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Rubino v. Millcreek Township Board of Supervisors

Commonwealth Court of Pennsylvania

January 22, 2014

Gregory J. Rubino and Lisa M. Rubino, Appellants
v.
Millcreek Township Board of Supervisors

Argued: December 9, 2013

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION

MARY HANNAH LEAVITT, Judge

Gregory J. and Lisa M. Rubino (Landowners) appeal an order of the Court of Common Pleas of Erie County (trial court) that affirmed the denial of their subdivision application by the Millcreek Township Board of Supervisors (Township). Landowners seek to subdivide their existing 3-acre residential property into two lots so that they can build a new house on the second lot. The trial court affirmed the Township's denial of Landowners' application because the size of the proposed two lots would be out of scale with the other ten lots in the recorded subdivision plan that created Landowners' lot. Discerning no error, we affirm the trial court.

Landowners acquired their home and 2.952-acre lot at 520 Elizabeth Lane, Erie, in 2006 at a cost of $365, 000. Landowners' deed describes their parcel as "Lot No. Eight (8) of GARNESDIYO SUBDIVISION a plot of said Subdivision being recorded in Erie County Map Book 7 at Page 45." Reproduced Record at 242 (R.R.). Lot No. 8 is one of 11 lots created in 1966 out of 29.925 acres of land owned by Tracy and Marianne Griswold in a subdivision plan recorded as "SECTION NO. 1 GARNESDIYO." R.R. 284. The lots in Section No. 1 ranged from 1.31 to 4.18 acres in size.[1]

Thereafter, the Griswolds continued to subdivide their land. In 1975, by a subdivision plan titled "SECTION NO. 2 GARNESDIYO, " the Griswolds created a single lot of 2.309 acres, "Lot No. Twelve (12)." R.R. 285. In 1979, they filed "SECTION NO. 3 GARNESDIYO, " which created Lots 13 through 23 out of 22.63 acres; the lots ranged in size from 1.2 to 3.71 acres. R.R. 286. In 1980, they filed "SECTION NO. 4 GARNESDIYO, " which created Lots 24 through 31 out of 9.241 acres; the lots ranged in size from .885 to 1.35 acres. R.R. 288. In 1981, they filed "SECTION NO. 5 GARNESDIYO, " which created Lots 28 through 37 out of 6.811 acres; the lots ranged in size from .971 to 1.316 acres. R.R. 290. In 1982, they filed "SECTION NO. 6 GARNESDIYO, " which created Lots 38 through 43 out of 6.31 acres; these lots ranged in size from .806 to 1.22 acres. R.R. 291. In sum, the Griswolds filed six separate subdivision plans for each proposed "section" of the residential subdivision known as Garnesdiyo.

On June 2, 2011, Landowners filed a subdivision plan to turn "Lot No. 8" of "Section 1" of Garnesdiyo into two lots. The plan proposed to create one lot of approximately 1.6 acres, i.e., "Lot No. 8, " and a second lot of approximately 1.4 acres, i.e., "Lot No. 8A." The Township disapproved Landowners' subdivision plan for the stated reason that it did not satisfy the Township's Subdivision and Land Development Ordinance (SALDO). [2]

Specifically, the Township relied upon Section 11.16(15) of the SALDO, which states as follows:

The Board of Supervisors shall not approve any proposed subdivision or replot of a lot or lots where such lot(s) is or are located in a subdivision of record and the proposed replot or subdivision would create lots smaller than the typical or average size of lots as shown in such recorded subdivision. This prohibition is expressly intended to protect those persons who purchase lots in reliance upon lot sizes and configurations as shown on an approved and recorded development plan.

SALDO, §11.16(15); R.R. 147 (emphasis added). "Subdivision" is defined in the SALDO, as follows:

[T]he division or redivision or replot of a lot, tract or parcel of land by any means into two or more lots, tracts, parcels or other divisions of land, including changes in existing lot lines for the purpose, whether immediate or future, of lease, partition by the court for distribution to heirs or devisees, transfer of ownership or building or lot development; Provided, however, that the subdivision by lease of land for agricultural purposes into parcels of more than ten (10) acres, not involving the construction or extension of any street or easement of access or any residential dwelling, shall be exempted. Shall be deemed included within the term "development" when that term is used generally.

SALDO, §3.04; R.R. 35 (emphasis added).

The Township reasoned that Section 11.16(15) of the SALDO was intended to allow those who purchase real property to rely upon the recorded subdivision plan by which their lot was created. Seven of Landowners' neighbors in Section No. 1 of the Garnesdiyo Subdivision opposed Landowners' application on the ground that it would adversely affect the overall appearance of their neighborhood, which is one with large lots. Concluding that Landowners' proposed subdivision would create two lots out of scale with the remaining ten lots in Section No. 1 of Garnesdiyo, the Township held that Landowners' proposal violated Section 11.16(15) and denied their application.

Landowners appealed to the trial court. They argued that the Township erred in treating Section No. 1 as a separate subdivision for the purposes of Section 11.16(15) of the SALDO.[3] When the entire Garnesdiyo Subdivision is considered, the size of the two lots Landowners seek to create satisfies the "typical or average size of lots required by Section 11.16(15)" because the median lot size of all 32 lots in the Garnesdiyo Subdivision is 1.316 acres. R.R. 273. Stated otherwise, half of the lots in the Garnesdiyo Subdivision are smaller than 1.316 acres, and half are larger. Landowners' Brief at 11. The trial court rejected this argument. It held that Landowners' proposed lots would be ...


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