Penn Florida Realty, L.P. v. Lower Gwynedd Twp Bd of Supervisors - 203 & (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Penn Florida Realty, L.P., Appellant v. Lower Gwynedd Township Board of Supervisors Penn Florida Realty, L.P., Appellant v. Lower Gwynedd Township Board of Supervisors BEFORE: : : : : : : : : : : : : : : : No. 203 C.D. 2007 No. 204 C.D. 2007 Argued: March 10, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JIM FLAHERTY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: April 10, 2008 In these consolidated appeals, Penn Florida Realty, L.P. (Penn Florida), appeals from the January 9, 2007 order of the Court of Common Pleas of Montgomery County (trial court) denying Penn Florida s appeals from the April 5, 2005 and January 19, 2006 decisions of the Board of Supervisors of Lower Gwynedd Township (Board). The Board s April 5, 2005 and January 19, 2006 decisions denied two separate land development applications filed by Penn Florida proposing modifications to the existing Spring House Village Shopping Center (Center). We affirm. Penn Florida is the owner of the Center, a 17.3 acre tract in Lower Gwynedd, Montgomery County, Pennsylvania. The tract is zoned D-2 and is situated in a prime commercial location and is improved with certain office and retail commercial space. At the time of its construction in 1972, the Center was in compliance with all applicable zoning ordinances. In 1987, the Township substantially revised the zoning regulations applicable to the D-2 Planned Business District the provisions applicable to the property. These amendments rendered a number of existing features on the property nonconforming. Specifically: (1) the Center has 628 parking spaces, 36 spaces less than the number required under the amendments; (2) certain existing parking areas do not meet the minimum setback requirements; (3) the parking area located along Moore Drive does not have a 10 foot landscape buffer as required by the amendments; (4) the present impervious coverage is 62%, in excess of the maximum 40% allowed under the amendments; and (5) the present lighting fixtures are 20 feet in height, where as the amendments set the maximum height at 14 feet. In April 2004, Penn Florida filed an application with the Board proposing modification to the existing Center (First Application). The application sought to convert vacant office space into retail space, remodel the exterior of the vacant building, demolish certain retail buildings, construct two new retail buildings, reconfigure the drive aisle, and add parking spaces. At the request of Penn Florida, public evidentiary hearings were held in February and March 2005. On March 23, 2005, the Board unanimously voted to deny Penn Florida s First Application because of the failure of the plans to comply with applicable 2. provisions of the Lower Gwynedd Township Zoning Ordinance (Zoning Ordinance) and the Subdivision and Land Development Ordinance (SALDO) (hereinafter collectively referred to as Ordinances ).1 By letter dated April 5, 1 As this Court recently stated: A preliminary plan must be approved if it meets all specific, objective requirements under a subdivision and land development ordinance. Herr v. Lancaster County Planning Commission, 625 A.2d 164 (Pa. Cmwlth. 1993), petition for allowance of appeal denied, 538 Pa. 677, 649 A.2d 677 (1994). The preliminary plan is essentially conditional in nature in that after its approval, the developer must still fulfill all the requirements to obtain final approval. Graham v. Zoning Hearing Board of Upper Allen Township, 514 A.2d 236 (Pa. Cmwlth. 1986), petition for allowance of appeal granted, 515 Pa. 596, 528 A.2d 604 (1987); Tuscarora Forests, Inc. v. Fermanagh Board of Supervisors, 471 A.2d 137 (Pa. Cmwlth. 1984). Consequently, even where the preliminary plan fails to comply with the objective, substantive requirements, the governing body may in its discretion either reject the plan outright or grant conditional approval. Schultheis v. Board of Supervisors of Upper Bern Township, 727 A.2d 145 (Pa. Cmwlth. 1999). Further, the preliminary plan containing minor defects correctable by amendment must be approved subject to a condition that necessary corrections be made. Shelbourne Square Assoc. v. Board of Supervisors of Township of Exeter, 794 A.2d 946 (Pa. Cmwlth.), petition for allowance of appeal denied, 572 Pa. 727, 814 A.2d 679 (2002). When the preliminary plan is disapproved, the governing body must "specify the defects found in the plan and describe the requirements which have not been met and ... cite to the provisions of the statute or ordinance relied upon." Section 508(2) of the [Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended], 53 P.S. §10508(2). CACO Three, Inc. v. Board of Supervisors of Huntington Township, 845 A.2d 991, 993-94 (Pa. Cmwlth.), petition for allowance of appeal denied, 580 Pa. 707, 860 A.2d 491 (2004). 3. 2005, the Board notified Penn Florida of seven specific plan defects which violated the Ordinances.2 Penn Florida timely appealed the decision to the trial court. 2 Specifically, the Board denied the preliminary land development plans because the plans failed to comply with the applicable provisions of the Ordinances as follows: 1. Failure to obtain the necessary relief from the Township Zoning Hearing Board: (a) to change the non-conforming impervious coverage situation on the property from its present configuration to the significantly different configuration shown on the plans; and (b) to permit parking spaces to be located closer to a property line than the Zoning Ordinance permits in violation of Sections 1296.02, 1284.08(b) and 1284.06(b) of the Zoning Ordinance. 2. Failure to provide the required road widening, curbing (and any necessary storm sewers) on the existing road frontages of the property in violation of Sections 1236.04(d)(1), 1236.04(d)(4)(A) and (C), and 1238.08 of the SALDO. 3. Failure to provide a 10 foot wide landscape barrier at all edges of the property adjacent to public streets in violation of Section 1284.09(c) of the Zoning Ordinance. 4. Failure to design pedestrian walkways, parking facilities and driveways on the site in a safe and efficient manner and in accordance with an overall master plan in violation of Sections 1284.09(b), 1294.01 and 1294.03(a) of the Zoning Ordinance; also failure to design parking facilities and driveways in order to provide safe and adequate ingress and egress for vehicles to and from a street or way in violation of Section 1294.01 of the Zoning Ordinance. 5. Failure to adhere to site lighting requirements (maximum height) in violation of Section 1238.14(e) of the SALDO. 6. Failure to provide provision for access to the boundary lines of the development (with regard to the out-parcel on Sumneytown Pike) when such adjoining acreage is suitable for future development in violation of Section 1236.04(f)(2) of the SALDO. 7. Failure to provide certifications from the Lower Gwynedd Municipal Authority confirming their ability and willingness to serve the new improvements on the tract in violation of Section 1236.08(b) of the SALDO. 4. On July 15, 2005, Penn Florida submitted a second application for preliminary land development approval for the Center (Second Application). In the cover letter accompanying the Second Application, Penn Florida conceded that many of the bases for denial of the First Application still applied to the Second Application. Penn Florida expressly stated that the purpose of the Second Application was to address three of the reasons for denial as set forth in the April 5, 2005 denial letter and that the remaining reasons set forth in the April 5, 2005 denial letter referred to legal matters, specifically Penn Florida s right to maintain existing dimensional non-conformities that must be resolved by counsel or a court. Therefore, Penn Florida stated that those legal matters were not addressed by the revised plans. Accordingly, after again holding public meetings, the Board denied Penn Florida s Second Application, deeming it almost identical to the First Application. By letter dated January 19, 2006, the Board notified Penn Florida of the denial this time listing five specific defects.3 Penn Florida timely appealed the decision to the trial court. 3 Specifically, the Board denied the Second Application because the preliminary land redevelopment plans failed to comply with the applicable provisions of the Ordinances as follows: 1. Failure to obtain the necessary relief from the Township Zoning Hearing Board: (a) to change the non-conforming impervious coverage situation on the property from its present configuration to the significantly different configuration shown on the plans; and (b) to permit parking spaces to be located closer to a property line than the Zoning Ordinance permits in violation of Sections 1296.02, 1284.08(b) and 1284.06(b) of the Zoning Ordinance. 2. Failure to provide the required road widening, curbing (and any necessary storm sewers) on a portion of the Bethlehem Pike (Continued....) 5. The trial court consolidated Penn Florida s appeals on March 10, 2006. After briefing, the trial court heard oral arguments and by order of January 9, 2007, the trial court denied Penn Florida s appeals. The trial court determined that the denial of the Second Application was supported by substantial evidence and that the Board did not abuse its discretion. These appeals followed.4 Herein, Penn Florida raises the following issues: 1. Whether the trial court erred in refusing to conduct a de novo review of the Board s decisions denying Penn Florida s land development applications. 2. Whether the trial court erred in finding that the Township did not violate Penn Florida s right to procedural due process. frontage of the property in violation of Sections 1236.04(d)(1), 1236.04(d)(4)(A) and (C), and 1238.08 of the SALDO. 3. Failure to design pedestrian walkways, parking facilities and driveways on the site in a safe and efficient manner and in accordance with an overall master plan in violation of Sections 1284.09(b), 1294.01 and 1294.03(a) of the Zoning Ordinance; also failure to design parking facilities and driveways in order to provide safe and adequate ingress and egress for vehicles to and from a street or way in violation of Section 1294.01 of the Zoning Ordinance. 4. Failure to adhere to site lighting requirements (maximum height) in violation of Section 1238.14(e) of the SALDO. 5. Failure to provide provision for access to the boundary lines of the development (with regard to the out-parcel on Sumneytown Pike) when such adjoining acreage is suitable for future development in violation of Section 1236.04(f)(2) of the SALDO. 4 Where the trial court takes no additional evidence, our scope of review in a land use appeal is limited to determining whether the local governing body committed an error of law or an abuse of discretion. In re Thompson, 896 A.2d 659 (Pa. Cmwlth. 2006). A governing body abuses its discretion when its 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. 6. 3. Whether the trial court erred in holding that before Penn Florida could apply for land development approval to modernize the Center, it was required to obtain approval from the Zoning Hearing Board to maintain existing non-conformities. 4. Whether the trial court erred in finding that Sections 1236.04(d)(1), 1236.04(d)(4)(A) and (C), and 1238.08 of the SALDO5 applied and/or supported the denial of the land development applications. 5. Whether the trial court erred in finding that Sections 1294.01 and 1294.03(a) of the Zoning Ordinance6 applied and/or supported the denial of the land development applications. 6. Whether the trial court erred in finding that Section 1236.04(f)(2) of the SALDO7 applied and/or supported the denial of the land development applications. 7. Whether the trial court erred in failing to find that the Township s reasons for the denials violated Sections 503A(b) and 505-A of the Pennsylvania Municipalities Planning Code.8 5 See Reproduced Record (R.R.) at 1707a;1717a. Section 1236.04 governs streets and roads. Section 1238.08 governs storm and surface drainage. 6 See R.R. at 1594a-1595a. Section 1294.01 governs required off-street parking facilities. Section 1294.03(a) governs ingress and egress and provides that off-street parking shall be designed and so located that no vehicle is required to back out directly onto a nonresidential street. 7 See R.R. at 1711a. Section 1236.04(f)(2) prohibits reserve strips that control access or egress. This section provides further that [n]ew streets shall be provided through to the boundary lines of the development if such development adjoins acreage suitable for future development. Id. 8 Added by, Section 1 of the Act of December 19, 1990, P.L. 1343, as amended, 53 P.S. (Continued....) 7. 8. Whether the trial court erred in failing to find that the Township acted in bad faith and with an improper motive in denying Penn Florida s land development applications. With regard to the claims raised by Penn Florida in these appeals, we conclude that the trial court thoroughly and correctly analyzed those issues. Likewise, we do not find any evidence in the record that supports Penn Florida s claim that the Township acted in bad faith and with an improper motive. This matter was ably disposed of in the comprehensive and well-reasoned opinion of the Honorable Maurino J. Rossanese and the Honorable Thomas C. Branca. Accordingly, we affirm on the basis of the trial court s opinion in Appeal of Penn Florida Realty from Decision of the Board of Supervisors of Lower Gwynedd Township Dated April 5, 2005, (No. 05-12135, filed January 12, 2007) and Appeal of Penn Florida Realty from Decision of the Board of Supervisors of Lower Gwynedd Township Dated January 19, 2006, (No. 06-03901, filed January 12, 2007). 9 _________________________________ JIM FLAHERTY, Senior Judge §§10503-A(b); 10505-A. Section 503-A governs the grant of power to the governing body of each municipality to enact, amend and repeal impact fee ordinances. Section 503-A(b) prohibits, inter alia, a municipality from requiring as a condition for approval of a land development application, the construction, dedication or payment of any offsite improvements or capital expenditures of any nature whatsoever. Section 505-A governs the establishment and administration of impact fees. 9 We note that the Township s claim that Penn Florida waived issues 1 and 8, as set forth herein, is mistaken. Our review of the record in this matter reveals that the issues were properly preserved. Moreover, the trial court adequately addresses these issues in its opinion in support of its January 9, 2007 order denying Penn Florida s appeals. 8. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Penn Florida Realty, L.P., Appellant v. Lower Gwynedd Township Board of Supervisors Penn Florida Realty, L.P., Appellant v. Lower Gwynedd Township Board of Supervisors : : : : : : : : : : : : : : : No. 203 C.D. 2007 No. 204 C.D. 2007 ORDER AND NOW, this 10th day of April, 2008, the January 9, 2007 Order of the Court of Common Pleas of Montgomery County entered at No. 05-12135 and No. 06-03901, is affirmed. _________________________________ JIM FLAHERTY, Senior Judge

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