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Ann M. Feldman v. Board of Supervisors of East Caln Township

July 12, 2012

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



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 ...


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