July 13, 2015
Lyons Borough and Lyons Borough Municipal Authority, Appellants
Township of Maxatawny, and Apollo Point, L.P. and Saucony Creek, L.P
Argued June 18, 2015.
Appealed from No. 13-17003. Common Pleas Court of the County of Berks. Judge Sprecher, J.
Joan E. London, Wyomissing, for appellants.
Matthew J. Cré me, Jr., Lancaster, for appellee Township of Maxatawny.
Sean E. Summers, York, for appellees Apollo Point, L.P. and Saucony Creek, L.P.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge (P.), HONORABLE P. KEVIN BROBSON, Judge.
PELLEGRINI, PRESIDENT JUDGE.
Lyons Borough (Borough) and Lyons Borough Municipal Authority (LBMA) appeal the order of the Berks County Court of Common Pleas (trial court) denying their appeal of the Township of Maxatawny's (Township) approval of the Final Land Development Plan (Final Plan) submitted by Apollo Point, L.P. (Apollo Point) and Saucony Creek, L.P. (Saucony Creek) (collectively, Landowners) under the Pennsylvania Municipalities Planning Code (MPC) and the Township's Subdivision
and Land Development Ordinance (SALDO). We reverse.
This is the latest in a series of actions in which the Borough and LBMA are contesting Landowners' attempt to develop a 192-unit apartment complex on two contiguous parcels of property in the Township totaling approximately 37.7 acres zoned for multi-family housing. In December 2012, a Preliminary Land Development Plan (Preliminary Plan) was filed with the Township's Board of Supervisors (Board) to construct the complex composed of four buildings with two and four bedroom units, as well as a clubhouse. The plan included a sewage flow estimated by a consulting engineer of 26,942.96 gallons per day at full occupancy.
LBMA, the Township and the Township's Municipal Authority (Authority) entered into agreements under which the Authority would provide sanitary sewage collection and treatment and the Township purchased a total of 50,000 gallons of average daily flow into LBMA's treatment plant. At the time of preliminary approval, the Township was using a peak sewage flow of 21,150 gallons per day with a remaining available capacity of 28,850 gallons of flow per day. In December 2012, Landowners entered into an agreement with the Authority to use its remaining sewage flow capacity for the development.
In March 2013, the Board granted conditional approval of the Preliminary Plan subject to 161 conditions relating to: compliance with the sections of the SALDO relating to storm water management; sanitary sewer system and water distribution system requirements; and compliance with additional zoning ordinance and SALDO requirements as well as additional required approvals by the Berks County Planning Commission (Planning Commission), the Berks County Conservation District (BCCD), the Department of Environmental Protection (DEP), the Department of Transportation (DOT), and the Township's Solicitor.
LBMA appealed the Board's conditional approval to the trial court, alleging that the Board erred in approving the Preliminary Plan because there was insufficient sewage for the development and there is no agreement to purchase increased capacity. LBMA also alleged that there is no agreement for connection to the sewer main; no easement across neighboring property for the connection to the sewage system; no provision for connection to its public water system; and there is no agreement with LBMA for connection to that system. The trial court dismissed LBMA's appeal and affirmed the Board's decision and this Court affirmed on further appeal. See Lyons Borough Municipal Authority v. Township of Maxatawny,
96 A.3d 465 (Pa.Cmwlth. No. 1961 C.D. 2013, filed July 10, 2014).
In June 2013, while the appeal from the Preliminary Plan approval was pending, the Board approved Landowners' Final Plan conditioned on demonstrating compliance
with comments in three review letters from: the Township's Zoning Enforcement Officer, Christopher Paff (Paff);  the Township Representative with Keystone Consulting Engineers, Inc., Roy J. Stewart (Stewart);  and a Planner II
with the Planning Commission, Jamie L. Passon (Passon). In June 2013, the
Township's Manager acknowledged that Landowners had already submitted or may submit future revised plans concerning these comments.
The Borough and LBMA appealed the conditional approval of the Final Plan to the trial court, arguing that the conditions attached to the Preliminary Plan approval had not been satisfied and that the Final Plan as submitted does not comply with the requirements of the Township's SALDO and Zoning Ordinance. The trial court found that the Township approved the Final Plan with the same conditions cited in the Preliminary Plan approval, and that Landowners had already complied with some of the conditions and agreed to comply with the remaining conditions. The trial court concluded that, as a result, the Township correctly conditionally approved the Final Plan. See Weiser v. Latimore Township, 960 A.2d 924, 930 (Pa.Cmwlth. 2008), appeal denied, 601 Pa. 705, 973 A.2d 1008 (Pa. 2009) (final approval of a subdivision plan is automatic unless the final plan is different from the preliminary plan). (Trial Court 10/24/14 Opinion at 4). The trial court also found that the Borough's and LBMA's calculation of the necessary sewage capacity was not based on facts as they exist. The trial court denied the appeal and affirmed the Board's order because this is an issue between the Borough and LBMA and the Township which may be the subject of a contract dispute, but it is not a basis to reject Landowners' Final Plan.
The Borough and LBMA then filed this appeal again, arguing that the Township erred in approving the Final Plan because Landowners have not met the conditions imposed on Landowners in the Preliminary Plan approval.
A conditional approval of a final plan has been expressly recognized by the MPC. Section 503(9) of the MPC, provides:
The subdivision and land development ordinance may include, but need not be limited to:
* * *
(9) Provisions for the approval of a plat, whether preliminary or final, subject to conditions acceptable to the applicant and a procedure for the applicant's acceptance or rejection of any conditions which may be imposed, including a provision that approval of a plat shall be rescinded automatically upon the applicant's failure to accept or reject such conditions within such time limit as may be established by the governing ordinance.
53 P.S. § 10503(9) (emphasis added).
As evidenced by this provision, the conditions must be agreed to by the applicant and involve such things as road improvement and open space as well. See Graham, 555 A.2d at 81 (" [Section] 508(4) does permit the governing body to place conditions upon the approval of either the preliminary or final plan with the applicant's acceptance...." ) (emphasis in original). Attaching a " condition" that they must have approvals as required by law are in a sense not a " condition" that the municipality imposes because it has no discretion to change or waive that requirement.
While the Township may impose conditions on the approval of a Final Plan, that power is not unlimited. In Bloom v. Lower Paxton Township, 72 Pa.Cmwlth. 532, 457 A.2d 166, 169 (Pa.Cmwlth. 1983), we stated that when a municipality grants final plan approval subject to issues of required state permits, the approval " reflects the fact that the developer has satisfied the municipality's land use requirements, and is in conflict only with regulations of a state agency," and that " any legal dispute regarding the issuance of the permits should involve the developer and the agency, not the municipality."  A final plan can be
approved once the conditions of its SALDO have been complied with because there is no need to delay granting final approval because the municipality has exercised all of the discretion over all matters over which it had discretion. See Morris v. South Coventry Township Board of Supervisors, 898 A.2d 1213 (Pa.Cmwlth. 2006).
As the trial court noted in this case, the Township approved the Final Plan with the same conditions cited in the Preliminary Plan. The Stewart and Passon letters ( see footnotes 4 & 5) setting forth the conditions involve noncompliance with the Township's Zoning Ordinance and SALDO. The approval of a Final Plan is a finding that the developer has satisfied the Township's laws and there is nothing else for it to do. Because it is final, developers and objectors can decide whether the municipality has exercised its discretion properly and, if they so desire, appeal.
If we said that all the conditions in a preliminary plan could be made conditions for the final plan as Landowners and the Township suggest, there would be no difference between the preliminary plan, where the developer obtains certain rights to go ahead with the development if he satisfies certain conditions, and the final plan, where it is ascertained whether those conditions can be met. Simply, a final plan would not be final until some later date when the municipality determines whether the conditions have been satisfied or not, which could be well after the time has expired for both the developer and the objectors to appeal the final plan.
Accordingly, because Landowners' Final Plan admittedly had not complied with the Township's Zoning and/or SALDO, the trial court's order is reversed.
AND NOW, this 13th day of July, 2015, the order of the Court of Common Pleas of Berks County, dated August 12, 2014, at No. 13-17003, is reversed.