Heritage Building Group, Inc. v. Plumstead Twp Bd of Supervisors (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Heritage Building Group, Inc. v. Plumstead Township Board of Supervisors, Appellant BEFORE: : : : : : : : No. 1387 C.D. 2007 Argued: March 10, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: May 6, 2008 The Board of Supervisors of Plumstead Township, Pennsylvania, (Township), appeals to this Court, challenging the June 19, 2007 Order of the Court of Common Pleas of Bucks County (Trial Court). Trial Court reversed the Township s decision to deny a conditional use application (Application) submitted by Appellee, Heritage Building Group, Inc. (Heritage). On appeal, we affirm Trial Court. Heritage is a land developer and the equitable owner of an irregularlyshaped thirty-three acre tract of land (the Property) located in an R-2 Residential Zoning District within Plumstead Township. Heritage sought to construct a legal plan (the Project) to use the Property within a permitted use identified in the Township Zoning Ordinance (Zoning Ordinance) as a B-2 Land Preservation Subdivision Use. The proposed Project subdivides the thirty-three acre Property into 20 lots to be used for the construction of 20 single-family detached homes on lots of a minimum 15,000 square feet each, with accompanying supportive utility, recreational and green spaces.1 Each of the homes would front on Silo Hill Road, which is one boundary of the Property. Additionally, Heritage proposed an open space area of over 17 acres and an open space/ recreation lot of 26,650 square feet. To meet that purpose, on April 28, 2005, Heritage filed an application with the Township for approval of the Project in the form of a Conditional Use Application (Application), with an attached Conditional Use Plan, dated April 27, 2005, (the Plan), (which includes the later revisions to the Plan), designed and prepared by Van Cleef Engineering Associates (Engineers).2 To effect the Plan, the Engineers designed an integrated water system that will service not only the Project, but will also service two other proposed residential developments within the township (to be developed more fully by Heritage in the future). Portions of this integrated water system will be constructed on the Property. Under the Zoning Ordinance, this proposed integrated water system is a separate E-1 Utility Use, which is permitted in the R-2 Zoning District by special exception. On February 2, 2006, the Plumstead Township Zoning Hearing Board (ZHB) granted the legal owner of the Property, a Heritage affiliated entity, a 1 Section 27-802.2A(1) of the Zoning Ordinance permits a B-2 land Preservation Subdivision Use in the R-2 Zoning District by conditional use. (R. 24a). 2 Van Cleef Engineering Associates consult in the areas of Civil Engineering, Environmental Engineering, Municipal Engineering, Land Surveying, Professional Planning and Landscape Architecture. 2. special exception and certain variances to permit the integrated water system to be constructed, including the installation of two water supply wells on the Property.3 On February 28, 2006 and on May 22, 2006, the Township held hearings on Heritage s Application to develop the Property, during which. Heritage and the Township were each represented by counsel, respectively, and each entered evidence. During the proceedings before the Township, Heritage presented and incorporated its revised Plan adding a two acre lot to supply water for the Property and for two additional unrelated tracts in which Heritage has an interest (the Water Supply Lot).4 On August 10, 2006, the Township issued a written decision denying Heritage s Application to develop the Property, finding, inter alia, that: a) the Plan designated 17.818 acres of open space to be dedicated to Plumstead Township; b) the proposed Water Supply Lot did not meet the dimensional requirements for the use within the R-2 District, and was a lane lot prohibited under the Township s Subdivision and Land Development Ordinance (SALDO); c) the Plan did not cluster, or attempt to cluster, any of the Property's proposed dwellings, as required by the B-2 Use provisions of the Zoning Ordinance; 3 Following the ZHB s approval of the integrated water system, Heritage submitted a revised Conditional Use Plan dated February 28, 2006 that located the water supply wells on a separate lot within the Property. A colorized copy of the revised Conditional Use Plan was attached as Exhibit A to the Appellee s Brief. 4 Additionally, Heritage's Plan provides for connection to the Bucks County Water and Sewer Authority public sewer system in order to service the wastewater generated by the proposed B-2 Use. 3. d) the Plan proposed to establish a private water supply system on the site in contravention of Township s SALDO. Based on these and other findings, the Township concluded, inter alia, that: a) the proposed Water Supply Lot: (1) constitutes an E-1 Utility Use under Section 27-304.43 of the Zoning Ordinance; (2) did not comply with the requirements of that Utility Use Section; (3) did not comply with other dimensional requirements of other Zoning Ordinance Sections, and; (4) did not comply with the requirements of the SALDO; b) the proposed B-2 Use did not comply with the clustering provisions of Section 27-304.10 of the Zoning Ordinance, which requires a clustering of residential lots and the configuring of open spaces to preserve the view of land from public areas; and c) the Use and/or Plan did not meet various specific requirements relating to natural resources, suitability of the use, and harmony with the character of the general vicinity, as articulated in the provisions of Section 27-2808.2 of the Zoning Ordinance. By decision dated August 10, 2006, the Township issued a written decision denying Heritage's Application. Heritage timely appealed to Trial Court, which heard the matter without receiving additional evidence. Trial Court issued a Memorandum Opinion and Order, dated June 19, 2007 (Trial Court Opinion), 4. reversing the Township s decision and approving Heritage s conditional Use Application. Trial Court surmised that the Township's denial of the Application was primarily based upon: 1) the non-compliance of the Water Supply Lot, and 2) the proposed residences' failure to meet the clustering and delineation of natural resources provisions of the Zoning Ordinance.5 Trial Court agreed with Heritage's argument that, pursuant to In re Thompson, 896 A.2d 659 (Pa. Cmwlth. 2006),6 a conditional use cannot be legally denied because other aspects of the development, which are not the subject of the conditional use application, do not yet comply with all municipal zoning requirements. Because an applicant seeking conditional use approval must only demonstrate compliance with the express standards and criteria of the ordinance relating specifically to the proposed conditional use, Trial Court concluded that Township acted beyond the scope of the conditional use application presented by Heritage because Township based its denial on the alleged non-compliance of E-1 Utilities Use and non-compliance of the Water Supply Lot, both of which are outside the scope of the Application. Additionally, Trial Court concluded that "clustering", as required by the Zoning Ordinance in a B-2 Land Preservation Subdivision, was not defined in 5 The clustering regulations can be found in Section 27-304.10 of the Zoning Ordinance. 6 Petition for allowance of appeal denied, 591 Pa. 669, 916 A.2d 636 (2007). 5. the Zoning Ordinance and that the proposed dwellings, as well as the open space resulting therefrom, represents a cluster arrangement of the homes.7 Finally, Trial Court concluded that the record did not contain substantial evidence supporting the Township's finding that the use failed to comply with the Zoning Ordinance's general, non-specific requirements that the use be suitable for the property and constructed to be in harmony with the existing or intended character of the general vicinity. Citing to Thompson and Ruddy v. Lower Southampton Township Zoning Hearing Board, 669 A.2d 1051 (Pa. Cmwlth. 1995),8 Trial Court concluded that Heritage was not required to demonstrate compliance with general, non-objective criteria of the Zoning Ordinance absent a demonstration by any objectors as to the use's detrimental impact. Trial Court ultimately concluded that Heritage properly supported its Application, that the Township relied upon issues not before it and that there was no evidence presented regarding any adverse impact to the neighboring community as a result of the proposed use. Trial Court, therefore, concluded that the Township committed an error of law or abuse of discretion in denying Heritage's 7 Trial Court concluded that, [t]he [Zoning] Ordinance and the Adjudication lack a definition for clustering. Applying a common-sense approach, this Court s review confirms that the construction of the dwellings in a single row, along a perimeter of the property, as well as the open space as described, represents a clustered arrangement of homes. What constitutes a cluster may be dependent on the configuration of the entire tract and the natural resources to be preserved. Page 6 of Trial Court opinion by the Honorable John J. Rufe: In Re: Appeal of Heritage Building Group from the Decision of the Board of Supervisors of Plumstead Township Dated August 10, 2006, (C.C.P. Bucks County No. 06-07879-18-5, filed June 19, 2007). 8 Petition for allowance of appeal denied, 546 Pa. 651, 683 A.2d 887 (1996). 6. Application, and reversed the Township's decision by order dated June 19, 2007. The Township appealed that decision to this Court.9. A conditional use is nothing more than a special exception where the jurisdiction attaches to the local governing body as opposed to the jurisdiction of a zoning hearing board. Id. Additionally, the burden of proof for both special exceptions and conditional uses are the same: an applicant must demonstrate compliance with the specific conditional use criteria of the ordinance. Id. Once the applicant meets the specific requirements of the applicable ordinance, a prima facie case is established and the application must be granted unless objectors present sufficient evidence that the proposed use has a detrimental effect on public health, safety, and welfare. Id. On appeal, the Township contends that Trial Court erred in reversing the Township. Initially, the Township argues that Trial Court s error is based on Trial Court s application of the term cluster, which is different from the Township s interpretation of that undefined concept. In its appeal, the Township emphasizes that Section 27-304.10 of the Zoning Ordinance references the clustering of homes, making that characteristic an integral aspect of a B-2 Use.10 9 In a land use appeal, where, as here, the trial court does not take additional evidence, this Court's scope of review is limited to determining whether the local governing body committed an error of law or an abuse of discretion. Thompson. An abuse of discretion occurs when the governing body's findings of fact are not supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id 10 Section 27-304.10 of the Zoning Ordinance offers specific Use Regulations, and provides a general description for a B-2 Land Preservation Subdivision Use: Detached single-family dwelling units on individual lots with private yards on all sides of the house that are clustered to preserve open space for the purposes and uses specifically permitted by this Chapter. Requirements for this use are found within the district regulations where this Use is permitted. (Continued....) 7. While acknowledging that the Zoning Ordinance provides no express definition of clustering, the Township argues that this Court must accord great deference and weight to the Township s interpretation. Citing to Thompson, the Township asserts that, as the local municipality charged with executing and applying the Zoning Ordinance s provisions, the Township s conclusion that Heritage s arrangement of the homes is not clustered must control.11 The record shows that the homes upon the Property are all arranged in one continuous line along one of the Property s outer edges, with a gap between a group of four houses, and another group of sixteen houses, along that line. R.R. at 193a. Heritage argues that its alignment of the homes constitutes a cluster for two primary reasons. First, Heritage asserts, absent a defined meaning for the word cluster in the Zoning Ordinance, that Trial Court s common sense definition of the term cluster is consistent with the development s grouping of the homes along one edge of the Property. Secondly, Heritage emphasizes that its purposeful arrangement of the homes achieves the goal established under the clear language of section 27-304.10, which goal is to maximize the preservation of open space. Thus, reading the relevant Zoning Ordinance language as a whole, this Court agrees with Heritage and Trial Court on both points. This use is permitted only where the proposed wastewater disposal method is consistent with the Township s plan for wastewater disposal, without requiring any revisions to the 537 Plan. (Emphasis added). 11 Thompson acknowledges that great weight should be afforded to a township council s interpretation of a zoning ordinance s description of required shape characteristics in regards to naturalized storm basins, where the trial court reversed the council s grant of a conditional use following a different interpretation of the applicable ordinance description. In that precedent, where the council s interpretation favored the applicant, we reversed the trial court and deferred to the council s interpretation, noting its duty to execute and apply the provision at issue. Thompson, 896 A.2d at 669, 673-675. See also Section 1921(c)(8) of the (Continued....) 8. Section 27-304.10, on its face, subjugates the clustering requirement to the goal of preserving open space for a B-2 Land Preservation Subdivision Use. The record is clear that Heritage s grouping of the homes does, in fact, serve that goal of preserving maximum open space; Heritage s uncontroverted evidence demonstrates a resultant minimum of 17.81 acres of contiguous common open space, the preservation of areas of natural and/or scenic resources, and access to the open space provided through the rear yards of the lots. R.R. at 28a, 34a, 60a63a, 77a, 193a. As such, Trial Court s application of the Zoning Ordinance clustering requirement can clearly be read to be more consonant with the Zoning Ordinance as a whole than with the more restrictive interpretation applied by the Township, which interpretation fails to accord weight to the Zoning Ordinance s open space goal. It is axiomatic, that in matters of statutory interpretation, an ordinance must be construed, if at all possible, to give effect to all of its provisions. Thompson; Mann v. Lower Makefield Township, 634 A.2d 768 (Pa. Cmwlth. 1993). Thompson requires courts to use a case-by-case approach that is factdependent in conditional use review, utilizing both the specific use requested as well as the language of the ordinance at issue. Thompson, 896 A.2d at 670-679. Further, in Thompson, the deference due to the municipality s interpretation of its less than precise ordinance term was implicitly tempered by construing that term in favor of the landowner s requested use, not unlike the present instance.12 Statutory Construction Act of 1972, 1 Pa.C.S. §1921(c)(8). 12 In Thompson, the conditional use sought was approved by the municipality. This factual circumstance and procedural path distinguishes Thompson, factually, from the matter sub (Continued....) 9. Where a zoning ordinance term is open to differing interpretations in its application to particular facts, we have held that the ambiguous term is to be construed in favor of the landowner. Kleinman v. Lower Merion Township Zoning Hearing Board, 916 A.2d 726 (Pa. Cmwlth. 2006);13 see also Section 603.1 of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. §10603.1.14 Thus, for the above-cited reasons, because the term cluster was not defined in the Zoning Ordinance sub judice, and because Trial Court construed the term and the Zoning Ordinance in favor of the landowner, as required by Kleinman, Trial Court did not err in concluding that Heritage had met the Zoning Ordinance s clustering requirement. We will address the Township s remaining two issues together.15 The Township argues that Heritage failed to meet all Zoning Ordinance requirements, citing 1) the Water Supply Lot and 2) the natural resources of the Property. In opposition to these arguments, Heritage relies upon this Court s decision in Thompson that conditional use approval cannot be legally denied due to nonjudice without interfering with the necessary application of the law to the present factual circumstances. 13 Petition for allowance of appeal denied, 593 Pa. 751, 931 A.2d 659 (2007) 14 The Pennsylvania Municipalities Planning Code is the Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as amended. 15 The Township also argues a fourth issue to this Court: that the Township correctly determined that Heritage failed to meet its burden of proof regarding compliance with the Zoning Ordinance open space requirements. Although the Township concluded that Heritage failed to meet the clustering requirement in relation to open space, as discussed above, the Township did not find or conclude that Heritage failed to establish the required open space in any aspect other than failing to cluster the homes. Township Adjudication, August 10, 2005, Exhibit A of the Appellant Township Brief, at Findings 6, 12; Conclusion 9. Section 913.2(b) of the MPC, 53 P.S. §10913.2(b), requires the Township to set forth all of the reasons for its denial of the Application in its decision. More importantly and dispositive of the issue, the Township raises this issue for the first time on appeal to this Court, and because it was not raised on appeal below, this issue, is therefore, waived. We will not address the Township s fourth stated issue. 10. compliance with other detailed requirements of a zoning ordinance and/or a subdivision land development ordinance. This general proposition is true, even where such additional requirements are ultimately required for subdivision approval, since any additional requirements are beyond the limited scope of a conditional use proceeding; where satisfying the criteria for conditional use is but one step of the subdivision approval process, and subdivision approval cannot be granted until the conditional use approval is first obtained. Thompson. In addition to analyzing the foregoing issues in a well reasoned manner, the two remaining issues presented by Appellant Township are also concisely and accurately addressed in Trial Court s opinion, which we adopt, in relevant part: The [Township] suggests that Heritage s reliance upon the Thompson case is both over-used and misapplied. However, Thompson holds that under Pennsylvania law, conditional use approval cannot be legally denied because other aspects of the development, which are not the subject of the conditional use application, do not yet comply with all municipal zoning or subdivision requirements. An applicant seeking conditional use approval must only demonstrate compliance with the express standards and criteria of that ordinance that relate specifically to the proposed conditional use. Detailed design of proposed development and compliance with detailed requirements of a zoning ordinance and a subdivision and land development ordinance, while required for ultimate subdivision approval, are not required for conditional use approval and are beyond the limited scope of the conditional use proceeding. Id. Here, the [Township] refers to alleged noncompliance of the E-1 Utilities Use and Water Supply Lot. However, this Court finds the [Township] acted beyond the scope of the conditional use application presented by Heritage. In supporting this conditional use application Heritage was not required to demonstrate compliance with the 11. Ordinance requirements related to an E-1 Utilities Use. [FN 2]. * * * The [Township] disregards the fact that Heritage met its burden in the following manner: The lots have been located closely together so that there are 17.81 acres of contiguous common open space, which exceeds the minimum 17.33 acres of open space required by the Ordinance. The open space has been designed in accordance with the requirements of Section 931 of the SALDO. The areas of natural or scenic resources and areas of geological and botanical interest have been preserved. Access to the open space has been provided from the rear yards of the proposed residential lots, and The 17.81 acres of open space has been offered for dedication to the Township, and will be owned and maintained by a homeowners association in the event that the Township does not accept the dedication. Instead, the [Township] found the proposed use failed to comply with the Ordinance s general, non-specific requirement that the proposed use would be suitable for the property in question and constructed so as to be in harmony with the existing or intended character of the general vicinity. Pennsylvania law supports the doctrine that Heritage was not required to demonstrate compliance with general, non-objective criteria of the Ordinance unless objectors demonstrated, through concrete evidence, that the use will have greater detrimental impact than would typically be associated with that use. Ruddy. The record does not reflect such substantial evidence for the [Township] to have made that determination. 12. * * * Our review indicates that Heritage presented and supported an appropriate application with regard to the conditional use requested. We find the [Township] relied on issues not properly before them. The [Township] did not present evidence regarding any adverse impact to the neighboring community due to this Application. The [Township] s actions, in the face of the overall record, are unpersuasive. We find the [Township] committed an error of law or abuse of discretion in denying Heritage s Application. [FN 2] [Trial Court] note[s] Heritage s representation that the Water Supply Lot was in fact designed in accordance with the requirements of the Ordinance for an E-1 Utilities Use and complies with all of those requirements (Exhibit A-3; N.T., 2/28/06, pp. 48, 66; N.T. 5/22/06, pp. 56, 61, 68-69). Trial Court Opinion at 5-8 (footnote in original). We agree with Trial Court that the Township committed an error of law or an abuse of discretion in denying Heritage s Application and, accordingly, we affirm. JIM FLAHERTY, Senior Judge 13. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Heritage Building Group, Inc. v. Plumstead Township Board of Supervisors, Appellant : : : : : : : No. 1387 C.D. 2007 ORDER AND NOW, this 6th day of May, 2008, the Order of the Court of Common Pleas of Bucks County, dated June 19, 2007, at No. 06-07879-18-5, is hereby affirmed. JIM FLAHERTY, Senior Judge

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