Brandywine Village Associates, LP and L&R Partnership, LLC v. East Brandywine Twp. Board of Sup. and Carlino East Brandywine, L.P. ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brandywine Village Associates, LP :
and L&R Partnership, LLC, :
Appellants :
:
v. :
:
East Brandywine Township Board of :
Supervisors and Carlino East : No. 499 C.D. 2020
Brandywine, L.P. : Argued: March 15, 2021
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE ANNE E. COVEY, Judge (P.)
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 20, 2021
Brandywine Village Associates, LP (BVA) and L&R Partnership, LLC,
(L&R) (collectively, Appellants) appeal from the Chester County Common Pleas
Court’s (trial court) April 16, 2020 order denying their appeal from the East
Brandywine Township (Township) Board of Supervisors’ (Board) determination
that granted Carlino East Brandywine, L.P. (Developer) conditional approval of its
Preliminary/Final Land Development Plan (2018 Plan). Appellants present five
issues for this Court’s review: (1) whether the Board erred or abused its discretion
by approving Township Subdivision and Land Development Ordinance (SALDO)
and Township Stormwater Ordinance waivers; (2) whether the Board disregarded
relevant evidence and whether its decision is supported by substantial evidence; (3)
whether the Board abused its discretion when it approved the 2018 Plan, which
required the Board to grant waivers and where, pursuant to a contract with
Developer, the Township benefits from the approval by way of obtaining a
Developer-built road and Developer provided indemnity; (4) whether the Township
abused its discretion in propounding a decision mailed after BVA and L&R filed
their appeal from the Board’s order, and whether the trial court abused its discretion
in refusing to strike it; and (5) whether the Township, the Board and the trial court
impaired Appellants’ due process rights where the Township and the Board, as party
to a contract, benefitted from the 2018 Plan’s approval requiring the granting of
multiple waivers, and conducted the hearing on and sat as adjudicator of that same
2018 Plan, and where the trial court excluded a sworn affidavit alleging Township
misconduct, refused to strike the decision, consolidated it with a properly filed
appeal, and refused the record’s supplementation designed to preserve issues for
appellate review. After review, we affirm.
This action is the latest in a lengthy and complex dispute between
Developer and Appellants regarding Developer’s attempts to secure approvals to
develop a shopping center that Appellants oppose. The parties have appealed several
times to this Court and the Pennsylvania Superior Court, encompassing a significant
litigation history. See In re: Brandywine Vill. Assocs. (Pa. Cmwlth. No. 1409 C.D.
2017, filed July 2, 2018) (Brandywine III); Brandywine Vill. Assocs. v. E.
Brandywine Twp. Bd. of Supervisors (Pa. Cmwlth. No. 1149 C.D. 2017, filed April
19, 2018) (Brandywine II); Brandywine Vill. Assocs. v. E. Brandywine Twp. Bd. of
Supervisors (Pa. Cmwlth. No. 164 C.D. 2017, filed January 5, 2018) (Brandywine
I); see also Carlino E. Brandywine v. Brandywine Vill. Assocs. (Pa. Super. No. 3388
EDA 2017, filed October 16, 2018); Carlino E. Brandywine, L.P. v. Brandywine
Vill. Assocs. & Assocs. Wholesalers, Inc. (Pa. Super. No. 2558 EDA 2013, filed
October 20, 2014).
This Court, in Brandywine II, summarized the procedural history
preceding the current application, as follows:
2
Developer is the equitable owner of an undeveloped tract
of land located at 1279 Horseshoe Pike in East
Brandywine Township, Chester County, Pennsylvania,
containing approximately 10.118 acres (Property). The
Property was originally part of a 21-acre parcel. BVA
owns the remaining 11 acres, which contain a shopping
center adjacent to the east side of the Property.
Prior to Developer’s acquisition of the Property, BVA had
certain rights to use the 10-acre parcel under a Cross
Easement Agreement entered into with Developer’s
predecessor[-]in[-]title. Because the entire 21 acres did
not have access to any public sewer, the Cross Easement
Agreement provided that BVA would build, at its expense,
a sewer plant for the use of both parties on the 10-acre
parcel. The Cross Easement Agreement also granted BVA
an easement to the 10-acre parcel for stormwater
management as well as an access easement to use the 10-
acre parcel as a main entrance to BVA’s shopping center.
L&R, the general partner of BVA, is the owner of an
undeveloped parcel of land adjacent to the north side of
the Property.
[]
Throughout this dispute, Developer has submitted
numerous versions of land development plans pertaining
to the Property, all of which have been opposed by
[Appellants]. Although this matter was before us
previously, we quashed that appeal because what we were
being asked to provide was an advisory opinion. . . .
[]
Since 2010, Developer has submitted land development
plans to build a 51,525[-]square-foot supermarket with a
9,250[-]square-foot expansion area, a 4,600[-]square-foot
attached retail building, and a pad site for a 4,088[-
]square-foot bank on the Property. From the beginning,
the Township insisted that Developer provide and pay for
the construction of a road (Connector Road) connecting
the Property with Horseshoe Pike (Route 322) on which it
fronts and North Guthriesville Road.
Because the Connector Road was to cross over L&R’s
adjoining property, in 2014, the Township and Developer
3
entered into a Memorandum of Understanding (MOU).
Under this MOU, Developer, in lieu of paying a significant
portion of the Township’s transportation impact fee of
$1,795,000[.00], was obligated to design, permit and
construct at its expense the Connector Road and dedicate
it to the Township. The MOU also provided that the
Township would condemn necessary portions of L&R’s
adjoining property as well as BVA’s easements on the
Property granted under the Cross Easement Agreement.
[]
Although Developer has submitted several different
versions of land development plans pertaining to the
Property, there are two particular preliminary plans that
have been subject to much litigation. The first of those
plans was filed on December 9, 2014 (2014 Plan).
Therein, Developer treated and identified the Connector
Road as a ‘driveway,’ notwithstanding that it would
eventually be dedicated to the Township as a public road.
The 2014 Plan also included the area under the ‘driveway’
as part of Developer’s land area. The 2014 Plan did not
identify the previously condemned BVA easements on the
Property.
In January 2015, the Board conditionally approved the
2014 Plan (Original 2015 Decision). [Appellants]
appealed that decision on February 20, 2015 (2015
Appeal)[,] and Developer intervened.
[]
Before the trial court, [Appellant]s alleged, inter alia, that
the 2014 Plan contained numerous defects[.]
....
[Appellants] then filed a motion for an additional
evidentiary hearing, which the trial court granted,
remanding the matter to the Board to take additional
evidence. The Board conducted five hearings during
which [Appellants] presented additional evidence in
opposition to the 2014 Plan. In September 2015, because
the parties disagreed as to the parameters of the Board’s
obligation following the conclusion of the hearings, the
trial court issued an order requiring the Board to consider
4
all evidence presented on remand and to make a decision
based upon the entire record.
Then, in a decision dated October 1, 2015 (Revised 2015
Decision), the Board reversed the Original 2015 Decision
granting conditional approval of the 2014 Plan. It did so
because it found that the 2014 Plan was deficient in that it
violated certain ordinance provisions dealing with street
design, stormwater management and treatment of sewage
effluent. The Board did not revisit other issues that
[o]bjectors raised regarding the defects in the plan.
[]
Developer appealed the Revised 2015 Decision to the trial
court. However, pursuant to a stipulation of the parties
approved by the trial court, Developer withdrew that
appeal and the parties agreed that they could raise all
issues related thereto in the still-pending appeal of the
Original 2015 Decision.
On October 22, 2015, Developer filed a new
Preliminary/Final Land Development Plan (2015 Plan),
which was substantially similar to its previous plans and,
once again, included a Connector Road through
Developer’s [P]roperty and addressed the issues raised in
the Revised 2015 Decision. The 2015 Plan was last
revised on December 9, 2015.
The Board conditionally approved the 2015 Plan on April
20, 2016 (2016 Approval), subject to Developer providing
an updated Traffic Impact Study for the proposed
development and complying with any recommendations
of the Township traffic engineer. As pertinent, the Board
also granted a requested waiver of [Section] 350-47.B.2 of
SALDO (sewage effluent requirements) and Section 350-
40.N.2 of SALDO (radius requirements for non-
residential driveways). The Board also determined that
Developer [shall either comply with Section 350-36 of
SALDO or request a waiver].
[Appellants] appealed, raising almost identical issues to
those raised against the 2014 Plan. And, once again, the
trial court sent the matter back to the Board, which then
conducted three evidentiary hearings where [Appellants]
presented substantially similar testimony.
5
....
[]
While resolution of [Appellants’] appeal of the 2016
Approval was still pending, on January 6, 2017, the trial
court issued an [o]pinion and [o]rder granting, in part,
[Appellants’] appeal of the Original 2015 Decision.
Notwithstanding, the trial court rejected numerous
arguments offered by [Appellants] and made . . . findings
[pertaining to setback requirement, minimum lot area,
traffic, stormwater management, and sewage effluent.]
....
[Appellants] appealed to this Court, arguing that the trial
court erred in finding that: (1) Developer did not violate
the front-yard setback requirement in the [East
Brandywine Township Zoning Ordinance (]Zoning
Ordinance[)]; (2) SALDO’s requirement to set aside land
for sewage effluent is not a zoning regulation by
incorporation; and (3) Developer met its burden to
establish that its 2014 Plan provided safe and efficient
ingress and egress.
However, because [Appellants] were the prevailing party
below, the Township requested for the appeal to be
quashed because [Appellants] lacked standing to bring the
appeal. In response, [Appellants] argued that they were
aggrieved by the trial court’s determinations because in
any future appeals, [Appellants] will be estopped from
raising issues the trial court decided against them.
Ultimately, [this Court] agreed with the Township and
quashed [Appellants’] appeal for lack of standing.
Rejecting [Appellants’] concern, we further explained,
‘collateral estoppel will not apply to those
determinations because those purportedly adverse
determinations against [Appellants], as the prevailing
party, were not ‘essential’ to the judgment below.’
Brandywine [I] (citing Callowhill C[tr.] Assoc[s.], LLC v.
Zoning B[d.] of Adjustment, 2 A.3d 802, 809 (Pa. Cmwlth.
2010)) (emphasis added). . . .
[]
6
Prior to our disposition of Brandywine I, the trial court
issued an order dated July 18, 2017 (2017 Decision)
denying [Appellants’] appeal of the 2016 Approval. And,
of course, that decision, . . . construed the Original 2015
Decision as denying [Appellants’] appeal of the 2015
Approval, finding that any issue also raised by
[Appellants] in the Original 2015 Decision were barred
by the doctrine of collateral estoppel.
Notwithstanding, the trial court went on to resolve various
issues on appeal. For instance, for the first time,
[Appellants] challenged the Board’s granting a waiver of:
(1) Section 350-40.N.2 of SALDO, which requires that
non-residential driveways have a minimum radius of 30
feet; and (2) Section 350-36 [of SALDO], which pertains
to deceleration lanes. [Appellants] also reasserted their
challenge to the waiver of a sewage effluent provision,
contending that because Section 399-47.K of the Zoning
Ordinance incorporates SALDO provision[s], the
[Pennsylvania Municipalities Planning Code’s (]MPC[)1]
traditional zoning variance hardship standards apply rather
than the waiver requirement within the MPC.
The trial court rejected each of [Appellants’] challenges.
As pertinent, it found that waiver of Section 350-40.N.2
[of SALDO] (radius requirements for non-residential
driveways) was proper because the credible testimony
offered by both traffic experts established that ‘literal
enforcement of the radius requirement . . . would require
shifting the Connector Road to the West, thereby reducing
the separation of traffic signals on Route 322 . . . [] [and]
would not improve Brandywine Center’s access, which is
fixed by the existing travel isles within that development.’
(Trial Court Opinion dated July 18, 2015 at 25-26.) The
trial court rejected [Appellants’] contention that waiver of
Section 350-47.B.2 of SALDO (pertaining to sewage
effluent) was not permitted because it was incorporated
under the Zoning Ordinance. The trial court also found
their challenge to the purported waiver of Section 350-
36.B.3 [of SALDO] (pertaining to deceleration lanes)
meritless because the Connector Road was not, in fact, a
deceleration lane.
1
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
7
Brandywine II, slip op. at 2-13 (citations and footnotes omitted). The Brandywine
II Court reversed the Board’s 2015 Plan approval solely “because the Connector
Road [was] a public road and the 2015 Plan [did] not provide the required 85-foot
setback from its front lot line to the [bank] building it proposes to construct.”
Brandywine II, slip op. at 25.
On July 3, 2018, Developer filed the 2018 Plan seeking to develop the
Property with a shopping center containing a total of 65,400 square feet of retail
space and 350 off-street parking spaces, stormwater management facilities, access
driveways and landscaping. Developer proposed to build the Connector Road along
the eastern portion of Developer’s Property and the Township’s 1.972-acre parcel
that was formerly part of L&R’s property, but which the Township condemned. The
Connector Road would connect Horseshoe Pike and North Guthriesville Road at a
new intersection Developer is to construct and dedicate to the Township. Developer
also plans to construct improvements along Horseshoe Pike on a .069-acre portion
of property BVA formerly owned but the Township acquired through condemnation.
Unlike the 2015 Plan, the 2018 Plan does not contain a bank pad, and modifies the
Connector Road to comply with SALDO’s street design requirements. Apart from
those changes, the 2018 Plan is substantially similar to the 2015 Plan.
Township engineer Nathan Cline (Cline), Township traffic engineer
Andreas Heinrich (Heinrich), Township Municipal Authority (Municipal Authority)
engineer Joseph Boldaz (Boldaz), the Township Planning Commission, the
Township Historical Commission, and the Municipal Authority reviewed the 2018
Plan as a new land development submission without reference to prior Board or court
decisions or Developer’s prior plans. See Bd. Dec. and Order at 47-48. Relevant
review letters indicate that the 2018 Plan satisfied the Township’s Zoning
Ordinance, SALDO, and the Stormwater Management Ordinance requirements,
8
with the exception of those requirements for which Developer sought waivers or
modifications.
At Appellants’ request, the Board held a hearing to consider the 2018
Plan.2 Chirag Thakkar (Thakkar), the proposed development’s project engineer,
testified on Developer’s behalf. Cline, Heinrich and Boldaz also presented
testimony. LTL Consultants, Inc.’s (LTL) municipal engineer Norman Ulrich
(Ulrich) testified for Appellants. On June 6, 2019, the Board approved an order
granting conditional approval of the 2018 Plan (Approval Order). On June 19, 2019,
the Board issued a 96-page Decision and Order containing detailed findings of fact
and conclusions of law in support of the Board’s Approval Order (Decision).
Appellants appealed to the trial court. On April 17, 2020, the trial court
denied and dismissed the appeal. Appellants appealed to this Court.3 On October
7, 2020, Appellants filed their brief with this Court. On December 7, 2020, both
Developer and the Board filed their briefs. Notably, the Board therein argued that
its Decision should be reversed, despite having argued to the trial court that its
Decision should be affirmed.4 On December 15, 2020, Developer filed an
Application to Strike the Board’s Brief (Application to Strike) contending, inter alia,
that the Board is judicially estopped from changing the position it took before the
trial court. On December 22 and 29, 2020, Appellants and the Board, respectively,
filed answers to the Application to Strike. On January 4, 2021, this Court ordered
that the Application to Strike be listed for argument with the merits of the appeal.
2
The hearing was held on December 12, 2018, and January 15 and 22, and February 21,
2019.
3
“Where the trial court takes no additional evidence, appellate review in a land
development appeal is limited to determining whether the local governing body committed an error
of law or an abuse of discretion.” In re Provco Pinegood Sumneytown, LLC, 216 A.3d 512, 517
n.6 (Pa. Cmwlth. 2019).
4
The Board’s new position was attributed to changes in the Board’s composition.
9
A. Application to Strike the Board’s Brief
On March 12, 2021, this Court granted Developer’s Application to
Strike.5 Developer contended in the Application to Strike that the Board’s brief
should be stricken because “the Board vigorously defended its approval of the 2018
Plan and advocated for the denial of BVA’s appeal [in the proceedings before the
trial court,]” Application to Strike at 4, ¶ 20, and, before this Court, the Board
“incomprehensibly s[ought] to change the position of the Board and to adopt the
position of [BVA,] in advocating for the reversal of the Board’s own Decision.”
Application to Strike at 5, ¶ 27.
Developer raised three specific arguments in support of its position: (1)
the doctrine of judicial estoppel prevents the Board from changing its position; (2)
the Board may not seek reversal of its decision; and (3) the Board’s brief is untimely
because the Board is advocating a position consistent with BVA’s.
With respect to judicial estoppel, this Court has explained:
As a general rule, a party to an action is judicially estopped
from assuming a position inconsistent with his or her
assertion in a previous action if his or her contention was
successfully maintained. The purpose of judicial estoppel
is to uphold the integrity of the courts by preventing
litigants from ‘playing fast and loose’ with the judicial
system by changing positions to suit their legal needs.
Gross v. City of Pittsburgh, 686 A.2d 864, 867 (Pa.
Cmwlth. 1996). Judicial estoppel is unlike res judicata in
that it depends on the relationship of a party to one or more
tribunals, rather than on relationships between parties.
Morris v. S. Coventry Twp. Bd. of Supervisors, 898 A.2d 1213, 1218 (Pa. Cmwlth.
2006) (citation omitted).
In Black v. Labor Ready, Inc., 995 A.2d 875 (Pa. Super.
2010), the Pennsylvania Superior Court observed: ‘Our
5
Upon review of the parties’ briefs, this Court granted the Application to Strike prior to
oral argument on the merits.
10
Supreme Court has not definitively established whether
the second element (successful maintenance) is strictly
necessary to implicate judicial estoppel or is merely a
factor favoring the application. See [In re Adoption of]
S.A.J., [838 A.2d 616 (Pa. 2003)].’ Black, 995 A.2d at 878
n.8; see also Westfield Ins. Co. v. Astra Foods, Inc., 134
A.3d 1045 (Pa. Super. 2016). Notwithstanding, the
Pennsylvania Supreme Court in S.A.J. held that
‘successfully maintained’ does not require an
adjudication, but includes situations in which ‘the
individual who made inconsistent statements successfully
established [his] claim and reaped its reward (i.e.,
payment of benefits).’ S.A.J., 838 A.2d at 622.
Nagle v. Trueblue, Inc., 148 A.3d 946, 954 n.10 (Pa. Cmwlth. 2016) (emphasis
added). “Judicial estoppel ‘appl[ies] with equal if not greater force when a party
switches positions within the same action.’” Bienert v. Bienert, 168 A.3d 248, 255
(Pa. Super. 2017) (emphasis added) (quoting Ligon v. Middletown Area Sch. Dist.,
584 A.2d 376, 380 (Pa. Cmwlth. 1990)). Further,
[j]udicial estoppel applies to sworn facts or judicial
admissions, and to legal argument. See Hosp[.] & Health
Ass[’n] of P[a.] v. Commonwealth, 77 A.3d 587, 596 n.9
(Pa. 2013) (holding that the Commonwealth is judicially
estopped from arguing that it cannot comply with the
remedy sought because it prevailed on the opposite
contention in opposition to an earlier sought preliminary
injunction). In Gross . . . , the city introduced evidence in
a federal civil rights trial that the city later attempted to
disprove in a state eminent domain action, and this Court
held that the city could not introduce contradictory
evidence in the state eminent domain proceedings simply
because it better suited the city’s own ends. In Thompson
v. Anderson, 632 A.2d 1349 (Pa. Super. 1993), a plaintiff
successfully maintained an action at arbitration based on
the theory of injury by intentional act and was
subsequently estopped from arguing in the same action
that the injury occurred because of a defendant’s
negligence.
11
Bradley Ctr. v. N. Strabane Twp. (Pa. Cmwlth. No. 2028 C.D. 2016, filed February
12, 2018), slip op. at 7 (citation omitted).6
Here, the Board asserted in its answer opposing Developer’s
Application to Strike that judicial estoppel did not apply because it was not a party
to the adjudication of Developer’s application but, rather, was the governing body
evaluating the application. This Court addressed a similar circumstance in Morris,
wherein, a township board of supervisors approved a developer’s subdivision and
land development plan subject to conditions. Thereafter, a neighboring property
owner (Objector) filed a land use appeal from the preliminary plan approval to the
trial court. After the trial court affirmed the board’s approval, Objector appealed to
this Court which again affirmed. The developer then submitted its final subdivision
plans to the board. Thereafter, the township’s engineer reviewed the plans and the
developer worked to address issues raised by the board and township engineer. The
board granted approval subject to five conditions. Objector appealed from the final
approval. The trial court remanded the case to the board to allow Objector to
introduce documents and present argument, and directed the developer to produce
evidence of compliance with one of the conditions. The board held the remand
hearing and issued a letter affirming its earlier final plan approval. Therein, the
board found that the developer had satisfied the condition, and imposed additional
conditions, but those new conditions did not supersede the conditions contained in
the initial final plan approval. The trial court held that the board properly issued
conditional approval of the developer’s plan.
Objector appealed to this Court, arguing that judicial estoppel barred
the board from granting final approval since, in the litigation pertaining to the
6
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), unreported opinions are not binding precedent, but may be cited for their persuasive
value.
12
preliminary plan approval, the developer represented that it would satisfy all
conditions attached by the board and the township’s SALDO requirements before
final plan approval. Objector claimed that judicial estoppel precluded the board and
the developer from contending that final approval was proper. This Court applied
the judicial estoppel doctrine to the board, explaining:
According to our Supreme Court, in order to determine if
judicial estoppel was appropriately applied by the trial
court in the present case, th[e] Court must address: (1)
whether [the d]eveloper/[b]oard has assumed an
‘inconsistent’ position in this litigation from the prior
litigation concerning preliminary plan approval[;] and (2)
whether [the d]eveloper/[b]oard ‘successfully maintained’
the position it assumed in the preliminary plan approval
litigation. In re S.A.J., . . . 838 A.2d [at] 621 . . . .
Morris, 898 A.2d at 1219.
The Morris Court stated:
Because [the d]eveloper and the [b]oard were successful
in the preliminary plan approval litigation, we will focus
on prong one of the test to determine whether [the
d]eveloper and the [b]oard assumed an inconsistent
position in this litigation from the prior litigation
concerning preliminary plan approval.
In this case, [the d]eveloper and the [b]oard did not take
inconsistent positions in the final plan approval litigation
because they both did not argue that [the d]eveloper was
no longer required to obtain the necessary state agency
permits or approvals in order to receive final plan
approval. To the contrary, [the d]eveloper and the [b]oard
had been consistent throughout that the preliminary and
final plan approval was conditioned upon [the d]eveloper
receiving the necessary state agency permits. Because no
one made any representation that all state permits would
be in hand before final plan approval was sought or
granted, Objector had not satisfied the first prong of the
judicial estoppel test.
13
Morris, 898 A.2d at 1219. Thus, this Court has applied the doctrine of judicial
estoppel to a township board of supervisors in a land development plan appeal.
In the instant matter, this Court in deciding Developer’s Application to
Strike first considered whether the Board “ha[d] assumed an ‘inconsistent’ position
in this litigation” regarding its granting of waivers. Morris, 898 A.2d at 1219. The
record was unclear as to whether the Board’s position was inconsistent from that in
prior litigation, given that the plans at issue differed. Notably, the instant 2018 Plan
differed from the prior three plans, upon which the Board rendered decisions that
were appealed. Each prior plan approval was appealed and the Board’s approval
was reversed. Further, it did not appear that the Board’s numerous waivers were at
issue in the condemnation action. The fact that the Board sought condemnation for
the Connector Road did not translate to a position supporting the granting of
numerous waivers for the land development project. Because each plan was
different, the Board’s position before this Court was not inconsistent from prior
litigation involving the previous plans.
With respect to the current 2018 Plan and the instant proceedings, the
Board’s position before this Court was clearly inconsistent from its decision
approving the 2018 Plan, and from the position the Board took in the trial court,
where the Board opposed Appellants’ appeal.7 The Board prevailed in the trial court
when its decision was affirmed. Given this Court’s decision in Morris, wherein it
applied the doctrine of judicial estoppel to a township board of supervisors in a land
development plan appeal, and the recognition that “[j]udicial estoppel ‘appl[ies]
with equal if not greater force when a party switches positions within the same
action[,]’” this Court concluded that judicial estoppel prohibited the Board from
advocating a position contrary to that pursued before the trial court below. Bienert,
7
According to the trial court docket, the Board filed a “Brief of [the Board] in Opposition
to Land Use Appeal of [Appellants]” on September 13, 2019. Reproduced Record at 3a.
14
168 A.3d at 255 (emphasis added). Accordingly, this Court was constrained to grant
Developer’s Application to Strike.8
B. Waiver of SALDO and Stormwater Ordinance Provisions
Regarding their substantive issues, Appellants first contend that the
Board erred when it “waive[d] compliance with 19 SALDO and Stormwater
Ordinance sections, 13 of them [sic] substantive design requirements[,]” Appellants’
Br. at 17, without evidence that “literal enforcement [of SALDO requirements
would] exact undue hardship because of peculiar conditions pertaining to the land in
question,” as required by Section 512.1(a) of the MPC. 53 P.S. § 10512.1(a).9
Specifically, Appellants claim that, although a SALDO waiver request need not be
supported by the same evidence of hardship necessary for a variance, “hardship of
some type regarding the land, not the Developer’s desires, is required. In this case
on this land, no hardship of any kind exists at any level.” Appellants’ Br. at 22.
Appellants assert:
The [] Property is a gently sloping completely vacant piece
of ground, with no physical constraint of any kind. The
only improvements are the current access road for the
BVA Shopping Center and related basin that Developer
proposes to eliminate. On the condemned L&R parcel, the
only feature is an artificial pond, established by the
Developer’s own expert . . . to be man-made and not a
riparian waterway ([Reproduced Record (R.R.) at] 222a-
255a).
Appellants’ Br. at 20. According to Appellants, Developer’s hardship results not
from the land, but from Developer’s false claim that the Township engineer
mandated the Connector Road’s specific location.
8
Having found that judicial estoppel bars the Board from advocating a contrary position,
the Court need not address Developer’s other related arguments.
9
Added by Section 40 of the Act of December 21, 1988, P.L. 1329.
15
Appellants further argue:
Every waiver adverse to Appellants is based on the claims
of [] Thakkar, . . . orally presented at the first hearing. He
claimed that the Township ‘insisted’ on the [C]onnector
[R]oad; that the Township’s traffic engineer ‘dictated’ its
design and location; and because of this Township
mandate it is ‘impossible’ to comply with the ordinances[,]
thus requiring the waivers. []R.[R. at] 278a, 281a-282a,
298a, 319a-320a[]. This alleged ‘Township dictate’ and
resulting ‘impossibility’ underpins every adverse waiver
granted.
Appellants’ Br. at 22. Appellants contend that there was no Township dictate on the
Connector Road’s specific location. Rather, Developer designed the Connector
Road to permit Developer to construct the shopping center to its preferred
specifications, and Developer’s need for the requested waivers arises therefrom, not
from necessity. According to Appellants, expert Ulrich developed and presented to
the Board an alternate plan demonstrating the feasibility of the project without the
requested waivers (Alternate Plan).
Section 512.1 of the MPC provides:
(a) The governing body or the planning agency, if
authorized to approve applications within [SALDO], may
grant a modification of the requirements of one or more
provisions if the literal enforcement will exact undue
hardship because of peculiar conditions pertaining to
the land in question, provided that such modification
will not be contrary to the public interest and that the
purpose and intent of the ordinance is observed.
(b) All requests for a modification shall be in writing and
shall accompany and be a part of the application for
development. The request shall state in full the grounds
and facts of unreasonableness or hardship on which the
request is based, the provision or provisions of the
ordinance involved and the minimum modification
necessary.
16
(c) If approval power is reserved by the governing body,
the request for modification may be referred to the
planning agency for advisory comments.
(d) The governing body or the planning agency, as the case
may be, shall keep a written record of all action on all
requests for modifications.
53 P.S. § 10512.1 (emphasis added).
As stated in the Board’s Decision,
Section 350-62 of SALDO provides:
A. In any case in which an applicant
demonstrates to the satisfaction of the Board
that strict application of any provisions of
this chapter would be unreasonable and
would cause unnecessary hardship as
applied to the proposed subdivision or land
development, the Board may grant a
modification of such provision so as to grant
relief from the unnecessary hardship. Any
such modification granted shall be the least
modification necessary to grant relief from
the unnecessary hardship and shall be applied
so that substantial justice may be done and
the public interest secured; provided,
however, that such modification shall not be
granted if it would have the effect of
nullifying the intent and purpose of this
chapter.
B. In granting modifications, the Board may
impose such conditions as will, in its
judgment, secure substantially the objectives
of the standards and requirements so
modified.
The Township Stormwater Ordinance also allows the
Board to grant waivers pursuant to Section 345-110 which
provides as follows:
A. The requirements of this chapter are
essential and shall be strictly adhered to. For
any regulated activity where, after a close
17
evaluation of alternative site designs, it
proves to be impracticable to meet any one or
more of the mandatory minimum standards
of this chapter on the site, the Township may
approve measures other than those in this
chapter, subject to [Section] 345-111[.]B and
C [of the Township Stormwater Ordinance].
B. The governing body shall have the
authority to waive or modify the
requirements of one or more provisions of
this chapter if the literal enforcement will
exact undue hardship because of peculiar
conditions pertaining to the land in
question, provided that such modification
will not be contrary to the public interest
and that the purpose and intent of this
chapter is observed. Cost or financial
burden shall not be considered a hardship.
Modification may also be considered if an
alternative standard or approach can be
demonstrated to provide equal or better
achievement of the results intended by this
chapter. A request for modification shall be
in writing and accompany the . . . site plan
submission. The request shall state in full the
grounds and facts on which the request is
based, provision or provisions of the chapter
involved and the modification necessary.
C. For any proposed regulated activity
involving earth disturbance equal to or
greater than one acre, the Township may
approve measures for minimum volume and
infiltration control other than those required
in this chapter only after consultation with
and evaluation by [the Pennsylvania
Department of Environmental Protection (Pa.
DEP)] that the alternate site design meets
state water quality requirements and does not
conflict with state law, including, but not
limited to, the Pennsylvania Clean Streams
Law, [Act of June 22, 1937, P.L. 1987, as
amended, 35 P.S. §§ 691.1 - 691.1001].
18
Board Dec. at 52-53 (emphasis added).
This Court has explained that “Section 512.1 [of the MPC] clearly vests
discretion with the Township to grant or deny any and all of the waivers requested
in [a land development p]lan.” Miravich v. Twp. of Exeter, Berks Cnty., 54 A.3d
106, 114 (Pa. Cmwlth. 2012).
Further, this Court [has] observed:
[T]he power to grant [SALDO] waivers
resides with the supervisors, who may relax
[SALDO] standards upon proof less rigorous
than that required in order to obtain a
variance from the [z]oning [h]earing [b]oard.
See Valenti [v. Wash. Twp., 737 A.2d 346,
349 (Pa. Cmwlth. 1999)] (‘township may
grant waivers which it deems appropriate in
the interests of the township’). . . .
Telvil Constr. Corp. v. Zoning Hearing Bd. of E. Pikeland
Twp., 896 A.2d 651, 656 (Pa. Cmwlth. 2006) (footnote
omitted). ‘Moreover, we have held that a waiver is proper
where an additional requirement would offer little or no
additional benefit and where literal enforcement would
frustrate the effect of improvements.’ Tioga Pres. Grp. v.
Tioga Cnty. Planning Comm’n, 970 A.2d 1200, 1205 (Pa.
Cmwlth. 2009); see also Monroe Meadows Hous[.]
P’ship, LP v. Mun. Council of Mun[.] of Monroeville, 926
A.2d 548, 553 (Pa. Cmwlth. 2007) (‘a waiver [is] proper
where a development offers a substantial equivalent to
a subdivision requirement, where an additional
requirement would offer little or no additional benefit,
and where literal enforcement of a requirement would
frustrate the effect of improvements.’); see also Levin v.
Twp. of Radnor, 681 A.2d 860 (Pa. Cmwlth. 1996). Also,
‘[i]t is well settled that, in the case where a developer
cannot meet all the conditions of the subdivision
ordinance, a township may grant waivers which it deems
appropriate in the interest of the township.’ Valenti, 737
A.2d at 349.
19
Whitehall Manor, Inc. v. Plan. Comm’n, 79 A.3d 720, 735-36 (Pa. Cmwlth. 2013)
(emphasis added). Accordingly, waivers must meet Section 512.1 of the MPC’s
undue hardship standard or the standard set forth in Monroe Meadows. See Tioga.
The Board relied extensively on Thakkar’s detailed testimony
addressing each requested waiver. Thakkar admitted that the Connector Road’s
location dictated the need for many of the requested waivers. See, e.g., R.R. at 277a,
Notes of Testimony (N.T.) at 88; R.R. at 278a, N.T. at 89; R.R. at 282a, N.T. at 105;
R.R. at 282a, N.T. at 107; R.R. at 284a, N.T. at 113-114; R.R. at 300a-301a, N.T. at
179-181. Further, during Thakkar’s direct and cross-examination, Thakkar and
Developer’s counsel, over BVA’s counsel’s objections, repeatedly represented to
the Board that Heinrich had demanded the Connector Road’s specific location on
the Township’s behalf. See R.R. at 274a, N.T. at 75-76 (Thakkar testified: “In order
to comply with this requirement, the configuration and the location of the proposed
[C]onnector [R]oad would need to change, which has been determined by the
[T]ownship.”) (emphasis added); R.R. at 277a, N.T. at 85 (Thakkar again explained
that the site location “is restricted by multiple things: [t]he road, geometry of the
property lines, topography, and most importantly, proposed [C]onnector [R]oad,
the location of which was determined by the [T]ownship through previous plan
approvals. And the location of that [Connector R]oad dictates the design of the site
primarily.”) (emphasis added); R.R. at 282a, N.T. at 105 (Thakkar emphasized:
“One, and most important [of the reasons for the waiver request], is the configuration
and the location of the [C]onnector [R]oad as has been requested by the [T]ownship
requires the [Connector R]oad to come in at [sic] certain location which is shown
on the plan.”) (emphasis added); R.R. at 282a, N.T. at 107 (Thakkar represented:
“The [Connector R]oad cannot have 750-foot radii and still be in the location where
it is shown which was predetermined by the [T]ownship and meet the geometry
of the [Connector R]oad.”) (emphasis added); R.R. at 283a, N.T. at 109 (Developer’s
20
Counsel stated: “Commonwealth Court has found and [the trial court] has found
based on testimony and documents that [] Heinrich set that [Connector R]oad in
that location.[10] And I’m not going to get into a debate now about that. That’s been
10
Developer’s counsel referred to the trial court’s decision in Condemnation of Fee Simple
Title to 0.069 Acres of Vacant Land and Certain Easements Owned by Brandywine Village
Associates (UPI#30-5-226) and Condemnation of Fee Simple Title to 1.93 Acres and a Temporary
Grading Easement Over 0.26 Acres of Vacant Land Owned by L&R Partnership and John R.
Cropper (UPI#30-2-47) for a Public Street, (Chester Cnty. No. 2014-11237, filed September 8,
2017). Therein, the trial court found:
[Developer]’s original design called for the Connector Road to
follow the access easement and exit onto [Route] 322 at the present
signalization. Under this plan, [Developer’s] bank pad and parking
were entirely outside the BVA’s easements, and could be built by
right and without Township assistance. [Heinrich] insisted that the
location of the bank pad site and Connector Road[] be reversed. []
Heinrich testified that doing so was necessary to maximize the
distance between signals along [Route] 322, to avoid an unsafe
traffic pattern within the bank parking lot, and to align the Connector
Road with the [P]roperty boundary, which is a traffic engineering
best practice.
Condemnation of Fee Simple Title to 0.069 Acres, slip op. at 27, R.R. at 806a. On appeal, this
Court stated:
Heinrich is a traffic engineer and transportation planner working as
the consulting traffic engineer for the Township. He had urged that
the Connector Road run entirely parallel to the [Developer]/BVA
boundary to align it with a then-proposed road on the other side of
Route 322. Heinrich also explained that it was important to shift the
Connector Road east in order to maximize the distance between
signals along Route 322.
He also testified that [the Pennsylvania Department of
Transportation] has no written rule regarding the distance between
signals, but the general rule of thumb is to try to achieve a minimum
of a thousand foot spacing centerline to centerline between
successive signals. He believed that the distance between the
existing access easement’s egress onto Route 322 and the signal at
Bollinger Road, located to the west of the access easement, was
approximately 900 feet. However, regardless of the exact distance,
he would prefer to place the Connector Road’s egress onto Route
322 as far to the east as possible, in order to maximize the distance
21
decided by the courts on at least two different occasions.”) (emphasis added); R.R.
at 283a, N.T. at 110 (L&R’s counsel complained: “Thakkar repeated I believe it’s
11 times that the [T]ownship required the location of the [Connector R]oad. So
asking about the location of the [Connector R]oad is part of his case.” Township
Solicitor, Kristen Camp (Solicitor Camp), responded: “I agree it’s a fair question.
But this witness is not the right person to answer it, so [] Heinrich will be
available.”); R.R. at 291a, N.T. at 144 (Thakkar stated: “[F]irst of all, this location
that we’re talking about is planned, . . . this [Connector R]oad has been reviewed
and commented for months and years. Configuration of the [Connector R]oad as is
has been set in terms of reviews, [Pennsylvania Department of Transportation
(DOT)] applications, et cetera.”); R.R. at 315a, N.T. at 239 (Thakkar noted: “This
particular [Connector R]oad that has been on the books for a very long time, the
location of which was determined by the [T]ownship.”) (emphasis added); R.R.
at 320a, N.T. at 258 (Developer’s Counsel asserted: “It’s over and over and over.
We have said that the [Connector R]oad has been fixed by the [T]ownship, and
that’s what we’re stuck with. If he wants to argue [on appeal] . . . let him do it. But
it’s enough of the same thing over and over again.”) (emphasis added).
When asked directly on cross-examination who insisted that the
Connector Road be constructed at the exact location, Thakkar hedged:
Q. Who from the [T]ownship told you that the [T]ownship
insisted on locating the proposed [C]onnector [R]oad . . .
in the exact location as you show it . . . ?
between signals. Heinrich also testified that it was a best
engineering practice to align roads with property boundaries.
Brandywine III, slip op. at 10 (quotation marks omitted). Notably, the plans at issue in that
condemnation case differed from the 2018 Plan at issue here. Significantly, the bank pad has been
removed from the current 2018 Plan. Further, notwithstanding Developer’s counsel’s
representations, the aforementioned passages do not represent court determinations that the
Township fixed the Connector Road’s specific location on the present 2018 Plan.
22
A. Well, this plan has evolved through multiple reviews.
Q. That’s not what I asked you, sir.
....
A. [] Heinrich has made numerous comments through the
history of this project about where this [Connector R]oad
needs to be, how it needs to hug the property line, why it
needs to be further away from Bollinger Road, et cetera.
Q. So it’s your testimony that [] Heinrich is requiring that
it will be physically located right there; is that correct?
A. [] Heinrich has made comments --
Q. Yes or no?
A. -- which resulted in that plan.
....
Q. Anyone else, or is it just [Heinrich]?
A. [] Heinrich is primarily the person that took the review
of the traffic plan and made comments, extensive
comments, about where the [Connector R]oad needs to be
and the configuration of the road.
Q. Is there any reason absent what you’re now telling us
that Heinrich is insisting that it be right there in that
location? Is there any reason that from a design standpoint
that it couldn’t be located somewhere else?
....
[Solicitor Camp]: . . . . Isn’t the location of the [C]onnector
[R]oad shown in the location on these plans based on what
land area the [T]ownship condemned?
THE WITNESS: That is correct, on the back piece.
R.R. at 288a-289a, N.T. at 130-133.
In Thakkar’s cross-examination, Appellants’ counsel attempted to
demonstrate that Developer’s need for the requested waivers were simply the result
23
of Developer’s desire to locate the Connector Road to maximize the available
building area, rather than due to the land’s unique qualities.
BVA’s counsel called Heinrich as of cross-examination, during which
Heinrich testified as follows:
Q. [Developer’s Counsel] . . . insists that you directed the
location of the [C]onnector [R]oad; is that true?
A. No.
Q. Did you require and insist on the present location of
the [C]onnector [R]oad?
A. No.
Q. Did you require and insist on the abandonment of the
current controlled entrance from Route 322?
A. Are you referring to the existing driveway to BVA?
Q. Yes, sir. Do you want me to repeat that?
A. Yeah.
Q. Did you require and insist on the abandonment of the
current controlled entrance on Route 322?
A. If I understand your question correctly, no.
R.R. at 395a, N.T. at 558 (emphasis added). Later, Heinrich testified:
[Q.] . . . [H]ave you seen any [Board] resolution
specifically approving the location of the [C]onnector
[R]oad at the existing proposed location?
A. I presume that’s part of the land development
application, so when the land development is
approved, the [Connector R]oad will be approved.
Q. No, I didn’t ask you that. I asked you if you have seen
any [Board] resolution heretofore, not as part of the
approval of this plan, heretofore that says that the [B]oard
approves this specific location of the [C]onnector [R]oad?
The last question I asked you about correspondence, you
24
talked about [DOT]. Now I’m asking you about an actual
[B]oard resolution.
A. I don’t understand the distinction.
Q. Have you seen any resolution of the [Board] saying that
this [Connector R]oad should be located exactly where it
appears?
....
A. I’m not aware of one.
Q. Are you aware of any restrictions on building design on
the existing . . . commercial tract . . . that limits or restricts
the design of this development plan for the [P]roperty?
A. No.
R.R. at 401a, N.T. at 581-582 (emphasis added).
Q. Do you have any documentary evidence the
[T]ownship with this plan required the road to be moved,
the existing road to be moved 100 feet east?
A. Required?
Q. Yes.
A. No.
R.R. at 405a, N.T. at 597-598.
The Connector Road’s location is the foundation for many of the
requested waivers. However, based on Heinrich’s testimony, which the Board found
credible, it appears that the Township did not require the Connector Road’s
placement at its current location. Appellants rely on several variance cases for the
proposition that self-inflicted hardship is not justification for the grant of a variance.
See Appellants’ Br. at 35. However, the burden for a SALDO waiver request is less
rigorous than that for a variance and, thus, those cases are inapposite.
25
Nonetheless, Appellants also cite, for persuasive purposes, Lake
MacLeod Homeowners Ass’n, Inc. v. Pine Township Board of Supervisors (Pa.
Cmwlth. No. 1247 C.D. 2017, filed March 12, 2018), wherein this Court reversed a
township board of supervisors’ grant of a SALDO waiver that had been granted for
aesthetic purposes. The waiver for an undeveloped property pertained to
requirements that no more than three dwelling units be served by a private street,
and that private street rights-of-way may not be less than 50 feet in width. The
objectors argued, inter alia, that because the applicant was creating a subdivision on
two large, undeveloped corn fields, the proposed street width could not have resulted
from the property’s physical characteristics and, accordingly, the need for a waiver
resulted from self-imposed hardship.
In concluding that the board improperly granted the waiver, the Lake
MacLeod Court explained:
[I]n light of the fact that, prior to [the a]pplicant’s
proposed development, the subject property was
unimproved, it is unclear why [the a]pplicant could not lay
out its private streets in a manner that complies with . . .
the SALDO’s requirements. As such, the [s]upervisors
erred in determining that waivers from the literal
enforcement of that provision were necessary to prevent
undue hardship based on the peculiar conditions of the
subject property.
Id., slip op. at 29. This Court finds Lake MacLeod persuasive. In the instant matter,
the Property is similarly undeveloped, but for the artificial pond which Thakkar
testified could be moved. See R.R. at 292a, 322a. Accordingly, like in Lake
MacLeod, Developer’s purported hardship was self-imposed and does not support
the undue and/or unnecessary hardship justification for the numerous waiver
requests.
26
Nonetheless, this Court must also consider whether the waivers were
proper under the standard set forth in Monroe Meadows, i.e., “a waiver [is] proper
where a development offers a substantial equivalent to a subdivision requirement,
where an additional requirement would offer little or no additional benefit, and
where literal enforcement of a requirement would frustrate the effect of
improvements.” Id. at 553.
The law is well established:
In a land use proceeding, the [B]oard is the ultimate fact-
finder and the exclusive arbiter of credibility and
evidentiary weight. Nettleton v. Zoning Bd. of Adjustment
of the City of Pittsburgh, . . . 828 A.2d 1033 ([Pa.] 2003).
. . . Moreover, the fact-finder does not capriciously
disregard competent evidence by choosing to accept one
witness’ testimony over another witness’ testimony.
Joseph v. N. Whitehall Twp. Bd. of Supervisors, 16 A.3d 1209, 1218 (Pa. Cmwlth.
2011). The [B]oard “is the arbiter of credibility and may reject the testimony of an
expert witness.” Levin, 681 A.2d at 863. “As the fact[-]finder, the Board has the
power to reject even uncontradicted testimony if the Board finds the testimony to be
lacking in credibility.” Heritage Bldg. Grp., Inc. v. Bedminster Twp. Bd. of
Supervisors, 742 A.2d 708, 710 (Pa. Cmwlth. 1999).
With respect to Developer’s SALDO waiver requests, the Board
described each implicated SALDO section, and Developer’s explanation for the
waiver request:
(i) Section 350-13 [of SALDO] which requires the
submission of preliminary plans for proposed land
development. [Developer] requests a waiver to allow the
Plans to be approved as preliminary/final land
development plans.
(ii) Section 350-24.B(2)(a) [of SALDO] which requires a
four[-]step design process to be used to the maximum
extent feasible for subdivisions or land development
27
where no common open space is to be designated.
Because there is no common open space proposed for the
development, [Developer] believes that a waiver is
appropriate. [Developer] also argues that the layout of the
Shopping Center was largely dictated by the layout of the
Connector Road and thus completing the four-step process
would frustrate the effect of the improvements designed to
implement requirements imposed by the Township (the
Connector Road.) [R.R. at 277a,] N.T. at [] 85.
(iii) A partial waiver from Section 350-24.B(3)(i) [of
SALDO] which requires locations and dimensions of all
existing streets, railroads, sewers and sewage systems,
aqueducts, water mains and feeder lines, fire hydrants, gas,
electric, and oil transmission lines, watercourses,
buildings, sources of water supply, easements, areas
subject to special deed restrictions, and other significant
features within the property or within 300 feet of any part
of the property proposed to be developed or subdivided to
be depicted on a series of maps submitted with the
application. [Developer] requests a partial waiver to not
provide all of this information for private properties within
300 feet where [Developer] does not propose any
improvements and does not have the right to enter upon
those adjacent properties to collect information required
by this section. [R.R. at 271a,] N.T. at [] 61. [] Thakkar
testified that [Developer] does not have permission to
enter private property to gather the necessary information.
[R.R. at 271a,] N.T. at [] 61.
(iv) Section 350-24.B(3)(o) [of SALDO] which requires
the submission of a shadow analysis showing the location
of existing and new trees and screening and shadows cast
by proposed structures and mature landscaping at 9:00
a.m[.], noon and 3:00 p.m. on the date of the winter
solstice. [Developer] argued that a shadow analysis is not
applicable to the Plans and/or in the alternative a waiver is
appropriate because the Plans propose one-story buildings
that are far removed from any adjacent buildings on
adjacent properties and because there are no large trees
proposed to be located on [Developer’s] Property that
would cast a shadow on any building located on adjacent
property. According to [] Thakkar, the closest structure
from the property line is approximately 60 feet away and
28
the closest structure from the proposed buildings is 200
feet away. [R.R. at 271a,] N.T. at [] 63.
(v) Section 350-33.B [of SALDO] which requires the
minimum centerline radii for horizontal curves to be 750
feet for collector streets. The Connector Road does not
meet this minimum standard. [] Thakkar testified that a
waiver is appropriate because the design of the Connector
Road was dictated by the Township, there is limited area
available within the [c]ondemned [p]roperty and there are
limitations in the design of the Connector Road due to the
existing artificial pond and wetlands on the [c]ondemned
[p]roperty and proximity of existing Quail Hill Lane. On
cross-examination [] Thakkar expounded upon his
rationale for requesting the waiver in response to a
question raised by [L&R’s counsel, Eugene Orlando
(]Orlando[)] on behalf of L&R. He testified that the rear
portion of the proposed Connector Road, as it ties into N.
Guthriesville R[oa]d[], has a 255[-]foot radius, and there
is no physical way to design the Connector Road with a
750[-]foot radius within the confines of the [c]ondemned
[p]roperty and be able to intersect N[orth] Guthriesville
Road at a 90° angle. [R.R. at 298a,] N.T. at [] 170. []
Thakkar also testified that from a functional point of view
the Connector Road serves as a local road because it only
serves two properties and that the Connector Road meets
the requirement for a 250-foot minimum radius on a local
road. [R.R. at 282a,] N.T. at [] 106-107.
(vi) Section 350-33.C [of SALDO] which requires
tangents of at least 100 feet between reverse curves. []
Thakkar testified that this waiver is appropriate for the
same reasons as cited above relevant to the waiver
requested for Section 350-33.B [of SALDO].
(vii) Section 350-34.E [of SALDO] requires ‘the grade of
any street at the approach to an intersection’ that exceeds
4% to have a leveling area not greater than 4% grade for a
distance of 40 feet measured from the nearest right-of-way
line in the intersecting street. [] Thakkar explained that he
does not believe a waiver is necessary from this section of
[] SALDO because the driveway leading out of the parking
lot to Horseshoe Pike is a driveway and not a street. [R.R.
at 272a,] N.T. at [] 67-68. However, in the alternative[,]
if the Board believes this section is applicable,
29
[Developer] requested a waiver for the right-out only exit
from the parking lot to Horseshoe Pike due to available
geometry. According to [] Thakkar, the parking lot is 4 to
5 feet lower in grade than the grade of Horseshoe Pike
which exacerbates the slope of the driveway thus
justifying the waiver. [] Thakkar explained that if you
regrade the parking lot to meet the grade of Horseshoe
Pike and thus comply with this section of [SALDO], you
would cause the grade of the rear driveway to not comply
with the maximum slope. [R.R. at 273a,] N.T. at [] 69.
(viii) Section 350-35.D [of SALDO] which requires that
streets entering from opposite sides of another street shall
either be directly across from each other or offset by at
least 200 feet on local and collector streets, measured from
centerline to centerline. The intersection of the [c]ollector
[r]oad and N[orth] Guthriesville R[oa]d[] is 133 feet from
the intersection of Quail Hill Lane and N[orth]
Guthriesville R[oa]d. [Developer] requests a waiver from
this section and claims that the location and design of the
Connector Road was dictated by the Township and that
literal enforcement of this requirement would frustrate the
effect of the improvements designed to implement other
requirements. [] Thakker also testified that the waiver is
necessary in order for the Connector Road to intersect
N[orth] Guthriesville Road as close to a 90° angle as
possible. He also explained that there is limited property
area available to reconfigure the Connector Road and the
existing pond and wetlands that are located on the
[c]ondemned [p]roperty restrict different configurations of
the Connector Road at its intersection with N[orth]
Guthriesville R[oa]d. [] Thakkar testified that it is not
possible to comply with this requirement within the
[c]ondemned [p]roperty. [R.R. at 282a,] N. T. at [] 105-
106. Finally, because N[orth] Guthriesville R[oa]d[] is a
state road, [DOT] will determine if the offset of the
Connector Road from Quail Hill Lane is adequate.
(ix) Section 350-36.B [of SALDO] which requires the
length of a deceleration lane along Horseshoe Pike, posted
at 35 miles-per-hour, to be a minimum of 220 feet. []
Thakkar testified that the [2018] Plan[] provide[s] a right
turn lane (as opposed to a deceleration lane) which is 200
feet long at the approach of the signalized intersection at
the Connector Road and Horseshoe Pike. [] Thakkar
30
testified that this section is not applicable to a right turn
lane (which is provided at a signalized intersection as
opposed to a deceleration lane which is proposed at an
unsignalized intersection.) In the alternative, [] Thakkar
testified that the waiver is warranted because there is
limited space available between the proposed Connector
Road intersection with Horseshoe Pike and the existing
right in, right out driveway to the BVA [p]roperty. []
Thakkar also testified that because Horseshoe Pike is a
state road, [DOT] will determine the appropriate length of
this lane whether it be a right turn lane or deceleration lane.
[R.R. at 285a,] N.T. at [] 117-118.
(x) Section 350-40.C [of SALDO] which requires the
grade of a driveway intersecting a street not to exceed 5%
within the legal right-of-way or 14 feet from the edge of
shoulder, whichever is greater. [Developer] requests a
waiver from this requirement to allow the maximum grade
for the right -out only driveway from the parking lot onto
Horseshoe Pike to be 9.3%. [] Thakkar testified that in
order to comply with this requirement, the elevation of the
front parking lot and building would have to be raised
which in turn would require other areas of the Property to
be graded at a steeper slope which would then cause other
design standards to not be met, such as the grade of the
rear driveway. [R.R. at 272a-273a,] N.T. at [] 68-71. In
response to questions asked by [BVA’s counsel, Paul
Prince (]Prince[)] on cross-examination, [] Thakkar
indicated that there is a 2½[-]foot difference in vertical
grade between the exit driveway and the parking lot and
that if you redesigned the exit driveway to comply with the
ordinance section, you would have to raise the parking lot
grade to a 10% grade which would not be a safe or
desirable slope for a parking lot in a shopping center.
[R.R. at 314a,] N.T. at [] 233-[2]34.
(xi) Section 350-40.N(2) [of SALDO] which requires a
minimum radius on private driveway entrances to be 30
feet. The modification requested is to allow a 25[-]foot
radius on two driveway curves, one coming out of the front
entrance from the BVA [p]roperty turning right onto the
Connector Road and the second being the rear entrance
drive on the BVA [p]roperty turning right onto the
Connector Road. All other driveway radii comply with
this requirement. [R.R. at 273a,] N.T. at [] 72. []
31
Thakk[a]r testified that the waiver is needed because a 30[-
]foot minimum radius cannot be provided without
encroaching onto BVA’s [p]roperty and without moving
the location of the Connector Road. [] Thakkar testified
that he did not believe it was possible to move the location
of the Connector Road and still fit within the area of the
[c]ondemned [p]roperty. [R.R. at 274a,] N.T. at [] 76.
(xii) Section 350-47.B(2) [of SALDO,] which requires
that land developments be self-sustaining relative to
storage and disposal of sewage and that the applicant shall
provide sufficient storage and land area 1½ times the size
determined necessary to store disposable treated sewage
effluent generated by the uses on the site. [Developer]
requested a waiver from the section citing that the
Township and the [Municipal] Authority have previously
approved a waiver from this requirement and [Pa. DEP]
has approved a planning module.
(xiii) Section 350-54.B [of SALDO] which requires the
subdivider to plant street trees outside of the street right-
of-way spaced 40 to 60 feet apart and staggered along both
sides of the street. [Developer] argues that it does not meet
the definition of a ‘subdivider’ as defined in Chapter 300
of the [Township] Code and that because no subdivision is
proposed on the [2018] Plan[], this section is not
applicable. In the alternative, if the Board finds that this
section is applicable and that a waiver is necessary,
[Developer] claims that the existing topography, artificial
pond, [sic] wetlands, need to comply with stormwater
management requirements, and geometry of the
Connector Road prohibit the street trees from being
located outside of the right-of-way. [R.R. at 277a,] N.T.
at [] 86-88.
Board Dec. at 25-29.
Similarly, the Board described each Township Stormwater Ordinance
waiver request and Developer’s purported justification therefor:
(i) Section 345-311.A(3) [of the Township Stormwater
Ordinance,] which specifies that all open channel slopes
be no steeper than one foot vertical for every four feet
horizontal. [Developer] requests a waiver to provide open
channel slopes at one foot vertical for every two feet
32
horizontal. [] Thakkar testified that this waiver is
necessary because there is limited right-of-way available
within the [c]ondemned [p]roperty to provide a swale at a
four to one slope and still maintain the geometry of the
Connector Road. [R.R. at 278a,] N.T. at [] 92. The second
location where the proposed slope is two to one is in the
area along the southern side of the Connector Road
adjacent to the BVA [p]roperty. [] Thakkar testified that
the waiver is necessary in this location in order to reduce
the height of a retaining wall which is proposed to be built
adjacent to the sidewalk on the southern side of the
Connector Road. [R.R. at 279a,] N.T. at [] 93-95.
(ii) Section 345-311.B(1) [of the Township Stormwater
Ordinance,] which requires that storm sewers be placed
along the shoulder of the roadway. [] Thakkar explained
in his testimony that the proposed storm water pipe that
runs within the bed of N[orth] Guthriesville R[oad] cannot
be placed in the shoulder because there are wetlands on the
south side of N[orth] Guthriesville Road adjacent to the
edge of the road and there is an existing sanitary sewer
force main on the north side. He testified that there is no
way to install the storm pipe in the shoulder of the roadway
due to the narrow width of the road and these existing
pipes. [R.R. at 283a,] N.T. at [] 111-112.
(iii) Section 345-311.B(2) [of the Township Stormwater
Ordinance] which requires the use of either reinforced
concrete pipe or corrugated metal pipe for storm sewers
with certain minimum pipe diameters and permits the use
of high[-]density polyethylene pipe ([]HDPE[]) if installed
under manufacturer specifications and with specific
permission by the Township engineer. [Developer]
proposes to install two 12[-]inch . . . pipes under the
Connector Road. [] Thakkar testified that as a result of
existing grades of the L&R [p]roperty (the land where the
stormwater is flowing from) and the limited land area
within the Connector Road, the stormwater pipes
underneath the Connector Road must be 12 inches in
diameter in order to provide as much coverage between
the pipe and [the] top of [the] road. [R.R. at 284a,] N.T.
at [] 114. The reduction in pipe diameter from 15 inches
to 12 inches is intended to maximize the depth of the pipe
section. [R.R. at 284a,] N.T. at [] 113-114. [] Thakkar
testified that it is impossible to maintain minimum cover
33
over the proposed twin storm pipes while accommodating
the road grades within the Connector Road and still
conveying drainage from the L&R [p]arcel across the
Connector Road. Id. During cross-examination from []
Orlando, [] Thakkar indicated that it was impossible to
provide the appropriate grades without extending beyond
the [c]ondemned [p]roperty. [R.R. at 301a,] N.T. at [] 181.
(iv) Section 345-311.B(7) [of the Township Stormwater
Ordinance,] which requires the curb inlets to be placed at
curb tangents and maximum amount of the encroachment
of runoff on the roadway pavement to be no more than 4
feet wide during the design storm event. [Developer] is
proposing inlets along the curb radii to reduce the spread
of flow encroaching on the Connector Road. [] Thakkar
testified that in order to keep the spread of flow below the
permitted 4 feet, there must be multiple inlets and that
because of the number of inlets required to keep the flow
below 4 feet, inlets must be placed along the radius of the
curb. [R.R. at 281a,] N.T. at [] 102-103. He also argued
that this requirement should not apply to inlets installed on
Horseshoe Pike which is a Township which is a state road
[sic] that must comply with [DOT] standards. [R.R. at
281a,] N.T. at [] 103-104.
(v) Section 345-311.B(10) [of the Township Stormwater
Ordinance,] which requires the stormwater system to be
designed to produce minimum velocity of 3.0 feet per
second ([]fps[]) when flowing full and maximum
permissible velocity to be 10 fps with pipe slopes a
minimum of 0.5%. [Developer] can meet the minimum
pipe slopes of 0.5% but in two locations the velocity of the
pipe is slightly in excess of 10 fps (10.93 fps in one section
and 10.45 fps in another section). [] Thakkar explained
the rationale for this waiver in his testimony on December
12, 2018. See [R.R. at 279a-280a,] N.T. [at] 96-100.
(vi) Section 345-311.B(12) [of the Township Stormwater
Ordinance] requires all storm pipes to be laid to a
minimum depth of one foot from subgrade to the top of
pipe. [] Thakkar explained that the storm water pipe that
crosses under the proposed Connector Road does not meet
this requirement due to the existing topography and the
limited amount of right-of-way in the [c]ondemned
[p]roperty that is available for grading. According to []
34
Thakkar, the existing topography of the L&R [p]roperty
and limited right-of-way within which to grade and install
the pipe, the pipe cannot physically be laid a minimum
depth of [one] foot from the subgrade to the top of the pipe
or crown of the pipe. Based on these restrictions,
[Developer] has proposed to install two 12-inch pipes
rather than one large pipe. However even with two smaller
diameter pipes, [] Thakkar testified that it is not physically
possible to lay the pipes a minimum depth of [one] foot
from the subgrade to the top of the pipe. [R.R. at 280a-
281a,] N.T. at [] 100-101.
(vii) Section 345-311.D(12) [of the Township Stormwater
Ordinance,] which requires the discharge as well as the
emergency spillway, dam breast areas, or water storage
area of a detention basin to be located no closer than 75
feet from the original property line of the parcel being
developed or any new property lines that are created. []
Thakkar testified that a waiver is necessary because there
are wetlands and an artificial pond on the east side of
N[orth] Guthriesville R[oa]d[] where the stormwater is
directed to flow which make it physically impossible to
provide a 75[-]foot buffer or separation between the lot
lines and still comply with stormwater requirements.
[R.R. at 278a,] N.T. at [] 89. [] Thakkar testified that it
would not be possible to provide a 75[-]foot buffer without
relocating the Connector Road. [R.R. at 278a,] N.T. at []
89-90.
Board Dec. at 29-31.
The Board explained its decision to grant the waivers as follows:
As part of the [2018] Plan[], [Developer] has requested the
Board to approve various waivers from SALDO and [the
Township S]tormwater [Ordinance] criteria that are set
forth in the findings of fact above. These waivers were
further outlined in correspondence provided by
[Developer’s] engineer and [Developer’s] counsel. . . .
[Developer] adhered to the requirement that all requests
for modification shall be in writing and shall accompany
and be a part of the application for development.
[Developer’]s written request for waivers from both []
SALDO and [the Township] Stormwater Ordinance stated
in full the grounds and facts of unreasonableness or
35
hardship on which the request is based, the provision or
provisions of the ordinance involved and the minimum
modification necessary.
The Board finds that [Developer] has provided sufficient
legal basis for the grant of the various waivers from []
SALDO and [the Township] Stormwater Ordinance. The
Board finds that [Developer’s] expert civil engineer, []
Thakkar, presented credible testimony that explained
the circumstances that warranted the need for the
various waivers. The Township consultants, [] Cline and
[] Heinrich, reviewed the waiver requests and stated no
objection and in fact testified that in certain circumstances,
a waiver was appropriate. Neither [] Cline nor [] Heinrich
presented any objections to the waivers requested by
[Developer] in the [2018] Plan[]. The Planning
Commission supported the requests for the waivers and
had no objection to the Board approving the same.
[Appellants] disagree that [Developer] met its burden of
proof to be entitled to the various waivers and urge the
Board to deny the waivers. L&R presented written
documents and reports prepared by LTL which opine[d]
that the waivers are not necessary and that a shopping
center can be designed on the [] Property and the
[c]ondemned [p]roperty without the need for waivers.
L&R presented the testimony of [] Ulrich, an expert civil
engineer who prepared the LTL Alternat[e] Plan . . . .
BVA and L&R argued that the LTL Alternate Plan
demonstrates that [Developer] is not entitled to the
waivers because a shopping center and [C]onnector
[R]oad can be designed on the [] Property without the need
for waivers.
The Board does not find that the LTL Alternate Plan
demonstrates that [Developer] is not entitled to the
waivers. [Developer] argues: ‘The issue of whether a
substantially different development, a different design of
the [C]onnector [R]oad and associated stormwater basin,
could be constructed on the [Property] without the
necessity for some of the SALDO waivers and
modifications sought, is irrelevant to the issues involved
in the [Application.]’ [Developer]’s Memorandum of Law
at [] 25. The Board agrees. The Board rejects
[Appellants’] argument that the LTL Alternate Plan is
36
relevant and proves that [Developer] has not met its
burden of proof to be entitled to waivers.
Board Dec. at 81-83 (emphasis added). After reviewing the record evidence, this
Court agrees that Thakkar’s aforementioned testimony, which the Board found
credible, provided a sufficient factual basis to support the Board’s determination
under the Monroe Meadows standard. Accordingly, the Board properly granted the
waivers.
C. Lack of Substantial Evidence and Capricious Disregard
Appellants argue that the Board mischaracterized and capriciously
disregarded Ulrich’s testimony and the data comprising his Alternate Plan, which
demonstrated that there is no hardship; that applying SALDO provisions is not
unreasonable; that compliance therewith does not cause unnecessary hardship; and
that the evidence shows Developer’s 2018 Plan is contrary to the public interest.
First, Appellants contend that the Board wrongly concluded that Ulrich’s testimony
regarding the possibility of constructing an alternate design, and Ulrich’s Alternate
Plan, were not relevant to the issues involved in Developer’s application. While this
Court agrees with Appellants that the feasibility of an Alternate Plan requiring fewer
waivers is relevant to the issue of undue hardship under Section 512.1 of the MPC,
the MPC’s express undue hardship standard, it is not relevant in the application of
the Monroe Meadows standard. Under the Monroe Meadows standard, “a waiver
[is] proper where a development offers a substantial equivalent to a subdivision
requirement, where an additional requirement would offer little or no additional
benefit, and where literal enforcement of a requirement would frustrate the effect of
improvements.” Monroe Meadows, 926 A.2d at 553. Thus, that standard considers
the submitted application in the context of the SALDO’s requirements, the effect of
the 2018 Plan on those requirements, and the impact that the requirements would
37
have on the 2018 Plan. Accordingly, under the Monroe Meadows analysis, Ulrich’s
testimony and the Alternate Plan were not relevant to the Board’s consideration of
the application, and the Board did not capriciously disregard Ulrich’s testimony and
the Alternate Plan.
Appellants further claim that the Board’s decision is not supported by
substantial evidence. Appellants point to alleged misstatements and inconsistencies
in the testimony of Thakkar, Heinrich, and Cline. See Appellants’ Br. at 40-44.
However,
[claims of inconsistent or conflicting testimony]
challenge[] the weight, and not the sufficiency, of the
evidence. See Commonwealth v. DeJesus, . . . 860 A.2d
102, 107 ([Pa.] 2004) (noting that questions concerning
inconsistent testimony go to the credibility of the witness,
and hence, implicate the weight, rather than sufficiency of
the evidence).
Commonwealth v. Montalvo, 956 A.2d 926, 932 n.6 (Pa. 2008) (emphasis added).
“The weight of the evidence is exclusively for the finder of fact, which is free to
believe all, part, or none of the evidence, and to assess the credibility of the
witnesses.” Commonwealth v. Davido, 868 A.2d 431, 442 n.18 (Pa. 2005). This
Court may not reweigh the evidence. Accordingly, Appellants’ argument is without
merit.
D. Memorandum of Understanding
Appellants next argue that the Township’s obligations under the MOU
are the hidden force driving the Board’s approval of Developer’s 2018 Plan, given
Developer’s need for 19 waivers. According to Appellants, absent the Board’s
responsibilities under the MOU, the Board could simply require Developer to reduce
the size of its proposed building by 8.15%, which would allow the Connector Road
location to be moved and the need for waivers eliminated. Despite the Board’s
38
insistence that the MOU does not require it to approve the 2018 Plan, Appellants
assert that the Board’s erroneous approval of Developer’s three prior plans, along
with the 2018 Plan’s approval requiring numerous waivers, demonstrates otherwise.
The MOU states, in relevant part:
B. Developer intends to improve [Developer’s] Property
as a mixed-use commercial development (the []Project[]).
....
F. In order to support existing volumes of traffic and traffic
projected to be generated by new growth and development
in the Township, the Township has an interest in creating
a new public road connecting Horseshoe Pike to North
Guthriesville Road [].
....
H. In order to construct the Connector Road, a portion of
[Developer’s] Property would need to be used for the
right-of-way and the construction of the Connector Road
and related improvements.
I. In addition, in order to construct the Connector Road and
storm water management facilities necessary for the
Connector Road, a portion of the L&R [p]roperty . . . and
right-of-way over a small area of the [BVA] [p]roperty
adjacent to Horseshoe Pike . . . would need to be
acquired. . . .
J. Further, the [e]asements are located in areas on
[Developer’s] Property where the Connector Road is
proposed and will need to be modified or extinguished in
order to construct the Connector Road.
K. The Connector Road is intended as a public road for
use by the general public and is not necessary for the
development of [Developer’s] Property. The Township
has made an independent judgment that the Connector
Road is in the public interest and for a public purpose.
L. The Township has informed Developer that the
Township would like the Connector Road constructed by
Developer in connection with development of the Project.
39
....
O. As a result of Developer’s inability to acquire the
[necessary property] and extinguish the [e]asements by
negotiation, the Township intends to exercise its power of
eminent domain to acquire the [necessary property] and
terminate the [e]asements as necessary to construct the
Connector Road.
....
NOW THEREFORE, in consideration of the facts set forth
. . . , the parties hereto, intending to be legally bound
hereby, agree as follows:
Agreements
1. The Township hereby agrees to use its condemnation
authority to acquire the [necessary property], and
modification or extinguishment of the [e]asements . . . .
2. In the event the Project receives final land development
approval and all necessary permits, Developer will, at its
sole expense, design, permit and construct the Connector
Road in conjunction with the Project in accordance with
Township and [DOT] requirements, and when completed,
dedicate the Connector Road, the associated right-of-way
and all related facilities and improvements to the
Township, at no cost to the Township and prior to the
issuance of the first certificate of occupancy for a building
on [Developer’s] Property.
3. If the Connector Road is constructed and dedicated as
set forth in paragraph 2 above, Developer will be entitled
to a credit in the amount of $1,705,000[.00] against the
$1,795,000[.00] impact fee for the cost of construction of
the Connector Road and the value of the portion of
[Developer’s] Property used for the Connector Road.
Therefore, at the time of the issuance of the first building
permit for the Project, the Developer shall pay to the
Township the $90,000[.00] balance of the [t]raffic
[i]mpact [f]ee.
....
40
8. After the Township files the necessary Declarations of
Taking to condemn the [necessary property,] Developer
shall submit to the Township an application for
preliminary/final land development approval for the
Project ([]Preliminary/Final Plans[]). The
Preliminary/Final Plans shall be in substantial conformity
with the [plans] approved by the Board on August 7, 2011,
with the exception of modifications necessary to bring the
Project into compliance with Section 350-34.E of []
SALDO.
R.R. at 471a-478a (italic emphasis added).
The MOU’s terms did not purport to, and, as Appellants’ emphasize,
could not, require the Board’s approval of the 2018 Plan.11 Rather, if the Board
granted the development plan approval, the MOU required, inter alia, the Township
to grant Developer an impact fee credit in exchange for Developer’s construction of
the Connector Road.
The Board explained in its Decision:
[Appellants] argue that the MOU is not operative and does
not obligate the Board to approve the [2018] Plan[]. While
the Board does believe that the MOU is a valid contract, it
does not agree that such document requires the Board to
approve the [2018] Plan[]. The Board’s decision to
approve the [2018] Plan[] is not due to an alleged legal
obligation to do so in the MOU. Instead, the Board’s
decision to approve the [2018] Plan[] is as a result of a
thorough review of the relevant [o]rdinances and
conclusion that the [2018] Plan[] meet[s] all relevant
[o]rdinances, except where waivers were requested and
appropriately granted.
Board Dec. at 66 (emphasis added).
11
See Carlino v. Whitpain Inv’rs, 453 A.2d 1385 (Pa. 1982); see also Takacs v. Indian
Lake Borough Zoning Hearing Bd., 11 A.3d 587, 595 (Pa. Cmwlth. 2010) (“Individuals cannot,
by contract, abridge the police powers that protect the general welfare and public interest; in other
words, where the rights of individuals under a contract are in conflict with the general well-being
of the public, the rights of the individual must give way to the general welfare.”).
41
Whether the Township is obligated to afford Developer an impact fee
credit if Developer’s 2018 Plan is approved is a matter separate and distinct from
Appellants’ assertion that the MOU illegally required the Board to approve the 2018
Plan. Given that substantial evidence supports the Board’s 2018 Plan approval,
Appellants’ argument fails.
E. The Board’s June 19, 2019 Decision
Appellants next protest the validity of the Board’s June 19, 2019
Decision. On April 26, 2019, the parties agreed to the Township’s request to issue
its decision on June 6, 2019. On June 6, 2019, the Board issued its Approval Order
granting preliminary and final plan approval. The 13-page Approval Order was
mailed on June 7, 2019, and did not contain findings of fact or conclusions of law.
On June 18, 2019, Appellants appealed from the Approval Order to the trial court.
On June 19, 2019, Solicitor Camp mailed to all parties the Board’s 96-page Decision,
containing findings of fact, conclusions of law, and a discussion section. The
Decision also included the Approval Order at pages 84-96, therein.
Appellants contend that once they appealed from the Approval Order
on June 18, 2019, the Board was without jurisdiction to issue the Decision. They
distinguish Bishop Nursing Home, Inc. v. Zoning Hearing Board of Middletown
Township, 638 A.2d 383 (Pa. Cmwlth. 1994), upon which the trial court relied. In
Bishop, the board denied a property owner’s variance request and notified the
property owner. After the property owner appealed, the board issued its final
decision containing findings of fact and conclusions of law. The property owner
complained on appeal to this Court that the trial court should have stricken the
board’s findings of fact, since they did not accompany the board’s decision and were
filed after the property owner had appealed from the board’s decision.
42
The Bishop Court explained:
When a zoning board denies an application, its decision
must be accompanied by findings of fact, conclusions, and
reasons. [See] Section 908(9) of the [MPC], 53 P.S. §
10908(9). Further, if the record in a land use appeal does
not include findings of fact, the court shall make its own
findings based on the record and any additional evidence
presented by the parties. Section 1005-A of the [MPC],
53 P.S. § 11005-A.[12] In Snyder v. York City Zoning
Hearing Board, . . . 539 A.2d 915 ([Pa. Cmwlth.] 1988),
this Court noted that it does not condone the late filing of
findings of fact, but did not remand the matter for new
findings because careful scrutiny of the record indicated
that the landowners suffered no prejudice due to the late
filing.
In the matter sub judice, the [b]oard’s findings were
clearly part of the record before the trial court and it would
have been absurd for the court to remand the matter to the
[b]oard for lack of findings of fact and conclusions of law.
Further, the trial court did not err by refusing to make its
own findings since Section 1005-A of the [MPC]
authorizes it to make findings only when a board’s
findings are not in the record. Moreover, careful review
of the record demonstrates that [the appellant] was not
prejudiced by any ‘late filing’ of the [b]oard’s decision as
it had already appealed to the trial court and was permitted
to supplement its land use appeal in order to specifically
challenge the [b]oard’s findings before the trial court.
Bishop, 638 A.2d at 386.
Appellants distinguish Bishop, noting that the Court, therein, decided
the case pursuant to Article IX of the MPC, while the instant matter is governed by
Article V of the MPC. Article IX of the MPC requires a zoning board or hearing
officer to issue findings of fact which, in Bishop, the board did not issue with its
decision. See Section 908.1(9) of the MPC, 53 P.S. § 10908.1(9).13 According to
12
Added by Section 101 of the Act of December 21, 1988, P.L. 1329.
13
Added by Section 85 of the Act of December 21, 1988, P.L. 1329.
43
Appellants, Article V of the MPC contains no such requirement; therefore, the
Approval Order was a complete, appealable decision when it was issued, and the
Board was divested of jurisdiction to issue the Decision once Appellants appealed
to the trial court.
Notably, in Snyder, upon which the Bishop Court relied, the appellants
argued that “the [b]oard, without obtaining prior approval, incorrectly filed
supplemental findings of fact and conclusions of law after the record had been
produced by certiorari to the trial court.” Snyder, 539 A.2d at 916. The Snyder
Court rejected the appellants’ argument, explaining:
[T]he [b]oard did not commit error in submitting its
[s]upplemental [f]indings of [f]act and [c]onclusions of
[l]aw after the record had been produced by certiorari to
the trial court. This Court does not condone the late filing
of supplemental findings of fact as has been done in the
instant case. However, our careful scrutiny of the record
indicates that no prejudice was done to the appellants in
the instant matter by this practice.
Snyder, 539 A.2d at 917. The Snyder Court did not find that the board’s decision,
from which the appeal had been taken, was not an appealable order even though it
lacked required findings of fact and conclusions of law. Nonetheless, it permitted
the board’s late filing of its findings of fact and conclusions of law despite that the
appeal had already been taken. Regardless of whether Article IX of the MPC
requires factual findings and legal conclusions to accompany a board decision, this
Court still found no error in the board’s late filing and, thus, Appellants’ argument
is inconsistent with this Court’s precedent.
Here, as the trial court recognized in its Opinion Pursuant to
Pennsylvania Rule of Appellate Procedure (Rule) 1925(a) (Rule 1925(a) Opinion),
“[t]he [Decision] set forth the findings of fact and conclusions of law that support
the ‘Order.’” Rule 1925(a) Op. at 1-2. The Decision contained the same terms as
44
those in the Approval Order, and thus, imposed no additional obligations on the
parties, but simply added findings of fact and conclusions of law, in explanation of
the Approval Order that had been issued. Thus, there is no prejudice to Appellants.
This Court agrees with the trial court that “the [Approval O]rder and the
subsequently issued findings and conclusions comprised a single decision.” Rule
1925(a) Op. at 2. Accordingly, this Court concludes that the Board did not err when
it issued its June 19, 2019 Decision, and the trial court properly refused to strike it.
F. Bias
Finally, Appellants argue that the Board violated their due process
rights to a fair hearing because, as owner of the condemned portions of the planned
Connector Road, the Board could not act as an impartial adjudicator when it
considered the 2018 Plan’s approval.
The law is well established:
A fair trial conducted in a fair tribunal is a basic and
fundamental requirement of due process. Fairness of
course requires an absence of actual bias in the trial of
cases. Courts have recognized that ‘the mere potential for
bias or the appearance of non-objectivity may be sufficient
to constitute a violation’ of due process. Kuszyk v. Zoning
Hearing B[d.] of Amity T[wp.], 834 A.2d 661, 665 (Pa.
Cmwlth. 2003)[.] A question of due process reasonably
involves an inquiry into the nature of the process actually
provided.
HYK Constr. Co. v. Bd. of Supervisors of Smithfield Twp., 8 A.3d 1009, 1018 (Pa.
Cmwlth. 2010) (citations omitted).
Section 399-47.N of the Zoning Ordinance provides, in relevant part:
The tract of land to be developed shall be in one
ownership, or shall be the subject of an application filed
jointly by the owners of the entire tract, and shall be under
unified control. If ownership of the entire tract is held by
45
more than one person or entity, the application shall
identify and be filed on behalf of all the said owners.
Board Dec. at 78 (quoting Zoning Ordinance Section 399-47.N).
Appellants assert that, to satisfy Section 399-47.N of the Zoning
Ordinance, the Board, in a December 7, 2018 letter signed by the Board’s Chairman,
acknowledged that “at its public meeting on December 6, 2018, the Board [] adopted
a motion consenting to the filing of the [2018] Plan and authorizing [Developer] to
pursue approval of the [2018] Plan and the [i]mprovements located on the Township
[p]arcels.”14 R.R. at 550a. Appellants contend that the Board thereby acknowledged
it was a joint applicant/joint owner, and as such, it was improper for the Board to
review the 2018 Plan in an adjudicative capacity.
Appellants requested the Board’s recusal, but the Board refused. In its
Decision, the Board explained:
[The December 7, 2018] correspondence served the
limited purpose of indicating the Township’s consent to
the filing of the [2018] Plan[] because improvements,
primarily a future public road and related improvements,
are shown on the [2018] Plan[] which are located on the
[c]ondemned [p]roperty, which is owned by the Township.
As explicitly stated therein, [the correspondence] does not
obligate the Board to approve or disapprove the [2018]
Plan[]; it does not obligate the Board to any action relative
to the [2018] Plan[]. The [2018] Plan[] w[as] reviewed to
determine compliance with Township ordinances; the
Board’s decision on ordinance compliance is not affected
by the ownership of the property or the Board’s consent to
the filing of the [2018] Plan[].
As in its argument on abandonment of the purpose of the
condemnation, [Appellants’] counsel contends recusal is
warranted because the Township’s consent to the filing of
the [a]pplication is in furtherance of a private
14
The December 7, 2018 letter also expressly stated: “This authorization does not imply
approval of or approve the [2018] Plan, or the design and construction of the [i]mprovements
depicted on the Township [p]arcels.” R.R. at 550a.
46
development. Once again, this issue has been decided by
the courts. The Township condemned the subject
parcels for a public purpose - a public road and related
improvements. The sanitary sewer line and stormwater
pipes on the [c]ondemned [p]roperty serve a public
purpose. Even if those facilities serve a private purpose,
it is merely incidental to the public purpose. The
Township has not joined in a private enterprise by its
consent to the Application.
Moreover, even if there were facts warranting recusal of
the entire Board, the Board must still hear and decide the
case. In accordance with Section 909.1(b)(2) of the MPC,
[53 P.S. § 10909.1(b)(2),15] the governing body, in this
case, the Board, has exclusive jurisdiction to hear and
render final adjudications on applications for subdivisions
and land developments. No other tribunal is given such
authority. There is no provision to appoint an alternative
tribunal, or ask the Pennsylvania Attorney General to
intervene, as suggested by BVA’s counsel.
Board Dec. at 70-71 (emphasis added).
As the Board reasoned, the Township-owned property was condemned
for a public purpose, i.e., the Connector Road. Neither the fact that Developer’s
2018 Plan includes the public Connector Road construction in exchange for an
impact fee credit, nor the Board’s consent to the 2018 Plan filing, transforms the
Township into an applicant for which the Board’s recusal would likely be
appropriate.16
15
Added by Section 87 of the Act of December 21, 1988, P.L. 1329.
16
The Board also stated in its Decision that, even assuming that recusal of the entire Board
was appropriate, it would need to decide the matter pursuant to the Rule of Necessity. See Board
Dec. at 71.
[T]he rule of necessity prevents recusal of all members of an agency
because an agency is either statutorily or constitutionally bound
to carry out its duties. Stroudsburg Area Sch. Dist. v. Kelly, 701
A.2d 1000, 1003 (Pa. Cmwlth. 1997)[.] The rule of necessity
originates from a common law principle that provides that ‘when all
members of a tribunal or so many that there is not a quorum are
subject to recusal, the tribunal must consider the case despite the
47
Further, Appellants’ examples of alleged Township misconduct
evidencing purported bias are unconvincing. The hearings were contentious and it
is evident that the patience of the Board members, counsel and Solicitor Camp were
tested. Although there were instances during the hearings that the Board denied
Appellants’ objections, and occasions where Solicitor Camp advised the Board
contrary to Appellants’ positions, there are also numerous instances where Solicitor
Camp voiced approval for Appellants’ positions. For example, Solicitor Camp
agreed with Appellants’ counsel that witness questions pertaining to the Connector
Road location were appropriate. See R.R. at 283a, 289a, 296a. Solicitor Camp also
agreed with Appellants’ counsel that a question about whether the man-made pond
could be moved was relevant. See R.R. at 292a. After a thorough review of the
lengthy record, in its totality, while observing a concerning lack of professional
decorum on all counsel’s part, this Court discerns no Board bias. Accordingly,
Appellants’ arguments fail.
For all of the above reasons, the trial court’s decision is affirmed.
_________________________________
ANNE E. COVEY, Judge
personal interest or bias of its members, because otherwise the
agency could not carry out its duties and the litigants would be
denied a decision in the matter.’ Id. The [agency], therefore, is
required to consider a case even if all of its members are subject to
recusal because it is bound to carry out its duties regardless.
Henderson v. Unemployment Comp. Bd. of Rev., 77 A.3d 699, 717 (Pa. Cmwlth. 2013) (emphasis
added).
48
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brandywine Village Associates, LP :
and L&R Partnership, LLC, :
Appellants :
:
v. :
:
East Brandywine Township Board of :
Supervisors and Carlino East : No. 499 C.D. 2020
Brandywine, L.P. :
ORDER
AND NOW, this 20th day of July, 2021, the Chester County Common
Pleas Court’s April 16, 2020 order is affirmed.
_________________________________
ANNE E. COVEY, Judge