Southpointe Medical Assoc., L.P. v. Bd. of Supers. for Twp. of Cecil, PA ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Southpointe Medical Associates, L.P., :
:
Appellant : No. 247 C.D. 2020
: No. 248 C.D. 2020
v. : No. 268 C.D. 2020
: Argued: May 13, 2021
Board of Supervisors for Township of :
Cecil, Pennsylvania :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: July 13, 2021
In these consolidated appeals, Southpointe Medical Associates, L.P.
(Applicant) appeals the order of the Washington County Court of Common Pleas
(trial court) affirming the decisions of the Board of Supervisors (Board) for the
Township of Cecil, Pennsylvania (Township), which denied Applicant’s
Preliminary Subdivision Application, Preliminary Site Plan Application, and
Conditional Use Application. Through these applications, Applicant seeks to
subdivide a 2.96-acre portion of a larger parcel owned by Southpointe Golf Club
(Golf Club), in which Applicant has an equitable interest, and to construct a three-
story, 45,000 square foot commercial building, the Hope Learning Center (Center),
for the care and education of children with special needs. We affirm.
These consolidated appeals are the latest in a line of cases relating to
the potential subdivision and development of a portion of the Golf Club’s property.
See Southpointe Golf Club, Inc. v. Southpointe Property Owners’ Association, Inc.
(Pa. Cmwlth., No. 1420 C.D. 2019, filed May 7, 2021) (Southpointe II); Southpointe
Golf Club, Inc. v. Board of Supervisors of Cecil Township, ___ A.3d ___ (Pa.
Cmwlth., No. 148 C.D. 2020, filed February 19, 2021) (Southpointe I). As outlined
in these prior cases, the Southpointe development consists of a 589-acre planned
community of mixed uses in both North Strabane and Cecil Townships, Washington
County (County). The Golf Club’s property consists of 8 parcels totaling 188 acres
that is surrounded by 160 other parcels of mixed zoning classifications, all of which
have been developed, including 3 industrial properties, 15 commercial properties,
and 142 residential properties.
In 1989, the Redevelopment Authority of the County of Washington
(Authority),1 as “Declarant,” executed a Declaration of Protective Covenants
1
Section 9(h), (j), (k), (t), and (u) of the Urban Redevelopment Law (URL), Act of May
24, 1945, P.L. 991, as amended, 35 P.S. §1709(h), (j), (k), (t) & (u) provides:
An Authority shall constitute a public body, corporate and politic,
exercising public powers of the Commonwealth as an agency
thereof, which powers shall include all powers necessary or
appropriate to carry out and effectuate the purposes and provisions
of this act, including the following powers in addition to those herein
otherwise granted:
***
(h) To assemble, purchase, obtain options upon, acquire by gift,
grant, bequest, devise or otherwise any real . . . property or any
interest therein from any person, firm, corporation, municipality or
government[;]
***
(j) To own, hold, clear, improve and manage real property;
(Footnote continued on next page…)
2
(Declaration) for the development, which was recorded on April 25, 1991. As we
have previously noted, Section 21.1(C) of the Declaration provides, in relevant part:
Until the veto right . . . is specifically waived in writing by
[the Authority], [the Authority] hereby expressly reserves
the right to veto any or all of the following events and/or
actions, and upon such veto, such vetoed events and/or
actions shall be null and void:
***
C. Attempted re[-]subdivision of the Property, or any
part thereof[.]
Southpointe II, slip op. at 5.2
(k) To sell, lease or otherwise transfer any real property located
outside of a redevelopment area and, subject to approval by the local
governing body, any real property in a redevelopment area:
Provided, That with respect to a redevelopment area the Authority
finds that the sale, lease or other transfer of any part will not be
prejudicial to the sale or lease of the other parts of the redevelopment
area, nor be in any other way prejudicial to the realization of the
redevelopment proposal approved by the governing body;
***
(t) To make and execute contracts and other instruments
necessary or convenient to the exercise of the powers of the
Authority[; and]
(u) To make and from time to time to amend and repeal by-laws,
rules, regulations and resolutions[.]
2
Likewise, we observed that Section 5.2 of the Declaration states:
For so long as [the Authority] owns the fee simple title to any Parcel
in the Project, no Parcel shall be (i) platted (or re[-]platted) or
subdivided (or re[-]subdivided) or (ii) combined with another Parcel
for purposes of development, without the prior written approval of
(Footnote continued on next page…)
3
On April 30, 1991, the Authority conveyed 6 parcels in the
development, totaling approximately 164 acres, to Millcraft Investments, Inc.
(Millcraft).3 On September 30, 1993, the Authority conveyed an 11-acre parcel and
a 3.8-acre parcel to Millcraft. On January 14, 1994, Millcraft conveyed the
foregoing property to the Golf Club. On June 18, 1996, the Authority conveyed an
additional 7.9-acre parcel to the Golf Club.4 See Southpointe II, slip op. at 6.
the Authority which approval may be withheld in the sole and
absolute discretion of the Authority.
Southpointe II, slip op. at 5 n.3.
3
The deed conveying these parcels to Millcraft contained the following covenant:
FIRST: The Grantee shall devote the property hereby
conveyed only to the uses specified in the applicable provisions of
the Zoning Ordinance of the [Township], as amended March 16,
1988, and the Western Center Redevelopment Plan.
Southpointe II, slip op. at 6 n.4. The 1993 deed conveying the additional two parcels by the
Authority to Millcraft contains the same language. See Reproduced Record (R.R.) at 148a-149a.
4
Section 5 of Part I of the Contract for Sale of Land for Private Redevelopment between
the Authority and the Golf Club states:
The covenant pertaining to the use of the Property, set forth
in Section 401 hereof and in the [Declaration] as recorded in the
Recorder of Deeds Office of the [County], shall remain in effect
from the date of the Deed until January 1, 2010 the period specified
or referred to in the Covenant, or until such date thereafter to
which it may be extended by proper amendment of the Covenant.
Southpointe II, slip op. at 6-7 n.5 (emphasis in original).
In turn, Section 401 of the Terms and Conditions in Part II of the Contract for Sale of Land
for Private Redevelopment between the Authority and the Golf Club states:
Restrictions on Use:
(Footnote continued on next page…)
4
On November 4, 2003, the Authority recorded a Waiver and Release of
Veto Power Under Declarations of Protective Covenants (Waiver and Release),
which states, in pertinent part, that it
waives its veto rights set forth in the [Declaration] Section
21.1, except with regard to Parcels 11A, 11B, 11C, 11D,
11E, 11F, 11G and 11H, which include the golf club, golf
course and lake, and for which and over which the
Authority specifically excludes said waiver and release
and will continue in the future to assert its veto rights
under the [Declaration], Section 21.1(C) and reserves the
right to enforce those rights at law and in equity.
Southpointe II, slip op. at 6 (emphasis in original).
Later that month, the Authority and the Southpointe Property Owners’
Association, Inc. (Association) executed an Assignment of Declaration of Protective
Covenants and Assumption of Obligations (Assignment) in which the Authority
The Redeveloper agrees for itself, and its successors and assigns,
and every successor in interest to the Property, or any part thereof,
and the Deed shall contain covenants on the part of the Redeveloper
for itself, and such successors and assigns, that the Redeveloper and
such successors and assigns shall:
a. Devote the Property to, and only to and in accordance with,
the uses specified in the Zoning Ordinance of the Township of Cecil
as amended, March 16, 1988. . . .
Id. at 7 n.5.
Finally, Section 807 provides:
None of the provisions of the Agreement are intended to or shall be
merged by reason of any deed transferring title to the Property from
the [Authority] to the Redeveloper or any successor in interest, and
any such deed shall not be deemed to affect or impair the provisions
and covenants of the Agreement.
Id. at 7-8 n.5.
5
assigned to the Association all of its “rights, title, interest, powers, obligations,
easements[,] and estates” contained in the Declaration, except for the following:
8. [The Authority] hereby waives its rights under
Section 21.1 of the [Declaration], as aforesaid, except that
[the Authority] specifically excepts, reserves and retains
the veto rights provided by Section 21.1(C) only as to the
[Golf Club] (including, but not limited to, the clubhouse
and all property used as part of the Southpointe Golf
Club). . . .
Southpointe II, slip op. at 8-9.
In an October 12, 2015 letter, Horizon Properties Group, LLC
(Horizon) notified the Authority of its intention to subdivide the Golf Club’s
property to develop the Center to which the Authority’s solicitor responded,
explaining that the Authority retained veto power over the subdivision of the Golf
Club’s property under the 2003 Waiver and Release and required timely notice of
Horizon’s intention to subdivide the property. See Southpointe II, slip op. at 9-10.
The solicitor indicated that “[w]ithout more specific information,” the Authority
could not “commit to object or not object to any [Golf Club property] subdivision to
accommodate that project.” Id. As a result, the Authority asked Horizon to “provide
any and all currently existing agreements, renderings, timelines, plans,
specifications, etc. to allow [the Authority] to respond to [the] request.” Id. at 10.
On November 16, 2015, the Golf Club filed an action under the
Declaratory Judgments Act (DJA)5 against the Authority and the Association.
Southpointe II, slip op. at 10. The Golf Club then filed an Amended Complaint in
which it asked the trial court to declare that the Authority’s veto power precluding
the subdivision of the Golf Club’s property terminated as of January 1, 2010. Id.
5
42 Pa. C.S. §§7531-7541.
6
As this Court has noted, the Southpointe development constitutes the
entirety of the Township’s Special Development Zoning District (SD District) under
its Unified Development Ordinance (UDO), which was enacted on May 17, 2005.
Southpointe I, ___ A.3d at ___, slip op. at 2. From its inception and throughout
much of its development, UDO Section 913.F permitted a property owner to change
the use of a property located in the SD District by applying for a conditional use.6
Id. Specifically, UDO Section 913.F states, in relevant part:
F. EFFECT OF PROPOSED CHANGE OF LAND
USE CATEGORY FOR INDIVIDUAL LOTS
1. Any proposed change in the land use category of a
vacant lot or parcel in a recorded plan of subdivision shall
be addressed as follows: The [Board] shall hold a public
hearing to a[ss]ess the compatibility of the proposed
change in land use, and further, to determine the need for
reasonable and appropriate conditions and safeguards to
protect the public health, safety, and welfare of adjacent
properties within and outside of the SD development tract.
2. Any proposed change in the land use category of a
developed lot or parcel in a recorded plan of subdivision
shall require the submission of a conditional use
6
As the Board explained:
The Township’s UDO defines “conditional use” as “[a] use
that would not be appropriate generally or without restrictions
throughout the zoning district, but which, if controlled as to area,
location, or relation to the neighborhood, would not be detrimental
to public health, safety or general welfare. . . . Express standards
and criteria are set forth in the specific zoning district. Additionally,
the [Board] has the opportunity to thoroughly examine the proposal
and to impose any other reasonable safeguards necessary to
implement the intent of this Chapter and to protect the general
welfare.” UDO §202.
R.R. at 13a.
7
application proposing revision to the Illustrative Site Plan.
If conditional use approval is granted, submission of a
revised subdivision plan showing the new land use
category shall be required for approval and recording. . . .
R.R. at 244a.
However, while the action under the DJA was pending, in May and
September of 2016, the Board adopted Ordinance 1-2016 and Ordinance 11-2016,
which amended UDO Section 913.F.2 to prevent Southpointe property owners from
changing their property use to a less restrictive use classification as defined in those
ordinances. Southpointe I at ___, slip op. at 2-9. On October 6, 2016, the Golf Club
filed a procedural challenge to Ordinance 11-2016 in the trial court and a substantive
validity challenge to Ordinance 11-2016 with the Township’s Zoning Hearing Board
(ZHB). Id. at ___, slip op. at 9-10. Before the ZHB, the Golf Club asserted, inter
alia, that the ordinances singled out its property and effectively prohibited any
change in its use, and unlawfully granted the Board discretion to waive the UDO
requirements where an applicant submits a petition signed by 100% of the adjoining
landowners consenting to a change in use. Id. at ___, slip op. at 10.7
7
Ultimately, the trial court and the ZHB rejected the Golf Club’s procedural and
substantive validity challenges to Ordinance 11-2016. See Southpointe I at ___, slip op. at 10-12.
On appeal to this Court, however, we held:
Ordinance 11-2016 places control over the [Board’s] authority to
waive applicable review standards for change of Land Use Category
or Land Use applications into the hands of a nongovernmental body
– the adjacent landowners. The Ordinance gives the adjacent
property owners unfettered power to decide whether the [Board]
will have the option of waiving the applicable review standards in
considering a zoning application. Notably, this power is delegated
to adjacent property owners regardless of what use [other than a golf
course] is being proposed, and thus, regardless of whether the
proposed use is consistent with the public health, safety, and welfare
and the requirements of [the] Township’s general zoning plan.
(Footnote continued on next page…)
8
Meanwhile, on May 5, 2016, Applicant filed the instant Preliminary
Subdivision Application, Preliminary Site Plan Application, and Conditional Use
Application seeking to subdivide the Golf Club’s property and construct the 45,000
square foot commercial building to house the Center. On June 17, 2016, Applicant
and the Township agreed to extend the time for hearings on the applications to give
Applicant additional time to provide more information to the Township’s Engineer.
The Board scheduled a hearing on Applicant’s Conditional Use
Application for August 1, 2016, and determined that the other applications would be
considered and disposed of at its monthly meeting. At the hearing. Applicant
requested another continuance because the Township had not given it a reasonable
opportunity to address all of the Engineer’s concerns, and that it was not prepared to
put on its case. Nevertheless, the Board continued with the hearing and, receiving
no evidence from Applicant, took public comment regarding the Conditional Use
Furthermore, under Ordinance 11-2016, adjacent landowners have
unbridled discretion to determine the rules under which a use
application will be evaluated: a set of rules under which the [Board]
can waive the applicable review standards for a change of use, or a
set of rules under which it must strictly apply the ordinance. There
are no “necessary safeguards to guide and restrain the exercise of
the administrative functions delegated to the adjacent landowners to
guard against any adjacent landowner’s arbitrary or capricious
decision to change the applicable zoning ordinance provision from
one which requires adherence to review standards to one which
gives the [Board] the option to waive such standards, or to restrict
later revocation of such consent.
Southpointe I at ___, slip op. at 21-22 (citations omitted and emphasis in original). As a result, we
determined that “this provision represents an impermissible delegation of zoning authority,” and
that “the trial court erred in denying [the] Golf Club’s substantive validity challenge [to] Ordinance
11-2016.” Id. at ___, slip op. at 22. Accordingly, we reversed the trial court’s order and did not
reach the Golf Club’s claim regarding procedural deficiencies in Ordinance 11-2016’s enactment.
Id.
9
Application. Southpointe development residents stated objections concerning
property devaluation, increased traffic congestion, disturbance of wetlands and
wildlife, and the destruction of the character of their residential neighborhoods. R.R.
at 167a-175a.
Additionally, Colin Fitch, the Authority’s counsel, appeared at the
hearing8 and stated that on June 3, 2016, he sent a letter to both the Board and the
Township’s Planning Commission explaining that the Authority intended to exercise
its veto power thereby precluding subdivision and development of the Golf Club’s
property. R.R. at 153a-154a. Fitch submitted the letter to the Board.9 Id. at 154a.
The letter states, in relevant part, that the Authority
hereby exercises the veto power contained in the
Declaration and Waiver and requests that the [Board] and
Planning Commission honor said veto and declare the
8
Counsel for the Association and three other homeowner’s associations appeared in
opposition to the applications. R.R. at 151a-153a, 159a-161a.
9
Section 9(z) of the URL states:
An Authority shall constitute a public body, corporate and
politic, exercising public powers of the Commonwealth as an
agency thereof, which powers shall include all powers necessary or
appropriate to carry out and effectuate the purposes and provisions
of this act, including the following powers in addition to those herein
otherwise granted:
***
(z) To make available to the government or municipality or any
appropriate agency, board or commission, the recommendations of
the Authority affecting any area in its field of operation or property
therein, which it may deem likely to promote the public health,
morals, safety or welfare.
35 P.S. §1709(z).
10
attempted subdivision and other applications null and
void. [The Authority] and the [County] provided funding
that assisted in the development of the golf course. The
Arthur Hills-designed championship golf course was the
“focal point” of [the Authority’s] Southpointe project from
its inception. [The Authority] retained the veto power in
2003 to assure the continued integrity of the course for the
benefit of the Southpointe community into the future, not
merely for twenty years after filing the Declaration.
[The Authority] requests that this letter be placed in
the appropriate record before whatever [Township] bodies
consider the applications filed by [Applicant].
Id. at 208a-209a.
Fitch also submitted to the Board a brochure that was prepared as part
of the development of the Southpointe project to emphasize the importance of the
golf course to the entire development. R.R. at 154a-155a, 189a-206a. He stated that
the brochure
reflects the initial subdivision -- the initial site plan,
anyway, of the entire Southpointe project. Which laid out
the fact that the golf course was the focal point of the entire
project. And the residential, the commercial was all
geared around the golf course.
And that’s the reason that the [Authority] feels
strongly about not only the conditional use application, but
also the subdivision application. That veto power is to
maintain control over any re-subdivision of the golf
course. And that’s because it’s important green space.
All of the properties were conveyed with the
understanding that the golf course would be there not only
for 20 years, but for in excess of 20 years. You don’t build
an Arthur Hills championship golf course and anticipate
that it’s only going to last for 20 years. And after 20 years
it can be re-subdivided at a whim. That’s why the
[Authority] because of the importance of that golf course
to the entire project and the fact that all of the parcels were
11
sold with the understanding that this was going to be an
ongoing project with green space with a golf course.
That’s why it’s important.
Id. at 155a-156a.
Fitch also noted that Section 913.C.5 of the Township’s UDO10
specifically incorporates the provisions of the URL into conditional use applications
in the Township. R.R. at 156a. He explained that the Authority’s retention of the
veto power is authorized by Section 11(a)(9) of the URL, 35 P.S. §1711(a)(9). Id.
The Board closed the hearing, but indicated that the record would be
kept open to receive written briefs, again denying Applicant’s request to keep the
record open for the reception of evidence. R.R. at 163a-167a, 170a-171a, 175a,
176a. On August 9, 2016, Applicant submitted materials in response to the
Township Engineer’s comments with a revised subdivision plan. Id. at 249a-299a,
303a-304a.
On September 6, 2016, at its monthly public hearing, the Board
considered and denied all three of Applicant’s applications. See R.R. at 301a-306a.
That same day, the Board issued three written decisions denying the applications.
See id. at 1a-28a. With respect to its denial of the Conditional Use Application,
10
Section 913.C.5 of the UDO states:
C. STANDARDS FOR CONDITIONAL USE APPROVAL
OF AN ILLUSTRATIVE SITE PLAN
***
5. The tract shall be subject to the redevelopment laws of the
Commonwealth.
R.R. at 242a-243a.
12
citing UDO Section 913.F, URL Section 11(a)(9) and (b),11 and Section 515.1 of the
Pennsylvania Municipalities Planning Code (MPC),12 the Board determined that
11
Section 11(a)(9) and (b) of the URL provides, in pertinent part:
(a) The contract between the Authority and a redeveloper shall
contain, without being limited to, the following provisions:
***
(9) Such other continuing controls as may be deemed necessary
to effectuate the purposes of this act[.]
***
(b) Any deed or lease to a redeveloper in furtherance of a
redevelopment contract shall be executed in the name of the
Authority . . . and shall contain in addition to all other provisions,
such provisions as the Authority may deem desirable to run with the
land in order to effectuate the purposes of this act[.]
35 P.S. §1711(a)(9), (b).
12
Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988,
P.L. 1329, 53 P.S. §10515.1. Section 515.1 states, in relevant part:
(a) In addition to other remedies, the municipality may institute
and maintain appropriate actions by law or in equity to restrain,
correct or abate violations, to prevent unlawful construction, to
recover damages and to prevent illegal occupancy of a building,
structure or premises. . . .
(b) A municipality may refuse to issue any permit or grant any
approval necessary to further improve or develop any real property
which has been developed or which has resulted from a subdivision
of real property in violation of any ordinance adopted pursuant to
this article. . . . As an additional condition for issuance of a permit
or the granting of an approval to any such owner, current owner,
vendee or lessee for the development of any such real property, the
municipality may require compliance with the conditions that would
(Footnote continued on next page…)
13
Applicant’s proposed change in land use category is subject to the Authority’s veto.
R.R. at 23a-24a. As a result, the Board concluded:
144. Applicant requires the Township’s approval of its
request to rezone the property from Residential to
Commercial to proceed with the redevelopment project.
145. The SD District in question was approved subject to
the redevelopment laws of the Commonwealth, including
35 P.S. §1711(a)(9) and 35 P.S. §1711(b).
146. The SD District in question was approved subject to
the above-recited restrictive covenants, including the
[Authority’s] veto power over changes to the golf course.
147. As of this date, no court of competent jurisdiction
has declared that the [Authority] has waived this veto
power and/or that it no longer possesses any veto power
relating to the golf course.
148. The [Authority] has put the Township on notice that
it is exercising its veto power relating to the golf course.
149. The Township must deny the request for approval
to change the land use category from Residential to
Commercial because, inter alia, Applicant has not
demonstrated that the [Authority] [h]as waived or
otherwise lost its veto power over the golf course.
150. The Township must deny the request for approval
to change the land use category from Residential to
Commercial because, inter alia, the proposed change is in
violation of the redevelopment laws of the
Commonwealth. Section 913.C.5 of the UDO.
have been applicable to the property at the time the applicant
acquired an interest in such real property.
53 P.S. §10515.1.
14
Id. at 24a-25a. The Board also determined that Applicant failed to sustain its burden
of proof under Sections 403.F and 913.C of the UDO and Ordinance 1-2016, and
that it did not err in denying Applicant’s request for a continuance. See id. at 16a-
23a.
Likewise, with respect to its denial of Applicant’s Preliminary
Subdivision Application13 pursuant to UDO Section 504.C.2.e, URL Section
11(a)(9) and (b), and MPC Section 515.1, the Board concluded:
41. The Deed from the [Authority] to the predecessor in
title of [the Golf Club] stated that the Deed, “was subject
to the restrictions contained in the [Declaration], recorded
in Deed Book Volume 2446, page 477 of the Recorder’s
Office of Washington County, Pennsylvania.”
42. One of the “restrictions” was the [Authority’s]
reservation of a veto power over “any re[-]subdivision of
the property or any part thereof.”
43. The Waiver and Assignment recited that the
[Authority] retained its veto power [with] respect[] to any
attempted subdivision of the golf course “will continue in
13
Importantly, Section 504.B.4.d of the UDO states, in relevant part:
4. [Board] Action on Preliminary Plan
***
d. Approval of the preliminary plan shall constitute approval
of the subdivision or land development as to the character and
intensity of development, and the arrangement and approximate
dimensions of streets, lots, and other planned features. The approval
binds the subdivider or developer to the general scheme of the plan
as approved, unless a revised preliminary plan is submitted, and
permits the subdivider to proceed with final detailed design of
improvements. . . .
R.R. at 230a (emphasis added).
15
the future to assert its veto rights under the [Declaration],
Section 21.1(C) and reserves the right to enforce those
rights at law and equity.”
44. The current owner of the golf course holds the golf
course land subject to the above-stated restriction.
45. The issue regarding whether the veto power has
been waived is being litigated in the [trial court] via [the
Golf Club’s] Complaint in Equity Seeking Declaratory
Judgment.
46. Applicant needs the Township’s approval of its
request to rezone the property from Residential to
Commercial to proceed with the redevelopment project.
47. The SD District in question was approved subject to
the redevelopment laws of the Commonwealth including
35 P.S. §1711(a)(9) and 35 P.S. §1711(b).
48. The SD District in question was approved subject to
the above-recited restrictive covenants, including the
[Authority’s] veto power over changes to the golf course.
49. As of this date, no court of competent jurisdiction
has declared that the [Authority] has waived this veto
power and/or it no longer possesses any veto power
relating to the golf course.
50. The [Authority] has exercised its veto power over
the subdivision.
51. The veto power prohibits the proposed subdivision.
See Section 504.C.2.e of the UDO.[14]
14
Section 504.C.2.e of the UDO states, in relevant part:
2. Supporting Material to be Filed with Final Plan
***
(Footnote continued on next page…)
16
R.R. at 8a-9a. The Board also denied the Preliminary Subdivision Application on
the basis that “Applicant has not provided a copy of the dedicated easement from the
[Authority] for [the] area for ingress, egress, regress[,] and utilities,” or an
Acknowledgement from the Authority “for grading in the easement” or “for work
being proposed on [its] property. See Section 504.C.2.e of the UDO.” R.R. at 6a.
Additionally, the Board denied the application because “[a]pproval of the request to
change a land use category is a prerequisite to subdivision consideration and
approval,” “[t]he Township denied Applicant’s request to change [the] Land Use
Category from Residential to Commercial,” and “[a] Commercial Building is not
permitted in a Residential Land Use Category.” Id. at 7a.
Finally, with respect to its denial of Applicant’s Site Plan Application,
pursuant to UDO Section 504.C.2.e, the Board concluded that “Applicant has not
provided a copy of the dedicated easement from the [Authority] for [the] area for
ingress, egress, regress[,] and utilities,” or an Acknowledgement from the Authority
“for grading in the easement,” or an “Acknowledgement from the Southpointe Rink
Association, LP for work being proposed on [its] property.” R.R. at 1a. The Board
also concluded, pursuant to UDO Section 913, that “[t]he Township denied
Applicant’s request to change Land Use Category from Residential to Commercial,”
and “[a] Commercial Building is not permitted in a Residential Land Use Category.”
Id. at 2a. Moreover, the Board stated, “[t]o the extent applicable the Site Plan
[A]pplication is denied for the reasons set forth in” its decision denying the
Preliminary Subdivision Application. Id. Applicant subsequently appealed the
e. A copy of final deed restrictions or protective covenants, and
a copy of any and all proposed written easements or deeds to be
granted. . . .
R.R. at 232a.
17
Board’s decisions denying the foregoing applications to the trial court in which the
appeals were consolidated, and then filed the instant appeal of the trial court’s order
affirming the Board’s decisions, which were consolidated by this Court.
On appeal,15 Applicant claims: (1) the Board erred in denying the
Preliminary Subdivision Application and Preliminary Site Plan Application based
on conditional use approval, final subdivision approval, and the Authority’s power
to veto subdivision where the preliminary subdivision and site plans complied with
all requirements of the Township’s UDO; and (2) the Board erred in denying the
Conditional Use Application by relying on the invalid Ordinance 1-2016 and the
speculative objector testimony where the application complied with the only
objective criterion in the operative UDO Section 913.
However, during the pendency of the foregoing application
proceedings, the trial court denied the requested relief in the DJA action seeking a
declaration that the Authority’s Declaration was ineffective and that the Authority
did not have veto power to preclude subdivision and commercial development of the
Golf Club’s property, and we affirmed the trial court’s order in Southpointe II. In
our opinion, we stated the following, in relevant part:
Section 10(a), (c)(9), and (i) of URL states, in pertinent
part:
(a) An Authority shall prepare a redevelopment
proposal for all or part of any area certified by the
planning commission to be a redevelopment area
and for which the planning commission has made a
redevelopment area plan.
15
“In a land use appeal, where the trial court does not take additional evidence, this Court’s
scope of review is limited to determining whether the local governing body committed an error of
law or abused its discretion.” Residents Against Matrix v. Lower Makefield Township, 845 A.2d
908, 910 (Pa. Cmwlth. 2004) (citation omitted).
18
***
(c) The planning commission’s redevelopment
area plan shall include, without being limited to, the
following:
***
(9) A statement of such continuing controls as
may be deemed necessary to effectuate the purposes
of this act.
***
(i) Upon approval by the governing body of the
redevelopment proposal, as submitted by the
Authority, the Authority is authorized to take such
action as may be necessary to carry it out.
35 P.S. §1710(a), (c)(9), & (i).
Likewise, Section 11(a)(9) of the URL provides, in
relevant part:
(a) The contract between the Authority and a
redeveloper shall contain, without being limited to,
the following provisions:
***
(9) Such other continuing controls as may be
deemed necessary to effectuate the purposes of this
act[.]
35 P.S. §1711(a)(9). As a result, as outlined above,
Sections 9 and 11 of the URL specifically contemplate and
empower the Authority to execute the relevant documents
to impose the restrictive covenants in the Declaration and
to retain its veto power as provided under Section 21.1(C)
of the Declaration.
Furthermore, as outlined above, the Authority’s
power to act in any manner contravening the purposes of
19
the Southpointe development or the restrictive covenants,
or prejudicing the rights of all of the property owners in
the development, is severely circumscribed by Section
9(k) of the URL. See 35 P.S. §1709(k) (“Provided, That
with respect to a redevelopment area the Authority finds
that the sale, lease or other transfer of any part will not be
prejudicial to the sale or lease of the other parts of the
redevelopment area, nor be in any other way prejudicial to
the realization of the redevelopment proposal approved by
the governing body.”).
Southpointe II, slip op. at 16-17 (footnote omitted). See also Section 11(b) of the
URL, 35 P.S. §1711(b) (“Any deed . . . to a redeveloper in furtherance of a
redevelopment contract shall be executed in the name of the Authority . . . and shall
contain . . . such provisions as the Authority may deem desirable to run with the land
in order to effectuate the purposes of this act[.]”); In re Condemnation of Land for
the South East Central Business District Redevelopment Area #1, 946 A.2d 1143,
1146-47 (Pa. Cmwlth. 2008) (“Where an authority sells real property to a
redeveloper in furtherance of a redevelopment contract, the deed shall contain such
provisions as the authority may deem desirable to run with the land in order to
effectuate the purposes of the [URL]. Section 11(b) of the [URL], 35 P.S.
§1711(b).”). Accordingly, we concluded that “the trial court did not err or abuse its
discretion in denying the requested declaratory relief” because “the trial court
properly construed all of the provisions of the Declaration and all of the other
relevant documents executed by the Authority so as to comply with the pertinent and
controlling provisions of the Declaration, the [Uniform Planned Community Act, 68
Pa. C.S. §§5101-5414,] and the URL.” Southpointe II, slip op. at 18.
In view of the foregoing, the Board properly denied the instant
applications based on the Authority’s invocation of its veto power precluding the
subdivision of the Golf Club’s property and any commercial development thereon.
20
As noted by the Board, UDO Section 913.C.5 specifically states that conditional use
approval is limited so that “[t]he tract shall be subject to the redevelopment laws of
the Commonwealth,” R.R. at 242a-243a, thereby specifically incorporating the
Authority’s exercise of its powers conferred under the URL. Moreover, Section 9(z)
of the URL specifically contemplates the Authority’s participation in the Board’s
proceedings on the instant applications, to provide “recommendations . . . affecting
any area in its field of operation or property therein, which it may deem likely to
promote the public health, morals, safety or welfare.” 35 P.S. §1709(z).16 See also
Section 508(2) of the MPC, 53 P.S. §10508(2) (“When the application is not
approved in terms as filed the decision shall specify the defects found in the
application and describe the requirements which have not been met and shall, in each
case, cite to the provisions of the statute or ordinance relied upon.”).
Additionally, as noted, Section 515.1(b) of the MPC empowers the
Board to refuse to grant an application in violation of the foregoing provision of the
UDO, or to make approval of Applicant’s Conditional Use Application contingent
upon the Authority’s non-exercise of its subdivision veto power reserved under the
URL. Specifically, the Board “may refuse to . . . grant any approval necessary to
further improve or develop any real property which has been developed or which
has resulted from a subdivision of real property in violation of any ordinance,” and
“[a]s an additional condition for . . . the granting of an approval . . . for the
development of any such real property, the municipality may require compliance
16
It is in this respect that the instant matter is distinguishable from the case law upon which
Applicant relies, wherein the courts have held that “[a]n application for a subdivision plan which
conforms to all the technical requirements of relevant ordinances cannot be denied based on deed
restrictions. Anderson v. Board of Supervisors of Price Township, [437 A.2d 1308 (Pa. Cmwlth.
1981)].” Gulla v. North Strabane Township, 676 A.2d 709, 711 (Pa. Cmwlth. 1996), aff’d per
curiam, 712 A.2d 281 (Pa. 1998).
21
with the conditions that would have been applicable to the property at the time the
applicant acquired an interest in such real property.” 53 P.S. §10515.1(b).
Moreover, Applicant failed to present any evidence to meet its initial
burden of proof in support of the Conditional Use Application, and the Board’s grant
of the Preliminary Subdivision Application and the Preliminary Site Plan
Application was dependent on the Board’s grant of the Conditional Use Application
under the original UDO Section 913.F.2 and UDO Section 405.C.1.17 Indeed, as this
Court has observed:
[The MPC] provides that a zoning ordinance may contain
“provisions for conditional uses to be allowed or denied
by the governing body pursuant to public notice and
hearing and recommendations by the planning agency and
pursuant to express standards and criteria set forth in the
zoning ordinances.” Section 603(c)(2) of the MPC, 53
P.S. §10603(c)(2). A conditional use is nothing more than
a special exception which falls within the jurisdiction of
the municipal governing body rather than the zoning
hearing board. As in the case of special exceptions, the
uses which may be established or maintained as
conditional uses are prescribed by the zoning ordinance
and the standards to be applied to the granting or denial
thereof are set forth in the zoning ordinance. A special
exception is not an exception to the zoning ordinance, but
rather a use to which the applicant is entitled provided the
specific standards enumerated in the ordinance for the
special exception are met by the applicant.
Because the law regarding conditional uses and
special exceptions is virtually identical, the burden of
proof standards are the same for both. An applicant for
conditional use has the burden to demonstrate compliance
17
UDO Section 405.C.1 states that “[a]fter the subdivider or developer has received official
notification from the [Board] that the preliminary plan has been approved, a final plan may be
submitted in accordance with the provisions of Section 508 of the [MPC, 53 P.S. §10508].” R.R.
at 230a.
22
with the specific criteria of the ordinance. Once the
applicant meets the requirements, he has made out his
prima facie case and the application must be granted
unless the objectors present sufficient evidence that the
proposed use has a detrimental effect on the public health,
safety, and welfare.
Generally, satisfying the criteria for conditional use
is just one step of the subdivision approval process. In
fact, subdivision approval cannot be granted until the
conditional use approval is first obtained. Special
exception or conditional use proceedings involve only the
proposed use of the land, and do not involve the particular
details of the design of the proposed development.
What must be demonstrated in order to obtain
conditional use approval must be determined on a case by
case basis and will vary among municipalities based upon
the use requested and the language in the ordinance. . . .
In re Thompson, 896 A.2d 659, 670 (Pa. Cmwlth. 2006) (citations omitted).18
Even if it is assumed, as Applicant contends, that the Board abused its
discretion in failing to grant a continuance of the Conditional Use Application
hearing to permit Applicant to present evidence in support of its prima facie case,
18
As this Court has also observed:
[A] governing body reviewing a final land use plan must determine
if there are zoning issues. If zoning relief is required, e.g., a variance
or special exception, the applicant should apply to the zoning
hearing board for such relief prior to seeking approval of a land use
plan. Where the applicant does not follow that sequence and there
are zoning issues, the governing body may, at most, issue a
conditional approval that awaits the applicant first obtaining
necessary zoning relief from the zoning hearing board.
Montessori Regional Charter School v. Millcreek Township Board of Supervisors (Pa. Cmwlth.,
No. 2468 C.D. 2015, filed September 16, 2016), slip op. at 8 (citation omitted). Although
unreported panel decisions of this Court are not binding, they may be cited as persuasive authority
pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa. R.A.P. 126(b), and Section
414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a).
23
Applicant does not allege that there is any evidence that could have been submitted
to satisfy the requirements of UDO Section 913.C.5. As a result, any purported error
by the Board in this regard is harmless.19 In sum, the Board did not commit an error
of law or abuse its discretion in denying the instant applications.
Accordingly, the trial court’s order is affirmed.
MICHAEL H. WOJCIK, Judge
Judge McCullough did not participate in the decision of this case.
19
See, e.g., Pennsy Supply, Inc. v. Zoning Hearing Board of Dorrance Township, 987 A.2d
1243, 1251 (Pa. Cmwlth. 2009) (“[T]he trial court’s reference to [a case stating the incorrect
burden of proof] in its original opinion was harmless error since the trial court affirmed the
[board’s] decision that applied the appropriate burden of proof, and the error had no effect on the
outcome of this case.”); Campbell v. Department of Environmental Resources, 396 A.2d 870 (Pa.
Cmwlth. 1979) (“It is axiomatic that we will not disturb a judgment, order, or decree on appeal for
harmless error. Paley v. Trautman, [177 A. 819, 820 (Pa. 1935).]”)
24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Southpointe Medical Associates, L.P., :
:
Appellant : No. 247 C.D. 2020
: No. 248 C.D. 2020
v. : No. 268 C.D. 2020
:
Board of Supervisors for Township of :
Cecil, Pennsylvania :
ORDER
AND NOW, this 13th day of July, 2021, the order of the Washington
County Court of Common Pleas dated February 7, 2020, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge