automatically entitled to full approval of its plans under § 1006-A, this argument is plainly erroneous and must be rejected.
Mr. Chief Justice Castille, Messrs. Justice Saylor and Eakin, Madame Justice Todd, Mr. Justice McCaffery and Madame Justice Orie Melvin join the opinion.