M. Gouwens v. Indiana Twp. Bd. of Supers., Fox Chapel Estates, L.P. ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Matthew Gouwens, Emily Gouwens, :
Hiller Hardie, Sharon Hardie, Kyle :
Rusche, and Meghan Rusche, :
Appellants :
:
v. :
:
Indiana Township Board of Supervisors, : No. 1377 C.D. 2018
Fox Chapel Estates, L.P. : Argued: May 7, 2019
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: June 25, 2019
Matthew Gouwens, Emily Gouwens, Hiller Hardie, Sharon Hardie,
Kyle Rusche and Meghan Rusche (collectively, Objectors), residents of Indiana
Township, appeal from the September 18, 2018 order of the Court of Common Pleas
of Allegheny County (trial court) affirming the decision of the Indiana Township
Board of Supervisors (Board) granting tentative approval of the application filed by
Fox Chapel Estates, L.P. (Developer) for a Planned Residential Development
(PRD).1 Upon review, we vacate the trial court’s order and remand for additional
findings by the Board.
1
The Township of Indiana Zoning Ordinance #368, Allegheny County, Pa. (2011) (Zoning
Ordinance) defines a PRD as:
Developer is the equitable owner of a 22.8-acre parcel of land
(Property) situated between Fox Chapel Road and Dorseyville Road in Indiana
Township (Township). Reproduced Record (R.R.) 585a. On November 2, 2016,
Developer filed an application to develop the Property as a PRD to be known as Fox
Chapel Estates (Plan). Board’s Record, Bates No. Indiana 9 (Indiana No. ___). On
February 14, 2017, Developer first presented its Plan to the Board. R.R. 12a. After
several postponements and modifications to the Plan, the Board voted to grant
tentative approval of the Plan on May 9, 2017. R.R. 79a. On May 19, 2017, the
Board issued a written decision granting tentative approval but did not include
findings of fact or conclusions of law in its approval. See id. On June 16, 2017,
Objectors appealed the Board’s decision to the trial court and the Board subsequently
issued findings of fact and conclusions of law to support its May 19, 2017 decision.
R.R. 82a-106a.
By order dated August 30, 2017, the trial court remanded the matter to
the Board for a de novo hearing and stayed the pending application for final
approval. R.R. 155a. The Board held public hearings on October 10, November 14
and December 12, 2017. R.R. 156a, 234a & 555a. The Board continued the October
10th hearing to ensure that notice of the hearing had been properly posted and
advertised as required by law. R.R. 219a.
[a]n area of land, controlled by the landowner, to be developed as a single
entity for a number of dwelling units, or combination of residential and non-
residential uses, the development plan for which does not correspond in lot
size, bulk, type of dwelling, or use, density, or intensity, lot coverage, and
required open space to the regulations established in any one district,
created from time to time, under the provisions of this Ordinance.
Zoning Ordinance Article II, Definitions. A dwelling unit is “[o]ne (1) or more living or sleeping
rooms with cooking and sanitary facilities for one family.” Id.
2
At the November 14th hearing, Developer and Objectors presented
evidence to support their respective positions on the Plan. Developer presented the
testimony of the project landscape architect and planner, Steven Victor (Victor),
with Victor Wetzel Associates. R.R. 237a. Victor described the Property, which is
located in the Medium Density Residential (MDR) Zoning District,2 as having 23
acres with a majority of it tree-covered as an emerging forest. R.R. 239a-40a. Victor
explained that, after a study of the market, the type of housing that would be
appropriate to develop on the Property is townhouses. R.R. 240a. Victor further
explained that the Plan is to construct a maximum of 91 townhouse units with 3
different floor plans. R.R. 248a. Victor summarized how the Plan meets the open
space, density and use requirements of the Zoning Ordinance. R.R. 245a-48a.
Victor also discussed the waivers from the Zoning Ordinance that the Plan would
require if the Board opted to tentatively approve it. R.R. 247a-53a. Additionally,
Developer provided a geotechnical investigation report of the development site by
ACA Engineering, Inc. (geotechnical report), Indiana No. 575-687, an arborist
report by F.A. Bartlett Tree Expert Company (arborist report), R.R. 360a-61a, and a
Transportation Impact Study, along with accompanying documents, by David E.
Wooster and Associates, Inc. (traffic study). R.R. 363a-508a.
Additionally, at the November 14th hearing, Objectors presented the
testimony and expert report of the managing principal of Environmental Planning
and Design, Andrew Schwartz (Schwartz). R.R. 270a. Schwartz testified that the
Plan failed to meet the Township’s criteria for tentative approval because Developer
sought to increase density without giving any environmental or planning advantages
2
The MDR Zoning District is “designed to provide areas that preserve the existing
characteristics of the single-family dwelling units” and includes: single-family dwelling, two-
family dwelling, church, no-impact home based business, public grounds, public utility, forestry,
accessory structure, school and PRD. Zoning Ordinance, Article III, Section 301 & Table III-A.
3
required of a PRD in order to deviate from the Township’s subdivision and land
development ordinance (SALDO) and the Zoning Ordinance. R.R. 290a-97a &
554a. Further, Schwartz asserted that the Plan fails to maintain consistency with the
surrounding neighborhood or provide for better conservation of natural amenities,
green ways and open spaces as required by the Zoning Ordinance. R.R. 554a.
Schwartz also testified how the Plan does not comply with the Zoning Ordinance.
R.R. 280a-86a. Numerous township residents also testified against the Plan. R.R.
310a-42a. At the December 12th hearing, the Board received written documentation
relating to the Plan.3 R.R. 559a-70a.
On January 16, 2018, the Board granted tentative approval of the Plan
in a 3-2 vote, and the next day, the Board issued its written decision in support of
the tentative approval. See Board’s Findings of Fact, Conclusions and Decision
dated 1/17/18. On February 15, 2018, Objectors appealed the Board’s decision to
the trial court. R.R. 716a-39a. After briefing by the parties and oral argument, the
trial court entered an opinion and order on September 18, 2018, affirming the
Board’s tentative approval. Trial Court Opinion and Order dated 9/18/18. The trial
court explained:
The Board’s Decision granting approval of [Developer’s]
PRD Plan, including the waivers, is supported by
substantial and credible evidence. The Board determined
that [Objectors’] arguments related to general detrimental
effect upon the neighborhood and general policy concerns
as to harmony with the purposes of the Ordinance, [sic]
did not justify denial of the PRD plan. The Board’s
decision is affirmed and the [Objectors’] appeal is
dismissed.
3
Developer attempted to present an amended plan at the December 12th hearing, but the
Board did not accept the amended plan. R.R. 562a.
4
Id. at 4. Objectors appeal to this Court.4
On appeal, Objectors assert the Board erred by granting tentative
approval of the Plan because it treated the Plan “as if it were [sic] a typical land
development application” rather than ensuring that Developer met the requirements
for a PRD as required by the Zoning Ordinance. Objectors’ Brief at 18, 20-22.
Objectors further contend that the Board’s findings of fact are “conclusory” in nature
and, in many cases, are not supported by “any evidence” in violation of Section
709(b) of the Pennsylvania Municipalities Planning Code (MPC).5 Id. Section
709(b) of the MPC pertains to PRD plans and provides, in relevant part:
The grant or denial of tentative approval by official written
communication shall include not only conclusions but also
findings of fact related to the specific proposal and shall
set forth the reasons for the grant, with or without
conditions, or for the denial, and said communication shall
set forth with particularity in what respects the
development plan would or would not be in the public
interest. . . .
53 P.S. § 10709(b) (emphasis added).
Developer counters that the Board is “obligated” to grant tentative
approval of a PRD where the Plan satisfies the purposes of a PRD and meets the
tentative approval requirements of the Zoning Ordinance, absent a showing that the
development would be contrary to the public interest. Developer’s Brief at 18-20.
Developer contends that the Board properly concluded that Developer met the
4
Where, as here, the trial court took no additional evidence, we are limited to determining
whether the governing body committed an error of law or abused its discretion. Kang v.
Supervisors of Twp. of Spring, 776 A.2d 324, 327, n.7 (Pa. Cmwlth. 2001) (citing Herr v.
Lancaster Cty. Planning Comm’n, 625 A.2d 164 (Pa. Cmwlth. 1993)). The governing body abuses
its discretion when its findings of fact are not supported by substantial evidence. Id.
5
Act of July 31, 1986, P.L. 805, as amended, 53 P.S. § 10709(b).
5
requirements of the Zoning Ordinance and that “Objectors failed to produce
sufficient evidence to convince the Board that their general policy concerns
warranted denial of the Plan.” Id. at 20. Developer asserts that the Board’s findings
are supported by the record and that Objectors failed to produce “public interest
objections of a substantial, specific, and exceptional nature” sufficient to overturn
the tentative approval, and therefore, the trial court’s determination should be
affirmed. Id.
Upon our review of the Board’s written decision, this Court cannot
ascertain why the Board granted tentative approval of the Plan. The purpose of a
board’s written decision is to enable a reviewing court and applicant to understand
the reasons for the board’s decision and to show that the decision is reasoned and
not arbitrary. Smith v. Hanover Zoning Hearing Bd., 78 A.3d 1212, 1223 (Pa.
Cmwlth. 2013) (construing Section 908(9) of the MPC, 53 P.S. § 10908(9), which
provides, “[w]here the application is contested or denied, each decision shall be
accompanied by findings of fact and conclusions based thereon together with the
reasons therefor”); see also Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d
807, 816 (Pa. Cmwlth. 2005) (explaining that a board’s opinion is sufficient if it
provides an adequate explanation of its resolution of the factual questions involved
and sets forth its reasoning in such a way to show that its decision was reasoned and
not arbitrary).
Where a board’s decision is “clear and substantially reflects application
of the law,” this Court has held the decision to be sufficient. Taliaferro, 873 A.2d
at 816. In the context of decisions involving variances, this Court has indicated that
there is no requirement that the board cite “specific evidence” to support each of its
findings. Id. Nevertheless, the board has to provide enough information to enable
6
effective appellate review. Id. If the board, in its decision, renders specific findings
and conclusions pertaining to the plan as required by the terms of the applicable
zoning ordinance, provides a discussion explaining its rationale, and resolves
evidentiary conflicts and credibility issues, this Court has held that the decision is
sufficient. Id.
Here, however, the Board’s decision does not provide sufficient
findings of fact to enable effective appellate review. Though the Board considered
the requirements of the Zoning Ordinance pertaining to PRD tentative approval, the
Board did not provide specific factual findings related to the Plan to support its
conclusions. As a result, this Court cannot ascertain upon what basis the Board
tentatively approved the Plan, and therefore, we cannot consider the merits of the
objections raised by Objectors. To demonstrate the difficulty faced by this Court in
attempting to review this matter, we will summarize the purpose and some of the
tentative approval criteria provided in Sections 400 and 401(F) of the Zoning
Ordinance, the Board’s findings pertaining to these requirements, the parties’
arguments relating to these terms, as necessary, and explain why the Board’s
decision fails to comply with Section 709(b) of the MPC, 53 P.S. § 10709(b).
Purpose Criteria – Section 400
We begin our discussion with the purpose of a PRD as provided in
Section 400 of the Zoning Ordinance. Section 400 provides six purposes:
[1] to encourage innovations in residential development,
[2] to better meet modern housing demands, [3] to create
variety in the type, design and arrangement of housing
units, [4] to conserve and permit economies in providing
public services and [5] to reflect changes in the technology
in land development and [6] to relate the development of
land to the specific site, a . . . (PRD) may be approved
under the provisions of this Ordinance, if, and only if, they
7
accomplish the foregoing purposes and they comply with
all other ordinances and regulations of the Township or the
County or State not inconsistent herewith, except as to
procedure, and with the following standards and
provisions. The requirements for approval of a [PRD]
plan under this Article shall be an exception to and in lieu
of the provisions of the [SALDO], as the same may be
amended.
Zoning Ordinance § 400 (emphasis added). The Board here rendered one specific
finding of fact regarding the purposes of the Zoning Ordinance, which addressed
purpose three enumerated above involving housing units. The Board found that:
The plan creates a diverse and variety of housing types in
the proposed development. Specifically, roughly 50% of
the homes will be the Griffin model which involves first
floor living and will be marketed primarily to empty
nesters. The Schubert design represents approximately
25% of the units and will be 2-3 bedroom traditional
townhouses with the bedrooms located on the third level.
The Rosecliff model represents approximately 25% of the
proposed units[,] has a first floor master bedroom and will
be marketed to empty nesters.
The [Board] find[s] this to be a diverse style of housing.
Board’s Finding of Fact (F.F.) No. 6 (emphasis added).
Objectors assert that the Plan lacks the “variety” required by a PRD, as
all the homes are townhouses, and therefore, the Board’s finding is not supported by
the evidence. Objectors’ Brief at 29. Developer contends that Section 400 is a
“general criteria provision which communicates the motivation and goals behind the
Township’s decision to allow for the approval of PRDs.” Developer’s Brief at 22.
Developer asserts that Objectors’ expert, Schwartz, conceded that “general
guidelines and objectives in a zoning ordinance are not the standards by which a
8
PRD application is judged,” as Developer contends that the Board and this Court
must look to the “objective standards and criteria” contained in the Zoning
Ordinance. Id. at 23. Developer further asserts that the Zoning Ordinance does not
require “multiple housing types in a single PRD[,]” id. at 24, and, in support, relies
on Schwartz’s testimony stating, “[i]n most PRD plans, there is a variety of housing.
[But here,] [t]he ordinance does not stipulate.” R.R. 302a. We disagree.
As noted above, Section 400 of the Zoning Ordinance enumerates six
purposes for PRDs and provides that the Board may approve a PRD “if, and only if,
[it] accomplish[es] the foregoing purposes.” Zoning Ordinance § 400 (emphasis
added). Although Developer asserts that the purposes are not the standards by which
the PRD application is judged, the plain language of Section 400 indicates otherwise.
The Board must consider the purposes of a PRD when evaluating an application
because a PRD is unique and is intended to
offer an alternative to traditional, cookie-cutter zoning. A
PRD is a larger, integrated planned residential
development which does not meet the standards of the
usual zoning districts and offers municipalities flexibility
. . . . It is this type of flexibility which the PRD provisions
of the MPC . . . are designed to offer the municipality. The
idea behind PRD zoning is to create a method of approving
large developments which overrides traditional zoning
controls and permits the introduction of flexibility into the
design of larger developments.
Kang v. Supervisors of Twp. of Spring, 776 A.2d 324, 328 (Pa. Cmwlth. 2001)
(emphasis added, quotations and citations omitted); Michaels Dev. Co., Inc. v.
Benzinger Twp. Bd. of Supervisors, 413 A.2d 743, 747 (Pa. Cmwlth. 1980). Given
the unique nature of a PRD, the Board must ensure, prior to granting tentative
approval, that the Plan does, in fact, meet the specific requirements for a PRD in the
9
Zoning Ordinance. See Section 702 of the MPC, 53 P.S. § 10702 (explaining that
the governing body of each municipality may enact provisions within a zoning
ordinance fixing the standards and conditions for a PRD and “[p]ursuant to such
provisions the governing body may approve, modify or disapprove any development
plan within the municipality”) (emphasis added). The reason that the Board must
follow the requirements specific to a PRD is because, when the Board grants
tentative approval, “it shall be deemed to be an amendment to the zoning map,
effective upon final approval, and shall be noted on the zoning map.” Section 710(a)
of the MPC, 53 P.S. § 10710(a) (emphasis added). Because a PRD “overrides
traditional zoning controls,” and upon final approval amends the zoning map, it is
important that the Board, prior to granting tentative approval of such a plan, ensure
that the specific requirements enumerated in the zoning ordinance are followed.
The Zoning Ordinance here provides that the Board may approve a
PRD “if, and only if, [it] accomplish[es] the foregoing purposes” and, therefore,
renders the specified purposes requirements. Zoning Ordinance § 400. Section 400
provides as a requirement that the Plan have a “variety in the type, design and
arrangements of housing units[.]” Id. (emphasis added). The Zoning Ordinance
does not define the term “variety” so we interpret and apply the term “in accordance
with its usual and generally accepted meaning.” Council of Middletown Twp., Del.
Cty. v. Benham, 496 A.2d 1293, 1295-96 (Pa. Cmwlth. 1985). The term “variety”
is commonly accepted to mean “the quality or state of having different forms or
types . . . a number or collection of different things especially of a particular class
. . . something differing from others of the same general kind.” “Variety,” Merriam-
Webster, available at https://www.merriam-webster.com/dictionary/variety (last
10
visited June 21, 2019). Thus, to have a variety means that there must be more than
one. This is an objective standard against which we can measure compliance.
Applying this standard here, Section 400 allows for PRD approval “if
and only if” there is “a variety in the type, design and arrangement of housing units,”
that is, (1) more than one type of housing unit, (2) more than one design of housing
unit and (3) more than one arrangement of housing unit. Victor testified that “the
type of housing that would be appropriate for this particular piece of property given
its zoning options would be townhouses.” R.R. 240a (emphasis added).
Additionally, the Board granted tentative approval for a “91-Unit Townhouse
PRD[.]” Board’s Findings of Fact, Conclusions and Decision issued 1/17/18,
Approval No. 1.
The Board found that the Plan creates a “variety of housing types” and,
to support this conclusion, summarized the three models of townhouses that
Developer intends to build (the Griffin model, the Schubert design and the Rosecliff
model). F.F. No. 6. But, noting that there are three models of townhouses proposed
does not sufficiently explain the Board’s conclusion that the Plan has more than one
type of housing unit and, similarly, does not address the arrangement of the housing
unit. At best, the Developer’s intention to build three models of townhouses may
support a conclusion that the Plan has more than one “design” of housing unit, but
this Court cannot ascertain whether this is what the Board meant. Based on the
Board’s finding on this purpose requirement, this Court cannot ascertain whether the
Plan actually meets the requirement or whether the Board simply failed to adequately
explain the basis for its decision as required by Section 709(b) of the MPC, 53 P.S.
§ 10709(b).
11
Further, the Board rendered the following finding regarding the
remainder of the purposes of a PRD as follows:
The purpose of the [PRD] Ordinance is to encourage
innovations in residential developments, to better meet
modern housing demands, to create variety in the type,
design and arrangement of housing units, to conserve and
permit economies in providing public services and to
reflect the changes in the technology in land development
and to relate the development of the specific site. The Plan
satisfies these objectives.
F.F. No. 5. Though the Board concluded that the Plan satisfies the “objectives” of a
PRD, this Court cannot ascertain what specific facts pertaining to the Plan the Board
relied upon to support this conclusion. This finding is simply a recitation of Section
400. The Board does not explain how the Plan encourages “innovations in
residential developments,” “better meet[s] modern housing demands,” “conserve[s]
and permit[s] economies in providing public services,” “reflect[s] changes in the
technology in land development,” and “relate[s] the development of land to the
specific site” as provided therein. See Zoning Ordinance § 400. As a result, this
Court cannot ascertain the basis for the Board’s tentative approval of the Plan or how
the Plan aligns with the requirements of Section 400 of the Zoning Ordinance.
Tentative Approval Criteria – Section 401(F)
We now turn to the tentative approval criteria that the Board must
consider when rendering its decision as provided in Section 401(F) of the Zoning
Ordinance. Section 401(F) of the Zoning Ordinance provides, “[t]he Township
Board of Supervisors may grant tentative approval to a proposed development plan
when it is found to meet the following criteria[,]” and enumerates seven specific
criteria. Zoning Ordinance § 401(F) (emphasis added). Objectors contend that the
Board made no findings with respect to all seven of the criteria provided in Section
12
401(F) and, to the extent the Board rendered findings on the criteria, the Board’s
conclusions did not provide reasons explaining how it reached its conclusion.
Objectors’ Brief at 19-21 & 33. Upon review, we agree that the Board’s findings
are insufficient.
The Board rendered no specific findings on two of the seven criteria,
specifically, Section 401(F)(1) and (7) of the Zoning Ordinance. Section 401(F)(1)
requires a finding that the Plan “complies with all applicable community objectives
of Article I,” as provided in the Township’s most recent comprehensive plan.6
Zoning Ordinance § 401(F)(1). Section 401(F)(7) requires a finding as to whether
the Plan “proposes development over a period of years” and, if so, whether “the
phased development schedule is sufficient to protect the interests of the public and
of the residents of the PRD.” Id. § 401(F)(7). This Court cannot ascertain whether
the Board considered these criteria based on the findings of fact and conclusions of
law provided.
Nonetheless, Developer argues that the Board did not have to render
findings regarding the Section 401(F)(1) criteria because it refers to the Township
comprehensive plan, which is “general criteria” as opposed to “specific, objective
criteria” upon which a PRD application is examined. Developer’s Brief at 26.
Developer maintains that the criteria is general, and therefore, Objectors bear the
burden of proving failure to comply. Id.
Developer is correct that this Court has indicated that compliance with
the comprehensive plan does not control the zoning ordinance provisions or serve as
a basis to deny a PRD plan. Michaels Dev., 413 A.2d at 747; Doran Invs. v.
6
In Article I of the Zoning Ordinance, Section 104 expressly provides for the
“[c]ommunity [d]evelopment [g]oals and [o]bjectives” explaining that “[t]he purpose of this
Ordinance is to implement the goals and objectives found in the most recent Township
Comprehensive Plan.” Zoning Ordinance § 104.
13
Muhlenberg Twp., 309 A.2d 450, 456 (Pa. Cmwlth. 1973). However, in the present
matter, the provisions of the Township’s Zoning Ordinance that apply to PRD
approval require the Board to render a finding on this criteria. See Zoning Ordinance
§ 401(F) (explaining that the Board may grant tentative approval “when it is found
to meet the following criteria”); see Michaels Dev., 413 A.2d at 747 (stating, “a PRD
must meet the requirements of the particular [PRD] [o]rdinance”). This Court
cannot evaluate Objectors’ objection to this criteria because the Board provided no
mention of the criteria in its decision.
The same problem exists with the Section 401(F)(7) criteria. The Plan
includes building 91 townhouses on the Property in 2 phases7 but the Board did not
render a finding as to whether Developer anticipates execution of the Plan taking a
“period of years,” with a development schedule to protect the interests of the public
and residents of the PRD, or, alternatively, whether the Plan is not going to take a
“period of years” and, therefore, a phased development schedule is not required.
Based on the Board’s failure to render specific findings on the Section 401(F)(1) and
(7) criteria alone, this Court may remand this matter. But this Court is having
difficulty ascertaining the Board’s reasons for granting tentative approval of the Plan
even when it rendered findings specific to the remaining criteria.
While this Court will not address every specific insufficiency, we
further note the inadequacy of the Board’s finding regarding Section 401(F)(5) of
the Zoning Ordinance. Section 401(F)(5) requires the Board to render a finding that:
The tract of the PRD is harmonious and consistent with
the neighborhood in which it is located. The flexibility
of design innovation and unique treatment of the site is
7
The project description provides that the development will be built in two phases. R.R.
585a. “Phase One will have 62 units and Phase Two will have 29 units.” Id.
14
consistent with the purpose of the Zoning District and
adjacent land uses.
Zoning Ordinance § 401(F)(5). Here, the Board provided that, “[t]he tract of the
PRD is harmonious and consistent with the neighborhood in which it is located in
compliance with Section 401(F)(5) of the Zoning [Ordinance].” F.F. No. 9. But,
the Board is rendering a conclusion and, in so doing, only restates the criteria.
Reviewing the Board’s finding with respect to Section 401(F)(5), and reviewing the
decision as a whole, this Court cannot ascertain the Board’s reasoning to support its
conclusion that the Plan is consistent with the neighborhood in which the PRD will
be located. In the decision, the Board does not provide any information regarding
the neighborhood or adjacent land uses or how the Board reached this conclusion.
Further, this Court cannot ascertain whether the Board considered the remainder of
the Section 401(F)(5) criteria, that is, whether “[t]he flexibility of design innovation
and unique treatment of the site is consistent with the purpose of the Zoning District
and adjacent land uses.” Zoning Ordinance § 401(F)(5). The Board provided no
findings or reasoning as to this criteria at all when it addressed the Section 401(F)(5)
criteria.
Additionally, Section 401(F)(6) of the Zoning Ordinance provides that
the Board is to render a finding as to whether
[t]he proposed PRD will afford a greater degree of
protection of natural resources such as slide prone areas,
water courses, riparian buffers, flood prone areas and
flood plains, dense vegetative cover, trees having calipers
of eight inches (8”) measured three feet (3’) or higher
above the ground, than if the property in question were
developed in accordance with the Township Subdivision
and Land Development Ordinance.
Zoning Ordinance § 401(F)(6).
15
The Board found with respect to this criteria that:
Due to the design and layout of the PRD, it will afford a
greater degree of protection of natural resources such as
landslide-prone areas, water courses, riparian buffers,
flood-prone areas and floodplains, dense vegetation cover,
trees having calipers of eight inches measured three feet or
higher above the ground than if the Property was to be
developed in strict conformity with the Township
Subdivision and Land Development Ordinance
(“SALDO”) which establishes compliance with Section
401(F)(6) of the Zoning [Ordinance].
F.F. No. 10. Again, the Board simply recites the criteria set forth in Section
401(F)(6) of the Zoning Ordinance but does not explain the facts upon which it relies
or the reason that the Plan meets this criteria, as required by Section 709(b) of the
MPC, 53 P.S. § 10709(b). As such, this Court does not understand the basis for the
Board’s conclusion that the Plan meets the Section 401(F)(6) criteria.8
8
We did not address the criteria required by Section 401(F)(2) of the Zoning Ordinance
but note that the Board appeared to address this criteria in the context of granting waivers from the
Zoning Ordinance requirements. Section 401(F)(2) provides:
Where the proposed PRD provides standards varying from those
in this Article and the subdivision regulations otherwise
applicable to the subject property, a statement that such
departure shall be in the public interest and will promote the
health, safety, and general welfare of the public.
Zoning Ordinance § 401(F)(2). In several of its findings, the Board concluded that the waivers
were in the “public interest,” and made statements referencing the language in Section 401(F)(2)
(for example, in Findings of Fact Nos. 15, 18, 19 and 21). On remand, the Board is to review all
of its findings pertaining to the waivers to ensure that its conclusions are supported by facts related
to the Plan. Further, the Board should ensure that it provides an explanation as to how the waiver
promotes the health, safety and general welfare of the public as required by Section 401(F)(2).
The Board’s findings on the waivers and Section 401(F)(2) requirements should be specific enough
as to the particulars of the Plan to enable a court to adequately assess Objectors’ objections, if
necessary.
16
Conclusion
For the aforementioned reasons, we conclude that the Board did not
follow the requirements of Section 709(b) of the MPC, 53 P.S. § 10709(b), in its
written decision. The Board’s written decision did not adequately provide findings
of fact “related to” the Plan, nor did it set forth the reasons for granting tentative
approval of the PRD under the terms of the Zoning Ordinance. As a result, this
Court does not understand the reasons that the Board tentatively approved the Plan,
and therefore, we cannot review the specific objections raised by Objectors.
Accordingly, we vacate the trial court’s decision and remand this matter
to the trial court to remand to the Board. On remand, the Board is to render findings
of fact and explain how the Plan meets the purposes of a PRD as required by Section
400 of the Zoning Ordinance and explain the reasons that it granted tentative
approval of the Plan as to all criteria required by Section 401(F) of the Zoning
Ordinance. The Board’s findings should be specific enough as to the particulars of
the Plan to comply with Section 709(b) of the MPC, 53 P.S. § 10709(b), so that a
court can adequately assess Objectors’ objections, if necessary.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Matthew Gouwens, Emily Gouwens, :
Hiller Hardie, Sharon Hardie, Kyle :
Rusche, and Meghan Rusche, :
Appellants :
:
v. :
:
Indiana Township Board of Supervisors, : No. 1377 C.D. 2018
Fox Chapel Estates, L.P. :
ORDER
AND NOW, this 25th day of June, 2019, the September 18, 2018 order
of the Court of Common Pleas of Allegheny County (trial court) is VACATED, and
this matter is remanded to the trial court with directions to remand to the Indiana
Township Board of Supervisors (Board) for the Board to issue a decision in
accordance with the foregoing opinion.
Jurisdiction relinquished.
__________________________________
CHRISTINE FIZZANO CANNON, Judge