Fort Joy Dev. 2, L.P. v. Newtown Twp. Bd. of Supers.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Fort Joy Development 2, L.P. : CASES CONSOLIDATED
:
v. : No. 53 C.D. 2021
: No. 54 C.D. 2021
Newtown Township Board of :
Supervisors, :
Appellant :
Fort Joy Development 2, L.P. :
:
v. : No. 55 C.D. 2021
: No. 56 C.D. 2021
Newtown Township Board of : Argued: June 23, 2022
Supervisors :
:
Appeal of: Christopher Rohner and :
Yvonne Rohner :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE STACY WALLACE, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: July 21, 2022
The Newtown Township Board of Supervisors (the Board) and Christopher
Rohner and Yvonne Rohner (the Rohners) appeal the December 2020 orders of the
Court of Common Pleas of Delaware County (Common Pleas)1 reversing the
1
Common Pleas stated in its Opinion in Support of Order, filed pursuant to Pennsylvania Rule of
Appellate Procedure 1925(a), that its order
docketed on December 16, 2020. Due to a breakdown in Delaware County’s online dock
system, the court signed a second order on December 16, 2020, which was docketed on December
21, 2020.” An appellant must file entry of a notice o
the order
from which the appeal is added).
903(a) (emphasis taken.” Pa.R.A.P.
Although the Rohners filed
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January 22, 2018 decision of the Board to deny Fort Joy(Fort
Develop
Joy) application for conditional use approval of a roadway through portions of its
property that are in a Slope Conservation District. For the reasons set forth below,
we reverse Common
s. Pleas’ order
I. Background
Fort Joy is the owner of approximately 71.55 acres of land in Newtown
Township that is bounded on the north by Gradyville Road and on the south by
Marple Township. Reproduced Record (R.R.) at 7a, 17a, 314a. Fort Joy’s
land is
composed of two separate parcels that are located in an R-1 residential zoning
district, as established by the Newtown Township Zoning Ordinance (Zoning
Ordinance).2 Id. at 21a, 314a. The first and smaller parcel, located in the northeast
corner of Fort Joy’s lands two and three-quarters acres and
, contains approximately
has an existing residence with a driveway that provides access to Gradyville Road.
Id. at 17a-18a, 314a. The remaining parcel is vacant, undeveloped land. Id. at 17a.
Approximately 33% of the property is within a Slope Conservation District3 due to
its steep and very steep slopes.4 R.R. at 36a.
one of their notices of appeal more than 30 days after Common Pleas signed the order being
appealed, both the Board and the Rohners filed notices of appeal from each order within 30 days
of the entry of the orders being appealed. Accordingly, both the Board and the Rohners preserved
appellate review by timely appealing from each order. All four appeals were consolidated by our
Court by order dated March 11, 2021.
2
Newtown Twp., Pa. Zoning Ordinance (1959), as amended.
3
Newtown Township’s Slope Conservation with the enactment of Distri
Ordinance No. 1983-13 on November 14, 1983, and amended by Ordinance 1995-5 on June 12,
1995, Ordinance 2000-7 on September 11, 2000, and Ordinance 2017-01 on November 13, 2017.
4
“ [S]teep slope areas”
locations “with are a difference of elevation
distance of 50 feet based on a topographic survey showing two-foot contours,” and
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2
Fort Joy owns a separate parcel of land that adjoins its 71.55 acres to the
southeast, in Marple Township. R.R. at 8a. Marple Township previously approved
Fort Joy’s plans
to create a 38-home development on this separate parcel. Id. at 8a,
303a-04a. Those plans depict a roadway, to be known as Cherry Blossom Lane,
connecting the approved development’s
in Marple Township with road
Fort sy
Joy’s lands in. Id.
Newtown
at 309a. Township
On February 12, 2016, Fort Joy filed an application with the Board for
conditional use approval to permit construction of Cherry Blossom Lane within
Newtown Township’s
Slope Conservation District. R.R. at 272a, 581a-84a. This
relief was requested in connection with Fort proposed
Joy’s subdivision of its
Newtown Township property, filed pursuant to the Zoning Ordinance, in which Fort
Joy proposed changing its existing two lots such that the smaller, easterly lot would
be expanded to 12 acres, including the existing home and driveway, and the larger,
westerly lot would be reduced to approximately 56.6 acres of undeveloped land. Id.
at 18a-19a, 272a, 314a. In its subdivision plans, Fort Joy proposed that Cherry
Blossom Lane, a two lane, approximately 1,200-foot long roadway, would divide
the two new parcels and bisect Fort Newtown
Joy’s Township property, connecting
Gradyville Road at its northern end with a road in Fort Joy
Township at its southern end. Id. at 19a, 26a, 314a, 516a. Fort Joy did not propose
any other improvements to its lands in Newtown Township. Id. at 8a, 18a.
The Newtown Township Planning Commission reviewed Fort
conditional use application and recommended that the Board deny the application.
R.R. at 9a. The Board held public hearings on Fort Joy’s applica
2021 and November 27, 2021. Id. at 1a-270a. The Rohners, who are owners and
slopeareareas” locations “with a difference of elevation ove
of 50 feet based on a topographic survey showing two-foot contours.”
R.R. at 582a.
3
residents of a nearby property, appeared at the hearings before the Board and
presented evidence and testimony in opposition to the application. A civil engineer,
testifying on behalf of Fort Joy, admitted that the two proposed subdivision lots
could be adequately served by driveways from Gradyville Road, one of which
already exists, and that Fort Joy did “ [Cherry Blossom Lane] to have the
not need
two lots.”Id. at 44a, 78a. Fort Joy’s engineer
also admitted that the main purpose
of Cherry Blossom Lane was to connect Fort
MarpleJoy’s
Township deve
with Gradyville Road in Newtown Township. Id. at 44a. A notation on one of the
subdivision plan drawings that Fort Joy’s engineer
submitted even stated that
intent of this project is to provide required access from Gradyville Road to the
approved . . . [d]evelopment
Id. at 75a. in Marple
When the Board pointed out that Fort Joy’s
proposed roadway was not a
primary use consistent with a property zoned residential (R-1) and that a roadway is
an accessory use that must support a primary use on the same property, Fort Joy’s
engineer stated that Cherry Blossom Lane was an accessory use for the two
residential lots. R.R. at 50a. Despite this assertion, he admitted that the two lots
could be accessed by driveways and that there was no use in Newtown Township
that required Cherry Blossom Lane. Id. at 44a, 53a. In addition, Cherry Blossom
Lane does not end within or provide direct access to either lot. Id. at 314a.
Fort Joy’s engineer
also stated that his firm had developed future concept
plans for a larger residential subdivision on Fort Joy’s lands
Newtown Township, in
for which Cherry Blossom Lane would be necessary. R.R. at 84a. Fort Joy had not,
however, finalized or submitted those plans for review or approval. Id. Accordingly,
Fort only
Joy’s
present intention was to use Cherry Blossom Lane to access its
development in Marple Township. Id. at 88a.
4
On January 23, 2018, the Board denied Fort Joy’s applicatio
use approval. R.R. at 543a. The Board determined that the proposed road was not
a permitted principal use in a residential district (R-1) and that it was also not an
accessory use as defined in the Zoning Ordinance, because it “is not subord
the main use of the land, i.e. the two residential lots, but rather is the proposed
principal use of the land.”Id. at 548a. The Board also concluded that an alternative
alignment or location was feasible, because one lot already had access to Gradyville
Road by a driveway and the second lot had road frontage on Gradyville Road that
was suitable for driveway access. Id. at 551a. Fort Joy appealed the Board’
s
decision to Common Pleas.
On December 16, 2020, after reviewing the record, the parties’briefs, and
conducting oral argument,5 Common Pleas reversed the Board’
s decision, finding
that it was not supported by substantial evidence and was, therefore, an abuse of
discretion. The Board’s atBr.
47. Common Pleas did not identify a permitted use
for which Cherry Blossom Lane was providing access. Id. at 48-49. Instead,
Common Pleas asserted that a conditional use is not based upon need and the Board
“erred in finding that the permitted
Id. at 48.
Accordingly, Common Pleas began by accepting that a road through Fort Jo
was a permissible use, and then determined that the location chosen was the only
feasible location for that road. Id. at 48. The Board and the Rohners separately
appealed Common Pleas’orders.
5
Since a court reporter transcribed the Board’s hearings, Common Pleas had a “full a
nd complete
record of the proceedings” and was required beforeto the “hearBoardthe
on the record certified” by the
See 2 Pa.C.S. §754(b). Accordingly, Board.
Common Pleas could
have only “properly ” the Board reverse[d] if
ermine[d] it “det
that constitutional rights were
violated, an error of law was committed, the procedure before the agency was contrary to statute,
or the necessary findings of fact In re were
Thompson, not su
896 A.2d 659, 668 (Pa. Cmwlth. 2006) (citation omitted).
5
II. Analysis
On appeal, the Board and the Rohners argue the Board did not abuse its
discretion in denying Fort Joy’s
Fort condi
Joy’s
proposed road does not provide access to a permitted use on the property and
alternative alignments or locations exist to the proposed road. The Board and the
Rohners also argue that the Rohners presented substantial evidence to show that Fort
Joy’s conditional use application
because the proposed road would shoul
have a detrimental effect on neighboring properties and cause dangerous traffic
conditions.
Under the Pennsylvania Municipalities Planning Code6 (MPC), a zoning
ordinance may include
for conditional uses“provisions
to be allowed or denied by
the governing body after recommendations by the planning agency and hearing,
pursuant to express standards and criteria set
603(c)(2) of the MPC, 53 P.S. §10603(c)(2). “An applicant is e
conditional use as a matter of right, unless the governing body determines that the
use does not satisfy the specific, objective criteria in the zoning ordinance for that
conditional use.”
In re Drumore Crossings, L.P., 984 A.2d 589, 595 (Pa. Cmwlth.
2009) (citations omitted).
In reviewing a municipality’s
“[o]ur
denial
review is limited to determining whether the municipality abused its discretion, or
committed an error of law in denying the application.”
EQT Prod. Co. v. Borough
of Jefferson Hills, 208 A.3d 1010, 1024 (Pa. 2019) (citing Visionquest Nat’l Ltd. v.
Bd. of Supervisors of Honey Brook Twp., 569 A.2d 915, 918 (Pa. 1990)). “An abuse
of discretion will be found whenever the findings of the governing body are not
6
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
6
supported by substantial evidence.” Id. Substantial evidence is “
such relevant
evidence as a reasonable mind might accept a
Gorsline v. Bd. of Supervisors of Fairfield Twp., 186 A.3d 375, 385 (Pa. 2018). We
conduct a de novo review of “whether the governin
f
law” and nd
“are not
by the legal bou
conclusions of the governing body or lower
court[].”
EQT Prod. Co., 208 A.3d at 1025 (citation omitted).
Pursuant to Section 172-29(A) of the Zoning Ordinance, a road is not a
permitted primary use of land in an R-1 residential district. R.R. at 575a-76a. In
addition, Section 172-29(A)(g)(5) of the Zoning Ordinance establishes that a road
can only be an accessory use if it is “with and customarily inc
use. Id. at 575a. Fort Joy’s attempt to Blossom Lane was with
establish that Cherry
and incidental to its proposed two residential lots was not persuasive. One of the
two residential lots in Fort
roposed Joy’s
subdivision alreadyp
has a home and
driveway that provides access directly to Gradyville Road. The second residential
lot has extensive frontage on Gradyville Road for driveway access. In addition, each
lot would still require a driveway under Fort Joy’s proposal,
Cherry b
Blossom Lane does not end within, or provide direct access to, either lot. Instead,
Cherry Blossom Lane, as Fort engineer
Joy’s acknowledged on numerous occasions,
was designed to permit traffic from Fort Joy’s
travel over Fort Joy’s Newtown Township la
Accordingly, the Board’s determination
, that Cherry Blossom Lane, as proposed, is
not an accessory use to a permitted primary use of Fort Joy’s Newto
property, was supported by substantial evidence.
The Board also determined that Fort proposed
Joy’s use did not qualify under
the Zoning Ordinance for conditional use approval. The specific, objective criteria
7
for conditional use approval of a roadway through areas of the Slope Conservation
District are found in subsections 134-7(A)(2)(e) and 134-7(B)(2)(f) of the Zoning
Ordinance, which provide that a “road or access
use driveway”
“permitted
authorized asif ita“ conditional
provide[s] access to a permitted use”
use”and
the “
Board of Supervisors determines no alte
R.R. at 583a-84a. Section 147-14(B)(5) of the Zoning Ordinance further provides
that “[n]o conditional use . . . in a S
it has been demonstrated by the applicant that [n]o other alternative location is
feasible or practical for the proposed use.”
Id. at 587a.
The Board determined that an alternative alignment or location was feasible
for the proposed use. This determination was supported by substantial evidence, as
one of the residential lots already has access to Gradyville Road and a second, new
driveway to Gradyville Road to access the second lot is feasible. In addition to being
a feasible alternative, a second driveway would cause significantly less disturbance
to areas within the Slope Conservation District than constructing a two-lane,
approximately 1,200-foot roadway across Fort
. ThisJoy’s
is e
especially true when one considers that the second lot would still need a driveway
to access Cherry Blossom Lane. 7
Because Fort Joy’s8 does
proposed useobjective
not satisfy the specific,
criteria in the Zoning Ordinance for a conditional use, Fort Joy is not entitled to
7
The Board also determined that Cherry Blossom Lane does not provide access to the permitted
use of two residential lots. R.R. at 551a. We need not reach that issue due to our conclusion that
the Board’s determination, that an alternative alignment or location is feasible for the proposed
use, was supported by substantial evidence.
8
Fort Joy’s proposed Cherry Blossom use
Lane to provide
was for access to For
Township Property and split its Newtown Township property into two new residential lots, neither
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8
approval of its proposed conditional use. See In re Drumore Crossings, L.P., 984
A.2d at 595. The Board did not abuse its discretion or commit an error of law in
reaching this determination, which was supported by substantial evidence.
Accordingly, Common Pleas should not have reversed the Board’s decision
.9
III. Conclusion
For the reasons set forth above, we reverse Common December
Pleas’ 2020
orders.
______________________________
STACY WALLACE, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
of which would be given direct access by Cherry Blossom Lane. Fort Joy did not propose any
further development of its lands in Newtown Township. Our holding does not preclude Fort Joy
from presenting a different proposed use in the future, which may or may not qualify for
conditional use approval under the Zoning Ordinance.
9
Due to our resolution of the Board and the Rohners’appeals, in their favor, based upon their first
claims for relief, we need not address their additional claims for relief.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Fort Joy Development 2, L.P. : CASES CONSOLIDATED
:
v. : No. 53 C.D. 2021
: No. 54 C.D. 2021
Newtown Township Board of :
Supervisors, :
Appellant :
Fort Joy Development 2, L.P. :
:
v. : No. 55 C.D. 2021
: No. 56 C.D. 2021
Newtown Township Board of :
Supervisors :
:
Appeal of: Christopher Rohner and :
Yvonne Rohner :
ORDER
AND NOW, this 21st day of July, 2022, the orders of the Court of
Common Pleas of Delaware County that were entered on December 16, 2020 and
December 21, 2020 are REVERSED.
______________________________
STACY WALLACE, Judge