HomeMy WebLinkAbout98-1526 civilFOXCROFT TOWNHOUSE
ASSOCIATES, a Pennsylvania
limited partnership by its
general Partner, Thomas W.
Gaughen,
Plaintiff
Ve
BOARD OF COMMISSIONERS OF
HAMPDEN TOWNSHIP,
CUMBERLAND COUNTY,
PENNSYLVANIA,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 98-1526 CIVIL TERM
CIVIL ACTION - LAW
IN RE: PLAINTIFF'S MOTION FOR PEREMPTORY JUDGMENT
IN MANDAMUS.
BEFORE GUIDO, J..
AND NOW, this
ORDER OF COURT
day of APRIL, 1999, Plaintiff's
Motion for Peremptory Judgment in Mandamus pursuant to Pa. R.C.P.
1098 is GRANTED. The revised Preliminary Final Land Development
Plan for "The Brambles" received by Defendant on July 16, 1997 is
deemed to have been approved as presented pursuant to Section 508
of the Pa. Municipalities Planning Code (53 P.S. § 10508) and
Section 304.2B4 (A) of Defendants' 'Land Development Ordinance. We
will schedule a hearing at the request of either party to
determine whether the plan as filed shall be deemed to be a
preliminary or final plan.
Victor P. Stabile, Esquire
For Foxcroft Associates
By
Edward E. Guido, J.
Philip H. Spare, Esquire
For Hampden Township
:sld
FOXCROFT TOWNHOUSE
ASSOCIATES, a Pennsylvania
limited partnership by its
general partner, Thomas W.
Gaughen,
Plaintiff
V.
BOARD OF COMMISSIONERS OF
HAMPDEN TOWNSHIP,
CUMBERLAND COUNTY,
PENNSYLVANIA,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 98-1526 CIVIL TERM
CIVIL ACTION - LAW
IN RE: PLAINTIFF'S MOTION FOR PEREMPTORY JUDGMENT
IN MANDAMUS
BEFORE GUIDO, J.
OPINION AND ORDER OF COURT
On March 19, 1998, the Plaintiff filed an action in Mandamus
seeking to obtain recognition of a deemed approval of a proposed
land development plan. Defendant filed preliminary objections.
Plaintiff responded by filing an amended complaint as authorized
by Pa. R.C.P. 1028(c) (1). Defendant filed an answer with new
matter to which Plaintiff responded. Thereafter, there was no
substantive docket activity until February 10, 1999 when
Plaintiff filed the Motion for Judgment in Mandamus which is
currently before us.~ Briefs were filed and argument was held
before this Court on March 3, 1999. The parties were given the
opportunity to supplement the record, which they did. This
matter is now ready for disposition.
FACTS
The record before us, viewed in the light most favorable to
Defendant, establishes the following uncontroverted facts:
~The motion is actually a motion for peremptory judgment
filed in accordance with Pa. R.C.P. 1098.
NO. 98-1526 CIVIL TERM
1) Plaintiff is the owner of a tract of land located near the
Carlisle Pike adjacent to the S.R. 581 by-pass in Hampden
Township, Cumberland County, Pennsylvania (hereinafter the
"property °' ) . ~
2) On January 2, 1997 Defendant approved a Final Subdivision
Plan for the property. The approved plan authorized the
construction of twenty-eight (28) townhouse style buildings
consisting of 280 dwelling units.3
3) On July 16, 1997 Plaintiff submitted a "Revised Preliminary
Final Plan" for the property. Said plan separately delineated
two additional apartment buildings to be added to the
development. Each additional building contained ten (10)
dwelling units
4) On July 16, 1997 the aforementioned plan was assigned a
Planning Commission file number and a final review date of
November 12, 1997. It was then placed on the Planning Commission
agenda for its August 1997 meeting.5
5) On July 31, 1997 Defendant amended Section 806 of its zoning
ordinance decreasing and reducing the permitted density for the
property to one building per lot. The terms of the amendment
would prohibit the construction of the two additional buildings
2Paragraph 3 of the Complaint and Answer.
3Paragraphs 4 & 5 of the Complaint and Answer as well as
Exhibit 1 to the affidavit of John E. Bradley filed by Defendant.
4Paragraph 16 of the Complaint and Answer as well as Exhibit
H to Plaintiff's Memorandum in Support of Motion for Judgment in
Mandamus (hereinafter "Plaintiff' s Memorandum" ) .
5Paragraph 21 of the Complaint and Answer.
NO. 98-1526 CIVIL TERM
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proposed on t.he July 16, 1997 plan.
6) The zoning ordinance in effect on July 16, 1997 permitted
the two additional buildings.7
7) On August 1, 1997 the Township Engineer advised the
Plaintiff of the amendment to Section 806. He went on to state
that "your newly submitte4 plan has an official filing date of
August 1~, tho noxt schodulod Planning Commission mooting, and
therefore, must comply with the new amendment.''8 (emphasis added)
8) On August 12, 1997 the Township Manager advised the
Plaintiff that its July 16, 1997 plan could not be approved
without a variance from the amended provisions of Section 806 of
the zoning ordinance
9) On August 21, 1997 the Hampden Township Planning Commission
reviewed the July 16, 1997 plan and unanimously recommended that
it be rejected by the Board of Commissioners as being incomplete
and in violation of the revised Section 806 of the zoning
ordinance.~°
10) By letter dated August 22, 1997 the Township Engineer
returned the July 16, 1997 plan to Plaintiff. The letter stated
that the plan was being returned based upon the recommendations
6Paragraph 19 of the Complaint and Answer.
7paragraph 16 of the Complaint and Answer.
8Exhibit K to Plaintiff's Memorandum.
9Paragraphs 17 & 18 of the Complaint and Answer as well as
Exhibit E to the Complaint.
~°Paragraph 22 of the Complaint and Answer as well as
Exhibit L to Plaintiff's Memorandum.
NO. 98-1526 CIVIL TERM
of the Planning Commission and the Zoning Officer as well as the
Engineer's determination that it was incomplete.~
11) The July 16, 1997 plan was incomplete in the following
respects:
a) It did not contain a revised storm water management
plan.
b) It was not signed and sealed by the registered
engineer or surveyor responsible for the plan.
c) It was presented in a scale that was too small.
d) It lacked an inventory of all permits and approvals
required by other agencies with the dates submitted.
e) It did not contain a construction plan.
f) It lacked supporting information.
g) It did not contain an erosion and sediment control
plan.~2
12) No further action was taken by the Defendant in connection
with the July 16, 1997 plan
13) On February 11, 1998 Plaintiff attempted, without success,
to record the July 16, 1997 plan in the Recorder of Deeds for
Cumberland County
~Exhibit M to Plaintiff's Memorandum and Affidavit of J.R.
Spease, P.E. In opposition to Motion for Judgment in Mandamus.
~2Exhibit R to Plaintiff's Memorandum as well as Section
304.2A(3) of Defendants subdivision and land development
ordinance which is contained in Exhibit N to Plaintiff's
Memorandum.
~3Paragraph 26 of the Complaint and Answer.
~4Paragraph 29 of the Complaint and Exhibit O to Plaintiff's
Memorandum.
NO. 98-1526 CIVIL TERM
DISCUSSION
Mandamus is an appropriate method for obtaining recognition
of a deemed approval of a land development plan. National Dev.
Corp.. v. Plannin~ Comm'n of Township of Harrison, 64 Pa. Commwth.
246, 439 A.2d 1308 (1980). Peremptory judgment may also be
appropriate in certain circumstances. The standard for granting
peremptory judgment was clearly set forth by the Commonwealth
Court in Thayer v. Lincoln Borough, 687 A.2d 1195 (Pa. Commw.
1997). As the Court stated:
In a mandamus action, Rule 1098 of the Pennsylvania
Rules of Civil Procedure permits a court to enter
peremptory judgment at any time after the filing of the
complaint if the right of the plaintiff is clear. In
granting a motion for peremptory judgment under rule
1098, courts use the same standard which governs the
disposition of a motion for summary judgment under
Rules 1035.1-1035.5 of the Pennsylvania Rules of Civil
Procedure .... A judgment will be entered only in the
clearest of cases where there is no doubt as to the
absence of material fact. The burden of demonstrating
that there is no dispute as to a material fact is on
the moving party, and the record must be examined in
the light most favorable to the nonmoving party.
(citations and footnote omitted)
687 A.2d at 1197. Applying that standard to the case at bar, we
are satisfied that Plaintiff is entitled to peremptory judgment
to obtain recognition of a deemed approval of the July 16, 1997
plan.
Section 10508 of the Pennsylvania Municipalities Planning
Code (hereinafter MPC) provides in relevant part as follows:
10508. Approval of plats
Ail applications for approval of a plat ... whether
preliminary or final, shall, be acted upon by the
governing body or the planning agency within such time
limits as may be fixed in the subdivision and land
development ordinance but the governing body or the
NO. 98-1526 CIVIL TERM
planning agency shall render its decision and
communicate it to the applicant not later than 90 days
following the date of the regular meeting of the
governing body or the planning agency (whichever first
reviews the application) next following the date the
application is filed, provided that should the said
next regular meeting occur more than 30 days following
the filing of the application, the said 90-day period
shall be measured from the 30th day following the day
the application has been filed.
(1) The decision of the governing body or the
planning agency shall be in writing and shall be
communicated to the applicant personally or mailed to
him at his last known address not later than 15 days
following the decision.
(2) When the application is no~ 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.
(3) Failure of the governing body or agency to
render a decision and communicate it to the applicant
within the time and in the manner required herein shall
be deemed an approval of the application in terms as
presented .... (emphasis added)
53 P.S. § 1058.
In the instant case the Township Planning Commission acted
upon Plaintiff's July 16, 1997 plan within the applicable time
frames. However, the Planning Commission's action is not
sufficient to avoid a deemed approval of Plaintiff's plan under
Defendant's own subdivision and land development ordinance. The
duty of the Planning Commission with regard to plan review is set
forth in Section 304.2B3(B) of the Hampden Township Land
Development Ordinance as follows:
The Planning Commission shall recommend whether the
Preliminary Plan should be approved, approved with
modifications or disapproved and shall notify the
Township Commissioners in writing thereof including, if
disapproved, a statement of reasons for such action,.
including specific reference to provisions of any
NO. 98-1526 CIVIL TERM
statute or ordinance which have not been fulfilled.~s
(emphasis added).
The ordinance goes on to provide in Section 304.2B4(A) as
follows:
The Township Commissioners shall act on the preliminary
plan within ninety calendar (90) days of the official
filing date. Failure to do so shall be deemed an
approval
Therefore, by the clear terms of the ordinance, any plan not
acted upon by the Commissioners within ninety (90) calendar days
of the official filing date must be deemed to be approved.
There is no question that the Commissioners did not "act"
upon the plan as required by the MPC or their own land
development ordinance. The letters of the Township Engineer and
the Township Manager to Plaintiff do not constitute action
sufficient to avoid a deemed approval. The case of Bobiak v.
Richland Township Planning Comm'n, 50 Pa. Commw. 77, 412 A.2d 202
(1980) is very similar to the case at bar. In that case the
Commonwealth Court held that the Plaintiff's plan was deemed to
have been approved because of the township's failure to act upon
it as required by Section 508 of the MPC. The Commonwealth
Court's reasoning applies equally to the case at bar:
In this case, the Commission did not approve or
disapprove the plan in any official manner, i.e., the
Commission did not vote, did not issue its own
~SExhibit N to Plaintiff's Memorandum. Section 304.3B3(B)
of the Ordinance has an identical provision regarding final
plans.
~6Exhibit N to Plaintiff's Memorandum. Section 304.2 of the
Land Development Ordinance deals with Preliminary Plans. Section
304.3 deals with final plans. For our purposes there is no
substantive difference between the two sections.
NO. 98-1526 CIVIL TERM
determination as to the merits of the plan, and did not
adopt the recommendations in the township engineer's
letter as its own. Likewise, the Commission did not in
any way issue or communicate its own written decision
to the applicants, as required by Section 508(1) of the
MPC. (footnotes omitted)
412 A.2d at 204.
Defendant argues that its Engineer's letter of August 22,
1997 operates as a rejection Of the plan as an incomplete plan
which he has the right to do under Sections 304.2A of its
ordinance.~7 Section 304.2A(2) provides as follows:
The completed application form shall be accompanied by
the requisite fee as set forth in §302 of this Chapter
along with the following:
A. Fourteen (14) prints of the Preliminary plan;
B. Three (3) copies of the construction plans;
C. Five (5) copies of the Sewage Planning Module
(if required);
D. Three (3) copies of the stormwater management
report;
E. One (1) copy of all other Supporting
Information required by §402.4.
Viewing the record in the light most favorable to the Defendant,
there is no question that the three page plan submitted on July
16, 1997 was incomplete. It did not contain the construction
plans, sewage planning module, stormwater management report, or
supporting information required under Section 304.2A(2).~
There is also no question that Section 304.2A(3) gives the
~Exhibit N to Plaintiff's Memorandum.
~sIt is Plaintiff's position that this information was part
of the original plan approved by the Defendant on January 2,
1997. However, a material question of fact exists as to whether
the information filed with that plan may be used for the purposes
of the revised plan which is the subject of this litigation.
Therefore, for purposes of this motion we must decide that issue
of fact in favor of the Defendant.
NO. 98-1526 CIVIL TERM
Township Engineer the right to reject any plan, if in his
opinion, the plan is incomplete. That Section provides as
follows:
The Township Engineer shall forward the non-refundable
fee, one (1) copy of the preliminary plan prints and
one (1) copy of the required material to the Cumberland
County Planning Commission and such other agencies as
he deems appropriate for review and comment. The
Township Engineer shall have the right to reject any
plan, if in his o~inion, the plan is incomplete un,er
the criteria of ~02. Any such rejected plan shall not
be considered to have been file~.~
However, the only logical interpretation of Section 304.2A(3) of
the ordinance would require the Township Engineer to reject the
plan before it is sent to the Planning Commission for approval.
In other words, when the plan is received the Engineer should
forward it to the Planning Commission or reject it as incomplete.
To read the ordinance otherwise would completely eviscerate
Section 508 of the MPC. The Township Engineer could simply
reject a plan at any time as being incomplete and thereby stop
the ninety (90) day clock from running on the governing
authority. He could also return a plan as incomplete after the
enactment of an amendment to a zoning ordinance, as in the
instant case, thereby nullifying the impact of Section 508(4) of
the MPC.2° The only interpretation of the ordinance which does
,.
~gSection 304.3A(4) of the land development ordinance
contains similar language with regard to final plans.
2°Section 508(4) (i) of the MPC provides:
From the time an application for approval of a plot,
whether preliminary or final, is duly filed as provided
in the subdivision and land development ordinance, and
while such application is pending approval or
NO. 98-1526 CIVIL TERM
not do violence to the provisions of Section 508 of the MPC is
one which requires the Engineer to reject the plan as incomplete
before it is accepted as a duly filed plan and acted upon by the
Planning Commission.
Once a plan has been accepted by the Township and acted upon
by the Planning Commission, the only way to reject it is for the
governing body to do so in accordance with Section 508 of the
MPC. Since no such action was taken in the case before us, we
have no alternative but to grant Plaintiff's request for
Peremptory Judgment in Mandamus to recognize the deemed approval
of the plan filed on July 16, 1997.
There is, however, one remaining issue which needs to be
addressed. The plan filed by Plaintiff is labelled a
"Preliminary/Final Plan." Defendant's land development ordinance
treats each type of plan somewhat differently.2~ The Township
Manager, Engineer, and Planning Commission were dealing with the
submission as a preliminary plan. On the other hand, the
Plaintiff attempted to record the plan as a final plan. There is
not sufficient information of record for us to be able to rule
disapproval, no change or amendment of the zoning,
subdivision or other governing ordinance or plan shall
affect the decision on such application adversely to
the applicant and the applicant shall be entitled to a
decision in accordance with the provisions of the
governing ordinances or plans as they stood at the time
the application was duly filed ....
53 P.S. § 10508(4)(i).
2~The approval of a preliminary plan constitutes approval of
the land development as to certain aspects, but it does not
authorize the sale of lots, construction of improvements or the
recording of the plan. Section 304.2B4(D).
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NO. 98-1526 CIVIL TERM
upon this issue. Therefore, upon the request of either party we
will schedule a hearing limited to this issue of whether the July
16, 1997 plan should be deemed approved as a preliminary plan or
a final plan.
ORDER OF COURT
AND NOW, this 9TH day of APRIL, 1999, Plaintiff's Motion for
Peremptory Judgment in Mandamus pursuant to Pa. R.C.P. 1098 is
GRANTED. The revised Preliminary Final Land Development Plan for
"The Brambles" received by Defendant on July 16, 1997 is deemed
to have been approved as presented pursuant to Section 508 of the
Pa. Municipalities Planning Code (53 P.S. § 10508) and Section
304.2B4 (A) of Defendants' Land Development Ordinance. We will
schedule a hearing at the request of either party to determine
whether the plan as filed shall be deemed to be a preliminary or
final plan.
By the Court,
/s/ Edward E. Guido
Edward E. Guido, J.
Victor P. Stabile, Esquire
For Foxcroft Associates
Philip H. Spare, Esquire
For Hampden Township
:sld
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