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Delchester Developers L.P. v. London Grove Township Board of Supervisors

Commonwealth Court of Pennsylvania

May 9, 2017

Delchester Developers, L.P., Appellant
v.
London Grove Township Board of Supervisors

          Argued: October 17, 2016

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOSEPH M. COSGROVE, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.

          OPINION

          JAMES GARDNER COLINS, Senior Judge.

         Before this Court is the appeal of Delchester Developers, L.P. (Delchester) of the December 30, 2015 order of the Court of Common Pleas of Chester County (Trial Court) affirming the July 15, 2015 denial by the London Grove Township Board of Supervisors (BOS) of Delchester's preliminary subdivision and land development plan application (Plan). Delchester has raised four issues for review, arguing that the Trial Court erred in affirming the denial of the Plan issued by the BOS because: (i) the reasons for denying the Plan were insufficiently specific contrary to the mandate of Section 508(2) of the Municipalities Planning Code[1] (MPC), 53 P.S. § 10508(2); (ii) the BOS improperly incorporated reviews of the Plan by independent consultants in its denial of the Plan; (iii) the BOS identified a failure to secure third-party permits as a basis for denial rather than issuing an approval of the plan conditioned on Delchester obtaining the requisite third-party permits; and (iv) the BOS acted in bad faith by denying the Plan. For the reasons that follow, we affirm the order of the Trial Court.[2]

         Section 508 of the MPC provides the procedure whereby the governing body or planning agency of a township shall review and act upon a subdivision and land development application. 53 P.S. § 10508. If the plan submitted by the applicant complies with all of the objective provisions of the applicable subdivision and land development ordinance (SALDO) as well as all other applicable regulations, the plan must be approved by the reviewing body. Herr v. Lancaster County Planning Commission, 625 A.2d 164, 169 (Pa. Cmwlth. 1993). Subsection 2 of Section 508 requires of the reviewing body that:

When the application is not approved in terms as filed the decision shall specify the defects found in the application and describe the requirements which have not been met and shall, in each case, cite to the provisions of the statute or ordinance relied upon.

53 P.S. § 10508(2); see also Herr, 625 A.2d at 169. A decision rejecting a subdivision and land development plan will be voided for contravening Section 508(2) of the MPC if it fails to cite to the specific provision of the SALDO relied upon or if the reasons for rejection are vague and undiscernible. Coretsky v. Board of Commissioners of Butler Township, 555 A.2d 72, 74 (Pa. 1989). If the decision complies with Section 508(2) of the MPC, then rejection of the plan will stand if even one of the reasons for denial is supported by substantial evidence. Herr, 625 A.2d at 169.

         The July 15, 2014 decision issued by the BOS contained 44 reasons for denial of the Plan broken down into the following categories: (i) zoning ordinance provisions; (ii) groundwater protection district; (iii) SALDO; (iv) sewer and water; (v) stormwater management; and (vi) general. Delchester argues that Nos. 10, 17, 18, 28, and 29[3] are not sufficiently specific to satisfy Section 508(2) of the MPC, and that Nos. 3, 22, 23, 31, 38, 39, 40, 41, 42, 43 and 44[4] do not cite to provisions of the Township's SALDO, also in violation of Section 508(2) of the MPC. 53 P.S. § 10508(2). Delchester also argues that the reasons given for denial in Nos. 1, 2, 7, 21, 24, 26, 32, 35, 36 and 44[5] were easily correctible technical defects that are insufficient to serve as grounds for denial of the Plan. Delchester further argues that the decision issued by the BOS failed to properly incorporate the consultant letters that the BOS relied upon in support of its denial. Specifically, Delchester challenges denial reasons Nos. 11, 13, 16, 22 and 23.[6] Finally, Delchester argues that the BOS impermissibly rejected its Plan based on Delchester's failure to secure third-party permits when it was required to approve the Plan conditioned upon Delchester's receipt of third-party permits.[7]

         Initially, the Township argues that even if Delchester succeeded in striking down each ground for denial it has challenged on appeal, Delchester has failed to challenge nine of the bases for denial identified in the BOS decision and, as a result, the denial must be affirmed. (See BOS Op., Nos. 8, 13, 15, 19, 25, 27, 30, 33 & 34.[8]) In addressing Delchester's arguments regarding failure to comply with Section 508(2) of the MPC, the Township contends that it engaged in extensive discussions with Delchester over a four-year period and that despite clear direction regarding the Plan's deficiencies and how each deficiency could be corrected, Delchester failed to cure its plan. The Township argues that Nos. 10, 17, 18, 28 and 29 (see note 3, supra) are sufficiently specific independent grounds for denial, with each reason identifying a specific portion of the SALDO or other applicable ordinance that the Plan does not comply with and leaving no ambiguity regarding the deficiency that Delchester needs to cure in order to receive approval. Although the Township agrees that a subset of the reasons identified in the denial decision do not cite to the SALDO or other applicable ordinance as the basis for denial, the Township contends that these issues were identified in the decision for completeness rather than as independent grounds for denial. Furthermore, the Township argues that Nos. 24, 26, 32, 35, and 36 (see note 5, supra) are each substantive rather than mere technical defects and that each of these grounds address the failure of the Plan to comply with the Township's Storm Water Management Ordinance (SWMO). The Township argues that the decision properly incorporated and relied upon external documents, and that Delchester was aware of the letters and the deficiencies described within. Finally, the Township argues that it included the lack of third-party permits for completeness rather than as independent reasons for denial. Furthermore, the Township contends that if Delchester's Plan had otherwise complied with the SALDO, then the precedent regarding approval conditioned upon the receipt of third-party permits would apply; the Township contends that under the circumstances of this case, the precedent regarding conditioned approval is inapplicable.

         In Shelbourne Square Associates, L.P. v. Board of Supervisors, Township of Exeter, 794 A.2d 946 (Pa. Cmwlth. 2002), this Court reviewed a subdivision and land development plan denial where the decision of the governing body contained eight reasons for denial of the plan and concluded that seven of the reasons given were insufficient to support a denial due to vagueness and an additional subset were "defects in the plan notations and labels [that] are correctable by fairly simple amendments to the documents." Id. at 950. However, this Court affirmed the denial in Shelbourne because a single ground for denial rested on clear noncompliance with the township's SALDO and the noncompliance was an objective, legitimate, substantive planning issue. Id. at 952. In Robal Associates, Inc. v. Board of Supervisors of Charlestown Township, 999 A.2d 630 (Pa. Cmwlth. 2010), we reviewed decisional law distinguishing between defects which constituted objective, legitimate, substantive reasons for denial from those, like mere labeling issues, which could not form the basis for denial of plan approval. Robal held that "the following reasons are sufficient to support rejection:

[L]ot area (as opposed to lot dimensions); stormwater requirements and grading requirements necessary for stormwater management calculations; sewage or wastewater disposal requirements; wetlands delineations; highway access; steep cross-section grades at the intersection with a public street; and, erosion and sedimentation controls.

Id. at 637 (footnotes omitted).

         In the instant matter, the BOS decision includes mere technical deficiencies that could be easily cured by amendment as Delchester argues; however, as Shelbourne makes clear, the presence of inadequate independent grounds for denial does not vitiate the legitimate substantive grounds for denial identified by the BOS. The decision identifies five specific areas where Delchester's plan failed to comply with Township ordinances applicable to the Plan: (i) Zoning Ordinance; (ii) Groundwater Protection District; (iii) SALDO; (iv) Sewer and Water; and (v) SWMO. Within these sections, Delchester failed to object to two areas of noncompliance specific to the groundwater protection district, two issues of noncompliance with the SALDO, and five instances of noncompliance with the SWMO. These nine grounds are sufficient to support the BOS's decision.

         Yet, even if we examined only those grounds for denial which Delchester has objected to for failure to comply with Section 508(2) of the MPC, it is clear that Delchester's Plan does not comply with substantive and objective requirements of the applicable ordinances. For example, denial reason No. 26 in the BOS's decision concludes: "[Delchester] has failed to provide soil infiltration testing results, including field logs, required to demonstrate compliance with Section 303.3.C.3 (formerly Section 303.01.C.3)."[9] (BOS Op., No. 26.) Delchester has argued that denial reason No. 26 is a mere technical defect that is an insufficient basis for denial of its plan. In Schultheis v. Board of Supervisors of Upper Bern Township, Berks County, 727 A.2d 145 (Pa. Cmwlth. 1999), this Court held just the opposite, concluding that "[applicant's] Preliminary Plan application did not contain soil percolation and probe tests, wetlands delineations and erosion and sedimentation controls. Although [applicant] contends these deficiencies were minor technicalities, we must agree with the [governing body] that these deficiencies were not minor but, rather, were substantive." Id. at 149. Where a preliminary plan contains clear substantive issues of noncompliance with a township's SALDO or other applicable ordinances, the governing body is within its discretion to deny the plan. Herr, 625 A.2d 169.

         The BOS decision contained sufficiently specific grounds for denial in accordance with the mandate of Section 508(2) of the MPC; because even one legitimate basis for denial supports the BOS's decision to deny rather than grant conditional approval of the Plan, the issues of whether the BOS properly incorporated reviews of the Plan by independent consultants[10] or identified a failure to secure third-party permits[11] as a basis for denial rather than issuing an approval of the plan conditioned on Delchester obtaining the requisite third-party permits have no bearing on the outcome of this appeal. However, Delchester has also argued that the BOS acted in bad faith by denying the Plan, in part based on the alleged failure of the Township to provide Delchester with an opportunity to cure the deficiencies in its Plan prior to review by the BOS. Delchester contends that the Township's bad faith was exemplified by its opposition to Delchester before the London Grove Township Zoning Hearing Board (ZHB) and the inclusion of several zoning issues for which Delchester sought relief before the ZHB as grounds for denial in the BOS decision prior to Delchester's ability to appeal the ZHB decision.[12] Delchester contends that the Township's bad faith stems from the failure of Delchester and the Township to reach an agreement regarding professional consultant fees. See Section 503(1) of the MPC, 53 P.S. § 10503(1).

         The Township argues that the timeline belies Delchester's accusation of bad faith; Delchester submitted its Plan in 2010 and the Township issued its first review letter on December 20, 2010 containing 87 comments, however, as late as the most recent review letter on April 7, 2014, only 38 of the original comments had been resolved. The Township argues that it repeatedly provided Delchester with letters directing Delchester to move forward and setting up deadlines for the submission of specific materials, and that it continued to work with Delchester on processing the Plan even after the Township petitioned the court to assign an arbitrator to resolve the professional consultant fee dispute. The Township argues that it appeared before the ZHB to defend its ordinances, not out of bad faith, and that the BOS is under no obligation to wait for an appeal of a ZHB decision to come to finality before issuing its decision. Moreover, the Township argues that Delchester had two weeks to submit a modified Plan responding to the ZHB decision or make an application to the Township prior to the BOS's vote on the Plan.

         In Raum v. Board of Supervisors of Tredyffrin Township, 370 A.2d 777 (Pa. Cmwlth. 1976), this Court issued an opinion in support of an order enforcing its judgment following protracted litigation which culminated in this Court sustaining the validity of a township's designation of 1, 000 acres as a unified development area. This Court held that the course of conduct of the governing body and the township following this Court's first opinion was a "prime exhibition of bad faith, " and, accordingly, this Court ordered the township and the governing body to take specific action involving the approval of the developer's plan and to cease and desist from other actions intended to frustrate the developer's ability to develop its land. Id. at 779, 804. In the Raum opinion, this Court concluded that "[a] municipality has a legal obligation to proceed in good faith in reviewing and processing development plans. The duty of good faith includes discussing matters involving technical requirements or ordinance interpretation with an applicant, and providing an applicant a reasonable opportunity to respond to objections or to modify plans where there has been a misunderstanding or difference of opinion." Id. at 798. In addition, this Court held in Highway Materials, Inc. v. Board of Supervisors of Whitemarsh Township, 974 A.2d 539 (Pa. Cmwlth. 2009), that where a township refuses to advise an applicant on how to cure deficiencies in its plans, as well as the township's interpretations of its ordinance, the township will be found to have acted in bad faith. Id. at 544-545.

         However, in Abarbanel v. Solebury Township, 572 A.2d 862 (Pa. Cmwlth. 1990), this Court held that where a municipality has reviewed plans for the development of property in good faith, has highlighted the plan's deficiencies, and has given the developer an opportunity to cure those deficiencies, the municipality will not be found to have abused its discretion in denying an application based on failures of the plan to comply with township ordinances. Further, this Court reasoned in Abarbanel that "similar to a municipality's duty under Raum, a developer has a reciprocal good faith duty to submit revised plans in a reasonable and timely manner, which will enable a municipality to comply with its duties under [Section] 508 [of the MPC] and Raum." Id. at 864. Finally, in Herr, this Court concluded that there was no evidence of bad faith where the applicant was given two weeks to address the deficiencies in its plan and distinguished Raum as a basis for finding bad faith because the deficiencies in the plan were substantive rather than the frivolous technical details cited as a basis for the rejection in Raum. Herr, 625 A.2d at 172-173.

         Following review of the procedural and factual history in the instant matter, the Trial Court concluded that the Township acted in good faith by granting numerous extensions for review of the Plan and twelve waivers from the SWMO despite the fact that during the four-year pendency of the Plan before the Township Delchester failed to correct issues of noncompliance with the SALDO and other applicable ordinances known to Delchester since the beginning of the process. We agree. The actions of the Township and the BOS in this matter are quite distinct from those of the governing body in Raum or in Highway Materials. The BOS repeatedly and clearly advised Delchester on how to cure the deficiencies in its Plan, both substantive and technical, as well as alerted Delchester to the information it needed from Delchester to proceed. The BOS provided Delchester with ample time within which to act. Instead, Delchester chose to continue without modifying its Plan and without providing information critical to demonstrating compliance with the applicable ordinances. Delchester's assertion of bad faith has absolutely no support in the record. See Kassouf v. Township of Scott, 883 A.2d 463, 476 (Pa. 2005).[13] Moreover, contrary to the "prime exhibition of bad faith" evident in Raum, the record here demonstrates a prime exhibition of an applicant seeking to have the applicable ordinances adapted to a plan, rather than produce a plan in compliance with the applicable ordinances.

         We also reject Delchester's contention that the BOS acted in bad faith by proceeding with its decision regarding Delchester's Plan prior to the completion of Delchester's appeal of the ZHB's denial of zoning relief. There is no requirement within the MPC or decisional law that the governing body of a township must await the outcome of an appeal by an applicant denied zoning relief by the zoning hearing board before issuing its decision granting or denying preliminary plan approval. Though not required to do so by law, the BOS postponed its action on the Plan to allow Delchester to seek relief from the ZHB because the lack of compliance with the Township's Zoning Ordinance was fatal to Delchester's Plan. Having failed to garner the necessary relief, Delchester did not withdraw its Plan from consideration by the BOS or attempt to modify its Plan and it was therefore acted upon by the BOS. Delchester's attempt to argue that the consequences of its inaction are attributable to the BOS's bad faith is without merit.

         The order of the Trial Court is affirmed.

         ORDER

         AND NOW this 9th day of May, 2017, the order of the Court of Common Pleas of Chester County in the above-captioned matter is AFFIRMED.

---------

Notes:

[1] Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 - 11202.

[2] Where no additional evidence has been taken by the trial court, our scope of review is limited to determining whether the board of supervisors committed an abuse of discretion or an error of law. Appeal of Richboro CD Partners, L.P., 89 A.3d 742, 746 n.1 (Pa. Cmwlth. 2014). An abuse of discretion is established where the findings are not supported by substantial evidence; substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.

[3] The BOS's denial reasons Nos. 10, 17, 18, 28 and 29 are as follows:

GROUNDWATER PROTECTION DISTRICT
10. Applicant failed to comply with the requirements relating to Historic Resource Protection in Part XVII with regard to the portion of the Property located in the I- Industrial District.
SUBDIVISION AND LAND DEVELOPMENT ORDINANCE
17. Applicant has failed to demonstrate compliance with Section 612.I (formerly Section 612.A.9) relating to street system impacts. ***
18. Applicant has failed to demonstrate compliance with Section 615.12 (formerly Section 615.L) relating to recreation lands and facilities, fees -in -lieu thereof and trails.
STORMWATER MANAGEMENT
28. Applicant has failed to demonstrate compliance with Section 303.4.B.1 (formerly Section 303.02.13) relating to identification of limits of Cockeysville Marble areas.
29. Applicant has failed to demonstrate compliance with Section 303.5.C.l.f (formerly Section 303.01.C.14) relating to the use of infiltration systems for sediment and erosion control with regard to the proposed ...

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