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James Defilippo, Jackson Realty v. Cranberry Township Board of Supervisors and Carsense

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


August 10, 2012

JAMES DEFILIPPO, JACKSON REALTY PARTNERS, CAMERON JONES, AND JOSEPH GRAY, APPELLANTS
v.
CRANBERRY TOWNSHIP BOARD OF SUPERVISORS AND CARSENSE, INC.

The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Argued: April 17, 2012

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY JUDGE LEAVITT

James DeFilippo, Jackson Realty Partners, Cameron Jones, and Joseph Gray (Objectors) appeal an order of the Court of Common Pleas of Butler County (trial court) that dismissed their land use appeal. Objectors challenged Cranberry Township's approval of the proposal of Carsense, Inc. to construct an automobile sales and service center. However, the trial court dismissed Objectors' appeal as moot because the plan and conditional use application ultimately approved by the Township was not the one appealed. Discerning no error, we affirm.

Carsense owns a 15-acre parcel of land located in the Planned Industrial/Commercial Zoning District of Cranberry Township. The sale and servicing of automobiles is a conditional use permitted in the commercial district, and Carsense sought to construct such a facility on its land. To that end, it

submitted a land development plan and a conditional use application. Carsense's application sought a waiver of certain zoning requirements that related to landscaping, parking and garage door placement, asserting that the waivers would allow the construction of a more aesthetically pleasing facility. In effect, Carsense sought variances.

On September 29, 2010, the Township Supervisors held a public hearing on the Carsense proposal. After Carsense made its presentation, the Supervisors opened the meeting to the public. Objectors argued that Carsense's plan did not comply with the zoning ordinance and that strict compliance would not cause Carsense a hardship. The Board deferred action on the Carsense proposal to its November meeting.

On November 4, 2010, the Supervisors approved the Carsense proposal, granting all 13 waivers of the zoning ordinance that Carsense had requested. The Supervisors adopted three resolutions: (1) No. 2010-73 granted Carsense Revised Preliminary Land Development and Conditional Use Approval;

(2) No. 2010-74 granted Preliminary and Final Subdivision Approval; and (3) No. 2010-75 granted Final Phase I Land Development Approval.

On December 3, 2010, Objectors filed a land use appeal with the trial court, challenging the Supervisors' approval of the Carsense land development and conditional use application. Objectors contended that the Supervisors had abused their discretion and acted arbitrarily because Carsense did not prove that it would suffer a hardship without the 13 waivers it had requested. Carsense intervened in Objectors' land use appeal.

In January 2011, Carsense filed a new land development plan and conditional use application for its facility (Plan II), which changed the location and orientation of the proposed building, thereby reducing the number of waivers needed from 13 to five. The Supervisors held a public hearing on Plan II on February 24, 2011. Notice of the hearing on Plan II was published, but no special notice was given to Objectors. On April 6, 2011, the Supervisors approved Plan II, adopting three resolutions: No. 2011-13, granting Revised Preliminary and Final Subdivision Approval; (2) No. 2011-14, granting Revised Preliminary Land Development and Conditional Use Approval; and (3) No. 2011-15, granting Final Phase I Land Development Approval. Objectors did not appear at either public hearing on Plan II.

Two months later, on June 21, 2011, Objectors filed a "Supplement to Appeal," by which they added a challenge to the Supervisors' approval of Plan II to their December 2010 appeal of Plan I. In their supplemental appeal, Objectors stated that they did not learn of Plan II or its approval until they noticed construction activity on the Carsense land. Objectors argued, inter alia, that the Supervisors lacked authority to act on Plan II because their land use appeal in December had divested the Supervisors of any authority to act on any Carsense proposal until their appeal was decided.

Carsense filed a motion to strike Objectors' "Supplement to Appeal" and to dismiss their December 2010 land use appeal as moot. Carsense argued that the plan appealed by Objectors had been abandoned and replaced with Plan II, rendering Objectors' 2010 appeal moot. It also argued that a land use appeal does not stay all proposed plans for a property, but only the specific plan on appeal.

Objectors responded that the two plans were identical because they involved the same parties, property, and use of the property. They accused Carsense of making minor changes for the sole purpose of circumventing judicial review.

After hearing argument, the trial court granted Carsense's motion. It struck Objectors' "Supplement to Appeal" and dismissed their underlying appeal as moot. Objectors appealed to this Court.*fn1

On appeal, Objectors raise one issue for our review: whether the trial court erred or abused its discretion in granting Carsense's motion. They argue that their land use appeal not only divested the Supervisors of jurisdiction over the plan they approved in 2010, but also over any new plans for the property. Accordingly, the Supervisors lacked authority to approve Plan II, and their appeal is not moot.

In response, Carsense contends that the trial court should be affirmed because the Supervisors retained authority to review land use plans that were different from the one appealed by Objectors. Plan II made significant changes in its proposed development, both in the location and orientation of the building. Further, Carsense's decision to implement Plan II rendered Objectors' appeal of Plan I moot. Objectors failed to keep themselves apprised of Carsense's new proposal, a matter of public record, and failed to avail themselves of the opportunity to participate in the Supervisors' review of Plan II. It is too late to do so now.

We begin with a review of the applicable law. Section 1002-A(a) of the Municipalities Planning Code*fn2 (MPC) states, in relevant part, that [a]ll appeals from all land use decisions ... shall be taken to the court of common pleas of the judicial district wherein the land is located and shall be filed within 30 days after entry of the decision....

Section 1002-A(a) of MPC, added by the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §11002-A(a). An appeal of a final order of a local agency vests the court of common pleas with exclusive jurisdiction over the appeal. 42 Pa. C.S. §933.*fn3 However, an appeal does not effect an automatic stay of the order's efficacy. Section 1003-A(d) of the MPC specifically states that "[t]he filing of an appeal" does "not stay the action appealed from[;]" rather, the appellant must separately petition the trial court for a stay. 53 P.S. §11003-A(d).*fn4 In sum, a land use appeal does not stay the effectiveness of the local government's order nor does it bar a property owner from considering and proposing a different land development plan or zoning application.

For a contrary view, Objectors cite Abe Oil Company v. Zoning Hearing Board of Richmond Township, 649 A.2d 182 (Pa. Cmwlth. 1994). In that case, Farm and Home Oil Company received several variances needed to construct a gas station and convenience store. The variances were challenged by a competitor across the street, Abe Oil, which filed a land use appeal. After the appeal was filed, Farm and Home Oil Company amended its application to include additional variance requests, and the amendment was granted. Abe Oil then filed a second appeal. The trial court held that the zoning hearing board lacked jurisdiction to approve amendments to an application that was the subject of Abe Oil's appeal.

This Court affirmed the trial court, holding that the zoning hearing board lacked jurisdiction to amend its decision after it was appealed. We reasoned that Section 1002-A of the MPC requires land use appeals to be filed with a court of common pleas and, once that is done, the municipality "is divested of any jurisdiction over the matter." Abe Oil Co., 649 A.2d at 184. We explained that allowing a zoning board to amend its decisions after an appeal was taken would lead to "piecemeal litigation followed by piecemeal appeals." Id. Abe Oil is distinguishable. It involved two amendments: one to the landowners' variance application and the other to the zoning board's decision under appeal. Further, the zoning board acted without holding a hearing on the amended application. These factors are not present here.

In Plan II, Carsense did not amend its prior application, which had been approved in 2010 and appealed by Objectors. Rather, it submitted a new application and a new plan for its facility. Further, the Supervisors conducted new public hearings on Plan II and issued a new decision. These facts distinguish Abe Oil. Carsense's new and distinct proposal did not amend its earlier application, and the Supervisors did not amend their earlier approval.

To the extent that Objectors believe that Abe Oil stands for the proposition that a municipality loses all jurisdiction over a parcel of land when a land use appeal is filed, they are mistaken. It is well-settled that a developer may file "inconsistent subdivision or land development applications, and ... [is] entitled to action on all applications." Philomeno & Salamone v. Board of Supervisors of

Upper Merion Township, 600 Pa. 407, 412, 966 A.2d 1109, 1111 (2009).

Moreover, developers may submit mutually exclusive plans and, after securing approval of those conflicting plans, are free to implement the plan of their preference. Capital Investment Development Corporation v. Jayes, 373 A.2d 785, 788 (Pa. Cmwlth. 1977). Abe Oil stands only for the proposition that a municipality is divested of jurisdiction over a discrete decision that has been appealed to the court of common pleas; it does not hold that a landowner may not submit a new proposal for the same property.

In sum, Carsense secured approval of two plans, one of which was challenged on appeal and one of which was not. Carsense chose to develop its property in accordance with Plan II, which Objectors did not challenge. This rendered their challenge to the earlier plan moot; there is no longer an actual controversy regarding the development plan. See Sierra Club v. Pennsylvania Public Utility Commission, 702 A.2d 1131, 1134 (Pa. Cmwlth. 1997), affirmed, 557 Pa. 11, 731 A.2d 133 (1999). Therefore, the trial court did not err in striking Objectors' motion to supplement their land use appeal and dismissing it as moot.

Accordingly we affirm.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James DeFilippo, Jackson Realty Partners, Cameron Jones, and Joseph Gray, Appellants v. Cranberry Township Board of Supervisors and Carsense, Inc.

No. 1680 C.D. 2011

ORDER

AND NOW, this 10th day of August, 2012, the order of the Court of Common Pleas of Butler County, dated August 8, 2011, in the above-captioned matter is hereby AFFIRMED.

MARY HANNAH LEAVITT, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James DeFilippo, Jackson Realty : Partners, Cameron Jones, and : Joseph Gray, : Appellants : v. : Cranberry Township Board of : Supervisors and Carsense, Inc. :

: No. 1680 C.D. 2011 : Argued: April 17, 2012

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

DISSENTING OPINION BY JUDGE McCULLOUGH

FILED: August 10, 2012

I must respectfully dissent because I believe that the Cranberry Township Board of Supervisors (Supervisors) did not have jurisdiction over Carsense's second application (Plan II) while the Objectors' appeal from the Supervisors' decision on Carsense's original application (Plan I) was pending. Thus, the Supervisors' decision on Plan II was void and Objectors' appeal should not have been dismissed as moot.

In Abe Oil Company v. Zoning Hearing Board of Richmond Township, 649 A.2d 182 (Pa. Cmwlth. 1994), Farm and Home Oil Company filed an application with the Zoning Hearing Board of Richmond Township (Board) seeking relief from certain local ordinance provisions in order to construct a gas station and convenience store. The Board granted the variances, and Abe Oil appealed. Meanwhile, at some time between the date the Board granted the variances and the date Abe Oil filed its appeal, Farm and Home Oil filed an amended application requesting additional variances. Six days after Abe Oil had appealed the Board's initial decision, the Board granted the amended application, which provided the same relief sought in the original application as well as two additional variances. The trial court vacated the Board's second decision on the basis that the Board did not have jurisdiction over the matter while the appeal of the first decision was pending before the trial court. This Court agreed, holding that: "Upon an appeal to the [trial] court, the zoning board is divested of any jurisdiction over the matter." Id. at 184. Further, we noted that the "rationale for this divestment is obvious; otherwise, parties would be subject to piecemeal litigation followed by piecemeal appeals." Id.

Here, as the Majority notes, the Plan I application essentially sought variances from thirteen local zoning requirements. The Plan II application changed the location and orientation of the proposed building and sought only five variances. Both applications involved the same parcel of land and were mutually exclusive. I agree with the Majority that a developer normally may submit alternate plans to a zoning hearing board. However, I believe that, under Abe Oil, the Supervisors lacked jurisdiction over any application, amended or otherwise, which is mutually exclusive of a previous application involving the same tract of land while the Objectors' appeal was pending before the trial court. Such practice not only subjects the parties to "piecemeal litigation," but also allows the applicant to circumvent the appellate process by submitting a new application where it could just as well have amended the original application.

Moreover, I consider the two cases upon which the Majority relies, Philomeno & Salamone v. Board of Supervisors of Upper Merion Township, 966 A.2d 1112 (Pa. Cmwlth. 2009) and Capital Investment Development Corporation v. Jayes, 373 A.2d 785 (Pa. Cmwlth. 1977), to be inapposite here, as neither case relates to the effect of an appeal on a zoning hearing board's jurisdiction. In Philomeno, a landowner submitted a subdivision application to the Upper Merion Township Board of Supervisors (Board). Section 508 of the Pennsylvania Municipalities Planning Code*fn1 requires a municipality to take action on an application within ninety days of the next meeting of its governing body or planning agency. Otherwise, the application is deemed approved. In that case, the Board twice requested extensions of time to make its decision, and the landowner agreed to both extensions. Before the second deadline of December 24, 2003 arrived, the landowner filed a conditional use application for the same property, which was separate and distinct from the subdivision application. Without acting on the subdivision application, the Board denied the conditional use application in June 2004. Thereafter, the landowner filed an action for mandamus and peremptory judgment, asserting that the initial subdivision application should be deemed approved because the Board did not act upon it by the December 2003 deadline. Our Supreme Court agreed, noting that the conditional use application was not intended to revise the land use application such that offering an alternative plan would not supersede the original submission and therefore should not extend the decision period. In other words, the two applications in Philomeno were not mutually exclusive as they are in the case now before this Court. Moreover, the Court in Philomeno was concerned with zoning hearing board deadlines, not jurisdiction.

In Capital Investment, the issue was whether a developer who received approval of two mutually exclusive subdivision applications may develop property in conformance with its preferred plan. This Court held that where two mutually exclusive plans have been approved, a developer may develop property in conformity with either plan. However, the case did not postulate the result when the first plan was the subject of an appeal prior to the approval of another. Thus, I am of the opinion that it should not affect the outcome of this case.

Accordingly, I would reverse.

PATRICIA A. McCULLOUGH, Judge


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