D.A. Ames v. The Planning Commission of Indiana Borough, Indiana County, and B&L Properties II, L.P. ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Deborah A. Ames, George C. :
Stewart and Joanne C. Stewart, :
David Moore and Carl J. Bish and :
Borough of Indiana :
: No. 1499 C.D. 2016
v. :
:
The Planning Commission of Indiana :
Borough, Indiana County, and :
B&L Properties, II, L.P. :
:
Appeal of: The Planning Commission :
of Indiana Borough, Indiana County :
and Borough of Indiana :
Deborah A. Ames, George C. :
Stewart and Joanne C. Stewart, :
David Moore and Carl J. Bish and :
Borough of Indiana :
: No. 1500 C.D. 2016
v. :
: Argued: November 13, 2017
The Planning Commission of Indiana :
Borough, Indiana County, and :
B&L Properties, II, L.P. :
:
Appeal of: Deborah A. Ames, George :
C. Stewart and Joanne C. Stewart, :
David Moore and Carl J. Bish :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: December 7, 2017
Deborah A. Ames, George G. Stewart, Joanne C. Stewart, David Moore,
and Carl J. Bish, and Intervenor, the Borough of Indiana, (collectively, Appellants)
appeal from the August 4, 2016 order of the Court of Common Pleas of Indiana County
(trial court) granting the land use appeal filed by Appellants, vacating the approval by
the Planning Commission of Indiana Borough (Commission) of B & L Properties II,
L.P. (B&L)’s final land development plan for a student housing project at 931 Oakland
Avenue, and remanding to the Borough of Indiana (Borough) with instructions to
review the final plan, provide input and objections, and allow B&L an opportunity to
respond.
Facts and Procedural History
This matter was previously before this Court in Deborah A. Ames, George
G. Stewart and Joanne C. Stewart, David Moore and Carl J. Bish, and Borough of
Indiana v. Planning Commission of Indiana Borough, Indiana County, and B & L
Properties II, L.P., (Pa. Cmwlth., No. 1158 C.D. 2014, filed July 7, 2015), from which
we garner the following facts and procedural history.
In the fall of 2006, the Borough amended its zoning ordinance (Ordinance)
to implement a Traditional Neighborhood Development Overlay Zoning District
(TND District). The TND District was established to: provide for high-density,
pedestrian-friendly development options in the immediate vicinity of the Indiana
University of Pennsylvania (IUP) campus; provide for concentrated areas of
high quality student housing; and create a transitional area between residential districts
and university or commercial development areas. Ames, slip op. at 1-2.
Section 405-6 of the Borough’s code and section 460-7 of the Ordinance
delegate exclusive authority to the Commission to examine proposed subdivisions and
land developments and approve or deny them, with or without conditions. Approval
for projects in the TND District is subject to the process set forth in the Borough’s
subdivision and land development ordinance (SALDO). (Borough Code Chapter
405).1 The Commission is also authorized by section 405-32 of the Ordinance to grant
modifications from the SALDO’s requirements.2 See section 512.1 of the MPC, added
1
Section 501 of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as
amended, 53 P.S. §10501, states that the governing body of each municipality may regulate
subdivision and land development within the municipality by enacting a subdivision and land
development ordinance.
2
Section 405-32 of the Borough Code sets forth the following procedure that must be followed
when a modification is requested, considered, and granted:
A. The Planning Commission may grant a modification of the
requirements of one or more provisions of this chapter if the literal
enforcement will exact undue hardship because of peculiar conditions
pertaining to the land in question, provided that such modification will
not be contrary to the public interest and that the purpose and intent of
the chapter is observed.
B. All requests for modification shall be in writing and shall be
included in the application for development. The request shall state in
full the grounds and facts of unreasonableness or hardship on which the
request is based, the provision or provisions of the ordinance involved,
and the minimum modification necessary.
C. The modification, if authorized, will represent the minimum
deviation that will afford relief and will represent the least modification
possible of the regulation in issue.
2
by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10512.1 (Modifications). Ames,
slip op. at 2-3.
In March 2012, B&L submitted a land development plan to the
Commission proposing to raze an existing bed and breakfast and construct in its place
two attached units, each approximately 40’ x 70’ in area, including 10 four-bedroom
apartments. Ames and Smith, owners of neighboring properties, expressed concern
regarding access to the property and the property line dividing their properties. The
Commission requested additional information from B&L to determine whether the
proposed project satisfied the TND requirements. Ames, slip op. at 3.
On April 17, 2013, the Commission granted preliminary approval for the
plan subject to nine conditions, including clarification by the Borough solicitor and
planning consultant regarding front yard setback requirements. Ames, slip op. at 3.
By letter dated May 24, 2013, the Commission informed B&L that it had
granted final approval of the project. On June 17, 2013, Appellants Ames, Stewart,
Moore, and Bish filed a land use appeal, alleging that the Commission had no authority
to grant zoning variances and should have required B&L to seek variances from the
D. The condition leading to the request for modification shall not have
been created by the applicant.
E. The Planning Commission shall keep a written record of all action
on requests for modification.
F. The specific wording of the modification shall be written in ink upon
the recording tracing and signed and dated by the Chairman of the
Planning Commission, if the modification is granted. If the
modification is denied, the owner and/or developer may not again
submit the same application for modification for at least one year after
such rejection.
Ames, slip op. at 2 n.2.
3
Borough’s zoning hearing board. More specifically, the Appellants alleged that the
Commission disregarded section 460-69(D) of the Ordinance, which stated that no
front yard area shall exceed 12 feet from an existing street right-of-way or the edge of
a sidewalk, as well as applicable design standards for the TND District. Ames, slip op.
at 4.
After the Commission’s grant of final plan approval in May 2013, the
TND Ordinance provision was repealed in July 2013, and members of both the
Commission and the Borough Council were replaced. Ames, slip op. at 4.
On August 30, 2013, the Borough filed a petition to intervene in the land
use appeal. The petition alleged that: the Borough’s solicitor had entered an
appearance on behalf of the Commission without the Borough’s approval; the
Borough’s position was contrary to that of the Commission; the Borough had instructed
the solicitor to withdraw his appearance; and the Borough sought to intervene in
support of the parties appealing from the Commission’s decision.3 The petition further
alleged that the Commission was not authorized to appeal land use decisions, hire legal
counsel, or appear in court as a party to any land use matter. Ames, slip op. at 4.
B&L filed an answer and new matter, asserting that the Borough and the
Commission were the same party; that the Borough’s delay would prejudice B&L’s
rights; and that the Borough’s rights were adequately represented. See Pa.R.C.P. No.
2329. B&L also noted that the Borough was sharing legal counsel with the appealing
parties, who are competitors of B&L.4 The trial court held a hearing on the petition
3
In subsequent pleadings, the Borough included the Commission and appeared to be acting
on its behalf.
4
As an example, Moore owns a property adjacent to the proposed development that consists
of seven units and houses 25 students. Ames, slip op. at 5 n.3.
4
and granted the Borough permission to intervene by order dated September 10, 2013.
Ames, slip op. at 4-5.
B&L also filed an answer and new matter to the land use appeal,
essentially asserting that the Commission properly approved the proposed development
and had authority to do so. Ames, slip op. at 5.
The trial court held a hearing on the land use appeal on March 11, 2014,
to “supplement” the record. The trial court stated that it wished clarification with
respect to three issues: (1) the location of ingress and egress “with regard to the second
building”; (2) the status of the adjacent private alley; and (3) side lot buffers. The trial
court acknowledged that the record before the Commission did not include any
testimony given under oath, but consisted only of minutes of Commission meetings.
The trial court observed that it could have remanded the matter in order to develop a
record but “wanted the parties to have some closure.” Ames, slip op. at 5.
During the brief hearing, Tina Moore, a neighboring property owner, and
Brent Young, B&L’s Professional Engineer, testified. Young testified that there was
only one building, separated into two parts that, as initially planned, did not have
interior access to each other. He also explained to the trial court that a fire wall was
not required as he initially believed, and he said that the building code defined the unit
as one building. Drawings of the proposed project showed one large structure. Ames,
slip op. at 5.
The trial court granted Appellants’ appeal. In its opinion dated June 5,
2014, the trial court first stated that it took evidence not to supplement the record but
to aid the trial court’s understanding of the record filed. Citing Rouse/Chamberlain,
Inc. v. Board of Supervisors of Charlestown Township, 504 A.2d 375 (Pa. Cmwlth.
5
1986), the trial court then stated that it could only review the record to determine if the
Commission committed an abuse of discretion or error of law. Ames, slip op. at 6.
After setting forth the relevant law, the trial court reached two
conclusions: (1) the plans submitted by B&L contained elements that did not comply
with the TND Ordinance provisions; and (2) neither B&L nor the Commission
followed mandatory procedures to request reasonable modifications. The trial court
based these conclusions on specific facts. First, the trial court found that the project
consisted of two distinct buildings. Next, quoting section 460-70(B) of the Ordinance
(providing that buildings “shall be located to front toward and relate to public streets,
both functionally and visually, to the greatest extent possible”), the trial court found
that the eastern building did not front toward the public street either functionally or
visually. The trial court also observed that while section 460-69(D) of the Ordinance
required that no front yard area exceed 12 feet from an existing right of way or
sidewalk, the southern corner of the proposed western building was approximately 32
feet from the existing right-of-way. Both Ordinance provisions were requirements in
the TND District. Ames, slip op. at 6.
On appeal to this Court, B&L argued that the trial court erred because
section 460-70(B) of the Ordinance was not mandatory but merely advisory and strict
compliance with section 460-69(D) of the Ordinance would conflict with other
applicable Ordinance provisions. Ames, slip. op. at 6.
As a threshold matter, this Court looked at the applicable scope of our
appellate review. We noted that, in zoning cases, our scope of review depends on
whether or not the trial court took new evidence. Coal Gas Recovery, L.P. v. Franklin
Township Zoning Hearing Board, 944 A.2d 832, 837 (Pa. Cmwlth. 2008). Where the
trial court does not take additional evidence, we are limited to determining whether a
6
planning commission committed an error of law or abused its discretion. Ruf v.
Buckingham Township, 765 A.2d 1166, 1168 n.2 (Pa. Cmwlth. 2001). If the trial court
accepts additional evidence on the merits, it must review the case de novo, and we then
review the trial court's decision for an error of law or abuse of discretion. Coal Gas
Recovery, 944 A.2d at 838. Ames, slip op. at 7.
We concluded that Appellants were correct in their assertion that the trial
court made additional findings, and so we reviewed the trial court’s decision to
determine whether it committed an error of law or abused its discretion. We noted,
however, that despite taking additional evidence, the trial court mischaracterized its
review as a strictly appellate proceeding. Most importantly, we stated that, because the
trial court limited the evidence presented at the hearing, the parties were denied the
opportunity for a full and fair hearing, and this Court was not presented with a record
sufficient for meaningful appellate review. Accordingly, we vacated the trial court’s
order and remanded this matter to the trial court to conduct a new hearing on
Appellants’ appeal from the Commission’s approval of B&L’s final land development
plan. Ames, slip op. at 7-8.
On remand, the trial court held a status conference with the parties on
October 22, 2015, at which point it scheduled a de novo hearing. The parties
subsequently filed a joint stipulation regarding the de novo hearing on remand, agreeing
that the hearing would serve as a full and final evidentiary hearing to address:
(a) Whether the Planning Commission abused its discretion
and/or committed errors of law in approving B&L’s Land
Development Plan for failure to comply with the following
provisions of: the Municipalities Planning Code, 53 P.S.
§10201 [sic] et seq; Indiana Borough Zoning Ordinance
(“IBZO”); Traditional Neighborhood Overlay District
Design Standards (“TNO Standards”); and the Subdivision
7
and Land Development Ordinance (“SALDO”) as
applicable; and the Conditions of B&L’s Preliminary
Approval:
(i) IBZO 460.70.B;
(ii) IBZO 460.70.G;
(iii) IBZO 460.64.C;
(iv) Condition No. 2, Preliminary Approval
and IBZO 460.69.B;
(v) Condition No. 1, Preliminary Approval and
IBZO 460.69.D;
(vi) Condition No. 5, Preliminary Approval;
(vii) TNO Standards Part 3. Part B. Street
Orientation
(viii) TNO Standards Part 3. Part A. Primary
Structures;
(ix) TNO Standards Part 3. Part F. Semi- Public
Space Widths[;]
(x) TNO Standards Part 3. Part G. Built-to Line
Delineation;
(xi) TNO Standards Part 3. Part H. Public Access;
(xii) TNO Standards Part 3. Part I;
(xiii) TNO Standards Part 3. Part J. Street
Amenities;
(xiv) TNO Standards Part 4. Part C. Building Mass;
(xv) TNO Standards Part 4. Part E. Building
Offsets;
(xvi) TNO Standards Part 4. Part F. Roofline
Offsets;
(b) Whether the the [sic] TNO Standards are non-mandatory
guidelines or mandatory requirements?
(c) Whether any deviations from the IBZO required
variances from the Indiana Borough Zoning Hearing Board?
(R.R. at 148a-49a.)
Pertinent here, the joint stipulation went on to state, “After the De Novo
Hearing and receipt of transcripts, the Parties will address legal arguments in support
of their positions by submitting briefs by February 25, 201[6].” (R.R. at 149a.)
8
The trial court held the de novo hearing on February 4, 2016. B&L
submitted a final brief in opposition to land use appeal, which raised, inter alia,
arguments that the Borough acted in bad faith and that B&L had a vested right to
develop the property in accordance with TND requirements. (R.R. at 513.3a, 513.9a.)
Appellants submitted joint proposed findings of fact and conclusions of law.
Subsequently, Appellants filed a joint motion to strike issues outside of the joint
stipulation and court order, arguing that B&L’s final brief in opposition raised issues
not presented in the parties’ joint stipulation and requesting the court strike those
portions of the brief outside the scope of the stipulation.
After hearing oral argument, the trial court denied the motion to strike and
directed the Appellants to file supplemental joint proposed findings of fact and
conclusions of law. The trial court then reviewed the case de novo.
The court initially considered whether B&L’s final plan complied with
the requirements of the Ordinance. Noting that the parties agreed to submit into
evidence the reproduced record from Ames, the trial court considered that the only new
evidence submitted consisted of testimony presented at the February 4, 2016 hearing.
Specifically, B&L presented the testimony of Brent Young, a civil and structural
engineer, and Brian Slotter, a principal owner of B&L. Appellants presented the
testimony of Otto Peterson, code director and zoning officer for the Borough.
The court concluded that there was “no new, relevant, substantive
testimony or evidence presented at the [de novo] hearing” that changed the court’s prior
opinion that the final plan did not comply with provisions of the Ordinance. (Trial
court op. at 9.) The court then proceeded to restate portions of its prior June 5, 2014
opinion, including its conclusions that the plans submitted by B&L contained elements
that did not comply with the TND requirements and that neither B&L nor the
9
Commission followed mandatory procedures to request reasonable modifications. The
court acknowledged the argument of the Appellants that the final plan did not comply
in numerous other respects than those it listed, but stated that the resolution of those
issues was unnecessary given its discussion of B&L’s vested rights.
Before the court, B&L argued that, as a developer, it had the right to
develop the real property it purchased in accordance with the provisions of the
Ordinance and TND requirements existing at the time of its application for
development. The court applied Honey Brook Estates, LLC v. Board of Supervisors of
Honey Brook Township, 132 A.3d 611 (Pa. Cmwlth. 2016), and the cases discussed
therein, Raum v. Board of Supervisors of Tredyffrin Township, 370 A.2d 777 (Pa.
Cmwlth. 1977), and Highway Materials, Inc. v. Board of Supervisors of Whitemarsh
Township, 974 A.2d 539 (Pa. Cmwlth. 2009), and noted the following factual
similarities between the cases: the developer paid a “considerable premium” for the
property because it could be developed in accordance with the provisions of the
existing zoning ordinance, and after the municipality’s decision regarding the
developmental plan, the relevant portions of the existing zoning ordinance were
rescinded/modified. (Trial court op. at 20-21.)
However, the trial court identified what it considered to be a critical
distinction: here, the reviewing municipal entity, the Commission, approved B&L’s
development plan, which the court believed made B&L’s vested rights argument even
more compelling. The court then reviewed the petition to intervene filed by the
Borough, summarizing it as follows:
[T]he Borough of Indiana established the Indiana Borough
Planning Commission, delegated power and authority to the
Planning Commission to accept land use applications/plans
and issue approvals and denials of land use
applications/plans. However, in this matter, since the
10
Borough disagreed with the decisions of the Planning
Commission, it stripped the Planning Commission of
counsel,[] and never permitted the Planning Commission to
hire independent counsel.
(Trial court op. at 22-23) (citations omitted). The court noted that, despite the
Borough’s representations to the contrary, it appeared that the Commission was now
in agreement with the positions and views of the individual Appellants and the
Borough,5 and as such, the Commission was now arguing that its own actions were
improper and requesting that the court reverse them. Moreover, the court noted that
the individual Appellants, the Borough, and the Commission were represented by the
same law firm, despite the Borough’s repeated statements that its position was contrary
to that of the Commission.
These actions, the court found, “escape[d] logical explanation without
reaching the conclusion that the Borough [had] a settled purpose to prevent B&L from
developing the property,” even though the final plan could be executed in compliance
with the applicable standards of the MPC, the Ordinance, including the TND
provisions, and the SALDO. (Trial court op. at 24.) The court determined that the
“inherent unfairness” of the circumstances made B&L’s vested rights argument even
more compelling than those presented to this Court in Honey Brook, Raum, and
Highway Materials, Inc.
Finally, the court observed that there was “absolutely nothing that B&L
could have done differently to avoid this situation,” noting that B&L had submitted a
development plan, worked with the Commission in good faith, made all changes
suggested by the Commission, and had received approval. (Trial court op. at 25.)
5
The court stated that this was evidenced by Appellants’ joint proposed findings of fact and
conclusions of law that requested relief in the form of reversal of the Planning Commission’s grant
of B&L’s land development plan. (R.R. at 498a.)
11
Instead, it stated that the situation was created by the malfeasance of the Borough and
the Commission.
The trial court, however, acknowledged that Appellants did have the right
to have the property developed in accordance with the Ordinance. To the extent that
the final plan was deficient for failure to comply with several sections of the Ordinance,
conditions of the preliminary approval letter, and TND requirements,6 the court found
that “[e]ach and every deficiency concern[ed] technical design issue[s] that [could] be
addressed and corrected with competent assistance, communication, and cooperation.
Accordingly, the court determined that B&L’s vested rights argument had merit and
remanded to the Borough with instructions to review the final plan in light of the
Ordinance in existence at the time the plan was filed, provide input on the technical
requirements and Ordinance interpretation, identify objections, and allow the B&L to
respond to objections through the submission of a revised plan.
Discussion
On appeal,7 Appellants and the Commission argue that the trial court erred
in: (1) considering the new arguments B&L raised regarding bad faith because they
were outside the scope of the joint stipulation; (2) holding that the Borough and
Commission acted in bad faith by intervening in the land use appeal in support of
6
The court recited the specific sections of the Ordinance that the final plan allegedly did not
comply with, which included: Architectural Design Standards, §§460-70(B), (C) (addressing design
standards for building); Lot Density and Coverage, §460-69 (addressing side, front, and rear yard
issues and structural coverage); Conditions 1, 2, and 5 from the preliminary approval letter
(addressing front yard setbacks, a vegetative buffer, and the widening of a porch, respectively); and
TND requirements.
7
Our scope of review is to determine whether the trial court, acting de novo, committed legal
error or abused its discretion. LHT Associates, LLC v. Township of Hampton, 809 A.2d 1072, 1075
n.1 (Pa. Cmwlth. 2002).
12
individual Appellants and in opposition to the grant of final approval; and (3) assuming
that B&L’s final plan was capable of correction under the then-existing Ordinance and
failing to fully address most of the deficiencies identified in the joint stipulation.
Appellants first argue that the trial court erred in considering B&L’s bad
faith and vested rights arguments since those issues were outside the scope of the
parties’ stipulation. They assert that joint stipulations, such as the one here, are binding
upon parties and courts and that Appellants would have presented testimony and
evidence at the de novo hearing to refute such arguments had they been raised in the
joint stipulation.
B&L counters that Appellants’ strained interpretation of the joint
stipulation would improperly deny B&L the “full and fair” hearing commanded by this
Court in its remand order. (B&L’s brief at 5.) It asserts that the purpose of the joint
stipulation was to narrow the list of Ordinance provisions with which the Appellants
claimed the final plan did not comply. It argues that Appellants’ interpretation of the
stipulation—that B&L agreed “in advance, to limit its ability to present any legal
argument to secure approval of its [p]lan”—is “absurd” and would enlarge the plain
meaning of its terms. (B&L’s brief at 14.)
In its opinion, the trial court notes that it denied the Appellants’ joint
motion to strike the issues outside of the joint stipulation, but “then provided the
movants the opportunity to address the substance of B&L’s argument, which they did
by filing Supplemental Joint Proposed Findings of Fact and Conclusions of Law.”
(Trial court op. at 14.) The court stated that it did not interpret the joint stipulation,
which identified the issues raised by Appellants, to preclude legal argument by B&L
on issues presented by the facts.
13
We agree. According to the plain language of the stipulation, the parties
agreed that the de novo hearing would serve as “the full and final evidentiary to address
the issues Appellants have raised,” which it then proceeds to list. (R.R. at 149a)
(emphasis added). Notably absent from the stipulation was any discussion regarding
B&L’s preclusion from raising arguments in support of its final plan. Indeed, the
stipulation seems to contemplate as much, stating, “the Parties will address legal
arguments in support of their positions by submitting briefs by February 25, 201[6].”
(R.R. at 149a.) It appears that B&L complied with the stipulation, and we see no error
in the trial court’s interpretation.
Next, Appellants argue that the trial court misapplied this Court’s
decisions in Honey Brook, Highway Materials, Inc., and Raum by relying on them in
its determination that the Borough acted in bad faith.
In Honey Brook, a developer purchased property in December 2005, at
which point it was zoned as residential. 132 A.3d at 613. In June 2006, the developer
submitted a plan for the development of townhouses. Id. at 613-14. The township’s
engineer informed the developer that, because the plan contained five omissions, it was
incomplete and would not be forwarded to the township’s planning commission for
review. Id. at 614. Ten days later, the developer submitted an amended plan
addressing the five omissions. Id. In July 2006, the township adopted an ordinance
rezoning most of the developer’s property from residential to agricultural. Id.
Thereafter, the township’s manager rejected the developer’s amended plan as
incomplete and stated it would not be permitted to move forward for review. Id. at
614-15. After exchanging correspondence, the township’s engineer submitted the plan
to the township’s planning commission, which voted to recommend that the township’s
board of supervisors disapprove the plan. The developer attempted to submit
14
additional materials but they were returned without being received or considered by
the planning commission or the board of supervisors. Ultimately, the board of
supervisors rejected the plan. Id. at 615. On appeal to the court of common pleas, the
developer argued that the township acted in bad faith in that his preliminary plan was
not processed in an objective manner. Id. at 616-18. The common pleas court affirmed
the board of supervisors, stating that the actions of the township did not rise to the level
of bad faith. Id. at 618-19.
On appeal, our Court identified Raum and Highway Materials as the
relevant precedent for cases in which a landowner asserts that bad faith tainted a
municipality’s review of a development plan. In reiterating our holding in Raum, we
stated that municipalities have “a legal obligation to act in good faith upon any
proposed subdivision and land development plan,” which 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.” Honey
Brook, 132 A.3d at 620 (quoting Raum, 370 A.2d at 798). We also noted Raum’s
holding that an applicant has a “vested right” to develop property “in accordance with
the zoning in effect at the time his application is filed.” Id. (quoting Raum, 370 A.2d
798).
The Court went on to discuss Highway Materials, in which a landowner
seeking to develop its property in an industrial district filed a preliminary plan at a time
when the township was considering a zoning change, which would rezone the
landowner’s property from industrial to residential. Honey Brook, 132 A.3d at 620.
The township’s engineer requested additional information with regard to certain
aspects of the plan, and the landowner submitted a revised plan addressing those areas.
15
Id. The planning commission rejected the preliminary plan, and the landowner
appealed. Id. The common pleas court reversed, finding it relevant that the landowner
sought input with regard to whether a water basin could be located on the property, to
which the township responded that it would not help him on “a controversial
development.” Id. (quoting Highway Materials, 974 A.2d at 544). The common pleas
court also noted that when the landowner sought direction on the plan’s sewer system,
the township did not respond. Honey Brook, 132 A.3d at 621. Accordingly, the trial
court found that the township had not acted in good faith in advising the landowner on
remedying the defects in the plan, nor did it afford the landowner the opportunity to
cure the deficiencies. Id. On appeal, this Court affirmed, observing that the landowner
requested the township’s input and made requests for an extension, which were denied,
thus “denying the landowner the opportunity to correct the plan.” Id.
Returning to the facts of its case, the Honey Brook Court analyzed whether
the township exhibited bad faith during the review process. Id. Noting that the
township had rejected the developer’s plan without allowing it to respond, we
concluded that its actions constituted bad faith. Id. at 621-22.
In the present appeal, Appellants argue that, unlike the above cases where
the bad faith occurred during the review phase, here, the trial court found that the
Borough acted in bad faith by intervening in the land use appeal in opposition to the
Commission’s approval of the final plan. Appellants assert that the Borough was
simply exercising its statutory right to intervene under section 1004-A of the MPC8
8
Section 1004-A states:
Within the 30 days first following the filing of a land use appeal, if the
appeal is from a board or agency of a municipality, the municipality
and any owner or tenant of property directly involved in the action
appealed from may intervene as of course by filing a notice of
16
because the Commission committed legal error and abused its discretion in approving
B&L’s final plan, which violated multiple provisions of the Ordinance. Noting that,
in both of its opinions, the trial court agreed and held that the final plan violated
Ordinance provisions, Appellants argue that the Borough “cannot be held to have acted
in bad faith exercising its statutory right to intervene in a land use appeal to assert
arguments that the [trial] court itself held to have merit.” (Appellants’ brief at 24.)
They maintain that, unlike here, in the aforementioned cases, the
municipalities acted in bad faith to avoid granting approval to plans that complied or
could easily be amended to comply with the applicable zoning ordinances. Conversely,
they argue, in this case, B&L’s final plan was fairly reviewed by the Commission and
the trial court and that, by the time the Borough got involved, the control of the plan’s
approval had already passed from the Commission and Borough to the trial court.
Appellants acknowledge that the case “bears superficial similarity” to the
bad faith cases in that the TND provisions under which B&L’s plan was originally
submitted were subsequently repealed. However, Appellants attempt to distinguish
them, arguing that, in those cases, the developers’ plans were denied and new
ordinances were enacted to prevent development altogether. In those cases, Appellants
argue, the developers were forced to sue to have their plans reviewed in good faith
under the original ordinances. Appellants argue that, unlike those cases, here, B&L
cannot claim that it has been deprived fair consideration of its plan under the original
ordinance simply because it “faired better” under review by the Commission than the
trial court. (Appellants’ brief at 25.)
intervention, accompanied by proof of service of the same, upon each
appellant or each appellant's counsel of record. All other intervention
shall be governed by the Pennsylvania Rules of Civil Procedure.
53 P.S. §11004-A, added by Act of December 21, 1988, P.L. 1329.
17
Finally, Appellants argue that their land use appeal attempts to vindicate
legitimate interests of the owners of neighboring properties. Thus, they argue, even if
the Borough had not intervened, the trial court would have reached the same
conclusion, to wit, that B&L’s final plan did not comply with the Ordinance.
We disagree and concur with the trial court that Appellants’ attempts to
distinguish the present facts from those of Honey Brook, Raum, and Highway
Materials, Inc. are not persuasive. Further, we disagree that the trial court misapplied
our holding in Honey Brook or the cases discussed therein.
In its opinion, the trial court quoted extensively from Honey Brook and
was careful in analogizing the facts of the bad faith cases to the facts of the present
case. However, the trial court specifically acknowledged that the fact pattern herein
differed from those of the bad faith cases “in a critical respect,” which was that the
reviewing municipal entity, the Commission, had approved B&L’s development plan.
(Trial court op. at 21.) This difference, the court stated, made B&L’s vested rights
argument “even more compelling” than those presented in the bad faith cases. (Trial
court op. at 21.) The court emphasized that the Commission accepted B&L’s
preliminary land development plan, worked with B&L on revisions, and ultimately
granted approval to the final plan. The court questioned how that same Commission
could then argue that its own actions were improper and state that B&L was precluded
from relief because the provisions under which it approved B&L’s plan were rescinded.
This Court agrees. A review of the series of events as stated by the trial
court above supports the trial court’s finding of bad faith on behalf of the Borough, in
line with this Court’s prior precedent. Although Appellants attempt to distinguish what
is plainly controlling case law in this matter, they have not at any point addressed the
trial court’s primary concern, which was that the very Commission that granted B&L’s
18
approval, changed course and without explanation now seeks to have a court reverse
its own prior decision. Accordingly, we find no abuse of discretion by the trial court.
Appellants’ final argument contends that the trial court erred in finding
that B&L’s plan was capable of correction. Specifically, it argues that, because the
trial court did not address “the majority of the zoning issues that were supposed to be
addressed at the de novo hearing,” the court’s determination that the plan could be
corrected was without support. (Appellants’ brief at 26.)
This Court has previously held that a zoning hearing board, or in this case,
a trial court conducting a de novo review,
must render an opinion delineating sufficient findings to
support its conclusion in order to provide for meaningful
judicial review. It is also true, however, that specific
findings of fact are not required if the [court]’s opinion
provides an adequate explanation of its resolution of the
factual questions involved, and if it sets forth the [court]’s
reasoning in such a way as to demonstrate that its decision
was reasoned and not arbitrary.
Borough of Youngsville v. Zoning Hearing Board of Borough of Youngsville, 450 A.2d
1086, 1089 (Pa. Cmwlth. 1982) (internal citations omitted).
In the present case, the trial court acknowledged the provisions with which
Appellants assert the final plan does not comply. The court stated that a review of the
allegations of noncompliance “clearly demonstrate[d] that the final plan [was] capable
of correction,” since “[e]ach and every deficiency concern[ed] a technical design issue
that [could] be addressed and corrected with competent assistance, communication,
and cooperation.” (Trial court op. at 27.) The court acknowledged Appellants’
argument that the final plan did not comply in many more areas than those listed in the
19
opinion, but stated that, given its finding regarding B&L’s vested rights, the resolution
of the “numerous other disputes [was] unnecessary.” (Trial court op. at 13.)
Appellants contest this finding, arguing that many of the alleged
violations “deal with significant violations of setback provisions and front yard sizes,
which can only be resolved by a major reduction and re-designing of buildings.”
(Appellants’ brief at 37.) However, rather than demonstrating an abuse of discretion,
Appellants’ argument merely expresses its disagreement with the trial court’s opinion
with regard to the potentiality of the violations’ correction.
We find that the trial court’s explanation is adequate in that it
demonstrates that its resolution of the issue was reasoned and not arbitrary. We note
that the trial court’s familiarity with this case began in June 2013, when the land use
appeal was filed by Appellants, since which it has conducted three hearings, one of
which was de novo review, issued numerous orders, and filed two opinions with regard
to the final plan and its compliance with the Ordinance. (R.R. at 21a, 78a, 80a, 135a,
151a, 334a, 526a-28a; Trial court’s op. at 7.)
Accordingly, the August 6, 2016 order of the trial court is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Deborah A. Ames, George C. :
Stewart and Joanne C. Stewart, :
David Moore and Carl J. Bish and :
Borough of Indiana :
: No. 1499 C.D. 2016
v. :
:
The Planning Commission of Indiana :
Borough, Indiana County, and :
B&L Properties, II, L.P. :
:
Appeal of: The Planning Commission :
of Indiana Borough, Indiana County :
and Borough of Indiana :
Deborah A. Ames, George C. :
Stewart and Joanne C. Stewart, :
David Moore and Carl J. Bish and :
Borough of Indiana :
: No. 1500 C.D. 2016
v. :
:
The Planning Commission of Indiana :
Borough, Indiana County, and :
B&L Properties, II, L.P. :
:
Appeal of: Deborah A. Ames, George :
C. Stewart and Joanne C. Stewart, :
David Moore and Carl J. Bish :
ORDER
AND NOW, this 7th day of December, 2017, the August 4, 2016 order
of the Court of Common Pleas of Indiana County is affirmed.
PATRICIA A. McCULLOUGH, Judge