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Keith Harvin and Harvin Properties, LLC v. the Board of Commissioners of Upper Chichester Township

December 2, 2011

KEITH HARVIN AND HARVIN PROPERTIES, LLC
v.
THE BOARD OF COMMISSIONERS OF UPPER CHICHESTER TOWNSHIP, APPELLANT



The opinion of the court was delivered by: James R. Kelley, Senior Judge

Argued: October 18, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY SENIOR JUDGE KELLEY

The Board of Commissioners (Board) of Upper Chichester Township (Township) appeals the order of the Court of Common Pleas of Delaware County (trial court) granting the appeal of Keith Harvin and Harvin Properties, LLC (Applicant) of the Board‟s decision denying Landowner‟s Application for Tentative Plan Approval (Application) of a Subdivision and Land Development Plan (Plan), and directing that the Plan may proceed as if approved subject to a number of conditions. We reverse the trial court‟s order and reinstate the Board‟s decision.

Applicant is the owner of a 4.22-acre parcel located in the R-1 Low Density Residential zoning district of the Township. On March 8, 2007, the Township enacted a Zoning Ordinance creating a new Planned Residential District II (PRD II) as a permitted use in the R-1 zoning district.*fn1 On January 18, 2008, Applicant submitted the Plan to the Township for Boothwyn Estates, a PRD II housing development comprised of four twin homes and twenty-three townhomes. See Exhibit A-2. Hearings were conducted before the Board on May 1, 2008, May 29, 2008, and July 10, 2008 on the Plan. On July 10, 2008, Applicant submitted the formal Application of the PRD II Plan.*fn2 See RR at 177a-194a.

The Plan as submitted shows a street with a right-of-way of 50 feet and a cartway of 24 feet. See Exhibit A-2. At the hearings, Applicant intended to submit an amendment to the Plan to conform to the Township‟s cartway requirement of 34 feet. See RR at 127a-128a. However, no such amendment was submitted to the Township.

The open space provided for in the Plan consists of 1.17 acres. See Exhibit A-2; RR at 137a.*fn3 Applicant‟s engineer conceded that the property is not wide enough to provide recreational passive type of open space, and the limited area provided will be heavily landscaped with evergreen buffer trees. Id. at 145a. Applicant‟s counsel indicated that the use is limited by the location of a detention basin in the open space. Id. at 150a. Applicant‟s engineer also acknowledged that the open space would not be suitable for recreation due to the length and depth of the property and the width provided. Id. at 39a-42a.

In addition, the Plan specifically provided that it "[i]s subject to the review of the Fire Marshall.." Exhibit A-2. The Fire Marshall requested an emergency access road. RR at 30a-31a. No emergency access is provided in the Plan, and no amendment providing for such emergency access was submitted to the Township.

On September 2, 2008, the Board issued a decision denying Applicant‟s application.*fn4 The Board concluded, inter alia, that Applicant failed to demonstrate compliance with the minimum cartway width, the minimum open space, and the provision of public service in the form of emergency access as required by the Zoning Ordinance.*fn5 See Board Decision at 5-9.

More specifically, with respect to the open space requirement, the Board determined that of the 1.17 acres of open space on the Plan: (1) 0.61 acres of the area consist of buffer areas along the western and eastern boundaries of the parcel that contain two rows of evergreen plantings and several above ground storm management features such as "rain gardens"; (2) 0.18 acres of the area consist of above ground stormwater management facilities; and (3) 0.11 acres of the area consist of below ground stormwater management features that may restrict the installation of above ground features. Board Decision at 6-7. In addition, the Board determined that the Plan does not: have community "greens"; incorporate large existing trees into the open space; integrate the sidewalk system into the open space; use trails, picnic tables, and play apparatus into the open space. Id. at 7. Moreover, the Board determined that the definition of "common open space" in the Zoning Ordinance excludes "areas set aside for public facilities" and, as a result, there is insufficient open space in the Plan. Id.

On September 29, 2008, Applicant appealed the Board‟s decision to the trial court. On June 3, 2010, the trial court issued an order: (1) granting Applicant‟s appeal; (2) stating that Applicant‟s Tentative Approval Plan could proceed as if approved subject to a number of conditions*fn6 ; and (3) remanding the matter back to the Township for further action not inconsistent with the opinion. The Board then filed the instant appeal from the trial court‟s order.*fn7

In this appeal, the Board claims that the trial court erred in granting Applicant‟s appeal and directing that the Plan proceed as if approved subject to the conditions. More specifically, the Board contends that: (1) it did not err or abuse its discretion in denying the Application; (2) its findings in the decision denying the Application are supported by substantial evidence; (3) there were multiple substantive plan deficiencies and discrepancies in the Application that are required by the Township‟s Zoning Ordinance and the MPC; and (4) the trial court‟s decision is arbitrary, capricious, and irrational.

The Board first claims that the trial court erred in granting Applicant‟s appeal and directing that the Plan proceed as if approved subject to the conditions because it did not err or abuse its discretion in denying the Application. We agree.

An application for tentative approval must be approved if the plan complies with all objective provisions of the applicable ordinance as well as all other applicable regulations. Robal Associates, Inc. v. Board of Supervisors of Charlestown Township, 999 A.2d 630 (Pa. Cmwlth. 2010). However, the rejection of a plan will be affirmed by this Court if it is ...


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