Money v. Board of Supervisors ( 2014 )

OPINION BY

President Judge PELLEGRINI.¹

Therese Money (Money) appeals the order of the Court of Common Pleas of Chester County (trial court) dismissing her petition for review of the Monument Sign Landscaping and Maintenance Agreement (Maintenance Agreement) approved by the Board of Supervisors (Board) of Westtown Township (Township). We reverse and remand.

In December 2010, Chester County Outdoor, LLC (CCO) challenged the validity of the Township’s Zoning Ordinance alleging a de jure exclusion of off-premises advertising signs and billboards in the Township. In August 2011, the Township provided notice to Money of the Board’s scheduled consideration of a proposed settlement agreement (Settlement Agreement) with CCO because of the proximity of Money’s property to the site on which CCO proposed to erect a digital outdoor sign (Billboard) under the Settlement Agreement.

On receipt of the notice, Money retained counsel, David Malman (Malman), to evaluate and protect her property from the potential degradation of the use and enjoyment of her property and its economic value. On August 9, 2011, Malman contacted CCO’s counsel, Gregg Adelman (Adelman), to discuss the proposed Billboard’s impact on Money’s property. Adelman provided Malman with a copy of the proposed Settlement Agreement and a Landscape Plan and Buffer Overview (Landscape Plan) illustrating the landscaping that would be installed to screen the Billboard and which indicated that the proposed evergreen buffer planted at a height of 25 feet would create a total visual buffer of her property. (See Reproduced Record (R.R.) at 22a-28a).

In reliance on the information provided by Adelman and the Township, Money did not object to the Board’s approval of the Settlement Agreement. Paragraph 2 of the Settlement Agreement states, in pertinent part, that “CCO shall be permitted to construct an off-premises advertising monument sign on the Wilmington Pike Property substantially similar to the concept plan, landscaping plan and elevations attached as Exhibit ‘A’ (‘Monument Plan’).... CCO shall install and maintain the proposed landscaping substantially similar to that which is depicted and listed on the Monument Plan.... ” (R.R. at 33a, 42a). In addition, Paragraph 8.f. of the Settlement Agreement states that “[t]he Proposed Monument Sign shall not ... [sjpill any light or glare onto neighboring properties or the roadway....” (Id. at 35a-36a). Moreover, Paragraph 7 states:

CCO shall maintain the Proposed Monument Sign in good working order and repair at all times. In addition, CCO shall maintain and upkeep all landscaping planted on the Wilmington Pike Property, including replacing deceased or dead landscaping. The maintenance responsibilities of CCO shall be set forth in a separate Maintenance Agreement which shall be incorporated by reference into this Agreement and made part hereof. (Emphasis added.)

(Id. at 35a). Finally, Paragraph 12(c) of the Settlement Agreement states that it “shall constitute the entire agreement among the Parties and supersedes all prior negotiations, understandings and agreements of any nature whatsoever with respect to the subject matter hereof.” (Id. at 37a). Both the Board and the trial court approved the Settlement Agreement.

On February 6, 2012, the Board met to consider approval of the Maintenance Agreement between the Township and CCO as provided in the Settlement Agreement. Malman, counsel for Money, appeared at the meeting to object to the Board’s approval of the Maintenance Agreement because the screening proposed by CCO did not comply with CCO’s Landscape Plan or with the requirements of Paragraph 8 of the Settlement Agreement that the sign should not “spill any light or glare onto neighboring properties or the roadway.” Nevertheless, the Board approved the Maintenance Agreement and accompanying landscape plan.

CCO subsequently submitted a revised landscape plan making minor modifications to the landscape plan approved by the Board as part of its approval of the Maintenance Agreement. The revised plan was reviewed by the Township solicitor’s landscape consultant who identified the following deficiencies in a February 17, 2012 email to the solicitor:

I reviewed the subject plan, Sheet LP-1, and compared it to the previous Landscape Plan dated 1-27-12. I also visited the site at 9 AM on 2-16-12 and at 10 PM on 2-16-12 to observe the Billboard during daylight and dark conditions. Again, the areal extent of the proposed plantings favorably match that of the previous Landscape Plan. However, since we were asked to do a site visit, to check the heights of the Billboard, and walls, and to view the Billboard from several vantage points, we offer the comments below.

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2. Visibility from Properties to the West

2.1 While standing at the base of the Billboard and viewing the Money residence, it appears that 3 more Arborvitae at 18 to 20 feet in height are needed, so that 6 such Arborvitae are (in a row) south of the sign.

2.2 However, it may be necessary to consider another alternative, to buffer views toward the Billboard, as I could not determine -with 100% certainty if the heights of 3 + 3 or 6 total Arborvitae at 18 to 20 feet tall on the south end of the Billboard would fully screen the view of the Billboard. (I double-checked the vantage points from the Billboard to the Money property, and from the Money property to the Billboard.)

(R.R. at 63a).

Malman appeared at the Board’s February 21, 2012 meeting to object to the deficiencies in the revised landscape plan relative to CCO’s Landscape Plan, its verbal representations, and the requirements of the Settlement Agreement. (R.R. at 166a). Nevertheless, the Board approved the revised landscape plan, amending the plan to include the addition of one Arborvitae to the south of the Billboard.

Money appealed the Board’s approval of the Maintenance Agreement to the trial court to which CCO filed a petition to strike her appeal because she was not a party to the Settlement Agreement. The trial court granted CCO’s petition and dismissed Money’s appeal on the basis that the Board’s approval of the Maintenance Agreement was not an appealable adjudication under the Local Agency Law (Law).² Money appealed to this Court.³,⁴

Money argues that the trial court erred in determining that the Township’s approval of the Maintenance Agreement was merely an implementation of the Settlement Agreement and not a separate ap-pealable adjudication under the Law. We agree.

“[T]he courts of this Commonwealth have recognized that settlement agreements are a permissible tool for resolving land disputes. The rationale is that the law favors settlements. The courts have jurisdiction over the municipality and landowner and therefore may approve settlement agreements.” Miravich v. Township of Exeter, Berks County, 54 A.3d 106, 112 (Pa.Cmwlth.2012), appeal denied, — Pa. -, 75 A.3d 1283 (2013) (citations omitted). However, settlement agreements have always been problematic in zoning cases, especially those that allow waiver, not just of discretionary matters but from requirements in zoning ordinances or regulations, because those waivers are tantamount to ad hoe amendments of those provisions that do not comply with the mandatory procedures contained in the Municipalities Planning Code.⁵

It is undisputed that the instant Settlement Agreement, affecting personal or property rights, is an appealable “adjudication” under Section 101 of the Administrative Agency Law, 2 Pa.C.S. § 101. Pennsylvania Association of Independent Insurance Agents v. Foster, 150 Pa. Cmwlth. 572, 616 A.2d 100, 102 (1992) (citing Department of Health v. Rehab Hospital Services, 127 Pa.Cmwlth. 185, 561 A.2d 342 (1989), appeal denied, 525 Pa. 607, 575 A.2d 571 (1990)). In addition, 2 Pa.C.S. § 752 provides that “[a]ny person aggrieved by an adjudication of a local agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals....”⁶ Where a party is aware of a proposed settlement, that party is obligated to intervene and appeal the purported illegality of the settlement. If it does not, the settlement will be binding on the parties that were aware of the litigation. T.H. Properties, L.P. v. Upper Salford Township Board of Supervisors, 970 A.2d 495, 499-500 (Pa.Cmwlth. 2009).

The question in this case is whether Money could appeal the Board’s approval of the Maintenance Agreement which modified the terms of the Settlement Agreement because it is a new and distinct adjudication. As this Court has explained, “[bjecause a settlement agreement is considered a contract under Pennsylvania law, the document must ‘speak for itself and cannot be given a meaning other than that expressly stated within the agreement itself.” Oakmont Presbyterian Home v. Department of Public Welfare, 159 Pa.Cmwlth. 562, 633 A.2d 1315, 1320 (1993).

The Settlement Agreement in this case contains an integration clause⁷ which “expresses all of the parties’ negotiations, conversations, and agreements made prior to its execution,” Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 498, 854 A.2d 425, 436 (2004). The changes then made by the Maintenance Agreement to the substantive provisions of the Settlement Agreement cannot be integrated into that agreement by mere incorporation under Paragraph 7.⁸ See Paragraph 12(d) of the Settlement Agreement (“This Agreement may be amended upon the written consent of the Parties to this Agreement, which shall not be unreasonably withheld....”) (R.R. at 37a). The Maintenance Agreement changed the express and substantive terms of the Settlement Agreement by removing Paragraph 8.f.’s prohibition. As a result, the Maintenance Agreement constitutes a new “adjudication” modifying the Settlement Agreement which Money could properly appeal to the trial court. See, e.g., Melat v. Melat, 411 Pa.Super. 647, 602 A.2d 380, 385 (1992) (“A modification does not displace a prior valid contract; rather, the new contract acts as a substitute for the original contract, but only to the extent that it alters it. The original contract may be abrogated in part, with the residue remaining intact.”) (citations omitted).⁹

Money abstained from opposing the initial Settlement Agreement because of what it said, not what the parties later amended and removed from it through the Maintenance Agreement. As outlined above, a mere “incorporation by reference” provision only incorporates what exists and to which there was a meeting of the minds at the time of execution; it does not mean that new terms that are a clear modification of express contract terms are incorporated into the agreement. As a neighboring landowner, Money may appeal this new “adjudication” because she appeared and objected at the Board’s February 6, 2012 hearing approving the Maintenance Agreement and the Board’s February 21, 2012 hearing revising the Maintenance Agreement. (R.R. at 161a, 166a).

Accordingly, because the Maintenance Agreement changed the substantive terms of the Settlement Agreement by now permitting light to spill onto Money’s property, it constitutes a separate “adjudication” amending the Settlement Agreement that Money could appeal, the trial court’s order is reversed and the case is remanded to that court to consider the merits of Money’s appeal.

ORDER

AND NOW, this 20th day of February, 2014, the order of the Court of Common Pleas of Chester County dated January 24, 2013, at Civil Action No. 12-02445, is reversed and the case is remanded for consideration of the merits of Therese Money’s petition for review.

Jurisdiction is relinquished.

1 . This opinion was reassigned to the authoring judge on January 27, 2014.

2 . 2 Pa.C.S. §§ 551-555, 751-754.

3 . In addition to its validity challenge, CCO also filed a civil action against the Township in the trial court. Money subsequently intervened in the civil action, and commenced a separate tort action against the Township, CCO and CCO's principal.

4 ."Our review of a trial court’s grant of a motion to dismiss is limited to determining whether the trial court abused its discretion or committed an error of law." DeFilippo v. Cranberry Township Board of Supervisors, 49 A.3d 939, 941 n. 1 (Pa.Cmwlth.2012).

5 . Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.

6 . As this Court explained in Larock v. Sugarloaf Township Zoning Hearing Board, 740 A.2d 308, 312 (Pa.Cmwlth.1999):

When the property at issue is someone's home, the owner’s right to protect the viability of his property is even more personal. The purchase of a home is often considered to be one of, if not the, most significant investments an individual can make during his lifetime. To deny an individual the right to protect his interest in the property he calls home would violate public policy.

7 .As stated above, Paragraph 12(c) of the Settlement Agreement states, "This Agreement shall constitute the entire agreement among the Parties and supersedes all prior negotiations, understandings and agreements of any nature whatsoever with respect to the subject matter hereof.” (R.R. at 37a).

8 . As stated above, Paragraph 7 of the Settlement Agreement states, in pertinent part, that “[t]he maintenance responsibilities of CCO shall be set forth in a separate Maintenance Agreement which shall be incorporated by reference into this Agreement and made a part hererof.” (R.R. at 35a).

9 . See also 12 P.L.E. Contracts § 314 (2013) ("The modification of a contract requires a new agreement, and when this is found to occur a new contract springs into existence. A modification does not displace a prior valid contract; rather, the new contract acts as a substitute for the original contract, but only to the extent that it alters it. The contract may be abrogated in part and stand as to the residue_”) (footnotes omitted).