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The Piper Group, Inc., Charles E. Sigety, Katharine S. Sigety, Nero v. Bedminster Township Board of Supervisors and Bedminster Township

September 28, 2011


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


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 ...

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