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Watts Residential Associates, Legal Owner, and Fine Line Homes, Inc., Equitable Owner v. the Board of Supervisors of Watts Township

January 8, 2013

WATTS RESIDENTIAL ASSOCIATES, LEGAL OWNER, AND FINE LINE HOMES, INC., EQUITABLE OWNER, APPELLANTS
v.
THE BOARD OF SUPERVISORS OF WATTS TOWNSHIP



The opinion of the court was delivered by: Judge McCULLOUGH

Argued: December 10, 2012

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

OPINION BY JUDGE McCULLOUGH

Watts Residential Associates and Fine Line Homes, Inc. (together, Developer) appeal from the May 10, 2012 order of the Court of Common Pleas of the 41st Judicial District (Perry County Branch) affirming the February 9, 2011 decision of the Watts Township Board of Supervisors (Board) to grant approval of the "Susquehanna Highlands -- Preliminary Subdivision Plan" subject to the condition that a street in an adjacent subdivision be completed, or security for its completion be in place, in order for the Susquehanna Highlands plan to receive final approval. We affirm.

Developer owns an 82-acre tract of land along Pinetree Drive, a township road that connects to US Route 11/15 at one end and terminates at the southern boundary of the property. Developer filed an application with the Board for preliminary approval of the Susquehanna Highlands subdivision pursuant to a plan prepared by Alpha Consulting Engineers, Inc. (Alpha Consulting). The plan proposes a single phase of development for the entire tract with the creation of 34 single-family building lots and one public street, an extension of Pinetree Drive. The extension of Pinetree Drive would be constructed through the Susquehanna Highlands property, would be approximately 5,500 feet in length, and would end at the southern border of the property where it abuts Phase 3 of the residential subdivision known as River Mist.

The River Mist subdivision is owned and being developed by Jorich Land Development Corporation (Jorich). Jorich also used Alpha Consulting to prepare its development plans, and Jorich received preliminary approval from the Board in 2007 to develop River Mist into 34 single-family building lots. The preliminary plan for River Mist proposed a public street to be constructed to the border of the Susquehanna Highlands development, which would connect to the continuation of Pinetree Drive on that property. When the Board approved the preliminary plan for River Mist three years earlier, it imposed no restriction upon Jorich's ability to construct a street up to the common border.

On the same date that Developer filed its preliminary plan application for Susquehanna Highlands, Jorich filed an application with the Board for final approval of Phase 3 of River Mist, which reflected a continuation of the road as shown on the preliminary plan for River Mist and a connection of the River Mist Phase 1 road with the extension of Pinetree Drive being simultaneously proposed by Developer on its preliminary plan for Susquehanna Highlands. The common roadway/connection point was shown on both plans as prepared by Alpha Consulting.

Section 401.10 (Cul-de-sacs or Dead end Streets) of the township's Subdivision and Land Development Ordinance (SALDO) states that "[c]ul-de-sacs or dead end streets, designed to be permanent, shall not exceed five hundred (500) feet in length, and shall be provided with a turn-around having a minimum dimensions for right-of-way and cartway widths as indicated in the preceding section." (R.R. at 67a) (emphasis added). As noted above, Developer's proposed extension of Pinetree Drive is 5,500 feet long, or ten times the length allowed by the SALDO. In its review of the Susquehanna Highlands preliminary plan, the township planning commission cited safety considerations and concluded that a second access to the subdivision should be required. The planning commission recommended that the Susquehanna Highlands preliminary plan not be approved until the connection to the road in the River Mist subdivision plan can be established. Similarly, the township engineer suggested that Developer apply for a waiver from the requirements of section 401.10.

On February 2, 2011, the Board considered Developer's preliminary plan and expressed concern that the extension of Pinetree Drive through Susquehanna Highlands could not be completed if River Mist did not complete its road, resulting in a violation of section 401.10. The Board approved Developer's preliminary plan subject to the following condition:

The River Mist 3 Subdivision Plan must receive final approval from the Board of Supervisors and the street in that subdivision must be completed or there must be appropriate security in place satisfactory to the Township for the completion of the street prior to final approval of the Susquehanna Highlands Subdivision Plan. The basis for this condition is that the street in the Susquehanna Highlands Subdivision connects with the street in the River Mist 3 Subdivision and in order to meet the requirements of [section 401.10 of the SALDO] it is necessary for the street in the River Mist 3 Subdivision to be completed or security must be in place for its completion prior to final approval of the Susquehanna Highlands Final Plan.

This condition must be accepted by the Applicant/Developer within 15 days from the date of this letter or the preliminary plan will be considered to have been denied on the basis that the street in the plan fails to meet Section 401.10 of the [SALDO].

(R.R. at 8a.)

Developer did not accept this condition but instead filed a land use appeal with the trial court. On July 13, 2011, the parties filed a stipulation of facts, (R.R. at 146a-50a), which recited most of the above facts and also stated that Jorich had not received final approval of River Mist Phase 3 as of that date.*fn1 The trial court did not take any additional evidence and affirmed the Board's decision. The trial court held that the condition imposed by the Board was proper because Pinetree Drive would be a dead end street until such a time as Jorich constructed or at least guaranteed construction of the River Mist part of the road connection. Developer now appeals to this Court.*fn2

Developer argues that the extension to Pinetree Drive reflected in the Susquehanna Highlands preliminary plan was not designed to be permanent and, therefore, the proposed preliminary plan did not violate section 401.10 of the SALDO. Developer notes the following evidence in support of its argument: (1) Jorich's preliminary plan for the River Mist subdivision shows a connection road leading to the common boundary with the Developer property, and this preliminary plan was approved with no conditions three years ago; (2) the Susquehanna Highlands preliminary plan shows the extension of Pinetree Drive connecting to the road on the River Mist property; (3) the final plan submitted by Jorich on the same day as Developer submitted its preliminary plan shows the connection to Pinetree Drive; and (4) the Board allowed a waiver of other ordinance requirements allowing the extension of Pinetree Drive to be 26 feet in width rather than 30 feet in order that it could correspond to the width of the connector street from River Mist. Developer contends that, because the above evidence clearly demonstrates that the extension of Pinetree Drive is not designed to be permanent, the Board disregarded the plain ...


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