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

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


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 validly supported by only one of several objections to a substantive and objective requirement. Id.

As noted above, Section 1208B.2.a. of the Zoning Ordinance provides that "[a] minimum of twenty-five (25) percent of the gross tract area shall be devoted to common open space." RR at 257a. The foregoing minimum open space requirement is an objective requirement because it provides a sufficient standard, a simple ratio, by which to judge compliance. Robal Associates, Inc. In addition, the foregoing minimum open space requirement is substantive because it relates to a minimum area. Id. As a result, the Board‟s rejection of the Plan is valid if the objective and substantive minimum open space requirement of Section 1208B.2.a. is not met. Id.

Section 1211B.12 of the Zoning Ordinance provides that, in the PRD II Zoning District, "[d]evelopment shall also comply with Sections . 12[11.4], Stormwater Control.." RR at 259a. In turn, Section 1211.4.e. and f. provides that "[t]he design and construction of all storm drainage facilities and stormwater systems shall be subject to the approval of the Township Engineer.", and that "[a]ll stormwater control and management facilities shall be designed in accordance with Township Ordinance No. 473." Id. at 269a.

Moreover, Section 1208B provides that "[t]he term "open space‟ shall be construed to mean "common open space‟ as defined in Appendix 1." RR at 257a. In turn, Appendix I defines "common open space" as follows:

A parcel or parcels of land or an area of water, or a combination of land and water within a land development or subdivision, designed and intended for the use and enjoyment of residents or occupants thereof, not including streets, off-street parking areas and areas set aside for public facilities.

Zoning Ordinance Appendix I.B. at I-2 (emphasis added).

The gross tract area of the parcel is 4.22 acres. Accordingly, a minimum of 1.055 acres of open space is necessary under the minimum open space requirement of Section 1208B.2.a. of the Zoning Ordinance. However, as also indicated above, 0.18 acres of the 1.17-acre open space area consist of above ground stormwater management facilities, and 0.11 acres of the 1.17-acre open space area consist of below ground stormwater management features which may restrict the installation of above ground features. Thus, if the foregoing stormwater management facilities and features are deemed to be "public facilities", and thereby excluded from the area set aside for open space use under the definition of "common open space" in AppendiX I.B. of the Zoning Ordinance, the minimum open space area requirement of Section 1208B.2.a. has not been met, and the Plan was properly rejected by the Board. Robal Associates, Inc. Although the Zoning Ordinance does not define the term "public facilities", Appendix I.A. provides that "[t]erms not defined herein shall have the meaning customarily assigned to them." Appendix I.A. at I-1. In In re Appeal of the Marietta Gravity Water Company, 10 D. & C. 4th 50 (1990), aff‟d, 602 A.2d 903 (Pa. Cmwlth. 1992), a township board of supervisors granted approval for the expansion of an apartment complex in the PRD district served by on-site wells that were operated under a public water supply permit issued by the Pennsylvania Department of Environmental Resources (DER). The township‟s PRD ordinance required that "public facilities" be supplied to each building in such a development, and defined "public facilities" as a system that was available for service to the public and that was approved by DER. A private water company appealed the approval to the trial court arguing that the use of the on-site wells which only served the apartment complex did not qualify as "public facilities" under the PRD ordinance.

In considering the meaning of the term "public facilities" as used in the PRD ordinance the trial court stated the following, in pertinent part:

[I]n considering the ordinary meaning of the word "public" when used as a noun, this court may look to dictionary definitions and common usage. Relevant dictionary definitions of the noun "public" are as follows:

"(1) The general body of mankind, or of a nation, state or community; . also, a particular body or aggregation of people,.." Webster‟s New International Dictionary, unabridged (2d ed.1942).

"(2) The people as a whole: populace. (3) A group of people having common interests or characteristics." Webster‟s New Collegiate Dictionary (1981).

Both dictionary definitions make clear that the word "public" means a particular group of people either in a community or with common interests or characteristics. The 1000 individuals who will live in the 500 homes comprising the planned residential development . are, in this court‟s opinion, unquestionably a particular aggregation of people with common interests or characteristics and a sense of community, and are therefore "the public" within discrete geographic boundaries of the 88 acres constituting [the planned residential development].

Based upon the foregoing discussion of the ordinary meaning of "the public", it cannot be said that the township‟s interpretation of the PRD ordinance is "clearly erroneous." To the contrary, the township‟s interpretation is the strongest and most relevant evidence that the Board of Supervisors intended to permit on-site water supply systems under the PRD ordinance. In fact, the rule requiring that great weight should be given to an administrative interpretation should be applied even more staunchly in the present case since the interpretation is not that of an administrative agency construing the action of a separate legislative body, but rather, is an interpretation of the enactment by the legislative body itself. In this court‟s opinion, the Board of Supervisors‟ interpretation of the PRD ordinance should clearly prevail over other artificial rules of construction or tangential indicia of intent.

In re Appeal of the Marietta Gravity Water Company, 10 D. & C. 4th at 56-57. Based on the foregoing, the trial court denied the private water company‟s appeal and affirmed the board‟s decision. See id. at 57-58.*fn8 *fn9

Likewise, the Board‟s determination that the stormwater management facilities and features located in the open space area of the Plan constitute "public facilities" under the Zoning Ordinance should prevail in this case. Section 1211.4.a. of the Zoning Ordinance provides that "[t]he storm drainage system for a PRD shall be designed and constructed so as to minimize erosion and flooding, using as necessary drainage easements, swales, catchment basins, [and] silt traps . so as to minimize runoff." RR at 268a. Thus, the stormwater management facilities and features in the Plan that are contained in and that serve the housing development must also be designed and constructed to prevent damage from increased runoff to the surrounding properties. Indeed, Applicant‟s engineer testified regarding how the stormwater management facilities and features were designed to prevent such increased flow and damage to the property in the development and in the neighboring areas of the Township. See id. at 48a-50a.*fn10

The fact that the stormwater management facilities and features located in the open space area of the Plan are not designed to serve either the public at large or the Township at large does not preclude a determination that they are "public facilities" under the Zoning Ordinance. In re Appeal of the Marietta Gravity Water Company. The group of people to be served by the facilities and features, both within and without the proposed planned residential development are "[u]nquestionably a particular aggregation of people with common interests or characteristics and a sense of community, and are therefore "the public‟ within discrete geographic boundaries of the [neighboring areas of the Township and the planned residential development]." Id., 10 D. & C. 4th at 56. Thus, the Board did not err in determining that the stormwater facilities and features constitute "public facilities" under the Zoning Ordinance. Id.

Because the stormwater management facilities and features located in the open space area of the Plan constitute "public facilities", their area is thereby excluded from the area set aside for open space use under the definition of "common open space" in Appendix I.B. of the Zoning Ordinance, and the minimum open space area requirement of Section 1208B.2.a. has not been met.*fn11 As a result, the Plan was properly rejected by the Board, and the trial court erred in granting Applicant‟s appeal and directing that the Plan may proceed as if approved subject to a number of conditions. Robal Associates, Inc.*fn12

Accordingly, the trial court‟s order is reversed and the Board‟s decision is reinstated.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Harvin and Harvin : Properties, LLC v. The Board of Commissioners : of Upper Chichester Township, Appellant

No. 1189 C.D. 2010

ORDER

AND NOW, this 2nd day of December, 2011, the order of the Court of Common Pleas of Delaware County, Civil Division, dated May 26, 2010 at No. 08-13298, is REVERSED, and the decision of the Board of Commissioners of Upper Chichester Township dated September 2, 2008, is REINSTATED.

JAMES R. KELLEY, Senior Judge


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