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John J. Miravich and Patricia J. Miravich, Sue Davis-Haas, Richard H. v. Township of Exeter

September 7, 2012

JOHN J. MIRAVICH AND PATRICIA J. MIRAVICH, SUE DAVIS-HAAS, RICHARD H. HAAS, IDA C. SMITH, ZILDIA PEREZ, LEON PEREZ, DONNA GALCZYNSKI, KEVIN GALCZYNSKI, ALAN GANAS, RENEE FROELICH AND SCOTT MATTHEWS, APPELLANTS
v.
TOWNSHIP OF EXETER, BERKS COUNTY, PENNSYLVANIA AND METRODEV V, LP



The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

Argued: June 4, 2012

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN

John J. and Patricia J. Miravich, Sue Davis-Haas, Richard H. Haas, Ida C. Smith, Zildia and Leon Perez, Donna and Kevin Galczynski, Alan Ganas, Renee Froelich, and Scott Matthews (Protestants) appeal from the September 12, 2011, order of the Court of Common Pleas of Berks County (trial court) denying their land use appeal. We affirm in part, reverse in part and remand for reconsideration in light of this opinion.

Protestants are owners of properties adjacent to the proposed residential development of Metrodev V, LP (Landowner). The subject property is approximately 47.294 acres (Property) in an area where the boundary lines of the Township of Exeter, Berks County, Pennsylvania (Township) and two surrounding municipalities, Lower Alsace Township and Alsace Township, meet.

Prior to July 25, 2005, the Township's Zoning Ordinance No. 500 (Old Ordinance) was in effect. Under the Old Ordinance, the Property was zoned "Low Density Residential." On July 25, 2005, the Township*fn1 enacted Zoning Ordinance No. 596 (New Ordinance), which changed the zoning classification of the Property from low-density residential to suburban residential. The changed classification had the practical effect of reducing the number of residential lots permitted on the Property from thirty to seven.

On August 24, 2005, Landowner filed a challenge to the validity of the New Ordinance with the Township's Zoning Hearing Board (ZHB) pursuant to former section 909.1(a)(2) of the Pennsylvania Municipalities Planning Code (MPC),*fn2 alleging procedural irregularities in the adoption of that ordinance. On September 2, 2005, the proposed developer of the Property, Metropolitan Development Group (Developer), submitted a preliminary subdivision plan (Plan) to construct a residential development on the Property called "Windy Willows," comprised of thirty-four residential lots, twenty-six of which are located within the Township.*fn3 The Plan was based upon a "sketch plan" that Developer previously submitted while the Old Ordinance was still in effect. Developer also sought waivers from the Township's Subdivision and Land Development Ordinance No. 550 (SALDO).

On September 26, 2005, the Township and Landowner entered into an "Agreement to Settle Litigation" (Settlement Agreement), whereby Landowner agreed to withdraw its procedural challenge to the New Ordinance in exchange for the Township's agreement to review and potentially approve the Plan in accordance with the terms of the Old Ordinance. (Settlement Agreement at 1-2; R.R. 188a-89a.)

On July 14, 2008, the Township approved the Plan, subject to certain conditions. The Township also granted waivers from certain sections of the SALDO, but expressly reserved its determination of other waiver requests until the final plan approval stage. Pursuant to the terms of the Settlement Agreement, the Township reviewed the Plan under the provisions of the Old Ordinance.

On August 13, 2008, Protestants filed a land use appeal with the trial court and, in response, Landowner intervened. The parties filed briefs and, nearly a year later, the Township filed a motion to dismiss the appeal, arguing that Protestants lacked standing to file the appeal for failure to appear in the proceedings below. The trial court granted the Township's motion and dismissed Protestants' appeal. (Tr. Ct. Op., 11/30/09, at 5.)

On appeal to this court, we ruled that Protestants, as adjacent landowners, had substantive standing to object to subdivision plans both before the Township and in land use appeals, even though they had not appeared before the Township or the Township's Planning Commission. Miravich v. Township of Exeter, 6 A.3d 1076, 1079-1080 (Pa. Cmwlth. 2010) (Miravich I). Comparing and contrasting the procedural requirements for zoning hearing boards and boards of supervisors, we pointed out that, in considering subdivisions and land development proposals, a board of supervisors is not required to hold public hearings. Id. at 1079. Mindful of that difference and noting that the Township did not voluntarily follow the procedures required of the ZHB to provide notice and a hearing on the record with a clear procedure for entering an appearance, we held that the only applicable standing requirement was substantive, i.e., whether Protestants were "persons aggrieved." Id. Concluding that Protestants had substantive standing, this court reversed the trial court's order and remanded for further proceedings. Id. at 1080.

On remand, the trial court again denied Protestants' land use appeal. The trial court determined that the Township did not err or abuse its discretion by reviewing the Plan under the Old Ordinance based upon the terms of the Settlement Agreement because municipalities are legally authorized to settle challenges to zoning ordinances. (Tr. Ct. Op., 9/12/11, at 4-5.) The trial court further determined that: (1) the Township did not err or abuse its discretion by conditioning final approval, as opposed to preliminary approval, upon sewage certification, (id. at 6); (2) Developer, acting as the "agent" for Landowner, had standing to submit the Plan, (id. at 6-7); (3) the Township did not err or abuse its discretion in granting the waivers from the SALDO because section 512.1 of the MPC, 53 P.S. §10512.1, vests discretion within the governing body to grant waiver requests and such discretion was not abused, (id. at 9); and (4) the Township's decision to reserve judgment on two of the waiver requests until the final plan stage did not amount to a denial of those requests, (id. at 10). From this decision, Protestants filed the instant appeal.*fn4

I. Settlement Agreement and Application of New Ordinance

First, Protestants contend that the proper procedure to challenge the New Ordinance was to have a hearing before the ZHB.*fn5 We agree.

At the time Landowner filed its challenge, section 909.1 of the MPC, 53 P.S. §10909.1, provided that the zoning hearing board had exclusive jurisdiction over validity challenges. Specifically, section 909.1 of the MPC provided, in relevant part:

(a) The zoning hearing board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:

(1) Substantive challenges to the validity of any land use ordinance, except those brought before the governing body pursuant to sections 609.1 and 916.1(a)(2).

(2) Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption which challenges shall be raised by an appeal taken within 30 ...


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