M.A. Serluco d/b/a Consolidated Properties v. Borough of Camp Hill ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael A. Serluco d/b/a :
Consolidated Properties, :
:
Appellant :
:
v. : No. 1239 C.D. 2020
: Submitted: September 23, 2021
Borough of Camp Hill :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1
HONORABLE MICHAEL H. WOJCIK, Judge (P.)
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: April 13, 2022
Michael Serluco d/b/a Consolidated Properties (Applicant) appeals
from the order of the Cumberland County Court of Common Pleas (trial court) that
affirmed the decision of the Borough Council of the Borough of Camp Hill (Borough
Council and Borough, respectively) that denied Applicant’s preliminary/final
subdivision and land development application (SALDO Application). Applicant
sought to consolidate seven properties and develop a Chick-fil-A fast food restaurant
with a drive-thru window, on the corner of 32nd Street and Chestnut Street in the
Borough. While the appeal was pending, Applicant filed an application for remand
based on after-discovered evidence in the form of an affidavit from the former
1
This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn
Jubelirer became President Judge.
Borough manager, alleging that the Borough conspired to thwart approval of the
SALDO Application in an illegal private meeting.
Applicant presents four questions for our review: (1) whether Borough
Council abused its discretion or erred when it denied Applicant’s SALDO
Application; (2) whether the trial court erred when it found that Borough Council
acted in good faith regarding Applicant’s SALDO Application; (3) whether Borough
Council abused its discretion in rejecting Applicant’s request for a waiver of the
requirement for a preliminary plan under the Borough’s Subdivision and Land
Development Ordinance (SALDO);2 and (4) whether the case should be remanded
to the trial court to consider after-discovered evidence of Borough Council’s bad
faith.3 After careful review, we affirm the trial court’s decision, and deny
Applicant’s remand request.
I.
The relevant facts, which are not in dispute, describe the lengthy and
complex history of this matter, and were summarized by the trial court as follows.
Applicant is the owner of seven contiguous parcels totaling 1.39 acres, located on
the southeast corner of the intersection of Chestnut Street and South 32nd Street,
also known as U.S. Route 15, in the Borough (the Property). The six westernmost
parcels are in the Borough’s General Commercial Zoning District (GC District) in
which a restaurant is a permitted use. The easternmost seventh parcel is in the
Borough’s Low Density Residential Zoning District (LDR District), in which a
2
Borough of Camp Hill, Pa. Subdivision and Land Development Ordinance
(SALDO)(1993).
Per this Court’s July 30, 2021 Order, Applicant’s application for remand and the
3
Borough’s answer will be considered with the merits of the appeal.
2
restaurant is not a permitted use. The Property would thus be split-zoned. The
Property includes land that is encumbered by private alley easements. Applicant
proposed using the north-south “alley” (north-south alley) on the eastern side of the
Property for vehicular ingress/egress from and onto Chestnut Street, which would
be significantly widened for traffic. There is also an east-west “alley” along the
southern border of the Property (east-west alley) which would not be used for access
to South 32nd Street, although Applicant proposed using this alley for emergency
vehicle access using a “mountable curb.” Trial Court 10/30/2020 Opinion at 2-3
(Trial Court Opinion).
Applicant began discussing its plan with Borough staff in 2017, after
which Applicant purchased a small piece of land at the intersection from the
Borough, which gave Applicant ownership of the entire Property. Reproduced
Record (R.R.) at 40a-49a. On June 7, 2018, Applicant submitted sketch plans to the
Borough. Id. at 56a-59a. Applicant and the Borough were aware that the Property
was split-zoned, and understood that the Borough would either have to rezone the
parcel in the LDR District, or Applicant would request a variance. The Borough
Planning Commission (Planning Commission) considered Applicant’s sketch plans
at a November 2018 meeting, where members expressed concern about increased
traffic in the area from the proposed development. Id. at 76a-82a, 84a. Applicant
submitted its initial preliminary/final SALDO Application on December 4, 2018,
(December 2018 Plan), which included the required Borough application; filing fees;
Cumberland County application for review; the SALDO plans with sheets 1-14; the
request to waive the SALDO requirement for a preliminary plan; and a stormwater
narrative and calculations. Applicant sought to waive the requirement for a
preliminary plan and to essentially consolidate its preliminary and final plans
3
because “[t]he project involves the redevelopment of land in a commercial corridor,
with existing supporting infrastructure already in place. No new streets or
significant utility improvements are needed.” Id. at 85a-161a.
Although not on the agenda, some members of the public provided
negative comments about the project, particularly regarding traffic, at the Borough
Council meeting on December 12, 2018, and at a community meeting with Applicant
the next day. R.R. at 141a-46a. An engineering company engaged by the Borough
(Borough engineer) reviewed the December 2018 Plan and provided a report dated
December 14, 2018, with 5 zoning comments and 22 SALDO comments. R.R. at
147a-49a. Although the Planning Commission was expected to consider the
December 2018 Plan at its December 18, 2018 meeting, the review was postponed
at Applicant’s request. Id. at 150a. Nevertheless, members of the public expressed
negative comments about the project at this meeting. Id. at 150a-59a. The
Cumberland County Planning Department issued its report dated December 20,
2018, observing that the plat appeared to generally comply with applicable
regulations, but that revisions may be required to address several substantive issues
including parking in the LDR District; the need for a Traffic Impact Study (TIS);
issues with the design of the drive-thru facilities; the proposed use of the north-south
alley as the main entrance/exit; and some additional traffic concerns. Id. at 180a-
82a.
At the January 15, 2019 Planning Commission meeting, members of
the public again expressed negative comments about the project, and the Planning
Commission recommended accepting Applicant’s offer to extend the deadline for
Borough action by 60 days. R.R. at 191a-221a. At that meeting, the Borough
solicitor publicly stated that the Borough was required to act in good faith, and that
4
the extension would give the Borough more time to review the project, so that it
would not run afoul of the time limits for review set forth in Section 508 of the
Pennsylvania Municipalities Planning Code (MPC).4 Id. at 194a. At its February
13, 2019 meeting, Borough Council accepted Applicant’s 60-day extension to allow
for more time to review the plan. At that time, Applicant had not yet submitted the
TIS, and legal issues concerning the alleys were still not resolved. Id. at 222a-25a,
227a-32a.
Applicant submitted a revised Preliminary/Final SALDO Application
on February 27, 2019 (February 2019 Plan), which attempted to address the
comments from the Borough engineer and Cumberland County, and again included
the waiver request. Applicant eliminated parking in the LDR District in response to
the County’s concern, addressed some other issues, and proposed submitting a TIS
to the Borough for review within the next week. Applicant offered other revisions
regarding stacking spaces for the drive-thru and the use of the north-south alley.
R.R. at 233a-339a. On February 28, 2019, Borough Council issued a public
statement that the Borough was required to work with Applicant to review and
address any deficiencies in the project, to act in good faith, and to review the
forthcoming TIS, so that the Borough could make a fair and responsible decision.
Id. at 369a. On March 1, 2019, Applicant submitted the TIS to the Borough, to
which the Borough engineer expressed a number of concerns related to the north-
south alley, parking and pedestrian concerns, and the impact of the project on the
4
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10508. Section 508 of the MPC
provides, in relevant part, that Borough Council must render its decision on the SALDO
Application “not later than 90 days” after its regular meeting following the date that the application
was filed. Id. If the next regular meeting occurs more than 30 days following the filing, the “90-
day period shall be measured from the 30th day following the day the application has been filed.”
Id. If Borough Council fails to render a timely decision, the application shall be “deemed an
approval” unless the applicant has agreed in writing to an extension. Id.
5
already busy intersection. Id. at 340a-62a, 370a-73a. On March 13, 2019, the
Borough retained special counsel to assist in its review of Applicant’s SALDO
Application. Id. at 376a-81a. The Borough engineer provided comments to
Applicant’s February 2019 Plan in a report dated March 15, 2019, which made
recommendations regarding a lot merger agreement, review by local emergency
services, paving, and a drainage easement. In this report and in its earlier report, the
Borough engineer took no exceptions to granting the preliminary plan waiver as
“there was no regulatory benefit to the Borough” in requiring separate submissions.
Id. at 382a-84a.
Applicant presented its February 2019 Plan to the Planning
Commission at its March 19, 2019 meeting. At this meeting, two Commission
members questioned whether the Property would be treated as a “corner lot,” which
would require two fronts, a side, and a rear for purposes of setbacks and other
requirements. Applicant’s counsel responded that although Applicant and Borough
staff discussed this issue early in the process, he believed that the front of the
Property would be on South 32nd Street, which was the Property’s street address.
Applicant’s counsel indicated that Applicant would submit TIS revisions at a future
meeting, and members of the public again expressed negative comments about the
project. R.R. at 387a-428a. Because Applicant needed more time for revisions, it
advised the Borough that it would present the plan at the May 2019 Planning
Commission meeting, and it agreed to another extension until June 12, 2019, for the
Borough to act on the plan. Id. at 432a-35a.
On May 13, 2019, the Borough solicitor advised Applicant’s counsel
that the Borough zoning officer was reviewing several zoning issues in connection
with the February 2019 Plan, including measurement of the front yard setbacks, rear
6
yard setback, drive-thru location, the use of the north-south alley as an access drive
for commercial use, and documentation for a fence easement outside the east-west
alley. When Applicant’s counsel objected to what he perceived as a delay for these
zoning comments, the Borough solicitor responded that these zoning comments were
in response to recommendations from the Planning Commission and in response to
the revised February 2019 Plan. R.R. at 436a-39a.
On May 15, 2019, the Borough zoning officer’s written opinion was
forwarded to Applicant’s counsel for review. In it, the Borough zoning officer
advised that a corner lot must have two front lot lines; the front yard setbacks were
not properly measured and must be measured from the street right-of-way line; the
building canopy and building were not permitted within the front yard setbacks; the
drive-thru facilities were not permitted within the front yard setbacks or facing an
abutting property in the LDR District; the rear yard setback was not properly
measured; the north-south alley could not be used for commercial purposes in the
LDR District; and no documentation for the fence easement outside the east-west
alley had been received. R.R. at 440a-41a. On May 27, 2019, Applicant’s counsel
advised the Borough zoning officer that Applicant was in the process of revising its
plan based upon review comments, and it agreed to extend the deadline for Borough
action to September 11, 2019. Id. at 446a. On June 12, 2019, Borough Council
again approved an extension to September 11, 2019, as had been recommended by
the Planning Commission, overruling negative public comments. Id. at 460a-64a.
On July 30, 2019, Applicant submitted to the Borough an updated TIS,
crash analyses and a revised Preliminary/Final SALDO Application (July 2019
Plan), which contained sheets 1-16 and a revised stormwater narrative and
calculations. R.R. at 465a-518a. Applicant’s transmittal letter for the July 2019 Plan
7
included responses to the March 15, 2019 Borough engineer’s report, and certain
zoning and pedestrian information. Importantly, the transmittal letter advised that
the site layout had been adjusted to provide front yard setbacks for both South 32nd
Street and Chestnut Street, based on existing building setbacks for adjacent
properties. Applicant indicated that the July 2019 Plan included a one-half-foot-
front setback on South 32nd Street, and a 16.5-foot-front setback on Chestnut Street.
Id. at 471a-72a.
In a separate memorandum to Borough counsel, Applicant’s counsel
explained that the proposed front yard setbacks were based on Section 732.B of the
Zoning Ordinance,5 which permits front yard setbacks to be reduced from the 35-
foot front yard setback required in Section 503 of the Zoning Ordinance, so that the
setback is similar to existing adjacent buildings and the street right-of-way on
abutting lots. Applicant’s counsel also questioned the split-zoning issue and the
Borough zoning officer’s comments regarding commercial use of the north-south
alley. Applicant’s counsel described the north-south alley as “split-zoned along its
centerline,” with the western portion in the GC District and the eastern portion in the
LDR District. R.R. at 527a. Applicant’s counsel stated that zoning regulations
should not apply to the north-south alley because it is a street, and, if they did apply,
they could not prohibit the use of the alley to access the proposed restaurant. Id. at
519a-33a.
On August 19, 2019, in response to Applicant’s July 2019 Plan, the
Borough zoning officer reported to the Planning Commission, in which he confirmed
that the Property was a corner lot, with front yards on South 32nd Street and Chestnut
5
Borough of Camp Hill, Pa., Zoning Ordinance of 2015, as amended. The full Zoning
Ordinance is included in the Original Record (O.R.) at Item 23. The relevant sections of the Zoning
Ordinance are included in the Reproduced Record at 702a-34a.
8
Street, with the address on South 32nd Street. The Borough zoning officer
questioned whether the north-south and east-west alleys should be considered
streets, and, if so, the lot lines should coincide with the right-of-way lines for the
streets/alleys. Based on this measurement, the required rear yard setback would be
30 feet, and the side yard setback would be 12 feet. The zoning officer also
questioned whether the proposed front yard setbacks were properly calculated, based
on the definition of “lot lines” in the Zoning Ordinance and the SALDO.6 R.R. at
553a-54a. Also, on August 19, 2019, the Borough engineer provided reports to the
Borough commenting on the updated TIS and the July 2019 Plan. The Borough
engineer commented that the updated TIS addressed many of the earlier concerns,
but that some remained inadequately addressed, including traffic flow in the
intersection and perpendicular parking spaces along the north-south alley. Id. at
548a-56a. In its more general response to the July 2019 Plan, the Borough engineer
commented on stormwater review, paving, requirements for the fence and drainage
easements, and several other suggestions for Applicant to make technical
adjustments on its drawings. Id. at 544a-47a.
Applicant again agreed to extend the deadline for Borough action on
the July 2019 Plan to facilitate review of the comments and to revise the plan
accordingly. R.R. at 555a. At its August 20, 2019 meeting, the Planning
Commission recommended approving the extension and again received negative
comments about the project from members of the public. Id. at 557a-85a. On
6
Camp Hill Borough Subdivision and Land Development Ordinance of 1993, as amended.
The full SALDO is included in the Original Record at Item 23, and the relevant sections are
included in the Reproduced Record at 735a-64a. The Borough enacted an amended SALDO
effective December 2020, replacing the 1993 SALDO, which does not apply to this appeal. The
amended SALDO may be found at
https://cms8.revize.com/revize/camphillborough/Departments/Code%20Enforcement-
Zoning/CHB%20FINAL%20SALDO%20120920.pdf (last visited 4/12/22).
9
August 29, 2019, the Borough zoning officer amended his report to respond more
accurately to Applicant’s July 2019 Plan, in which he addressed designation of front,
side, and rear yards; setbacks for side and rear yards; conformity of streets under the
Zoning Ordinance and the SALDO; front yard setbacks on Chestnut Street and 32nd
Street; commercial use of driveways; and the updated TIS. Id. at 643a-45a. On
September 5, 2019, the Pennsylvania Department of Transportation commented on
the updated TIS, in which it raised a concern about the unaligned accesses to the
Property from Chestnut Street, and about the traffic patterns in the intersection. Id.
at 650a-51a. Applicant again offered to extend the deadline for Borough action on
the plan until December 11, 2019, to facilitate its submission of another revised plan
to the Borough by October 22, 2019. Applicant’s counsel expressed frustration at
receiving new zoning comments at this stage in the process. Id. at 655a-56a. At its
September 11, 2019 meeting, Borough Council approved the extension to December
11, 2019, to facilitate submission of Applicant’s revised plan by October 22, 2019.
Id. at 657a-60a.
On October 22, 2019, Applicant’s counsel informed the Borough
solicitor that Applicant would not submit a revised plan or a revised TIS. R.R. at
662a. On November 15, 2019 Applicant sent a “litigation hold” letter to the
Borough, seeking preservation of all documents relating to the SALDO Application.
Id. at 668a-73a. Applicant stated his belief that the Borough’s review of the SALDO
Application had not been objective or in good faith. Id. at 665a-67a. At its
November 19, 2019 meeting, at which members of the public again presented
negative comments about the project, the Planning Commission voted to recommend
denial of the July 2019 Plan, and denial of Applicant’s waiver request. Applicant
did not attend this meeting. Id. at 674a-87a.
10
At its December 11, 2019 meeting, Borough Council voted to deny the
July 2019 Plan and to deny Applicant’s waiver request. R.R. at 688a-95a. The
Borough issued a written denial dated December 19, 2019, in which it enumerated
33 reasons for the denial, with citations to the Zoning Ordinance or the SALDO. Id.
at 696a-701a. As the trial court noted, several of the reasons for denial are “technical
in nature and would not normally rise to the level of irremediable, fatal defects in
the plan,” but also that Applicant declined to submit a revised plan to address those
technical defects. Trial Court Opinion at 49. The trial court also noted that several
reasons for denial were substantive in nature, focusing on lot lines, setbacks,
unrestricted access from the lot along the length of the north-south alley, and
deficiencies in the TIS. Id. at 49-52.
Applicant appealed Borough Council’s December 19, 2019 decision to
the trial court. The trial court took no additional evidence and upheld Borough
Council’s decision in an opinion and order dated October 30, 2020, which comprised
some 65 pages and over 200 footnotes. The trial court addressed the following
issues: whether Borough Council’s denial of Applicant’s waiver request violated
required timelines and resulted in a deemed approval; whether Borough Council
acted in good faith; and whether Borough Council’s reasons for denial of the July
2019 Plan were legally sufficient. The trial court concluded that Borough Council
had not abused its discretion in denying Applicant’s waiver request; Borough
Council acted in good faith; and Borough Council’s denial of the July 2019 Plan was
legally sufficient because there were several substantive provisions of the Zoning
11
Ordinance and the SALDO that Applicant failed to meet. Applicant timely appealed
the trial court’s decision to this Court.7
II.
As to the first issue, whether Borough Council’s denial was justified,
Applicant argues that each of the 33 reasons Borough Council provided was
factually inaccurate, ignored details of the plans, or was based on erroneous
interpretations of the Zoning Ordinance or the SALDO. Applicant claims that some
of the 33 reasons rely on inconsequential, administrative, or technical matters that
are remediable and should not be grounds for denial. Although the trial court
specifically discussed in detail only certain reasons, Applicant seeks a determination
from this Court that none of the reasons justify denial of its SALDO Application, so
that Applicant would not be bound in any future plan submissions on undecided
issues or be barred from raising them in a later proceeding. The Borough responds
that so long as Borough Council’s decision complies with the requirements of
Section 508 of the MPC to specify the defects, describes the requirements that have
not been met, and includes citations to the statute or ordinance upon which it relied,
the denial will stand if even one of the reasons for denial is supported by substantial
evidence.
We note that when a plan complies with all “objective provisions” of
the applicable ordinance or regulation, the plan must be approved. However, denial
of a plan may stand if validly supported by even one reason for denial. Herr v.
7
When, as here, the trial court took no additional evidence, this Court’s standard of review
is to determine whether Borough Council abused its discretion or erred as a matter of law.
Allegheny Tower Associates, LLC v. City of Scranton Zoning Hearing Board, 152 A.3d 1118, 1121
n.3 (Pa. Cmwlth. 2017). On the issue of whether Borough Council acted in good faith, this Court’s
standard of review is to determine whether the trial court abused its discretion or erred as a matter
of law. 1050 Ashbourne Associates, LLC v. Cheltenham Township Board of Commissioners, 167
A.3d 828, 837 (Pa. Cmwlth. 2017).
12
Lancaster County Planning Commission, 625 A.2d 164, 168-69 (Pa. Cmwlth. 1993)
(citations omitted). Here, Applicant has not argued that Borough Council’s decision
failed to comply with the requirements of Section 508 of the MPC. Therefore, we
need not determine if each reason is sufficiently supported by the record if we find
that at least one reason, based on objective standards, justifies Borough Council’s
denial. We further note that the party seeking approval of a land development plan
bears the burden to show it is entitled to approval, Ball v. Montgomery Township
Board of Supervisors, 598 A.2d 633, 637 (Pa. Cmwlth. 1991), and that the Borough
is entitled to deference in interpreting its ordinances. Kohl v. New Sewickley
Township Zoning Hearing Board, 108 A.3d 961, 968 (Pa. Cmwlth. 2015).
Borough Council denied the July 2019 Plan because Applicant failed
to provide a metes and bounds description of the proposed easements for a driveway,
fence, and drainage onto adjacent property owned by 133 South 32nd Street, LLC,
nor did Applicant provide proof of the right to construct these facilities on the
adjacent property, as required by Section 407.1.A.(2) and (5) of the SALDO. R.R.
696a-710a, reasons 1, 2, 6, 9, and 23. Applicant argues that Section 407.1.A.(2) and
(5) of the SALDO does not require inclusion of a metes and bounds description, and
that any disputes between private property owners over an easement are private
matters between the owners and may not justify a land use denial. Applicant further
argues that Section 407.1.A of the SALDO applies to review and approval of a final
plat (or plan, as defined in the SALDO), and because the Borough failed to waive
submission of a preliminary plan, it cannot now deny it based on Section 407.1.A.
The Borough responds that although Applicant promised to provide confirmation of
its right to construct these improvements, it failed to do so, and never provided
certification of title or a detailed description of these proposed easements. Section
13
407.1.A of the SALDO requires that for approval of a final plat, an applicant must
provide: “(2) [t]ract boundary lines, right-of-way lines of streets, easements, and
other rights of way . . . with accurate dimensions”; and “(5) [c]ertification of title
showing that the applicant is the owner of land, agent of the landowner or tenant
with permission of the landowner.” SALDO §407.1.A(2), (5).
We agree with the trial court that Borough Council did not abuse its
discretion or commit an error of law when it denied the July 2019 Plan based on
Applicant’s failure to properly describe the proposed driveway, fence, and drainage
easements. Section 407.1.A(2) of the SALDO requires that the final plat or plan
show easements with “accurate dimensions,” and Section 407.1.A(5) requires
“certification of title” that the applicant has title as owner, agent, or tenant to use this
property. We agree that Applicant must assert at least a colorable claim to develop
driveway, fence, and drainage easements onto the adjacent property, which
Applicant did not. The July 2019 Plan, and the earlier versions, contained
Applicant’s promise to provide this information, but Applicant failed to do so.
Because Applicant failed to meet these objective requirements of the SALDO,
reasons 1, 2, 6, 9, and 23 provide valid reasons to deny the July 2019 Plan.
Borough Council also denied the July 2019 Plan because it failed to
depict lot lines and setbacks as required by the Zoning Ordinance. Specifically,
Borough Council concluded that Applicant failed to depict the required 30-foot rear
yard setback from the right-of-way lines of the north-south alley, as required by
Table 5-3 of the Zoning Ordinance, and as “lot line” is defined in Section 202 of the
Zoning Ordinance. Borough Council also concluded that Applicant failed to depict
the required 12-foot side yard setback from the right-of-way lines of the east-west
alley for the same reasons. R.R. at 696a-701a, reasons 24-27.
14
Applicant argues that Borough Council erred in interpreting the Zoning
Ordinance to determine that the July 2019 Plan did not include required lot lines and
setbacks. This issue turns on the relevant definitions in Section 202 of the Zoning
Ordinance. “Lot line” is defined as “[a] line that separates a lot from another lot or
from a street or any public or private space.” R.R. at 705a. “Setback” is defined as
“[t]he required horizontal distance between a required setback line and an abutting
lot line or street right-of-way line, as applicable.” Id. at 707a. “Street line/right-of-
way line” is defined as “[a] line defining the edge of a street right-of-way and
separating the street from an abutting property or lot.” Id. at 709a. Under this
definition the “street line” shall be the same as “the legal right-of-way line, or the
ultimate right-of-way line.” Id. In addition, Section 202 of the Zoning Ordinance
defines “street” to include an “alley” which is defined as a “minor way, which may
or may not be legally dedicated, and is used primarily for vehicular service access
to the rear or side of properties abutting on a street.” Id. Applicant argues that
Borough Council erred in prioritizing one definition of lot line over another.
Applicant claims that the Zoning Ordinance permits measurement of the rear yard
setback from the lot line in the east, and the side yard setback from the center line of
the east-west alley. In contrast, the Borough responds that the lot lines, and thus the
rear and side yard setbacks, must be measured from the right-of-way lines of each
proposed alley, not including the space within each proposed alley, as if they, too,
were part of the Property.
Based on our review of the relevant language of the Zoning Ordinance,
we conclude that the Board did not abuse its discretion or err as a matter of law when
it denied the July 2019 Plan for failing to meet the required rear yard and side yard
setback requirements, using the right-of-way lines for each proposed alley. We
15
cannot conclude that the Board erred by not choosing Applicant’s preferred
definition of lot line when the plain language of the Zoning Ordinance includes “or”
in the definition. Because Applicant failed to meet these objective requirements of
the Zoning Ordinance, reasons 24-27 provide valid reasons to deny the July 2019
Plan.
Borough Council also denied the July 2019 Plan because it would allow
unrestricted access from the Property along a street or alley. R.R. at 696a-701a,
reasons 12 and 29. The July 2019 Plan shows a row of perpendicular parking spaces
along the north-south alley, and includes 50 feet of vertical curbing to direct
vehicular traffic onto the site and to define parking areas. This curbing restricts
access along part, but not all, of the length of the proposed north-south alley. This
issue turns on our interpretation of Section 902.D of the Zoning Ordinance, which
governs driveways and access drives, and states that “[i]n no case shall there be
unrestricted access from a lot along the length of a street or alley.” Id. at 731a.
Applicant argues that the July 2019 Plan does not allow unrestricted
access along “the entire” length of the north-south alley because 50 feet of its length
is restricted by curbing. The Borough responds that the plain language of Section
902.D of the Zoning Ordinance prohibits unrestricted access “along the length” of
the alley, and that the July 2019 Plan violates this requirement.
We agree with the trial court that Borough Council did not err in its
interpretation of Section 902.D of the Zoning Ordinance. As the trial court observed,
the purpose of this requirement is “obviously to prevent the chaotic situation that
would result from vehicles moving onto and off streets at innumerable points along
a site’s frontage.” Trial Court Opinion at 60. Because Applicant failed to meet these
16
objective requirements of the Zoning Ordinance, reasons 12 and 29 provide valid
reasons to deny the July 2019 Plan.
III.
As to the second issue, Applicant argues that Borough Council abused
its discretion when it denied Applicant’s request to waive the requirement for a
preliminary plan.8 This issue turns on the requirements for plan submissions under
Sections 403, 404 and 901.1 of the SALDO. Section 403 of the SALDO provides
that for a “minor subdivision and land development application” defined as one
where “five (5) or fewer lots are proposed to be subdivided . . . or transferred,”
Borough Council “being advised by the Planning Commission, in response to a
written request by the [a]pplicant, may waive the requirements of Preliminary Plat
requirements, provided such proposal is on an existing street and no new streets are
involved.” R.R. at 747a. Section 404 of the SALDO governs requirements for filing
and rendering a decision on preliminary plats. Id. at 748a-49a. Section 901.1 of the
SALDO provides:
Borough Council may grant a modification of the
requirements of one (1) or more provisions of this Chapter
[SALDO] 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 this Chapter [SALDO] is observed.
R.R. at 764a.
8
Although Applicant argued before the trial court that Borough Council’s failure to waive
the preliminary plan requirement resulted in a deemed approval, Applicant does not argue the
deemed approval issue before this Court. Therefore, we focus only on the waiver issue, as
presented.
17
Applicant correctly argues that the Borough engineer advised several
times that he had no objections to granting Applicant’s waiver request. However, as
the Borough responds, it is Borough Council, not the Borough engineer or any other
Borough staff, that has the authority to grant or deny such waivers. Applicant further
argues that the trial court erred in concluding that the Borough did not abuse its
discretion in denying the waiver request, because Applicant elected not to make a
presentation to the Planning Commission for the July 2019 Plan, and because
Applicant failed to submit a revised plan to address the Borough’s concerns. The
Borough responds that neither the July 2019 Plan nor any of the earlier versions
qualify for submission under Section 403 of the SALDO as a “minor subdivision
and land development application” because more than five lots, namely seven lots,
are to be transferred for this project. Further, the Borough notes that the July 2019
Plan is not a minor subdivision under Section 403 of the SALDO because new
streets, in the form of the expanded north-south alley, are proposed as part of the
project. The Borough also contends that Applicant failed to demonstrate that the
submission of a preliminary plan “will exact undue hardship because [of] peculiar
conditions pertaining to the land” under Section 901.1 of the SALDO. Finally, the
Borough submits that granting such waivers is at Borough Council’s discretion, as
evidenced by the use of “may” in Section 901.1 of the SALDO.
We agree that Applicant’s failure to appear at the final Planning
Commission meeting or to submit another revised plan are not reasons to deny its
waiver request under the SALDO. However, based on the plain language of the
applicable SALDO sections, we cannot conclude that Borough Council abused its
discretion in denying this waiver. The July 2019 Plan does not qualify as a minor
subdivision under Section 403 of the SALDO because it proposes transfer of more
18
than five lots, and it includes a new street, in the form of the expanded north-south
alley. Further, Applicant failed to provide evidence that its waiver request should
be granted based on undue hardship caused by peculiar conditions of the land, as
contemplated under Section 901.1 of the SALDO. Based on the plain language of
the applicable SALDO provisions, we cannot conclude that Borough Council abused
its discretion in denying Applicant’s waiver request.
IV.
As to the third issue, Applicant argues that the trial court committed an
error of law when it found that Borough Council acted in good faith in denying the
July 2019 Plan. To determine whether Borough Council acted in good faith, we
must examine relevant case law that discusses a municipality’s duty of good faith.
This Court has established that a municipality has a legal obligation to proceed in
good faith in reviewing and processing development plans. “‘The duty of good faith
includes discussing matters involving technical requirements or ordinance
interpretation with the applicant, and providing the applicant a reasonable
opportunity to respond to objections or to modify plans where there has been a
misunderstanding or difference of opinion.’” Delchester Developers, L.P. v. London
Grove Township Board of Supervisors, 161 A.3d 1106, 1115-16 (Pa. Cmwlth. 2017)
(quoting Raum v. Board of Supervisors of Tredyffrin Township, 370 A.2d 777, 798
(Pa. Cmwlth. 1977)).
Applicant argues that Borough Council, the Planning Commission,
Borough zoning officer, Borough engineer, other Borough staff, Borough solicitor
and special counsel engaged in actions designed to thwart its ability to meet the legal
requirements necessary for approval. Applicant asserts the following as evidence of
19
the Borough’s bad faith: Borough zoning officer withheld comments for eight
months after the December 2018 Plan was filed; Borough changed and added new
comments repeatedly throughout the process; Borough inaccurately and
unreasonably interpreted its ordinances; Borough inaccurately cross-referenced
comments within comment letters to create confusion; Borough applied its Zoning
Ordinance and SALDO to Applicant differently than other applicants; Borough
applied overlay provisions of the Zoning Ordinance, which were not enforceable;
and Borough repeatedly created new hurdles that Applicant had to overcome to
appease public opposition.
The Borough responds that this Court has provided additional guidance
in what constitutes good faith in reviewing land development plans. In Delchester,
161 A.3d at 1116, this Court reviewed relevant case law including Raum, 370 A.2d
777, Highway Materials, Inc. v. Board of Supervisors of Whitemarsh Township, 974
A.2d 539 (Pa. Cmwlth. 2009), Arbanel v. Solebury Township, 572 A.2d 862 (Pa.
Cmwlth. 1990), and Herr, 625 A.2d 164, to further outline what constitutes good
faith and bad faith in the review process. In Highway Materials, this Court held that
when a municipality refuses to advise an applicant on how to cure plan deficiencies,
and refuses to advise an applicant on its interpretations of its ordinances, the
municipality will be found to have acted in bad faith. 974 A.2d at 545. In Arbanel,
this Court held that where a municipality reviewed plans in good faith, highlighted
the plans’ deficiencies, and gave the applicant an opportunity to cure those
deficiencies, the municipality did not act in bad faith. 572 A.2d at 865. Further, in
Arbanel, this Court held that an applicant has a reciprocal good faith duty to submit
revised plans in a reasonable and timely manner so that the municipality can comply
with its duties under Section 508 of the MPC. Id. at 864. Finally, in Delchester, this
20
Court held that the municipality acted in good faith by granting numerous extensions
at the applicant’s request, and by granting waivers, although the applicant failed to
correct issues of noncompliance with relevant ordinances during the four-year
review process. 161 A.3d at 1116. The Borough also notes that “there is no
requirement that the members of the municipal governing body leap with joy when
an application for land development or subdivision approval is filed,” citing Robert
S. Ryan, Pennsylvania Zoning Law and Practice, §11.2.8 (revised July 31, 2007).
The trial court cited six factors against concluding that the Borough
acted in bad faith to frustrate or delay Applicant’s approval. First, the Borough
affirmatively transferred a parcel of land to Applicant so that the entire Property
could be developed. Second, the Borough tried to accommodate Applicant’s idea
that the Property was a non-corner lot, until it became clear that under its Zoning
Ordinance the Property was a corner lot. Third, as public opposition to the project
increased, Borough Council issued a public statement describing the Borough’s duty
to act in good faith, and Applicant’s right to receive a fair review in compliance with
objective standards. Fourth, the Borough solicitor issued a similar public statement
at a public meeting. Fifth, Borough Council granted every deadline extension
Applicant requested. Finally, “the record evidences a conscientious effort” by
Borough officials and consultants to “properly resolve complex legal and practical
issues presented by a controversial development plan that was significantly
reconfigured” during the review process. Trial Court Opinion at 56.
After review of the record and applicable case law, we cannot conclude
that the trial court erred in finding that the Borough acted in good faith. The first
five factors cited by the trial court demonstrate the Borough’s good faith. As to the
sixth factor, there is ample evidence in the record demonstrating that the Borough,
21
its staff, and consultants provided detailed comments and reactions to the December
2018 Plan, the revised February 2019 Plan, and the revised July 2019 Plan. The
question of whether the Property was a corner lot under the Zoning Ordinance was
not resolved until sometime after the Planning Commission’s March 2019 meeting,
after which Applicant submitted its revised July 2019 Plan describing the Property
as a corner lot, to which the Borough zoning officer provided comments on the
requirements for the corner lot and other issues in his August 29, 2019 letter. Factors
that this Court has found to demonstrate bad faith are not present here, including
failing to confer with Applicant, failing to grant extensions, failing to consider
Applicant’s revisions, waiting until the last possible moment to raise objections and
then claiming there was insufficient time to review Applicant’s revision, or
attempting to delay consideration of a project so that a zoning ordinance could be
amended. See Raum, 370 A.2d at 799; Highway Materials, 974 A.2d at 544-45; and
Honey Brook Estates, LLC v. Board of Supervisors of Honey Brook Township, 132
A.3d 611, 621-22 (Pa. Cmwlth. 2016).
V.
As to the fourth issue, while this appeal was pending, Applicant
requested that this Court remand the matter to the trial court to take additional
evidence regarding the Borough’s bad faith, and to issue a decision. Applicant
attached to its request an affidavit from Patrick Dennis, who was Borough manager
from March 2016 through October 2020, while the Borough was considering
Applicant’s SALDO Application. (Dennis affidavit).
In his affidavit, Mr. Dennis states that Borough Council held a private
meeting in January or February 2019, at which a quorum of Borough Council
22
members was present, to discuss the SALDO Application, public opposition to it,
and “conspired to ensure that the review of the [SALDO] Application would be as
difficult as possible so as to preclude the [SALDO] Application’s approval,
including having discussions about hiring special counsel for the Borough
specifically to identify and pursue reasons to challenge the [SALDO] [A]pplication.”
Dennis affidavit ¶¶10, 11. Mr. Dennis stated that Borough Council engaged in
discussion of the SALDO Application and hiring special counsel, “against [his]
admonition.” Id. ¶11. Mr. Dennis further stated that on May 15, 2019, the Borough
solicitor and special counsel, whom the Borough retained on March 13, 2019 to
assist in its review of Applicant’s SALDO Application, provided a draft
memorandum from Borough zoning officer to Applicant’s counsel, which was not
Borough zoning officer’s “work product.” Id. ¶15. Mr. Dennis further attests that
Borough Council members “further conspired” to prepare and fast-track a Zoning
Ordinance amendment that would preclude the construction of a drive-thru
restaurant on the Property, and that a draft amendment was prepared. Id. ¶¶18, 19.
The affidavit is silent as to whether a Zoning Ordinance amendment was ever
introduced or approved. Regardless, the Borough’s denial of Applicant’s July 2019
Plan cited to provisions of the Zoning Ordinance and the SALDO in effect in
December 2019, which did not preclude construction of a drive-thru restaurant on
the Property.
The Borough responds that this Court should deny Applicant’s remand
request because the Dennis affidavit does not provide after-discovered evidence that
the Borough acted in bad faith. The Borough claims that the Dennis affidavit seeks
to “imply some undisclosed ill-will by the Borough or certain (unnamed) officials”
toward the project. Borough’s Answer ¶10. The Borough further submits that this
23
Court should disregard the “florid characterizations” regarding illegal, secret
meetings where Borough Council members allegedly conspired to thwart the
SALDO Application, and consider the facts contained in the Dennis affidavit. Id.
¶11. The Borough contends that the facts alleged in the Dennis affidavit reveal what
was already known and considered by the trial court, namely that Borough Council
held an executive session to discuss retaining special counsel, which is a permitted
reason to meet in executive session, that Borough Council interviewed candidates,
that it retained special counsel in a public meeting, that special counsel worked with
Borough solicitor to review the SALDO Application, and that Borough Council
issued a decision denying it. The Borough further responds that bad faith does not
turn on the subjective desires of Borough Council members, but on its actions and
the denial decision.
After review of the Dennis affidavit and the parties’ arguments, we
deny Applicant’s remand request. Section 1005-A of the MPC9 permits the trial
court to hold a hearing to receive additional evidence and to remand a case to the
body whose decision has been appealed. Applicant cites Quest Land Development
Group, LLC v. Zoning Hearing Board of Lower Heidelberg Township, 934 A.2d 686(Pa. 2007), to support its contention that remand is appropriate for consideration of
after-discovered evidence. In its per curiam order in Quest, our Supreme Court cited
Brannagan v. Great Atlantic & Pacific Tea Company, 41 A.2d 869 (Pa. 1945), for
the standard for evaluating after-discovered evidence. In Brannagan, our Supreme
Court stated:
To entitle a defendant to a new trial on this ground (after-
discovered evidence) the evidence must have been
discovered since the trial, and be such as could not have
9
Added by the Act of July 21, 1988, as amended, 53 P.S. §11005-A.
24
been obtained at the trial by the use of reasonable
diligence; it must not be simply corroborative or
cumulative, or merely to impeach the credibility of a
witness; and it must be such as would likely result in a
different verdict if a new trial were granted.
41 A.2d at 870 (citation omitted).
In Kensington South Neighborhood Advisory Council v. Zoning Board
of Adjustment of Philadelphia, 471 A.2d 1317, 1320 (Pa. Cmwlth. 1984), this Court
denied a remand request on the issue of whether hardship existed to justify a
variance, stating that “[a]ppellant has failed to allege that new evidence, not
previously available, exists which would warrant a remand. We will not issue a
remand merely to strengthen weak proofs.” Here, the Dennis affidavit proffered by
Applicant is cumulative and corroborative of the evidence the trial court already
considered. Remand is not warranted to “strengthen weak proofs.” Id.Further, although not raised by the parties, Applicant’s remedy to what
it describes as the Borough Council’s illegal, private meeting is found in Section 703
of the Sunshine Act, 65 Pa. C.S. §703, which requires that a legal challenge to a
meeting that was not open may not be “commenced more than one year from the
date of said meeting.” Here, Applicant challenges Borough Council’s private
executive session that was held in January or February 2019, and its application for
remand was filed on July 12, 2021, well outside the one-year limitation.
25
VI.
For all of the foregoing reasons, we affirm the trial court’s order and
deny Applicant’s request for remand.
MICHAEL H. WOJCIK, Judge
Judge Wallace did not participate in the decision of this case.
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael A. Serluco d/b/a :
Consolidated Properties, :
:
Appellant :
:
v. : No. 1239 C.D. 2020
:
Borough of Camp Hill :
ORDER
AND NOW, this 13th day of April, 2022, the order of the Cumberland
County Court of Common Pleas dated October 30, 2020, is AFFIRMED. The
Application for Remand of Michael A. Serluco d/b/a Consolidated Properties is
DENIED.
__________________________________
MICHAEL H. WOJCIK, Judge