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Vanvoorhis v. Shrewsbury Township

Commonwealth Court of Pennsylvania

December 21, 2017

Jeffrey T. Vanvoorhis and Susan L. Fox
Shrewsbury Township, Appellant

          Argued: June 5, 2017




         Shrewsbury Township (Township) appeals from a December 9, 2016 Order of the Court of Common Pleas of York County (trial court) that granted the appeal of Jeffrey Vanvoorhis and Susan Fox (Appellees) and remanded the matter to the Board of Supervisors (Board) for further proceedings. Upon review, we vacate and remand.

         Article IV of the Township Zoning Ordinance (Ordinance) governs the use of lands within the Township's agricultural district. Single-family detached dwellings, including mobile homes, tenant dwellings, and two-family dwellings are permitted as uses within the agricultural district, subject to certain conditions and limitations. (Reproduced Record (R.R.) at 296a.) These conditions and limitations are set forth in Article IV, Section 404 of the Ordinance. Most pertinent to the matter sub judice is the allocation of dwelling units[1] upon each parcel within the agricultural district. The number of dwelling units permitted upon each parcel within that district is determined by the parcel as it existed on November 10, 1976, the date the Township's original ordinance was enacted. Id. Section 404(4) of the Ordinance provides that a current owner may subdivide only that number of dwelling units remaining from the original number permitted by Section 404. Id. at 298a.

         The property at issue here is a 45.5 acre horse farm (Property) owned by Appellees and located in an agricultural district within the Township. As it existed on November 10, 1976, the Property was afforded four development rights.[2]Located on the Property at that time was a farmhouse and a summer house.[3] On October 22, 1990, the Township issued to then-owner Tom Queitzch (Queitzch) a building permit for purposes of renovating the summer house. Queitzch's stated intention regarding the summer house was to turn it into a study and office space for his personal use. A bathroom was added to the existing structure, as well as an upstairs bedroom and closet.

         In 1999, Queitzch subdivided 1.5 acres of the property. One development right was associated with the newly-created lot and three remained with the Property. Of the remaining three development rights, one was assigned to the farmhouse. No development right was assigned to the summer house. Appellees purchased the property in 2003.

         On June 5, 2008, Appellees filed an application with the Township for subdivision and land development. For the next several years as the plan was revised, questions arose regarding the number of development rights remaining with the Property. Charles Rausch (Rausch), the Township solicitor, opined in a December 2, 2011 email and a January 11, 2012 memorandum that the Property had three development rights remaining, one allocated to the house with two rights remaining on the Property. The summer house was deemed a permitted accessory use to which no development right attached.

         Appellees submitted their final subdivision plan to the Board on November 19, 2014. The plan was conditionally approved by the Board on January 8, 2015. One condition required amendment of the plan to designate the summer house as a tenant dwelling to which a development right would attach. Appellees declined to accept the condition and, consequently, the plan was rejected by the Township on January 22, 2015. This decision was appealed to the trial court, which, after granting Appellees' motion to supplement the record, took additional evidence on October 31, 2016. On December 9, 2016, the trial court entered an order which granted the appeal and remanded the matter to the Township for further proceedings. In its supporting opinion, the trial court concluded the summer house was a permitted use for which a development right was not required and Appellees had a vested right in not having a development right attached to the summer house. This appeal followed.[4]

         As set forth in the Township's brief, the following five issues are raised on appeal:

I. Is the Common Pleas Court Order appealable?[5]
II. If a subdivision plan is rejected on multiple grounds and at least one represents a clear ordinance violation is the plan properly rejected?
III. Did the lower court err in taking additional evidence to decide a zoning issue when the issue could not be resolved by the Board of Supervisors?
IV. Does the ordinance in existence on the date the plan was filed require that the summer house [] which was being rented as a separate dwelling unit utilize one of the tract's allocation of [development] rights?
V. Do the Appellees have a vested right to not having their summer house considered a dwelling unit utilizing a [development] right even if it is being used as a dwelling?

(Township's Brief, at 2-3.)

         First, the Township addresses the appealability of the December 9, 2016 order. It argues the order is appealable by right per Pa.R.A.P. 311(f) because, following remand to the Board, the issue of whether a development right must attach to the summer house would be forever settled by the trial court's decision. We agree.

         An appeal may be taken as of right from an order of a common pleas court or government unit remanding a matter to an administrative agency or hearing officer that decides an issue that would ultimately evade appellate review if an immediate appeal is not allowed. Pa.R.A.P. 311(f)(2). Before Appellees' subdivision plan could be approved and recorded, the Township required its compliance with four conditions, as set forth in the Township's January 8, 2015 letter. (R.R. at 252a.) Of those conditions, Appellees only objected to those which related to the assignment of a dwelling unit to the summer house. Id. at 49a.

         The facts presented here are similar to those set forth in Schultheis v. Board of Supervisors of Upper Bern Township, 727 A.2d 145 (Pa. Cmwlth. 1999). In Schultheis, a developer's appeal of the denial of its preliminary subdivision plan was granted and the matter remanded with a directive that the developer be given the opportunity to correct any deficiencies in the plan. Once the developer revised the plan and presented it to the township, any issues appealable would be those relating to the revised plan and not the defective preliminary ...

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