July 12, 2012
ANN M. FELDMAN, APPELLANT
BOARD OF SUPERVISORS OF EAST CALN TOWNSHIP, PROGRESSIVE HOUSING VENTURES, LLC, J. LOEW & ASSOCIATES, INC., AND BOROUGH COUNCIL OF THE BOROUGH OF DOWNINGTOWN
The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge
Submitted: May 14, 2012
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION BY JUDGE McCULLOUGH
Ann M. Feldman (Objector) appeals from the June 27, 2011, order of the Court of Common Pleas of Chester County (trial court) which affirmed the order of the Board of Supervisors (Board) of East Caln Township (Township) granting the conditional use application of Progressive Housing Ventures, LLC and J. Loew & Associates, Inc. (together, Developers) to construct multi-family dwelling units on land in the Township that is owned by the Borough of Downingtown (Borough). We reverse.
The subject of the application is a 23-acre property in the Township composed of parcels 40-1-23, 40-1-23.1, and part of 11-4-23 (Property).*fn1
Developers propose to build 70 multi-family dwellings on the 7-acre parcel, 40-1-23, located in the Township‟s R-4 Low Density Cluster Residential zoning district. Parcel 40-1-23 is currently used by the Borough as a compost facility and for storage, and it is not, and has never been, used for public park purposes. Parcels 40-1-23.1 and 11-4-23 are currently used for public park purposes. A significant amount of the Property is currently impacted by environmental contamination, and Developers propose remediation of most of the Property. Through an easement from the Borough, Developers also propose to use the adjacent Borough parkland on parcel 40-1-23.1 as open space and for the management of stormwater discharge associated with the development including Fourth Lake, a pond located on the parcel.
Developers and the Borough entered into an agreement of sale (Agreement), with subsequent amendments, to convey title to parcel 40-1-23 and to grant Developers an easement on parcel 40-1-23.1 subject to the Township‟s approval of the proposed development. (Reproduced Record (R.R.) at A-1184 -- A-1203; A-1377 -- 1388.)*fn2 To that end, Developers filed the instant application for conditional use approval of the multi-family dwellings use on parcel 40-1-23. (Id. at A-1293 -- A-1298.)*fn3 Objector was granted party status and hearings before the Board ensued.
Prior to the filing of the conditional use application, a proposed amendment to the Township‟s Zoning Ordinance was under consideration that would permit a multi-family dwelling use as a conditional use in the Township‟s R-4 zoning district. On June 30, 2010, the Board enacted Ordinance No. 2010-01, amending section 225-7 of the Township‟s Zoning Ordinance to allow multi-family dwellings as a conditional use in the R-4 zoning district.*fn4
On July 5, 2010, the Board issued a decision granting Developers‟ application for a conditional use and imposing a number of conditions on development. (R.R. A-43 -- A-55.) Specifically, the Board concluded:
[T]he desire of the Township [is] entirely consistent with the stated desire of objectors, i.e., that the existing public park use of Tax Parcel No. [40-1-23.1] (subject to possible future development of a small portion upon Orphans‟ Court approval) and the part of Tax Parcel No. 11-4-23 located in [the] Township, be maintained. Approval of the revisions to the R-4 Zoning District and this Application will add two distinct and significant protections to the use of such ground: 1) zoning open space requirements relative to development of 70 dwelling units on the unrestricted 7- acre parcel [40-1-23], and 2) deed restrictions prohibiting future development of such parkland and providing for its proper maintenance..
As to the 7- acres of unrestricted land, the Board finds it to be in the best interest of the Township and its residents that the existing compost/storage use of such land, owned and operated by a tax exempt political subdivision, be converted into an environmentally remediated, tax revenue generating property, providing affordable housing within the Township. (Id. at A-50 -- A-51) (emphasis in original).
In addition, as a condition of approval, the Board stated that "[i]f required, the Borough shall obtain the removal of any Project 70*fn5 deed restrictions affecting the proposed development of the Property." (R.R. at A-53.) Objector appealed the Board‟s decision and the trial court affirmed. Objector then filed the instant appeal. *fn6
In this appeal, Objector claims that the Board erred in granting the conditional use application for three reasons: *fn7 (1) Developers did not satisfy the requirements of the Township‟s Zoning Ordinance; (2) the open space and storm water management requirements were met through an easement on adjacent Borough parkland which requires court approval under the DDPA and the Public Trust Doctrine; and (3) the procedure was defective and violated section 917 of the Municipalities Planning Code (MPC).*fn8
Objector first claims that the Board erred in granting the conditional use application because Developers did not satisfy the objective requirements of the Township‟s Zoning Ordinance. More specifically, Objector claims that the Board erred in determining that Developers met the open space and stormwater management requirements of the Ordinance through the use of parcel 40-1-23.1. We agree.
It is well settled that municipalities of the Commonwealth possess only those powers expressly granted to them by the General Assembly. In re Appeal of Maibach, LLC, 26 A.3d 1213 (Pa. Cmwlth. 2011). Section 909.1(b)(3) of the MPC*fn9 grants a municipality‟s governing body authority to render final adjudications on applications for conditional uses. A conditional use is one to which the applicant is entitled provided that the specific standards of the zoning ordinance are met. In re Thompson, 896 A.2d at 670. An applicant seeking a conditional use must show compliance with the express standards of the zoning ordinance that relate to the specific conditional use. Id. If the applicant demonstrates compliance with the zoning ordinance, the governing body must grant the application unless objectors introduce sufficient evidence that the proposed use will have a detrimental effect on the public health, safety, and welfare. Id.*fn10
However, a governing body may impose reasonable conditions on the
grant of a conditional use. Section 913.2 of the MPC;*fn11
Levin v. Board of Supervisors of Benner Township, Centre
County, 669 A.2d 1063 (Pa. Cmwlth. 1995), aff‟d, 547 Pa. 161, 689 A.2d
224 (1997). A board is permitted to impose reasonable conditions on
the use of a property to mitigate any potential adverse impacts from
the proposed use. Edgmont Township v. Springton Lake Montessori
School, 622 A.2d 418 (Pa. Cmwlth. 1993). Thus, "[t]he proper function
of conditions is to reduce the adverse impact of a use allowed under a
special exception, not to enable the applicant to meet his burden of
showing that the use which he seeks is one allowed by the special
exception.." Blancett-Maddock v. City of Pittsburgh Zoning Board of
Adjustment, 6 A.3d 595, 601 (Pa. Cmwlth. 2010) (citation omitted).
In order to meet the open space and stormwater management requirements of the Township‟s Ordinance, the Borough (Seller) conveyed an easement in parcel 40-1-23.1 to Developers (Buyer) in the Agreement. The Agreement identifies parcel 40-1-23.1 as the "Easement Properties" and states, in pertinent part:
[B]uyer intends to construct stormwater management facilities and grading changes serving its proposed development on the Easement Properties, and Buyer may also need to construct a secondary driveway on the Easement Properties providing access to Norwood Road, which secondary driveway would be dedicated to Seller. Buyer may also use the Easement Properties to mitigate the loss of wetlands on the Property as a result of Buyer‟s development. In addition, the Easement Properties will serve as a natural buffer. Accordingly, Buyer‟s obligations hereunder are conditioned upon Buyer and Seller entering into a mutually acceptable easement and restriction agreement permitting Buyer to construct its proposed stormwater management, grading, road improvements and wetlands mitigation areas on the Easement Properties; provided, however, that the location and scope of such easements shall be designed, defined and placed, to the extent feasible, so that such easements will not materially impair the development of the Additional Property in the manner contemplated by the parties in the First Amendment. (R.R. at A-1185, 1190.)
In turn, the First Amendment to the Agreement identifies parcel 40-1-23.1 as the "Additional Property," and purports to sell that parcel to Developers. (R.R. at A-1378.) However, the Second Amendment executed by the parties states, in relevant part:
[T]he parties agree that the Property and the Additional Property will exclude the area . containing the ponds, millrace, Victims‟ Memorial, public parking areas, trail areas, and surrounding open space/park areas (the "Park Property"). The Park Property will, therefore, be retained by Seller and will not be conveyed to Buyer. . Seller agrees to grant to Buyer, at Closing, such free, uninterrupted perpetual and/or temporary (as applicable) easements over, under and through the Park Property as Buyer reasonably requires in order to (i) construct any improvements and perform any work on the Park Property shown on or required by the Conditional Use Approval, approved final subdivision and/or land development plans, or by other governmental approvals, including any environmental remediation, (ii) construct or extend utilities to serve the development of all or any part of the remainder of the Property, Additional Property or Option Property, (iii) discharge storm water into the ponds, and (iv) maintain such improvements to the extent of any ongoing maintenance responsibility of the Buyer or of any community association organized to maintain common amenities of Buyer‟s development.
(Id. at A-1385.)
As noted above, section 20(b) of Act 70 specifically provides that "[n]o lands acquired with funds made available under this act shall be disposed of or used for purposes other than those prescribed in [Act 70] without the express approval of the General Assembly.." 72 P.S. §3946.20(b). In addition, section 20(e) of Act 70 states that "[t]he Commonwealth of Pennsylvania may specifically enforce the provisions of this requirement by application to a court of equity or may invoke other remedies deemed appropriate under the circumstances." 72 P.S. §3946.20(e). This Court has repeatedly held that only the Commonwealth, and not private citizens, has the authority to enforce the restrictions relating to the use of parcels purchased with Act 70 funds for recreation, conservation, and historical purposes. White v. Township of Upper St. Clair, 799 A.2d 188, 199 (Pa. Cmwlth. 2002); Humphreys v. Cain, 477 A.2d 32, 35 (Pa. Cmwlth. 1984); Quirk v. Schuylkill County Municipal Authority, 422 A.2d 904, 905 (Pa. Cmwlth. 1980).
The record in this case does not show that the General Assembly
granted the Borough the authority to convey an encumbrance to
Developers to use parcel 40-1-23.1 to meet the open space and
stormwater management requirements of the Township‟s Ordinance, or to
empower Developers to construct or maintain the facilities,
improvements, road improvements, or driveways related thereto. Thus,
the uses to which parcel 40-1-23.1 is subject under the Agreement and
its amendments are ultra vires and without effect in the absence of
prior approval by the General Assembly. See Deitrick v. Northumberland
County, 846 A.2d 180, 186 (Pa. Cmwlth.), appeal denied, 579 Pa. 695,
856 A.2d 836 (2004) ("[I]t is undisputed that the Parcel was
originally acquired by the Court with [Act 70] funds and that the
County did not obtain the express approval of the General Assembly
prior to the first public auction of the Parcel. The County violated
language of [Act 70] and, on that basis alone, the Chancellor
committed no error of law or abuse of discretion in declaring the
first auction a nullity.") (footnote omitted).*fn12
As the Pennsylvania Attorney General‟s Office explained 40 years ago:
[R]egarding the authority of the Supervisors of Hazle Township, Luzerne County, to grant a right-of-way over land of the township, acquired under [Act 70], . [t]he proposed right-of-way will have a width of 85 feet and will contain 8.27 acres of land, to be used by the Pennsylvania Power and Light Company.
Section 20(b) of [Act 70] does authorize exploitation of the natural resources of certain public utility uses, provided that such uses are under "reasonable regulations . consistent with the primary use of such lands for "recreation, conservation and historical purposes.‟"
Court adjudications and opinions of this department interpreting [Act 70] have held that its primary purpose is to provide and preserve areas acquired under its provisions for recreation, conservation and historical purposes.
The liberalizing of uses of these land areas for purposes other than those authorized by the Act would naturally tend to thwart, defeat, and destroy the results expressly desired by the General Assembly.
[I]t is the opinion of this department that the Supervisors are unauthorized under present law to grant an 85 foot wide electric power line right-of-way over land of the township purchased with [Act 70] funds.
Op. Pa. Att‟y Gen. 102 (1972) at 21-22.
As a result, the Board erred in granting the conditional use
application and imposing a condition that, "[i]f required, the Borough
shall obtain the removal of any Project 70 deed restrictions affecting
the proposed development of the Property." (R.R. at A-53.) As outlined
above, the removal of the Act 70 deed restrictions is required prior
to the Developers‟ use of parcel 40-1-23.1 to meet the open space and
stormwater management requirements of the Township‟s Zoning Ordinance.
In addition, the removal of the Act 70 deed restriction requires an
enactment by the General Assembly, an exercise of legislative
discretion not subject to executive or judicial review.*fn13
Thus, the instant matter is distinguishable from those cases
in which a reasonable assurance of compliance with an ordinance‟s
requirements is sufficient to support the grant of a special exception
or a conditional use because there is no indication in this record
that parcel 40-1-23.1 can ever be used as currently proposed. See
Broussard v. Zoning Board of Adjustment of City of Pittsburgh, 589 Pa.
71, 84, 907 A.2d 494, 502 (2006) ("[W]e conclude that, where the plan,
as submitted, addresses all of the ordinance‟s prerequisites for the
special exception sought, and reasonably shows that the
property owner is able to fulfill them in accordance with the
procedures set forth by the zoning code (as reasonably interpreted by
the board), a reviewing court should not reverse the grant of such an
exception on the sole basis that some of the items described in the
plan may be completed at a later date.") (citation omitted); In re
Appeal of McGlynn, 974 A.2d 525, 536 (Pa. Cmwlth. 2009) ("[I]n
[Broussard], the Court distinguished between an applicant who merely
promises to bring a non-compliant zoning plan into compliance and an
applicant who reasonably shows the ability to fulfill requirements. No
abuse of discretion will be found in granting conditional approval to
the latter. In this case, the Board could properly conclude that
Applicant reasonably showed the ability to fulfill the site plan
As alleged by Objector in this appeal, the record does not support the Board‟s determination that Developers can satisfy the open space and stormwater management requirements of the Township‟s Zoning Ordinance as currently proposed. As a result, the Board erred in granting Developers‟ conditional use application. Blancett-Maddock, 6 A.3d at 602 ("[H]ere, the proposed cell tower was found not to satisfy the terms of the Zoning Code, and there is no support in the record for the Zoning Board‟s finding that T-Mobile can cure these "minor‟ deficiencies by revising its site plan to relocate the cell tower and widen the access road. In short, the Zoning Board erred by using conditions to make T-Mobile‟s unsatisfactory [special exception] application satisfactory. Accordingly, we must reverse.").*fn15
Accordingly, the trial court‟s order is reversed.*fn16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ann M. Feldman, : Appellant : v. : : Board of Supervisors of East Caln : Township, Progressive Housing : Ventures, LLC, J. Loew & Associates, : Inc., and Borough Council of The : Borough of Downingtown :
No. 1370 C.D. 2011
AND NOW, this 12th day of July, 2012, the June 27, 2011, order of the Court of Common Pleas of Chester County, is reversed.
PATRICIA A. McCULLOUGH, Judge