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HomeMy WebLinkAbout01-5876/01-5877 CivilLETTERMEN, INC., : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 01-5876 : NO. 01-5877 -- CONSOLIDATED BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Appellee : CIVIL ACTION -- LAW Land Use Appeal From Silver Sprin.q Township Board of Supervisors' Grant of Revised Subdivision Plan and Land Development Plan Approvals Before HOFFER, P.J., OLER, J. and GUIDO, J. ORDER OF COURT AND NOW, this day of December, 2002, after consideration of Oral Argument, all briefs submitted by the parties, and the testimony and affidavits received at hearing to supplement the record in this matter, and in accordance with the written Opinion herein, it is hereby ORDERED AND DECREED that: 1. Any and all past, present and future zoning, subdivision and other land use determinations by the Board of Supervisors of Silver Spring Township related to Appellant Lettermen, Inc.'s development of a golf course and related residential development located along Rich Valley Road in Silver Spring Township, shall be consistent with all Orders of this Court related thereto, including this Court's Order recognition that Conditions 4, 5, and 7 of the Original Conditional Use Decision have been satisfied by Lettermen, Inc. or have been otherwise modified and stricken by this Court. The Court's Order dated December 29, 2000, regarding Condition 6 of the original Land use Decision is modified to clarify that the clubhouse facility proposed by Lettermen, Inc., at the Developer's option, may include a newly-constructed building smaller than the clubhouse schematics previously approved by this Court as part of the previous appeal. This Court shall retain jurisdiction over Lettermen, Inc.'s development in Silver Spring Township pursuant to Section 11006- A of the Pennsylvania Municipalities Planning Code to insure the orderly progress of the development. By the Court, George E. Hoffer, P.J. Steven J. Fishman, Esquire Salzmann, DePaulis & Fishman, P.C. 95 Alexander Spring Road, Ste. 3 Carlisle, PA 17013 Steven A. Stine, Esquire PO Box 650 Hershey, PA 17033 Solicitor for Silver Spring Township LETTERMEN, INC., : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 01-5876 : NO. 01-5877 -- CONSOLIDATED BOARD OF SUPERVISORS OF SILVER SPRING TOWNSHIP, Appellee : CIVIL ACTION -- LAW Land Use Appeal From Silver Sprin.q Township Board of Supervisors' Grant of Revised Subdivision Plan and Land Development Plan Approvals Before HOFFER, P.J., OLER, J. and GUIDO, J. HOFFER, P.J.: Statement of Facts and Procedural History In 1999, Lettermen, Inc. (hereinafter referred to as "Lettermen") submitted a plan for approval by the Board of Supervisors of Silver Spring Township (hereinafter referred to as "Township") to build a golf course. The land, located in Silver Spring Township, had been rezoned by the Township from Agricultural to Rural, thus enabling Lettermen's request. On March 10, 1999, the Township granted the Conditional Use Approval for the golf course, subject to eleven conditions. Lettermen subsequently appealed six out of the eleven conditions on April 9, 1999. While these appeals were pending, Lettermen submitted a Preliminary Subdivision Plan and a Preliminary Land Development Plan to the Township for approval. These plans were approved on September 22, 1999, subject to the same eleven conditions the Township imposed in the Conditional Use Approval. Lettermen objected to the approvals unless modifying language was included, which would make the conditions subject to the outcome of the Conditional Use Appeal. However, on September 23, 1999, the Township gave written approvals of the two plans without the modifying language. In regard to the Conditional Use Appeal, this Court wrote an Opinion and Order on January 12, 2000, recognizing the Township's stipulation that Lettermen had met Condition number four and annulling Condition number five. Although the Township appealed this annulment, the Township signed a Settlement Agreement with Lettermen on May 11, 2000, terminating the Township's appeal of Condition number five. Subsequently, after granting Lettermen's Motion for Reconsideration on the Conditional Use Appeal, on December 29, 2000, this Court annulled Condition number six and ordered that Lettermen be permitted to construct the clubhouse in accordance with the Court's determinations regarding the "Clubhouse Schematics." This Court also amended Condition number seven in the December 29, 2000, order. On July 1, 2001, Lettermen submitted a Revised Land Development Plan and Subdivision Plan to the Township. These revised plans were approved on September 14, 2001, subject to all eleven conditions from the Conditional Use Approval. Lettermen appealed these approvals, arguing that "this approval ignored the Stipulations of Counsel regarding Condition four, the Settlement Agreement regarding Condition five, and this Court's Orders regarding Conditions six and seven" (Appellant Lettermen, Inc.'s Post Hearing Brief, (hereinafter referred to as "Lettermen's Brief __") 3). These are the appeals now before this Court. At oral argument on March 27, 2002, Lettermen requested to amend the record in response to Township's Brief regarding these appeals. The Hearing to Amend the Record was held on April 16, 2002. Three affidavits, showing Lettermen's objections to the Conditions of the September 22, 1999, approvals, were added to the record. At that time, this Court requested briefs regarding the appeals from the September 14, 2001, approvals. The Township makes two arguments regarding these appeals. First, it argues that the September appeals are not valid because the approvals are not "official approvals" which can be appealed. Secondly, it argues that because Lettermen did not reject and appeal the conditions from the September 22, 1999, approvals, Lettermen has waived the right to appeal the approvals now. Lettermen argues that the September 22, 1999, approvals should be deemed approved without the conditions because Lettermen did object to the conditions and the Township failed to give sufficient explanation and statutory support for the conditions, pursuant to Section 508 of the Pennsylvania Municipalities Planning Code. In the alternative, Lettermen argues that the September 14, 2001, approvals are appealable and that the four conditions on appeal should be modified in accordance with prior decisions by this Court and agreements between the parties. The Court now finds that the September 22, 1999, approvals are deemed denied, pursuant to Section 508 of the Pennsylvania Municipalities Code and relevant case law, including Banner v. Upper Makefield Township, 142 Pa. Cmwlth. 205, 597 A.2d 196 (1991) and In re Busik, 759 A.2d 417 (Pa. Cmwlth. 2000). Further, the Court holds that the September 14, 2001, approvals are appealable, and that the four conditions on appeal be modified or annulled in accordance with this Court's prior orders and the stipulations and agreements of the parties. September 1999 approvals The September 1999 approvals must be deemed denied due to the objections made by Lettermen at the time of the approval. The Township argues that because Lettermen did not appeal the 1999 approvals, it waived its right to appeal the 2000 approvals. The Township relies on Banner and Busik to support this argument. However, Banner and Busik both held that the planners waived their right to appeal because they not only failed to appeal, but they also originally accepted the conditions as given. Banner, 142 Pa. Cmwlth. 205, 209-210, 597 A.2d 196, 199-200 (finding that the Banners did accept the conditions and did not appeal, thus waiving their right to appeal); Busik, 759 A.2d 417, 421 (holding that the Busiks waived their right to appeal because they accepted the conditions). Section 508 of the Municipalities Code clearly delineates the method for determining whether or not a plan is approved. For instance, Section 508(4)(ii) states that "when an application for approval of a plat, whether preliminary or final, has been approved without conditions or approved by the applicant's acceptance of conditions..." (emphasis added). Similarly, in Board of Township Commissioners of Annville Township v. Livenqood, 44 Pa. Cmwlth. 336, 403 A.2d 1055 (1979), the Court stated that "Section 508(4) of the [MPC] permits a municipality to approve a plan subject to conditions only if the conditions are accepted by the applicant." Id. at 341,403 A.2d at 1057. Thus, if the proposed conditions are not accepted, the conditional approval is deemed a rejection. Bonner, 142 Pa. Cmwlth. at 210, 597 A.2d at 199 (citin.q Liven.qood, 44 Pa. Cmwlth. at 341,403 A.2d at 1057). Lettermen proved, through the three affidavits which were added to the record during the hearing on April 16, 2002, that it did not accept the conditions put on the Preliminary Subdivision and Land Development Plans. In fact, Lettermen stressed the fact that it did not agree with the conditions even though those same conditions were still at that time on appeal to this Court in the Conditional Use Approval Appeal. Thus, because Lettermen did not accept the conditions, and because those same conditions were already on appeal to this court at the time of the September 22, 1999, approvals, those approvals are deemed denied, pursuant to Section 508(4)(ii) of the Municipalities Code and the relevant case law on the issue. Lettermen further argues that the approvals should be deemed approved without the conditions because the Township failed to follow the correct procedure when putting conditions on the plans which were unacceptable to Lettermen.~ Lettermen argues that the Township did not specify the defects nor cite adequately to the statutes upon which it relied. This argument is without merit. In its approval letters, the Township did cite to authority when placing the conditions on to the Preliminary Subdivision and Land Development Plans. Thus, the September 22, 1999, approvals are deemed rejected, or denied, and are not approved without conditions. September 2000 approvals The next issue is whether or not the September 14, 2000, approvals of the Revised Subdivision and Land Development Plans are appealable approvals. The Township argues that they are "reapprovals" of the Preliminary plans submitted in 1999. This argument is incorrect. The Municipalities Code does not discuss "reapprovals." Every submitted plan which is thereafter approved or dissapproved can be appealed. Additionally, since the Preliminary plans were deemed denied due to Lettermen's rejection of the Section 508(2) states: When the applications 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. conditions, it is all the more obvious that the September 2000 approvals are not "reapprovals" but are instead free standing appealable approvals. The four conditions Lettermen appealed are as follows: 1) Condition involving the submission of a traffic study -- previous counsel to the Township stipulated that appellant Lettermen already submitted an acceptable traffic study to the Township. 2) Condition involving the clubhouse design -- decided by the Court. 3) Condition involving off-site improvements to a road and construction of a traffic light -- struck down as illegal by this Court, appealed by the Township to Commonwealth Court, and ultimately settled via a settlement agreement. 4) Condition involving the use of the banquet facility -- previous counsel to the Township stipulated to certain limitations recognized by this Court. Appellant's Brief, 5. Lettermen is correct in stating that these conditions, which had already been stipulated to, settled, or dealt with by this Court, are not viable conditions for the Revised Subdivision and Revised Land Development Plans. These plans, though free standing and appealable in their own right, are in regard to the same land with which the Conditional Use Appeal and the Preliminary Subdivision and Land Development Plan dealt. Just as it would have been inefficient to appeal these conditions after the September 1999 approvals, being as they were already pending on appeal in front of this Court, it would be inefficient to require counsel and this Court to devote further time to conditions which have already been dealt with by this Court and the parties themselves. Thus, for reasons already set forth in this Court's prior decisions, the settlement agreement between the parties, and a stipulation made by Township's previous counsel, Lettermen's appeal is proper, and the conditions on appeal must be modified accordingly. Conditions 17, 18, 20, and 19 of the September 14, 2001, approvals must be modified as such: 1) Condition 17 (Condition 4 in the Original Conditional Use Decision): modified so to be consistent with the Township's previous stipulations regarding a traffic study; 2) Condition 18 (Condition 5 in the Original Conditional Use Decision): modified according to the Court's previous Order striking the offsite traffic signalization and the settlement agreement relating to off-site road improvements and traffic signalization; 3) Condition 19 (Condition 6 in the Original Conditional Use Decision): modified according to the Court's Order relating to the clubhouse design; 4) Condition 20 (Condition 7 in the Original Conditional Use Decision): modified so to be consistent with the Township's previous stipulations regarding the banquet facilities. l0