The Piper Group, Inc., et al. v. Bedminster Twp Bd of Supervisors, et al. (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA The Piper Group, Inc., Charles E. Sigety, Katharine S. Sigety, Nero Enterprises, Sigety Trust c/o Trustees Charles Birge Sigety and Katharine K. Yon, Piperlands Properties, L.P., 110 Dark Hollow Road, LLC, Robert G. Sigety, Cornelius E. Sigety, Elizabeth D. Sigety, and Robert G. Sigety, as Tenants by the Entireties, and Robert G. Sigety GRAT c/o Trustee Cornelius E. Sigety, Appellants : : : : : : : : : : : : : v. : : Bedminster Township Board of : Supervisors and Bedminster Township : BEFORE: No. 1824 C.D. 2009 Argued: February 9, 2010 HONORABLE DAN PELLEGRINI, Judge HONORABLE JOHNNY J. BUTLER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION BY SENIOR JUDGE FRIEDMAN FILED: March 12, 2010 The Piper Group, Inc., Charles E. Sigety, Katharine S. Sigety, Nero Enterprises, Sigety Trust c/o Trustees Charles Birge Sigety and Katharine K. Yon, Piperlands Properties, L.P., 110 Dark Hollow Road, LLC, Robert G. Sigety, Cornelius E. Sigety, Elizabeth D. Sigety and Robert G. Sigety, as Tenants by the entireties, and Robert G. Sigety GRAT c/o Trustee Cornelius E. Sigety (collectively, the Piper Group) appeal from the August 27, 2009, order of the Court of Common Pleas of Bucks County (trial court), which denied the Piper Group s land use appeal and affirmed the decision of the Board of Supervisors of Bedminster Township (Board) to deny the Piper Group s curative amendment application (Application). In the Application, the Piper Group challenged the constitutional validity of the Bedminster Township Zoning Ordinance (Ordinance) as imposing unreasonable restrictions upon the development of single-family detached housing in the Township s AP-Agricultural Preservation Zoning District (AP District). On August 12, 1996, Bedminster Township (Township) adopted Ordinance 118, creating the Township s AP District with the intent to protect and preserve the agricultural nature of the area. In furtherance of this goal, Ordinance 118 required landowners with tracts of ten or more acres in the AP District to limit the density of development on their property. Specifically, Ordinance 118 required such landowners to identify and set aside between fifty and sixty percent of farmland soil as non-buildable site area (soil set-aside). After the non-buildable site area was subtracted from the tract s base site area, single-family residences could be built on the remaining buildable site area, provided that the lot size was at least one acre, excluding certain protected natural features. Further, a landowner was required to create a contiguous building envelope around the residence of at least 10,000 square feet. The Piper Group owns two separate tracts of land in the Township, which, together, cover approximately 400 acres situated entirely within the Township s AP District. On August 20, 1996, C & M Developers, Inc. (C&M Developers) filed a substantive challenge with the Township Zoning Hearing Board (ZHB), arguing that the soil set-aside and other dimensional provisions in Ordinance 118 were 2 unreasonable. Following three years of hearings on the matter, the ZHB denied C&M Developers validity challenge, and this decision was affirmed by the trial court and by Commonwealth Court. However, our Supreme Court granted allocatur and, by decision dated November 1, 2002, reversed. C & M Developers, Inc. v. Bedminster Township Zoning Hearing Board, 573 Pa. 2, 820 A.2d 143 (2002). The Supreme Court determined that Ordinance 118 s soil set-aside restrictions were reasonable and related to the Township s legitimate interest in preserving its agricultural lands. However, the Court held that, when required in addition to the soil set-aside, Ordinance 118 s one-acre minimum lot size unduly limited a landowner s ability to develop the remaining portion of his tract, and this further restriction was not reasonable or substantially related to the Township s agricultural preservation interest or any other welfare interest of the Township. Citing the testimony of one of the Township s witnesses, the Court observed that the Township adopted this oneacre minimum merely because it was a good number and would stall the development of large houses on small lots. Based on this expressed motivation, the Court characterized the limiting effect of the dimensional restrictions as a matter of private desire, rather than a matter of public welfare, and held that the Township could not employ zoning regulations to effectuate such an aim.1 Id. 1 A zoning ordinance is a valid exercise of the police power when it promotes public health, safety or welfare and its regulations are substantially related to the purpose the ordinance purports to serve. In applying that formulation, Pennsylvania courts use a substantive due process analysis that requires a reviewing court to balance the public interest served by the zoning ordinance against the confiscatory or exclusionary impact of regulation on individual rights. The party challenging the constitutionality of certain zoning provisions must establish that they are arbitrary, unreasonable and unrelated to the public health, safety, morals and general welfare. Where their validity is debatable, the legislature's judgment must control. Boundary Drive Associates v. Shrewsbury Township Board of Supervisors, 507 Pa. 481, 491 A.2d 86 (1985). 3 On November 7, 2002, six days after the decision in C&M, the Piper Group filed its Application with the Board pursuant to sections 609.1, 909.1(b)(4) and 916.1(a)(2) of the Pennsylvania Municipalities Planning Code (MPC),2 substantively challenging the dimensional requirements set forth in sections 408(2)(b) and 513 of the Ordinance, the identical provisions that were challenged and found invalid in C&M. The Piper Group s Application applies to both its sites and includes a proposed curative amendment ordinance and development plans. In accordance with the Piper Group s proposed ordinance, the development plans permit the construction of 174 single-family dwelling units on a minimal lot area of 6,500 square feet on one site, and 179 single-family dwelling units on a minimal lot area of 6,500 square feet on the other site. The Piper Group also proposed the construction of a small sewage treatment plant and community water facility on both sites. On November 12, 2002, in response to the C&M decision filed eleven days earlier, the Township entered into a settlement agreement with C&M Developers to resolve the case. In addition, on November 14, 2002, at the first available public meeting, the Township declared that it would undertake a municipal curative amendment pursuant to section 609.2 of the MPC.3 On April 30, 2003, the Township adopted Ordinance 149 to cure the infirmities identified in C&M. Most 2 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10609.1, 10909.1(b)(4), 10916.1(a)(2). Section 609.1 of the MPC was added by section 10 of the Act of June 1, 1972, P.L. 333, as amended; section 909.1(b)(4) of the MPC was added by section 87 of the Act of December 21, 1988, P.L. 1329, as amended; and section 916.1(a)(2) of the MPC was added by section 99 of the Act of December 21, 1988, P.L. 1329, as amended. 3 Added by section 2 of the Act of October 5, 1978, P.L. 1067, as amended, 53 P.S. §10609.2. 4 notable among the changes made, Ordinance 149 reduces the minimum lot size twenty-six percent, from one acre to 32,000 square feet. Thereafter, between May 12, 2003, and January 15, 2007, fifty-four hearings were held before the Board on the Piper Group s Application. Throughout these proceedings, the Board was represented by the Township Solicitor, who had represented the Township in C&M but assumed the role of the Board Solicitor; Special Township Counsel was appointed to represent the Township in opposition to the Piper Group s Application.4 During this period, the Township further amended its Ordinance by adopting Ordinance 162 on July 20, 2005, thereby facilitating more development within the AP District. On March 26, 2007, the Board issued a lengthy adjudication denying the Piper Group s Application, and the Piper Group filed a land use appeal with the trial court, appealing the Board s decision. Following oral argument and the filing of briefs,5 the trial court, by opinion and order dated August 27, 2009, denied the Piper 4 Section 916.1(c)(3) of the MPC provides that, where a validity challenge is heard by the governing body, it shall be represented and advised at the hearings by the municipal solicitor. 53 P.S. §10916.1(c)(3). As permitted by section 916.1(c)(4) of the MPC, 53 P.S. §10916.1(c)(4), the Township engaged Special Township Counsel to present its case. 5 Previously, the Piper Group had filed a motion with the trial court for leave to supplement the record and present evidence it claimed was improperly precluded at the Board hearings. After the submission of briefs and oral argument on the issue of supplementation, the trial court denied the motion, concluding that the Piper Group failed to establish that it was denied the opportunity to include relevant testimony and that the voluminous record was adequate to allow for appellate review. See section 1005-A of the MPC, added by section 101 of the Act of December 21, 1988, P.L. 1329, 53 P.S. §11005-A (relating to hearing and argument on land use appeal). The parties then filed briefs and conducted argument on the merits of the Piper Group s land use appeal. 5 Group s appeal and affirmed the Board. The Piper Group now appeals to this court.6 The critical issues raised here are: (1) whether the Piper Group is entitled to approval of its November 7, 2002, Application based solely on the Supreme Court s decision in C&M and the Board s settlement agreement with C&M Developers; (2) whether a de novo standard of review should be applied in this case because the Board, and the Board Solicitor in particular, conducted the hearings in a manner that violated the Piper Group s due process rights; (3) whether the trial court erred in holding that the Piper Group s requested relief is unreasonable and in failing to discuss whether the Piper Group s proposed use and development plans satisfied the criteria set forth in section 609.1(c) of the MPC, 53 P.S. §10609.1(c); and (4) whether the trial court erred in determining that Ordinance 149 cured the defects identified by the Supreme Court in C&M. The trial court ably addressed and correctly decided each of these issues in its thorough and thoughtful opinion. Accordingly, we affirm, adopting the wellreasoned opinion of Judge C. Theodore Fritsch, Jr., entered in The Piper Group, Inc. v. Bedminster Township Board of Supervisors, (Bucks County, No. 07-3457-29-5, 6 Where, as here, the trial court takes no additional evidence, our scope of review is limited to determining whether the Board committed an abuse of discretion or an error of law. Baker v. Chartiers Township Zoning Hearing Board, 677 A.2d 1274 (Pa. Cmwlth. 1996), appeal denied, 547 Pa. 738, 690 A.2d 238 (1997). The Board abuses its discretion when its findings of fact are not supported by substantial evidence. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. 6 filed August 27, 2009). ___________________________________ ROCHELLE S. FRIEDMAN, Senior Judge 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA The Piper Group, Inc., Charles E. Sigety, Katharine S. Sigety, Nero Enterprises, Sigety Trust c/o Trustees Charles Birge Sigety and Katharine K. Yon, Piperlands Properties, L.P., 110 Dark Hollow Road, LLC, Robert G. Sigety, Cornelius E. Sigety, Elizabeth D. Sigety, and Robert G. Sigety, as Tenants by the Entireties, and Robert G. Sigety GRAT c/o Trustee Cornelius E. Sigety, Appellants : : : : : : : : : : : : : v. : : Bedminster Township Board of : Supervisors and Bedminster Township : No. 1824 C.D. 2009 ORDER AND NOW, this 12th day of March, 2010, the order of the Court of Common Pleas of Bucks County is affirmed on the basis of the opinion issued by Judge C. Theodore Fritsch, Jr. in The Piper Group, Inc. v. Bedminster Township Board of Supervisors, ___ Pa. D. & C. 4th ___ (2010), Court of Common Pleas of Bucks County, No. 07-3457-29-5, filed August 27, 2009. ___________________________________ ROCHELLE S. FRIEDMAN, Senior Judge

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