HomeMy WebLinkAbout2020-747 SERCLUCO V CAMP HILL
MICHAEL A. SERLUCO d/b/a : IN THE COURT OF COMMON PLEAS OF
CONSOLIDATED : CUMBERLAND COUNTY, PENNSYLVANIA
PROPERTIES, :
Appellant :
: CIVIL ACTION (LAND USE APPEAL)
v. :
:
BOROUGH OF CAMP HILL, :
Appellee : 2020-00747 CIVIL TERM
IN RE: LAND USE APPEAL
BEFORE PLACEY, J.
OPINION and ORDER OF COURT
PLACEY, J., October 30, 2020.
In this land use appeal, a landowner who proposed development of property at
an intersection in a municipality as a fast food restaurant has filed an appeal contending
that (a) the municipality’s lack of timely action on his application has resulted in a
deemed approval of the project, (b) the municipality acted in bad faith with respect to
the project, and (c) the municipality’s denial of his subdivision and land development
12
plan lacked legal justification. Briefs have been submitted by the parties, and the
1
Appellant’s Notice of Appeal, filed January 21, 2020 (hereinafter Appellant’s Notice of
Appeal).
2
Brief of Appellant Michael A. Serluco d/b/a Consolidated Properties in Support of Land
Use Appeal, filed April 14, 2020 (hereinafter Appellant’s Brief); Brief of Borough of Camp
Hill, filed May 20, 2020 (hereinafter Appellee's Brief); Reply Brief of Appellant Michael A.
Serluco d/b/a Consolidated Properties in Support of Land Use Appeal, filed May 29, 2020
(hereinafter Appellant’s Reply Brief).
2020-00747 CIVIL TERM
3
matter was argued on June 19, 2020. For the reasons stated in this opinion,
Appellant’s appeal will be denied.
STATEMENT OF FACTS
The following facts do not appear to be in dispute: Appellant is Michael A.
Serluco, doing business as Consolidated Properties. Appellee is the Borough of Camp
Hill in Cumberland County, Pennsylvania.
Appellant is the owner of seven contiguous parcels in the borough along
Chestnut Street. It is proposed that the parcels be consolidated and that the resultant
1.39-acre tract of land be developed as a restaurant, with a drive-thru. Specifically, the
land is located along the south side of Chestnut Street at the southeast corner of its
4
intersection with South 32nd Street (also known as U.S. Route 15), and the proposed
restaurant is a Chick-fil-A.
The six westernmost parcels are situated in the borough’s General Commercial
5
Zoning District, in which a restaurant is permitted. The easternmost seventh parcel,
the one farthest from the intersection, is located in a Low Density Residential Zoning
6
District, in which a restaurant is not permitted. In consolidated form, the tract would
7
thus be “split-zoned.”
3
See Order of Court, dated February 28, 2020.
4
The easternmost six parcels bear from east-to-west lot addresses of 3115-3133 Chestnut
Street; the westernmost parcel that sets along U.S. Route 15 and the corner of Chestnut
Street is a .09-acre strip of land sold by the borough to Appellant in April of 2018.
U.S. Route 15 is sometimes referred to as State Route 15 in the record.
5
See Camp Hill Borough Zoning Ordinance, §502, Certified Record, at CP1280 (hereinafter
Zoning Ordinance, §__, Certified Record, at __).
6
See Zoning Ordinance, §302, Certified Record, at CP1243.
7
See, e.g., LHT Associates v. Township of Hampton, 809 A.2d 1072 (Pa. Cwmlth. 2002).
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The tract is surrounded generally by a Commercial General Zoning District on the
north, a Low Density Residential Zoning District on the east, a High Density Residential
Office Zoning District on the south, and a Commercial Shopping Center Zoning District
on the west. As initially submitted, Appellant’s land development plan did not treat this
tract as a corner lot for purposes of the borough’s zoning ordinance.
A salient feature of the project as proposed is its utilization of a north/south
“alley” on the eastern side of the site for vehicular ingress and egress from and onto
Chestnut Street, as well as an east/west “alley” along the southern border of the site.
Although shown on an old subdivision plan, the alleys have not been accepted by the
borough; however, under the proposed development the north/south corridor is to be
significantly widened for traffic. Customer access to the site from 32nd Street is not
proposed, although emergency vehicular access from that highway, utilizing a
“mountable curb,” is contemplated. A copy of a schematic from Appellant’s latest
submission is appended to this opinion to facilitate an understanding of the proposed
layout of the development.
After an extended process, involving a plan submission and two plan revisions, in
December of 2019 Appellee’s borough council denied Appellant’s request for a waiver
of the preliminary plan procedure with respect to review of the proposed project and
rejected the latest version of Appellant’s plan for development of the site. The rejection
of the plan was supported by a written decision dated December 19, 2019, enumerating
33 reasons for the plan’s denial. Appellant’s notice of appeal was filed on January 21,
2020.
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The record consists of four volumes of materials, the fourth including the
8
borough’s zoning ordinance and its subdivision and land development ordinance.
Because Appellant has raised the issue of municipal good faith, a detailed analysis of
the borough’s review of the project is necessary to a resolution of the appeal. A fair
reading of the record in that regard discloses the following:
As of October 23, 2017, Appellant’s representatives had had several meetings
9
with the borough’s staff concerning development at the aforesaid intersection, one
result of which became Appellant’s purchase of a small piece of land at the intersection
1011
that the borough happened to own, with an anticipated South 32nd Street address.
With this piece added to six lots along Chestnut Street that Appellant already owned, his
property at the southeast corner of the intersection totaled 1.39 acres (hereinafter the
1213
site). The single family home structures on the lots were ultimately demolished.
As of June 7, 2018, Appellant had submitted sketch plans for the project to the
14
borough. At this time, both Appellant and the borough were aware of the legal
complication presented by the site’s split zoning, with Appellant’s representative noting
in an e-mail to the municipality’s zoning officer:
8
See Certification of Record, filed February 20, 2020; Praecipe To Supplement/Attach, filed
March 9, 2020; Praecipe to Supplement/Attach, filed May 15, 2020.
Part of the zoning ordinance also appears in Volume I of the Certified Record. Certified
Record, CP0171 et seq.
9
Certified Record, at CP0014.
10
Certified Record, at CP0014, CP0017-CP0018, CP0054, CP0559.
11
Certified Record, at CP0059-CP0060, CP0819, CP0716, CP1064.
12
Certified Record, at CP0285.
13
Certified Record, at CP0027-CP0028, CP0059, CP0817, CP0820, and CP0910.
14
Certified Record, at CP0061 et seq.
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As you see on the Preliminary Site Layout for Chick-fil-A the majority of
the area being developed \[is\] within the CG zoning classification but some
parking and the buffer requirement to the east are located on the HDRO
15
\[sic\] zoning classification. We must make a decision to rezone the one
lot or leave it zoned HDRO \[sic\] and request a variance to develop as
commercial parking lot with a buffer between us and the remaining
16
residential zoning.
In response, the borough’s solicitor provided legal research that basically supported this
17
understanding of the legal options.
The proposed project was generally described by Appellant’s representative as
follows:
The proposed development will be located on the southeastern side of the
nd18
intersection of 32 Street (SR 0011) \[sic\] and Chestnut Street . . . . Upon
full build-out, the proposed development will consist of a 5,031 sq. ft. fast
food restaurant with a drive-thru. Access will be provided via one (1) full-
19
movement driveway to Chestnut Street. . . .
The sketch plans were considered at a meeting of the borough’s planning commission
20
on November 20, 2018. At that time, concerns were expressed by members about
21
increased traffic to the area.
On December 4, 2018, Appellant delivered to the borough’s planning commission
the following items comprising “the Preliminary/Final Subdivision & Land Development
submission package” for the project:
15
In fact, the area referred to is located in a Low Density Residential Zoning District, not a
High Density Residential Office Zoning District.
16
Certified Record, at CP0061.
17
Certified Record, at CP0068 et seq.
18
At that location, Chestnut Street intersects with U.S. Route 15 (also known as 32nd
Street), not Route 11.
19
Certified Record, at CP0093.
20
Certified Record, at CP0085-CP0092, CP0105.
21
Certified Record, at CP0105.
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One (1) copy of Camp Hill Borough’s Application for Subdivision or Land
Development Approval (including the Technical Completeness Checklist),
along with a check in the amount of $300.00 (payable to Borough of Camp
Hill”) to cover filing fees.
One (1) copy of the Cumberland County Planning Department Application
for Plan Review, along with a check in the amount of $195.00 (payable to
“Cumberland County Planning”) to cover filing fees.
Ten (10) sets of Preliminary/Final Subdivision & Land Development Plans
(sheets 1 through 14).
Ten (10) copies of Waiver Requests.
Three (3) copies of the Stormwater Management Narrative and
22
Calculations.
The “Waiver Requests” referred to contain a waiver of preliminary submission
requirements based on the following:
The project involves redevelopment of land in a commercial corridor, with
existing supporting infrastructure already in place. No new streets or
significant utility improvements are needed.
Feedback from the Borough’s Planning Commission was previously
secured through a Sketch Plan discussion at their November, 2018
meeting. Key project issues \[were\] identified through that process.
The attached preliminary/final submittal package includes all requirements
specific to preliminary and final Subdivision and Land Development
23
Ordinance requirements.
As of this time, a “Transportation Impact Study Scoping Meeting Application” for
24
the project had also been submitted to the borough by Appellant. This item is to be
distinguished from a more significant Transportation Impact Study submitted to the
25
borough later in the process.
Although not on the agenda, the project generated negative comments from
some members of the public at a meeting of the borough council on December 12,
22
Certified Record, at CP108.
23
Certified Record, at CP0107.
24
Certified Record, at CP0108.
25
Certified Record, at CP0534-CP0555.
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2020-00747 CIVIL TERM
26
2018, particularly with regard to traffic. The following day, a community meeting was
27
held at which Appellant’s representatives publicly addressed the proposal.
By a report dated December 14, 2018, an engineering company engaged by the
borough to review Appellant’s December 4, 2018, submission issued a report containing
28
five zoning comments and 22 subdivision and land development comments. Inter alia,
the report indicated that the engineering company “\[took\] no exceptions to the granting
of \[the preliminary plan waiver\],” inasmuch as there was “no regulatory benefit to the
29
Borough by requiring separate submissions.” Other comments in the engineering
report included the following:
A technical review letter regarding the Traffic Impact Study report will
be forthcoming from our office under separate cover once it has been
submitted. At this time, only a Traffic Impact Study Scoping Memo has
been submitted and additional information has been requested of the
Developer . . . .
It is unclear if there are any dedicated “streets” proposed with this plan.
If there are the “Owner’s Dedicatory Statement” should be reviewed
and updated as required. If there are not, the “Owner’s Dedicatory
Statement” should be removed. . . .
We recommend that the local emergency services responders review
the plan to \[access\] the site layout in order to get equipment and
apparatus in proximity for an emergency.
nd
The overall cartway widths (Chestnut Street and 32 Street) should be
provided; the Chestnut Street cartway appears to be dimensioned as
±39 ft drawn on Sheet 5. The right-of-way widths (Chestnut Street &
nd
32 Street) should also be dimensioned (in addition to noted) . . . .
A construction detail should be provided for the proposed connection
to Chestnut Street showing a pavement notch into the existing
pavement section. . . .
26
Certified Record, at CP0280, CP0284.
27
Certified Record, at CP0165.
28
Certified Record, at CP0285-CP0287.
29
Certified Record, at CP0286.
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A drainage easement is proposed onto the adjacent property (133
nd
South 32 Street LLC). Proof of owner’s consent should be provided
30
prior to final plan approval . . . .
Although consideration of the submission by the planning commission had been
31
expected to occur at the commission’s December 18, 2018, meeting, the review was
32
deferred to a later time at Appellant’s request. Nevertheless a number of negative
comments were expressed by members of the public about the project at the December
33
18 planning commission meeting, including concerns about zoning, lack of a highway
34
occupancy permit from the state, safety and traffic.
By a report dated December 20, 2018, the Cumberland County Planning
Department, while observing that the “\[p\]lat appears to generally comply with applicable
regulations\[, but that\] revisions may be required,” noted a number of rather substantive
issues with respect to the proposed land development, including the following:
2. The plan shows the Commercial General and Low Density Residential
zoning boundary along the alley on the east side of the site. The LDR
zoned lot to the east of the alley provides parking for a commercial
use. Accessory parking for a commercial use is not a permitted use in
the LDR zone. The Borough should determine if that single parcel
needs to be rezoned in order to support the proposed parking lot.
3. The submission to the County did not include a Traffic Impact Study or
any traffic data. The Borough should determine if a study is required. A
study may be warranted given the existing congestion in the local area
and potential for the proposed development to further negatively
impact traffic patterns and congestion. (Zoning 731)
4. The proposed location of the drive-thru does not appear to comply with
supplemental standards for drive-thru facilities. Drive-thru facilities
30
Certified Record, at CP0287.
31
Certified Record, at CP0109.
32
Certified Record, at CP0291.
33
Certified Record, at CP0292, CP0295 et seq.
34
Certified Record, at CP0291.
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2020-00747 CIVIL TERM
should be located along the side or rear of the building. In no event
shall the drive-thru be permitted in the front yard between the principal
building and the public street ROW. To the maximum extent feasible
the drive-thru facility shall be located on a building wall facing away
from an abutting property in the Residential Zoning district. (Zoning
1108.E.2).
5. Drive-Thru facilities should be provided with a bypass lane measuring
ten feet wide. There is no bypass lane until you reach the canopy at
the food pick up area. (Zoning 1108.E.5)
6. Stacking spaces and lanes shall not create a potentially unsafe
condition where crossed by pedestrian access to a public entrance of a
building. Pedestrians coming from parking spaces east of the dumpster
enclosure will likely attempt to cross the drive thru area creating a
potential unsafe condition. (Zoning 910.D)
7. The minimum width of a stacking space shall be 12 feet wide. The
proposed stacking lane narrows to 10.5 at the canopy for the menu
board. (Zoning 910.F)
8. The establishment is not served by a private entrance but rather
utilizes an alley as its main entry/access point. The definition of a
driveway is “a private roadway providing access for vehicles for
parking, garage, dwelling or other structure.” The Borough should
determine if an alley is suitable as a main entrance/driveway.
9. The Borough and Applicant should verify the legal status of the existing
alleys. Has the alley been dedicated to the borough for public use?
The plan should address proposed long-term ownership and
maintenance (paving, snow removal, etc.) of these areas.
nd
10. The alley adjacent to 133 S. 32 Street is partially occupied by
parking, curbing and lawn associated with the development, which
would limit east-west access along the alley. The Borough and
Applicant should determine if this is legally permissible.
11. The Borough and Applicant should examine the following potential
circulation issues:
a. A left turn out of the restaurant onto Chestnut
Street may be problematic during high traffic
times, thereby causing onsite circulation issues
and offsite safety concerns. A right in, right out
access may be more appropriate.
b. The proposed layout has the potential to
encourage use of the alleys connecting to Bramar
st
Road to the south and South 31 Street to the
east. These alleys are narrow, not designed to
handle high traffic volumes, and are adjacent to
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2020-00747 CIVIL TERM
residential uses. Measures should be put in place
to limit restaurant traffic on these alleys.
c. Is the stacking area of the drive-thru adequate and
designed appropriately for the high volumes of
traffic associated with the restaurant? If the drive
thru becomes backlogged it could block all access
to the main parking lot.
12. The Borough is currently involved in a traffic and pedestrian safety
study for the Camp Hill Bypass. The Borough should evaluate the
recommendations of that study as they relate to traffic generation and
pedestrian safety issues associated with this plan. Efforts should be
made to include any recommendations of the plan into the
35
development proposal.
At the planning commission’s meeting on January 15, 2020, more negative
36
comments regarding the project were expressed by members of the public, and over
some community opposition the commission voted to recommend acceptance of
37
Appellant’s offer to extend the deadline for action by the borough by 60 days, to
38
facilitate an updating of the plan based upon feedback received. In this regard, the
borough’s solicitor had advised the commission:
\[J\]ust so everyone understands what the law is on this, Section 508
of the Municipalities Planning Code requires Borough Council to act on the
Chick-fil-A land development plan within 90 days following 30 days after
the application was submitted. And the failure of Borough council to render
a decision within that time is deemed—would be deemed an approval of
the application unless the applicant has agreed in writing to an extension
of time.
The developer has offered a 60-day extension of the current
deadline for Borough council to act on the Chick-fil-A land development
plan. Under that timeframe in the absence of special meetings, Borough
Council would be required to act at its regular meeting in June and the
35
Certified Record, at CP0323-CP0324.
36
Certified Record, at CP0335, CP0341 et seq.
37
Certified Record, at CP0336, CP0352; see CP0374.
38
Certified Record, at CP0374.
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Borough Planning Commission would have to make its final
recommendations at the—at its May meeting.
The developer’s request for an extension would benefit the
Borough because it would give Council and the Planning Commission
more time to review the plan. The Planning Commission and Borough
Council are required to act in good faith. There ha\[ve\] been Court cases
where a municipality has been found to have abused its discretion by
refusing a developer’s offer to extend the deadline to act on a land
development plan and then to deny the plan based on defects that could
39
have been cured had the municipality granted the extension.
As of January 2, 2019, Appellant had not submitted a traffic impact study
40
regarding the project to the borough. By Appellant’s choice, presentation of the plan
to the planning commission was deferred from the commission’s January 15, 2019,
41
meeting. At its meeting on February 13, 2019, Appellee’s borough council accepted
42
Appellant’s offer of a 60-day extension for borough action on the proposed project, as
43
had been recommended by the planning commission. As of that date, the traffic
impact study had still not been submitted by Appellant and legal issues “concerning the
44
alleyways” had not yet been resolved.
On February 27, 2019, Appellant submitted, inter alia, a revised Preliminary/Final
Subdivision & Land Development Plan, bearing a revision date of February 22, 2019, to
4546
the borough, again requesting a waiver of the preliminary submission requirements.
The letter of transmittal to the borough included responses to the comments of the
39
Certified Record, at CP0340.
40
Certified Record, at CP0369.
41
Certified Record, at CP0374-CP0375.
42
Certified Record, at CP0374, CP0414.
43
Certified Record, at CP0336, CP0352.
44
Certified Record, at CP0415.
45
Certified Record, at CP0426, CP0441 et seq.
46
Certified Record, at CP0525.
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2020-00747 CIVIL TERM
engineering company engaged by the borough to review the project and responses to
47
the comments of the county planning department.
In response to the engineering company’s query as to dedicated streets, the
transmittal letter indicated that “\[t\]here are no dedicated streets proposed with this
48
plan.” The concern expressed by the engineering company in connection with
emergency responder access to the site elicited the response that
\[t\]he appropriate number of plans have been submitted to the Borough for
distribution to local emergency services responders. Any comments from
49
the local emergency service responders will be addressed upon receipt.
In response to the county planning department’s comments with respect to the
split-zoning issue and the department’s observation that accessory parking for a
commercial use was not permitted in the Low Density Residential District, the
transmittal letter indicated that, “\[i\]n order to achieve improved vehicle circulation
50
patterns, the parking spaces in question have been removed.” On the matter of a
traffic analysis, Appellant’s response advised that “\[a\] traffic impact study for the project
51
is expected to be submitted for Borough review within the next week.” Similarly, a
response to the county department’s concerns regarding “circulation issues,” traffic
52
generation and pedestrian safety was deferred to completion of that study.
47
Certified Record, at CP0426-CP0440.
48
Certified Record, at CP0428.
49
Certified Record, at CP0429.
50
Certified Record, at CP0437.
51
Certified Record, at CP0438.
52
Certified Record, at CP0439.
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Finally, on the subject of Appellant’s right to utilize neighboring land to the south
for the project, the response on behalf of Appellant agreed that “\[a\] copy of the drainage
53
easement will be provided prior to approval of the final plan.”
With respect to the county department’s comment that the location of the
project’s proposed drive-thru was inconsistent with the zoning ordinance’s proscription
on front-yard placement of such a feature, the response stated that
nd
\[t\]he developed site will contain a 32 Street address. Therefore, as
consistently interpreted by the Borough, the property’s front yard is along
nd
32 Street, and the property’s side yards are along Chestnut Street and
the east/west alley. As proposed, the drive-through is not located in the
54
front yard.
As to the impermissibly narrow drive-thru bypass lane width, the response noted that
“\[t\]he 10’ wide bypass lane has been extended back to the menu order boards . . . .
55
Dual lanes (12’ feet wide) are provided in front of the menu order boards.”
With respect to the county department’s concern as to pedestrian safety involved
in foot travel across the drive-thru lanes to access the restaurant building, the response
stated that
\[t\]he Site Plan . . . has been revised to provide an additional cross-walk for
the pedestrians coming from parking spaces east of the drive-through.
Also, in order to improve vehicle circulation patterns, the number of
parking spaces east of the drive-through has been reduced. Finally,
employees will be encouraged to park in that area in order to further
reduce the volume of pedestrian movements across the drive-through
56
during peak periods.
53
Certified Record, at CP0429 (emphasis added).
54
Certified Record, at CP0438.
55
Certified Record, at CP0438.
56
Certified Record, at CP0438.
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The response indicated, further, that required stacking spaces in the drive-thru lanes
were shown with proper widths on a “Drive Thru Stacking Lane Detail” in the
57
submission.
On the subject of the propriety of the use of an alley as the restaurant’s
entry/access point, the response advised that “\[t\]he proposed point of access onto
Chestnut Street partially occupies a private alley. It is our understanding that access
across that private alley must remain available to all properties having rights to the alley.
58
The proposed layout does not interfere with those rights.” And with respect to the
related matter of the legal status of the alleys shown on the plan, the response indicated
that “Borough officials have confirmed the alleys were not accepted by the Borough.
Alley ownership/maintenance responsibilities revert back to adjacent property
59
owners.”
Finally, the county department’s concern as to the legality of the project’s
proposed occupation, in part, of the east/west alley abutting South 32nd Street with
parking, curbing and lawn associated with the development elicited this response:
That portion of the east/west alley occupied by parking and curb is
immediately adjacent to 32nd Street, and further isolated by a drainage
channel along the alley’s south side. No PennDOT permit exists to allow
access from the alley onto 32nd Street, and PennDOT has clearly
indicated access at that point will not be allowed. Given these existing
constraints, proposed improvements result in no further access
60
restrictions.
57
Certified Record, at CP0438.
58
Certified Record, at CP0438-CP0439.
59
Certified Record, at CP0439.
60
Certified Record, at CP0439.
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On February 28, 2019, the borough issued a statement regarding the project,
which reminded the public of Appellant’s right to a fair process of review by the
municipality:
There has been considerable discussion among Borough residents, in
public meetings and in the news and social media, regarding a proposal to
nd
build a Chick-fil-A restaurant at 32 and Chestnut streets. Following is
information about the process of assessing a development proposal and
determining its suitability.
A property owner has the right to use his/her property in conformance with
applicable zoning designations and regulations. The parcel in question is
zoned for commercial use, and a restaurant is one of numerous permitted
uses in a commercial zone. The Borough’s role, with this or any other
development proposal, is to assure the developer identifies issues that
could negatively impact residents and/or other businesses and provides
remedies that mitigate the negative impacts.
The developer is entitled to complete this process. Once the process is
completed, the Borough Council will decide whether to approve or reject
the proposal based in part on whether potential negative impacts have
been addressed and remedied. If the developer cannot mitigate the
negative impacts and is not compliant with the zoning and Subdivision and
Land Development Ordinance, the plan can be denied.
In keeping with the strong recommendation of legal counsel, Camp Hill
Borough is committed to completing the development process, respecting
the developer’s property rights and protecting the interests of the Borough
and its residents. Terminating the development process before it is
complete, or as one resident suggested, simply “letting (the developers)
sue you,” would be irresponsible and could expose the Borough and its
residents to significant financial consequences.
For example, a federal court jury once determined that Susquehanna
Township officials deprived a developer of due process by improperly
denying a building permit. The developer received a $4 million settlement.
The decision had significant negative consequences for the township, its
residents and the individual defendants in the lawsuit as the case
advanced over several years.
To date, neither the Borough Planning Commission (in its advisory role)
nor the Council has received enough information to assess whether the
development proposal is suitable. Residents, quite justifiably, have raised
concerns about increased traffic through an intersection that already is
one of the busiest in Cumberland County. The developer is entitled to
present data on impacts of the project on existing traffic and demonstrate
how the impact of any additional traffic could be mitigated. We look
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2020-00747 CIVIL TERM
forward to reviewing that information, along with the final development
61
proposal, and making a fair and responsible decision.
On March 1, 2019, Appellant submitted to the borough a traffic impact study,
entitled “Transportation Impact Study,” prepared by Traffic Planning and Design, Inc., of
62
Harrisburg, Pennsylvania. Inter alia, the study noted that
\[a\]ccess for the development is proposed via the existing N-S Alley (CFA
driveway) to Chestnut Street. Left turning movements will be prohibited to
exit the N-S Alley during the weekday A.M., weekday P.M. and Saturday
63
midday peak periods (7-9 AM; 4-6 PM; 11AM-1PM) via signage.
A report dated March 12, 2019, by the aforesaid engineering company engaged
by the borough reacted to the traffic impact study submitted by Appellant with a number
64
of concerns, including the following.
1. For the intersection of Chestnut Street and 32nd the Synchro analysis
incorrectly modeled the northbound and southbound left turns. The
Synchro output shows protected/permitted phasing but the phases are
currently protected only. This must be modified in the Synchro inputs and
reevaluated.
a. . . . \[M\]itigation should be considered \[at the intersection
with respect to northbound traffic on 32nd Street\], possibly
consisting of adding a northbound right-turn lane to improve
the operation of the northbound approach, or reassignment
of the lane configurations on the eastbound and westbound
approaches to provide double left-turn lanes to improve
overall intersection operation.
b. There is an all pedestrian phase at this location which
does not appear to have been modeled. The pedestrian
phase is actuated on a routine basis at this intersection
significantly impacting intersection operations.
c. Estimated queues in the Synchro output appear to be less
than what intersection observations indicate. . . .
61
Certified Record, at CP0565.
62
Certified Record, at CP0534-CP0555.
63
Certified Record, at CP0542.
64
Certified Record, at CP0568-CP0571.
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2020-00747 CIVIL TERM
* * * *
3. Signs at the alleys stating NO THRU TRAFFIC will likely not be obeyed
and this restriction would be difficult to enforce. Physical constraints (i.e.
curbing) should be considered to prevent thru traffic.
4. Submit Autoturn simulations for the Chestnut Street right turn into the
access as this radius is shown as only 20 feet.
5. A left turn restriction is proposed for the AM and PM weekday peak
periods as well as the Saturday midday peak period. Based on the
transaction data provided in the study, this restriction should also be
applied during the weekday midday peak period. However, this will be
accomplished through signing only and will be difficult to enforce on \[a\]
daily basis, so other measures should be considered. . . .
* * * *
7. Perpendicular parking spaces are proposed along the site access
driveway. . . . \[T\]hey should be removed because of the conflicts that will
result between parking maneuvers and inbound traffic (SALDO Article V
Section 502.5.C)
8. There is a negative offset with the Select Medical driveway opposite the
proposed access driveway. Eastbound and westbound left-turning
vehicles will overlap and block each other, or potentially force one another
into opposing lanes of traffic. The approaches should align (SALDO Article
V Section 502.5.C).
* * * *
10. Were pedestrian counts conducted during the peak periods at any of
the study intersections? Synchro output shows either a zero volume of
conflicting pedestrians or does not include the information.
11. On page 17 of the report relative to drive-thru queues it is stated, “it is
our opinion that adequate storage length for the Chick-Fil-A is available for
typically normalized time periods”. There are several concerns with the
analysis assumptions:
a. The report states two 220-foot lanes (5 vehicles each) are
provided. It should state two 110-foot lanes for 220 feet of
total storage are provided. Each 110-foot lane would
accommodate 4 vehicles, not 5 vehicles (based on a
standard of 25 feet per vehicle). Therefore, the total storage
for the drive-thru would be 14 vehicles (6 vehicles from the
pick-up window to menu boards and 8 vehicles from the
menu boards to the entrance road).
b. With a 95th percentile queue of 12 vehicles and available
storage for 14 vehicles, there is only enough storage for an
17
2020-00747 CIVIL TERM
additional 2 vehicles. The concern is that for the 5% of the
time that the intersection becomes blocked, the walk-in
customers would also become blocked. If this happens, how
quickly would vehicles queue onto Chestnut Street?
c. Based on the data provided for the three other Chick-Fil-A
locations, the weekday midday peak transactions are the
highest at two locations; therefore, queueing should also be
evaluated at the drive-thru for the midday weekday period.
d. In Appendix K the drive thru counts evaluated three
scenarios to identify a processing rate, or dwell time. The
lowest dwell time (33 seconds) was used to calculate the
anticipated queues for the subject property. How can it be
assumed that for the duration of the peak periods vehicles
will be processed at the highest rate? It would seem more
reasonable to use an average between these three
processing scenarios.
12. Figures 10-12 illustrate the following traffic diversions that result from
the proposed left-turn restriction at the site access driveway:
Eastbound left-turn at Chestnut Street/30th Street: AM – 19
vehicles, PM – 56 vehicles, Saturday - 88 vehicles
Southbound thru movement at 31st Street/Bramar Road:
AM -11 vehicles, PM – 38 vehicles, Saturday – 57 vehicles
There is no indication in the study as to the impacts these diverted trips
may have on additional intersections. It is assumed that these vehicles will
be added to the intersections of Market Street/30th Street and 32nd
Street/Harvard Avenue based on anticipated ultimate destinations.
Therefore, these intersections should also be considered as part of the
study.
13. A crash analysis was not provided in the report as requested.
14. It was requested that the pedestrian study currently being conducted
by the Tri-County Planning Commission be considered as part of this
65
study. This was not included in the report.
At some point a critique of the traffic impact study was also received by the
66
borough from Pennsylvania’s Department of Transportation. In addition to noting the
65
Certified Record, at CP0568-0571.
66
Certified Record, at CP0641-CP0642.
18
2020-00747 CIVIL TERM
desirability of opposing access alignments on Chestnut Street and the need for crash
analyses for certain intersections, the critique included the following:
3. At least 50 feet of throat length (120’ for medium volume classification)
is desirable for non-minimum use driveways, which will also create
additional storage for vehicles accessing the side considering the
proposed parking in close proximity to the proposed driveway throat. Also,
based on observations at other Chick-Fil-A locations parking availability
and queuing issues frequently occur, which may be an issue considering
the parking proposed along the access throat that may lead to queuing
towards the adjacent traffic signal as vehicles stop to allow vehicles to
park/leave parking along the alley. In addition, the drive thru queue
analysis in the TIS \[Traffic Impact Study\] indicates that up to 11 vehicles
th
can stack internally with the 95 percentile queue of 13 vehicles, therefore
some of the parking along the alley will be blocked by the queues during
the peak periods. Additional analyses regarding parking utilization may
clarify the anticipated use of the parking along the alley.
* * * *
5. Document signalized intersection initial queues for all approaches/lane
groups and provide 50th percentile queues from Synchro for the
signalized intersection queue analyses. Currently, some movements at the
signalized intersection of Chestnut Street/Trindle Road (S.R. 0641) and S
nd
32 Street (S.R. 0015) frequently experience traffic volumes not
dissipating within the green time (i.e. vehicles sitting through multiple
traffic signal cycles), therefore initial queues must be documented and
included in the analysis of this intersection as the LOS/queues may be
more significant than indicated in the TIS.
6. The queue tables should note the existing nearest signalized or major
unsignalized intersection spacing for the through lane storage available to
document potential impacts on adjacent intersections. Where with
development queues are greater than without development queues and
exceed existing/proposed storage lengths, provide mitigating measures.
nd
7. The intersection of Chestnut Street/Trindle Road (S.R. 0641) and S 32
Street (S.R. 0015) is indicated in the TIS as meeting PennDOT’s overall
intersection LOS criteria (10 second variance), but the traffic signal timings
were optimized under both future without and with development conditions
adding delay to already at-capacity/over-capacity (failing) movements (i.e.
eastbound left turn movement, westbound approach). Considering the
significant peak hour traffic volumes added, identify
improvement/mitigation such that no queuing/delay is added to these
critical movements/approaches beyond without development conditions.
Consider V/C ratios for these critical movements under base and
projected development conditions. Also, the requested Synchro files were
not provided to us following the District’s request to TPD to provide them
19
2020-00747 CIVIL TERM
for consideration in our review. Please provide calibrated Synchro and
SimTraffic simulation files in conjunction with the revised submission.
8. Due to the corner location on a principal urban arterial (S.R. 0015) and
potential impacts to the signalized intersection of Chestnut Street/Trindle
nd
Road (S.R. 0641) and S 32 Street (S.R. 0015), provide right-turn lane
warrant and length analyses on S.R. 0015 at Chestnut Street in
accordance with Chapter 11 of PennDOT Publication 46 due to the
potential impacts to the adjacent signalized intersection.
9. Provide a concept plan for the proposed eastbound right turn lane on
67
Chestnut Street at the proposed CFA driveway.
68
On March 13, 2019, Appellee’s borough council retained special counsel to
69
assist the borough with respect to its review of Appellant’s project.
On March 15, 2019, the aforesaid engineering company engaged by the borough
provided to the borough a report on the revised site plan submitted on February 22,
70
2019. Again, the company “\[took\] no exceptions to the granting of \[the preliminary
plan waiver\],” inasmuch as there was “no regulatory benefit to the Borough by requiring
71
separate submissions.” Inter alia, the report stated:
7. We recommend that a Lot Merger Agreement be prepared and
executed to ensure that it is an integral (non-separable) tract of land
following this subdivision.
* * * *
10. We recommend that the local emergency services responders review
the revised plan to assess the site layout to determine ability to get
equipment and apparatus in close proximity for an emergency situation at
the site.
* * * *
12. The construction detail provided for the proposed connection to
Chestnut Street, should be revised to depict a 12” minimum milled notch
67
Certified Record, at CP0641-CP0642.
68
Certified Record, at CP0576.
69
Certified Record, at CP0603.
70
Certified Record, at CP0589-CP0591.
71
Certified Record, at CP0589.
20
2020-00747 CIVIL TERM
into the existing pavement section. The current detail appears to depict a
12” sawcut into the proposed pavement.
* * * *
14. A drainage and fence easement is proposed onto the adjacent
nd
property (133 South 32 Street LLC). Proof of owner’s consent for both
72
should be provided prior to final plan approval (407.1.A(2)).
The project was finally the subject of a public presentation by Appellant’s
representatives to the borough’s planning commission at its meeting on March 19,
73
2019. In the course of this meeting, a significant zoning issue was raised by two
members of the planning commission:
MR. NAVARRO: Yes. I have a couple questions. It more pertains to
the requirements for \[a\] corner lot.
If I am not mistaken, this is considered a corner lot of which the
building setbacks as part of the definition for a corner lot requires two
fronts, a side and a rear. Looking at the site plan, I see your front along
32nd, but I do not see a front setback along Chestnut.
\[APPELLANT’S COUNSEL\]: Yes. That was a very early discussion
that we have had with \[the\] zoning officer in this process. That was
probably one of the first things that we went through that process, had the
discussion about the yard requirements. That was a determination that the
front yard was the street of address which is 32nd Street.
MR. NAVARRO: Okay. But correct me if I am wrong, if the
ordinance states that you need two front setbacks, would a variance need
to do be required to make that change?
\[APPELLANT’S COUNSEL\]: Not based on the determination that
we had.
MR. NAVARRO: So by virtue of allowing you to do this for Chick
Fil-a, are you allowing it to happen elsewhere?
\[APPELLANT’S COUNSEL\]: No. I think it is based on a historical
application front yard requirements in the Borough.
MS. LANDY: Was that a determination you said with the Borough
staff?
\[APPELLANT’S COUNSEL\]: Early discussions with staff.
72
Certified Record, at CP0589-CP0590.
73
Certified Record, at CP0599-CP0640.
21
2020-00747 CIVIL TERM
MS. LANDY: This hasn’t gone out before the zoning board?
74
\[APPELLANT’S COUNSEL\]: No. No.
While the commission took no action at the meeting on the proposal, many
negative comments, particularly on traffic and safety issues, were received from
75
members of the community. It was indicated on behalf of Appellant that revisions to
76
the traffic study would be forthcoming at a subsequent meeting of the commission.
In a report dated March 26, 2019, to the Pennsylvania Department of
Environmental Protection, the borough advised the department that Appellant’s
Preliminary/Final Subdivision and Land Development Plan is currently
under review and has not been approved. No other zoning approval has
been requested. One of the properties is not zoned for commercial
development. The project might not be consistent with the Camp Hill
Zoning Ordinance. No proposal has been made to vacate/abandon any
alleys included \[sic\] the one proposed for ingress and egress to the
77
property.
By a letter dated April 12, 2019, Appellant’s counsel advised the borough that
time required for revisions to the development plan and traffic impact study based upon
review comments would necessitate deferral of their resubmissions, to the May, 2019,
78
planning commission meeting. The letter also agreed to an extension of the deadline
79
for action by the borough “on the plan” until June 12, 2019. At its meeting on April 16,
2019, the planning commission recommended approval of the extension,
74
Certified Record, at CP0609.
75
Certified Record, at CP0599-CP0640.
76
Certified Record, at CP0639.
77
Certified Record, at CP0643.
78
Certified Record, at CP0653.
79
Certified Record, at CP0653.
22
2020-00747 CIVIL TERM
notwithstanding public opposition to the extension and other negative comments
80
regarding the project.
On May 13, 2019, Appellee’s solicitor advised Appellant’s counsel that the
borough’s zoning officer was reviewing the following zoning issues in connection with
the project:
1. Whether the front yard setbacks are properly measured.
2. Whether the building canopy and building are permitted within the front
yard setback.
3. Whether accessory drive-thru facilities are permitted within the front
yard or required front yard setback.
4. Whether accessory drive-thru facilities are permitted to face an abutting
property in the Residential Zoning District.
5. Whether the rear yard setback (referring to the southern portion of the
consolidated properties) is properly measured.
6. Whether the portion of the property zoned LDR from the centerline of
the north-south alley to the eastern property line of the consolidated lot
identified on Sheet 5 of 15 may be used as an access drive serving a
commercial use.
7. Whether sufficient documentation exists of an easement or agreement
for the “fence easement” outside the 15’ ROW for the unnamed east-west
81
alley.
Appellant’s counsel reacted by “not\[ing\] that we have been reviewing this plan
with the \[zoning officer\] for more than a year and two sets of review comments have
been issued for this plan, and none of these comments were previously identified as
82
issues.” The borough’s solicitor responded that
\[t\]hese issues were raised by the Planning Commission. Per your
comments to the Planning Commission, the zoning officer anticipated that
these issues would be addressed in the revised plan. I previously asked
80
Certified Record, at CP0656.
81
Certified Record, at CP0672.
82
Certified Record, at CP0672.
23
2020-00747 CIVIL TERM
you to provide the developer’s position on the right to use the alleys as
proposed on the plan and I received no response. The developer did not
ask to meet to discuss the Planning Commission’s comments. The
developer has not requested any determination of the zoning officer as
defined in Section 107(b) of the MPC. The zoning officer and I were
legitimately waiting to see how the developer would address the Planning
83
Commission’s comments in the revised plan.
Appellant’s counsel replied:
First, only the front yard and perhaps the drive thru issue were raised by
the PC . . . .
Second, \[the zoning officer\] never raised any of these compliance issues
in the planning meetings that we had with him over the last year or so.
Otherwise, the\[\] plan would have addressed them before it was submitted.
I\[t\] was only after opposition arose and special counsel was hired that
somehow zoning issues arose.
Third, I was told a few weeks ago that we would receive a letter identifying
zoning issues. I hadn’t heard anything further until I received your email
Fourth, we can’t be expected to address comments that are not in
84
writing.
On May 15, 2019, a draft of the zoning officer’s opinion was forwarded to
Appellant’s counsel for review:
In response to questions raised by the Planning Commission at its
meeting on March 19, 2019, and not having received a revised plan, I
have reviewed the Preliminary/Final Subdivision & Land Development
Plans 3115-3133 Chestnut Street Proposed Chick-fil-A Restaurant
(revised February 22, 2019) (“Plan”), and determined that the following
provisions of the Plan do not comply with the Borough of Camp Hill Zoning
Ordinance (“Zoning Ordinance”):
1. The front yard setbacks are not properly measured. A
corner lot must have two front lot lines. Zoning Ordinance
§202, Definitions, “Lot, Corner; Lot Line, Front; Lot Line,
Rear; Lot Line, Side.” Front yard setbacks must be
measured from street right-of-way line. Id., “Front Setback;
Setback; Street-Right-of-Way Line.” The front yard setbacks
on the Plan must be measured from the 60’ Chestnut Street
nd
ROW and from the 110’ 32 Street ROW.
83
Certified Record, at CP0671.
84
Certified Record, at CP00671.
24
2020-00747 CIVIL TERM
2. The building canopy and the building are not permitted
within the front yard setbacks. The building canopy and the
building on the Plan are located within the appropriate front
yard setback along Chestnut Street.
3. Accessory drive-thru facilities are not permitted within a
front yard or the required front yard setback. Zoning
Ordinance Table 5-3; § 1108.E.2.a. Drive-thru facilities
including the drive aisle and pick up window are located in
the front yard and within the front yard setback along
Chestnut Street.
4. Accessory drive-thru facilities are not permitted to face an
abutting property in the Residential Zoning Districts. The
drive-thru facility faces the abutting Low Density Residential
Zoning District (LDR) property to the east.
5. The rear yard setback must be measured from the rear lot
line abutting any alley. Zoning Ordinance § 202 Definitions,
“Setback, Rear; Lot Line, Rear.” The rear yard setback of the
consolidated lot is improperly measured from the centerline
of the unnamed east-west alley. However, the deeds to the
subject properties comprising the consolidated lot only
describe the southern lot lines as running along the northern
line of the unnamed east-west alley. The Plan does not
identify the source of title to the centerline of the unnamed
alley. Unless the property owner has acquired title to the
center line of the alley, the Plan (sheet 2 of 15) identifies and
the current deeds of the properties describe the southern lot
lines of the properties as abutting along the northern line of
the unnamed east-west alley. In the absence of an
ownership interest to the centerline of alley, the rear setback
should be measured from the rear lot line as described in the
deeds.
6. The portion of the property zoned LDR from the centerline
of the north-south alley to the eastern property line of the
consolidated lot identified on sheet 5 of 15 may not be used
as an access drive serving a commercial use, as commercial
uses are not permitted in the LDR District. A restaurant is not
a permitted use in the LDR District, which in this case
includes the access drive for the restaurant. The Borough
Solicitor will provide the legal authority to your attorney.
25
2020-00747 CIVIL TERM
7. No documentation of an easement or agreement has
been provided for the “fence easement” outside the 15’
85
ROW for the unnamed east-west alley.
On May 26, 2019, Appellant’s counsel advised the zoning officer that Appellant’s
“plan \[was\] in the process of being revised based upon review comments” and that the
86
applicant agreed “to extend the deadline \[for borough action\] to September 11, 2019.”
At a planning commission meeting on May 28, 2019, over vigorous and sometimes
hostile opposition from the public, the commission voted to recommend approval of the
87
extension as offered, prompting comments such as:
UNIDENTIFIED VOICE: What kind of people are you?
88
UNIDENTIFIED VOICE: I hope you’re proud of yourselves.
On June 12, 2019, Appellee’s borough council approved the extension of the deadline
89
to September 11, 2019, for action upon Appellant’s proposed project, as
90
recommended by the planning commission.
On July 30, 2019, Appellant submitted to the borough an updated traffic impact
91
study, as well as crash analyses. On the same date, Appellant submitted a revised
plan for the project by way of
Thirteen (13) sets of the Preliminary/Final Subdivision & Land
Development drawings (sheets 1 through 16 of 16), containing a latest
revision date of July 26, 2019.
85
Certified Record, at CP0674-CP0675.
86
Certified Record, at CP0676.
87
Certified Record, at CP0690.
88
Certified Record, at CP0690.
89
Certified Record, at CP0696.
90
Certified Record, at CP0690.
91
Certified Record, at CP0720.
26
2020-00747 CIVIL TERM
Three (3) copies of the Stormwater Management Narrative and
92
Calculations, containing a latest revision date of July 26, 2019.
The letter of transmittal enclosing the revised plan included responses to the
comments of the engineering company engaged by the borough dated March 15, 2019,
as well as certain zoning and pedestrian information. Inter alia, the responses on behalf
of Appellant indicated that a lot merger agreement would be “consider\[ed\],” that a
construction detail had been revised to clearly depict a 12” minimum milled notch into
the existing pavement section, and that proof of owner’s consent for the drainage and
fence easement onto the adjacent property . . . would be provided to the Borough “once
93
finalized.”
On the subject of emergency access to the site, the response advised that
\[t\]his constitutes our third land development submission to the Borough for
this project, and we’ve not received any formal comments from emergency
service responders. Based on discussions with the Borough Fire Marshal,
we’re unaware of any concerns regarding site accessibility for emergency
94
equipment.
The transmittal letter also indicated the following:
The site layout has been adjusted to provide front yard setbacks for both
nd
32 Street and Chestnut Street . . . . Setback distances (0.5’ along 32nd
Street and 16.5’ along Chestnut Street) are based on existing building
setbacks provided on adjacent properties to the south and east (see
“Basis for Front Yard Building Setbacks” detail provided on Sheet 13).
In order to accommodate the adjusted setbacks, site improvements have
been shifted to the south, and building canopy configurations have been
modified in order to allow proposed improvements to comply with front
95
yard requirements.
* * * *
92
Certified Record, at CP00722 et seq.
93
Certified Record, at CP0724-CP0725.
94
Certified Record, at CP0724.
95
Certified Record, at CP0726-CP0727.
27
2020-00747 CIVIL TERM
A second point of pedestrian access has been added. A sidewalk
nd
providing direct connectivity to the 32 Street/Chestnut Street intersection
96
is now shown at the northwest corner of the site.
Thus, as indicated, the revised plan’s postulated front-yard setback requirement for the
restaurant building on 32nd Street was one-half foot, and the postulated front-yard
setback requirement on Chestnut Street was sixteen-and-a-half feet.
By a memorandum addressed to Appellee’s counsel dated July 31, 2019,
Appellant’s counsel set forth the developer’s position on various legal issues that had
arisen concerning the project. On the subject of front-yard setbacks, the memorandum
stated in part:
The Plan, as revised, depicts two front yards along Chestnut Street
nd
and 32 Street. These front yards are measured from the street right-of-
nd
way lines of Chestnut Street and 32 Street. Pursuant to the Zoning
Ordinance, the eastern yard is identified as a rear yard and the southern
97
yard is identified as a side yard.
* * * *
The built-to front yards shown on the plan are 16.5 feet along
nd98
Chestnut Street and about three feet along 32 Street.
* * * *
A 16.5-foot front yard setback along Chestnut Street is permitted
under the Zoning Ordinance. Although § 503 of the Zoning Ordinance
generally requires a 35-foot front yard setback, § 732.B (Yard and Setback
Alterations) permits front yard setbacks to be reduced. Section 732.B.1
states in part:
\[O\]n a lot proposed for development, where the required
front setback regulations for the applicable zoning district are
greater than the actual distances that the existing buildings
on abutting lots are setback from the street right-of-way, the
required front yard and setback may be altered to be similar
to those distances between existing principal buildings and
96
Certified Record, at CP0727.
97
Certified Record, at CP0778.
98
Certified Record, at CP0780.
28
2020-00747 CIVIL TERM
the street right-of-way on the abutting lots, in accordance
with the following standards . . . .
Zoning Ordinance, § 732.B.1 (emphasis added). The abutting lot
immediately to the east of the subject development property has a front
yard setback of 16.5 feet from the street right-of-way line of Chestnut
Street. The abutting lot immediately to the south of the development
property has a setback of one-half a foot from the street right-of-way line
nd99
of 32 Street.
* * * *
\[T\]he front yard setbacks shown on the Plan, as revised, match the
setbacks of principal buildings on the abutting lot of each respective street
frontage (i.e., the front yard setback along Chestnut Street is 16.5 feet and
nd100
the front yard setback along 32 Street is about one-half foot).
With respect to the split-zoning issue, the memorandum of Appellant’s counsel
defended the revised plan as follows:
The north-south alley is split-zoned along its centerline. The
western portion is located in the Commercial General District (the “CG
District”). The eastern portion is located in the Low Density Residential
District (the “LDR District”). As the alley extends to the south beyond the
subject property and to Bramar Road, the alley is split-zoned in the LDR
District and HDRO District. The question raised is whether the split-zoned
north-south alley may be used to access the proposed
restaurant. . . . \[Z\]oning regulations do not apply to the north-south alley
\[because it is a street\] and, if they did apply, such regulations do not
prohibit use of the north-south alley to access the proposed restaurant.
Indeed, if the Borough were to conclude otherwise, then the numerous
existing businesses throughout the Borough that are served by split-zoned
101
alleys would be, and must be, prohibited from using such alleys.
* * * *
If the Borough were to conclude that zoning regulated the use of
streets, then there would be various land use-street conflicts throughout
the Borough (as the Borough’s Zoning Map imposes zoning classifications
102
on streets).
99
Certified Record, at CP0779-CP0780.
100
Certified Record, at CP0780.
101
Certified, Record, at CP0786.
102
Certified Record, at CP0788-CP0789.
29
2020-00747 CIVIL TERM
The revised traffic impact study submitted on behalf of Appellant to the borough
on July 30, 2019, was the subject of a letter from the company that conducted it to the
103
borough’s zoning officer on August 5, 2019. This letter described the updated study
by way of responses to the comments of the engineering company engaged by the
borough to the initial study; and a letter of the same date from Appellant’s counsel noted
that the study had been performed pursuant to the borough’s subdivision and land
104
development ordinance as opposed to its zoning ordinance.
On August 19, 2019, in response to Appellant’s revised plan, which had
reconfigured the project’s layout to conform to the proposition that the site was a corner
lot, the borough’s zoning officer identified the following issues in a report to the planning
105
commission:
1. Designation of front, rear and side yards
nd
a. Front yards are identified along Chestnut St and 32 St
with the rear yard to the east and the side yard to the south.
nd
The rear and side yards are based on 32 St being the
street of address. A request was made and I am waiting for
the County GIS \[Geographic Information Systems\] to make a
nd
final determination. If the request for a 32 St address is
approved by county GIS then the Plan will meet the Zoning
Ordinance \[regarding the designation of yards\].
2. Setbacks for front, side and rear yards
a. If the north/south alley or eastern alley is considered a
“street,” the southern right-of-way would also be considered
an alley, and therefore a “street,” under this definition.
b. Based on the definition of “lot line”, the lot lines of the
ultimate lot should coincide with the right-of-way lines for
103
Certified Record, at CP0801-CP0805.
104
Certified Record, at CP0798-CP0799.
105
Certified Record, at CP0865.
30
2020-00747 CIVIL TERM
both the eastern alley (and southern alley, if that right-of-way
is to remain).
c. If the north/south or eastern alley is considered a street or
a new right-of-way, then a rear yard setback must be
measured from the western edge of the new right-of-way in
the CG District. The rear setback would be 30 ft.
d. If the east/west or southern alley is considered a street
then a side yard setback must be measured from the
northern edge of the boundaries of the alley. The side yard
setback would be 12 ft.
nd
3. Front Yard Setback on Chestnut St and 32 St
a. The Developer uses the abutting properties to the east on
nd
Chestnut St and to the south on 32 St to determine the
nd
setbacks on Chestnut St and 32 St. However, in both
cases the abutting properties are in different zoning districts
(LDR and HDRO) from the CG district for the development of
the property.
b. The SALDO defines “Alley” as a “minor way, which may or
not be legally dedicated, and is used primarily for vehicular
service access to the rear or side of properties abutting the
street. (ZO § 202 contains the same definition). Here the
alley will provide the only access from the property to the
abutting street, not simply service access. Accordingly, the
proposed R/W is either a street or a driveway.
4. Commercial Use of Alley
a. If the expansion to the north/south alley contains a new
right-of-way for an alley or street, then the zoning of the LDR
doesn’t apply to the lot area but the lot lines are measured
from the street line. If the expanded area of the north/south
alley is not part of an alley or street, then the zoning of the
LDR district applies to the driveways within the LDR district.
b. A use with the traffic anticipated from the proposed use in
the TIS is far greater in the number of trips for the proposed
fast food restaurant during the peak hours than the uses in
the LDR district.
5. Building Façade
a. No information has been provided indicating compliance
with the provisions on Building Façade in Section 604.J.
31
2020-00747 CIVIL TERM
6. Building Footprint
a. No information has been provided indicating compliance
106
with the provisions on Building Footprint in Section 604.M
Also on August 19, 2019, two reports were provided to the borough by the
engineering company which it had engaged to review the project—one commenting
107
upon the updated transportation impact study and the other upon the revised site
108
plan. The former commentary concluded that the updated traffic study adequately
addressed many of the previously expressed concerns, but that some remained
inadequately addressed.
In terms of the study’s analysis of traffic at the intersection of Chestnut Street and
32nd Street, the engineering company concluded that “\[t\]he left-turn phase for the
intersection . . . was modeled correctly in the resubmission,” but that “there are still
critical movements that show significant delay increases and one with a LOS \[Level of
109
Service\] drop between the base and projected year . . . .” In addition, according to
the commentary, the updated study
indicates that just prior to each peak 1-hour analysis period the highest
number of queued vehicles observed was one vehicle for the eastbound
left movement during the Weekday AM, Weekday PM, and Saturday
Midday periods and none for all other movements. This does not seem
realistic as vehicles on several approaches to the intersection must
typically wait through more than one signal cycle to clear the intersection
110
during peak periods. . . .
106
Certified Record, at CP0837-CP0838.
107
Certified Record, at CP0831-CP0835.
108
Certified Record, at CP0825-CP0827.
109
Certified Record, at CP0831.
110
Certified Record, at CP0832.
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2020-00747 CIVIL TERM
Also not adequately addressed, in the engineering company’s view, was the
issue of perpendicular parking along the site’s access way:
Perpendicular parking spaces are still proposed along the site access
driveway. Although 6 of the 11 spaces will likely be used by employees
with a lower turnover rate, they should all be removed because of the
conflicts that will result between parking maneuvers and traffic flow on the
111
site access road.
Similarly inadequately addressed, from the engineering company’s perspective,
were its concerns about the effect of unaligned business accesses on opposite sides of
112
Chestnut Street, the miscalculation as to the number of vehicles which a 110-foot
113
lane would accommodate, and a failure to properly anticipate worst-case scenario
114
vehicle queues. The commentary of the engineering company on the revised plan in
terms of traffic also included the following:
1. In Table 13, the Chestnut/Trindle & 32nd Street SB left-turn queue for
2020 Base Conditions is minimal at 1-2 vehicles for all peak hours. During
the weekday midday, weekday PM and Saturday midday peak hours for
the 2020 Projected With Improvements scenario the queues are between
167 and 255 feet, significantly above the available storage length of 110
feet. After the table it is stated, “2020 Projected Condition queues will
largely be accommodated within the projected storage length or are
comparable to the base (no-build) conditions”. This is not the case.
2. Concern over drive-thru queueing remains. It is noted that the access
road is available for queueing. If this is the case the applicant is essentially
saying that it is acceptable for queued vehicles to block access to the
115
parking area, which would result in additional queuing.
* * * *
5. With the left-turn restriction at the site access driveway during peak
hours, how will drivers know to not use the left-turn lane?
111
Certified Record, at CP0832.
112
Certified Record, at CP0833.
113
Certified Record, at CP0833.
114
Certified Record, at CP0833-CP0834.
115
Certified Record, at CP0834.
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2020-00747 CIVIL TERM
Congestion/confusion may result when a driver approaches Chestnut
Street only to find that he cannot turn left and is then trapped in the left-
turn lane. An approach should be offered to prevent this situation.
6. According to the Camp Hill Borough Subdivision and Land
Development Ordinance Section 502.1.B, “Streets shall be laid out to
preserve the integrity of their design. Local access streets shall be laid out
to discourage their use by through traffic”. With the turn restrictions at the
site access driveway, drivers leaving the site are forced to use 31st Street
and other residential streets that are not designed to accommodate
116
through traffic.
In its more general commentary on the revised site plan, the engineering
company again interposed no objection to Appellant’s requested waiver of preliminary
117
submission requirements. Other comments included the following:
3. Given that the proposed limits of disturbance exceed 1.0 acre, approval
of an NPDES Permit (for “Discharge of Stormwater From Construction
Activities”) will be required (by PADEP & Cumberland County
Conservation District). In this regard, a separate technical review and
approval of the Erosion and Sediment Control Plan will be required from
the Cumberland County Conservation District (407.1.A(17)) (Dec 2018
118
Review Comment No. 3, Mar 2019 Review Comment No. 2).
* * * *
12. The construction detail provided for the proposed connection to
Chestnut Street should be revised to depict a 12” minimum milled notch
(1½” deep) across the existing pavement section in order to create a “ship
lap” and stagger the vertical joint (Dec 2018 Review Comment No. 17,
Mar 2019 Review Comment No. 12).
13. A proposed easement/option area for a driveway and fence onto the
adjacent property (133 South 32nd St LLC) is shown on Sheet 5.
Identification by a metes and bounds description is required. Proof of right
of the applicant to construct the facilities and occupy the area from
property owner be provided, and approved by the Borough Solicitor, prior
to final plan approval (407.1.A (2&5) (Dec 2018 Review Comment No. 21,
Mar 2019 Review Comment No. 14).
14. A proposed easement for the drainage facilities onto the adjacent
property (133 South 32nd Street LLC) is shown on Sheet 6. Identification
116
Certified Record, at CP0835.
117
Certified Record, at CP0825.
118
Certified Record, at CP0825.
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2020-00747 CIVIL TERM
by a metes and bounds description is required. Proof of right of the
applicant to construct the facilities and occupy the area from property
owner be provided, and approved by the Borough Solicitor, prior to final
plan approval (407.1.A (2&5)) (Dec 2018 Review Comment No. 21, Mar
2019 Review Comment No. 14).
15. We would encourage the Borough to require a Developer’s Agreement
for this project. The Developer’s Agreement should include the Owner’s
responsibility to address sidewalk maintenance and repairs; General Note
No. 17 should be updated to read “The developer will enter into a
Development Agreement, approved by the Borough Solicitor, agreeing to
maintenance and repair of the sidewalks, approved by the Public Works
Director and Borough Engineer, within the R/W of Chestnut St. and 32nd
St.” (Dec 2018 Review Comment Nos. 19 & 22, Mar 2019 Review
119
Comment Nos. 13 &15).
* * * *
17. The Parking Data Table on Sheet 5 should be updated to read “Fast
Food Restaurant” instead of “Restaurant”.
18. The East/West Alley is identified on the plan as a “proposed 15’
access easement”, while the North/South Alley is identified as a “proposed
37.67’ alley R.O.W.”. We request clarification on the distinction between
120
these two labels.
* * * *
21. The Designer should review/consider adjusting the location of the
proposed southeast alley curb return to reside within the property.
22. The direction of all proposed stop and no traffic thru signs should be
indicated on the plan clarifying to which direction of travel they apply.
23. Turning templates for cars and trucks should be provided to show how
traffic will negotiate the offset intersection between the proposed access
from Chestnut St., the existing alley from Bramar, and the East/West
Alley, in all directions. It should be further clarified if traffic will be restricted
from traveling any direction, noting the existing businesses and homes to
the south of the site.
24. A proposed traffic sign is shown on the adjacent property (133 South
nd
32 Street LLC) on Sheet 5. Proof of right of the applicant to construct the
facilities and occupy the area from property owner be provided, and
approved by the Borough Solicitor, prior to final plan approval
121
(407.1.A(2&5)).
119
Certified Record, at CP0826-CP0827.
120
Certified Record, at CP0827.
121
Certified Record, at CP0827-CP0828.
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2020-00747 CIVIL TERM
On August 20, 2019, Appellant’s counsel advised the borough of the applicant’s
agreement to extend the deadline for action by the borough to November 19, 2019, to
facilitate “review \[of\] the comments, discuss comments with Borough consultants, and
122
revise the plan accordingly.” A resubmission of the plan was anticipated for the
123
planning commission’s September, 2019, meeting. Approval of the extension offered
124
was recommended by the planning commission at its meeting on August 20, 2019,
during which more negative comments concerning the plan were made by members of
125
the public.
As of August 24, 2019, the borough regarded itself as on notice that its review of
126
the project was a subject of potential litigation by plan opponents.
127
On August 29, 2019, the borough’s zoning officer amended his report dated
August 19, 2019, to the planning commission with respect to issues which he perceived
to be associated with Appellant’s project as revised. In its entirety, the zoning officer’s
amended report read as follows:
Issues identified on the Consolidated Properties Preliminary/Final Land
Development Plan for Chick-fil-A dated December 4, 2018, last revised
July 26, 2019 (“Plan”)
1. Designation of front, rear and side yards
nd
a. Front yards are identified along Chestnut St and 32 St
with the rear yard to the east and the side yard to the south.
nd
The rear and side yards are based on 32 St being the
street of address. ZO § 202, Definitions, “Rear Lot Line”;
122
Certified Record, at CP0860.
123
Certified Record, at CP0860.
124
Certified Record, at CP0895.
125
Certified Record, at CP0867-CP0901.
126
Certified Record, at CP0923.
127
Certified Record, at CP1001, CP1020.
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2020-00747 CIVIL TERM
“Lot, Corner.” (“…rear lot line shall be the lot line opposite
the lot line along the street of address”). A request was
made and I am waiting for the County GIS to make a final
nd
determination. If the request for a 32 St address is
approved by county GIS \[Geographic Information Systems\]
then the Plan will meet the Zoning Ordinance \[regarding the
designation of yards\].
2. Setbacks for side and rear yards
a. Developer is claiming that the eastern alley is a right-of-
way that will not be part of the ultimate lot and, thus, not
subject to zoning. Accordingly, based on the definition of “lot
line” (ZO §202), the lot lines of the ultimate lot should
coincide with the right-of-way lines for both the eastern alley
(and southern alley, if that right-of-way is to remain).
b. If the north/south or eastern alley is considered a street or
a new right-of-way, then a rear yard setback must be
measured from the western edge of the new right-of-way in
the CG District. The rear yard setback would be 30 ft. ZO
Table 5-3.
c. If the east/west or southern alley is considered a street
then a side yard setback must be measured from the
northern edge of the boundaries of the street. The side yard
setback would be 12 ft. ZO Table 5-3.
d. Per the Zoning Ordinance, setbacks are measured from
right-of-way lines. The Plan currently does not show any
setbacks from the right-of-way line for the eastern alley (or
southern alley if that is to remain a formal right of way).
3. Conformity of Streets
a. SALDO § 301 defines “Alley” as a “minor way, which may
or may not be legally dedicated, and is used primarily for
vehicular service access to the rear or side of properties
abutting the street.” (emphasis supplied) (ZO § 202 contains
the same definition). Here the proposed “alley R.O.W.” (i.e.
The expanded north/south or eastern alley) will provide the
only access from the property to the abutting street, not
simply service access. Accordingly, the proposed “alley
R.O.W.” does not qualify as an “alley” and should be
considered either a street (if it is not part of the lot) or a
driveway (if it is to be part of the lot).
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2020-00747 CIVIL TERM
b. If the north/south alley or eastern alley is a “street,” the
east/west or southern alley (referred to in the Plan as an
“access easement”) would also be considered a “street,”
under this definition. ZO §202, Definitions, “Street.”
c. If the proposed “alley R.O.W.” and “access easement” are
streets, they must conform to SALDO § 502 including but not
limited to Table I requirements for minor streets for
industrial/commercial uses.
d. the proposed “alley R.O.W.” and “access easement”
provide unrestricted access to the lot along their entire
lengths in violation of ZO § 902.D.
e. The developer must enter an agreement with the Borough
to maintain the private street to Borough standards in
perpetuity. See SALDO § 501.1.H.
f. The Plan depicts a mountable curb near the western edge
of the “access easement” that provides access to S.R. 15.
An HOP from PennDOT is required if the mountable curb
remains or if access to S.R. 15 is otherwise not restricted.
SALDO § 501.11B.
nd
4. Front Yard Setbacks on Chestnut St and 32 St
a. The Developer uses the abutting properties to the east on
nd
Chestnut St and to the south on 32 St to determine the
nd
setbacks on Chestnut St and 32 St. The provision for yard
and setback alterations under ZO §732.B.1 applies “where
the required front setback regulations for the applicable
zoning district are greater than the actual distances that the
existing buildings on abutting lots are setback from the street
right-of-way.” (emphasis supplied). Said provision does not
apply to the Plan because in both cases the abutting
properties are in different zoning districts (LDR and HDRO)
from the CG district for the development of the property.
nd
b. The front yard setbacks on Chestnut St and 32 St must
be 35 ft. ZO Table 5-3.
5. Commercial Use of Driveways
a. If the expanded area of the north/south alley or the area of
the east/west alley (the proposed “access easement”) are
not part of an alley or street, then the zoning of the
LDR/HDRO districts apply to the driveways within the
LDR/HDRO districts.
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2020-00747 CIVIL TERM
b. The proposed commercial use of driveways is prohibited
because the traffic anticipated from the proposed use in the
TIS is far greater in the number of trips for the proposed fast
food restaurant during the peak hours than the uses in the
LDR/HDRO districts.
6. Traffic Study
a. The provisions of ZO § 731 related to required traffic study
are applicable to the Plan.
b. SALDO § 405.2.1, nor any other section of the SALDO,
does not relieve the developer from complying with ZO §
731.
c. SALDO § 405.21 is not objective, but a subjective,
discretionary standard, that a TIS is not provided, and ZO
§ 731 applies.
d. Where the provisions of the Zoning Ordinance impose
greater restrictions than the SALDO, the provisions of the
128
Zoning Ordinance shall be controlling. SALDO § 205.
On or about September 5, 2019, the Pennsylvania Department of Transportation
129
issued a commentary on the updated traffic impact study submitted on July 30, 2019.
This commentary reiterated the department’s concern with unaligned accesses on
opposite sides of Chestnut Street:
As currently shown on the site plan, the offset alignment with the
commercial access may lead to conflicting left turn movements attempting
to access the two sites simultaneously, which may lead to queuing
130
towards the signalized intersection.
In addition, the department recommended crash analyses for the intersection
nd
“of . . . Chestnut Street/Trindle Road (S.R. 0641) and S 32 Street (S.R. 0015) through
128
Certified Record, at CP1001-CP1003.
129
Certified Record, at CP1027-CP1028.
130
Certified Record, at CP1027.
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2020-00747 CIVIL TERM
131
the proposed site frontage along both roadways for the most recent five years . . . ”
Another comment stated that “the queue tables should note the existing nearest
signalized or major unsignalized intersection spacing for the through lane storage
available to document potential impacts on adjacent intersections,” and provide
mitigating measures “where with\[-\]development queues are greater than
132
without\[-\]development queues and exceed exiting/proposed storage lengths.”
The commentary of the department also noted that the study optimized the traffic
signal timings for the aforesaid intersection, “adding delay to already at-capacity/over-
capacity (failing) movements,” and advised identification of “improvements/mitigation
such that no queuing/delay is added to these critical movements/approaches beyond
133
without\[-\]development conditions.” Finally, the department recommended the
provision of “right-turn lane warrant and length analyses on S.R. 0015 at Chestnut
Street in accordance with Chapter 11 of PennDOT Publication 46 due to the potential
134
impacts to the adjacent signalized intersection.”
On September 11, 2019, Appellant’s counsel offered to extend the deadline for
action by the borough “on the plan” until December 11, 2019, to facilitate Appellant’s
135
submission of a revised plan to the borough by October 22, 2019. In proffering this
extension, Appellant’s counsel noted that
Consolidated Properties is not particularly happy with having to extend
deadlines as each delay has financial implications, but the fact is that we
131
Certified Record, at CP1027.
132
Certified Record, at CP1027.
133
Certified Record, at CP1027-CP1028.
134
Certified Record, at CP1028.
135
Certified Record, at CP1047-CP1048.
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2020-00747 CIVIL TERM
received new zoning comments in the August 19/August 30 memo (nine
months after the plan submission). The August 19 memo was received in
the late afternoon of the day before the PC meeting. The following week,
we promptly arranged a meeting with Borough staff and discussed those
comments and other comments. Following that meeting, \[the borough’s
zoning officer\] issued a revised memorandum and provided that memo to
us on August 30. The fact is Consolidated Properties is being diligent in its
136
pursuit of the plan . . . .”
In response, Appellee’s solicitor stated that Appellant’s most recent submission
was a revised or new plan from what had previously been submitted,
which resulted in new zoning issues and comments, including replacing
the access easement to Chestnut Street with a new street, significantly
nd
changing the front yard setbacks on both Chestnut Street and 32 Street
based on a new interpretation by the developer, a mountable curb
nd
providing access to 32 St, unrestricted access with parking spaces to the
new street, utilizing the entire east/west alley abutting the property into an
access drive, after initially telling the Borough the developer would follow
the zoning ordinance for a traffic impact study but now only following the
SALDO, submitting an entirely new TIS \[traffic impact study\] with this
137
submission, among the many changes. . . .
At its meeting on September 11, 2019, Appellee’s borough council approved the
proffered extension of the deadline for action by the borough on Appellant’s project, to
138
December 11, 2019, to facilitate a revised submission by October 22, 2019.
However, on October 22, 2019, Appellee’s solicitor received this e-mail from
Appellant’s counsel:
A revised plan will not be submitted. A revised traffic impact study will not
be resubmitted. The plan and related documentation, as previously
139
submitted, will remain pending.
136
Certified Record, at CP1048.
137
Certified Record, at CP1047.
138
Certified Record, at CP1053.
139
Certified Record, at CP1061.
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2020-00747 CIVIL TERM
No action was taken on the project at the borough’s planning commission
meeting on October 22, 2019, notwithstanding a resident’s request that the plan be
140
denied.
On November 15, 2019, a “litigation hold letter” was issued to the borough on
behalf of Appellant, demanding that it
preserve all documents, tangible things and electronically stored
information potentially relevant to the issues in a potential lawsuit against
the Borough of Camp Hill, its officers and employees, and other
individuals relating to the development of a Chick-fil-A at the corner of
nd141
South 32 Street (SR 11) and Chestnut Street . . . .
By way of explanation, Appellant’s counsel advised that “\[t\]he Preliminary/Final
Subdivision and Land Development Plan for Chick-fil-A was not revised and resubmitted
in October to address zoning comments because the Borough’s zoning reviews of this
142
plan have not been objective or in good faith.”
The timing of the comments, the nature of comments, and Council
members discussions about the plan even before such plan has been
finalized and/or left the Planning Commission has made it clear to us that
the Borough and its officials have engaged in a pattern of conduct that is
calculated to contrive an ultimate denial of the plan and/or delay in the
ultimate construction of the project, in violation of the rights of
143
Consolidated Properties to develop this site.
At the borough’s planning commission meeting on November 19, 2019, no
144
representative of Appellant appeared, and the borough’s solicitor noted that
Appellant had decided not to submit a revised plan and was alleging that the borough’s
140
Certified Record, at CP1062.
141
Certified Record, at CP1074-CP1078.
142
Certified Record, at CP1070.
143
Certified Record, at CP1070.
144
Certified Record, at CP1089.
42
2020-00747 CIVIL TERM
145
zoning review of the plan had not been objective or in good faith. Issues regarding
the project before the commission in its advisory capacity included Appellant’s request
146
for a waiver of preliminary submission requirements and approval vel non of the plan.
On the former issue, the borough’s solicitor made the following observation:
\[T\]here’s a requirement under the SALDO to submit a preliminary plan and
a final plan. There is a request that they can submit a preliminary and a
final plan at the same time. That is a very routine waiver request and is
usually granted in every single land development plan that comes before
147
the Commission.
On the latter issue, the borough’s solicitor advised the commission as follows:
Even though the developer is not present tonight their plan remains
pending. The Municipalities Planning Code and Borough ordinances
require the Planning Commission to act tonight. The Planning Commission
needs to made recommendations to Borough Council first on the
developer’s waiver request and second to approve, conditionally approve,
or deny the plan.
If the plan complies with all objective provisions of the Borough’s
Subdivision and Land Development Ordinance, the SALDO, as well as
other applicable regulations, the plan must be approved; however, if the
plan does not comply, Council has discretion to deny the plan.
Council m\[a\]y also approve the plan with conditions. For example, if
permits are required from other government agencies, council should not
deny the plan, but should require the developer to obtain the appropriate
permits as a condition of approval.
The Borough’s professionals have reviewed and offered comments
on the plan. The comment letters were provided to the developer and
posted on the Borough’s website. The Borough professionals are present
to answer the Planning Commission’s questions.
The Planning Commission will also hear public comment before it
acts. Public comment is not a question and answer session, but rather an
opportunity for the Planning Commission to hear the public concerns. It
is—it’s important to note that the Borough does not comment on
threatened litigation.
145
Certified Record, at CP1089.
146
Certified Record, at CP1089.
147
Certified Record, at CP1089.
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2020-00747 CIVIL TERM
The Planning Commission’s recommendations tonight are non-
binding. Council will vote to approve, conditionally approve or deny the
148
plan at it\[\]s regular meeting on December 11, 2019.
Following the receipt of a number of negative comments from the public
149
concerning the project, the planning commission voted, inter alia, to recommend
150151
denial of the waiver request and disapproval of the plan. On the waiver issue, the
planning commission member who made the motion stated that, “It’s an unusual
circumstance, but I’m not comfortable fast forwarding anything, even if in a procedural
152
sense given the developer’s stated position on how the process has been going,” and
another member stated that
they’ve not engaged us on a regular basis like every other Applicant
comes before us and makes their case and listens to our comments and
153
makes changes and comes back and follows the process expeditiously.
On the issue of plan approval, the planning commission member who made the
motion premised the recommendation of disapproval upon the following:
\[T\]his process has always been bound by the ordinances on our
books. We are stuck with them and so is the developer. So that’s what’s
been guiding me through this process and that’s what the law requires.
That being said, I think the developer has removed itself from the
process and really in my mind we don’t have a choice but to deny the plan
and for that reason I’m going to move that the Planning Commission
recommend the Borough Council deny the preliminary plan for the
proposed Chick-fil-A at 3115 and 3133 Chestnut Street and the reasons
that we are setting forth for Borough Council to consider that I’m moving
for have been reviewed at length in previous meetings and for the record I
will list them here.
148
Certified Record, at CP1089.
149
Certified Record, at CP1089-CP1095.
150
Certified Record, at CP1095-CP1096.
151
Certified Record, at CP1098.
152
Certified Record, at CP1095.
153
Certified Record, at CP1095.
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2020-00747 CIVIL TERM
They are contained in the review letter of the Borough engineer
dated August 19, 2019, the review letter of the transportation impact study
dated August 19, 2019; the zoning officer memorandum amended August
29th, 2019; the review letter of post construction storm water management
plan dated August 28th, 2019. The Cumberland County subdivision and
154
land development review report dated December 20th, 2018.
Other members’ comments on the motion included the following:
I would just like to add that in good faith we granted the extension
and we were sent a letter that described the developer’s intent to
remediate or made adjustments based on what was recommended and I
don’t know what changed in between then, but it appears that good faith is
155
no longer honored . . . .
* * * *
I’d also like to add that there were still many conditions that need to
be met, we were diligent and our engineer and our engineering people
were diligent. Everyone was diligent in putting forward comments for this
developer to make adjustments for—in order to make this project viable
156
and at the eleventh hour they decided to walk away.
* * * *
I have a series of comments that I think should be emphasized to
Borough Council that I would like to enter into the record. The first one is
the importance of the NPDES storm water permit that we just talked
about. I think in this situation where you have runoff coming directly from a
commercial facility, you know, into the tributary of Cedar Run, that you
need the extra review provided by the Conservation District and the DEP.
The second thing is the—a PennDOT highway occupancy permit.
There are changes to alley that affect the entrance to PennDOT’s road
and that’s a—it’s part of the requirements that they get the permit, but I
think it needs to be emphasized.
The next one involves the R1—or the project being in an R1 zoning
district. When you look at the frontage across 32nd Street, approximately
15 to 20 percent of the project lies within an R1 district. This is not
allowed. A commercial property is just not allowed in an R1 district.
The next item is commercial deliveries. As I went through the plans
it wasn’t clear to me how they are going to access the site and depart the
site with commercial deliveries. Chestnut Street according to the
ordinance is—you can make a local delivery using Chestnut Street, but it’s
154
Certified Record, at CP1097.
155
Certified Record, at CP1097.
156
Certified Record, at CP1097.
45
2020-00747 CIVIL TERM
not open to commercial traffic; so the only choice is to make a swing and
try to get back on 32nd Street.
Again, you cannot use Chestnut Street. If you try to cut through an
adjoining property, that’s not a commercial zone either and this wouldn’t
be allowed for that zoning district also.
The next item is property rights. To me it wasn’t clear that they
have full property rights for—for the all\[ey\]s and the easements and, you
know, this is something that must be addressed.
And lastly, it’s the whole traffic issue. According to the plans, three
times a day five days a week and once on weekends the only way this
facility can operate is if the traffic is forced into the R1 district using the R1
district streets, residential streets as cut-throughs to get to either Market
Street or wherever else you’re trying to go. You know, again this is not
allowed under the R1 district. In fact, R1 districts say that you should, you
157
know, avoid cut-throughs.
At a meeting of Appellee’s borough council on December 11, 2019, Appellant’s
158
counsel appeared. The minutes of the meeting reflect the following:
Counsel for Consolidated Properties . . . discussed the entire timeline of
this development plan, from December 2018 to the present. \[He\]
addressed some of the comments made by the Camp Hill zoning officer in
August 2019 regarding revisions to the development plan. \[He\] explained
why the developer chose not to submit a revised development plan. \[He\]
explained that Chick-fil-A will not agree to submit a plan that is compliant
with Borough ordinances and that the Borough needs to work with the
developer.
\[The borough’s zoning officer\] asked \[Appellant’s counsel\] why these
comments were not made sooner at the Planning Commission meeting on
November 19, 2019 and asked why \[Appellant’s counsel\] nor anyone from
the developer’s agency attended that meeting. \[The zoning officer\]
stressed that council was legally obligated to vote at this December
meeting on this plan, regardless of the reasons the developer decided not
to submit a revised development plan. \[The zoning officer\] asked
\[Appellant’s counsel\] what he hoped as an outcome for the vote.
\[Appellant’s counsel\] replied that the developer would be open to an
159
extension if council members agreed to not be biased against the plan.
157
Certified Record, at CP1097-CP1098.
158
Certified Record, at CP1137-CP1143.
159
Certified Record, at CP1137-CP1138.
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2020-00747 CIVIL TERM
Following the receipt of numerous negative comments from the public with regard to the
project, the borough council voted, inter alia, on Appellant’s requested waiver of
160161
preliminary submission requirements and on the latest version of the plan. With
respect to the first issue, the borough’s solicitor, according to the minutes,
stated that the Planning Commission recommended denying the request.
\[The solicitor\] explained that Section 901 of the SALDO allows for
modifications of the standards of the SALDO where literal enforcement will
exact undue hardship due to peculiar conditions on the land in question.
The developer’s written request for waiver asserted that this waiver was
appropriate because “existing supporting infrastructure (is) already in
place. No new streets or significant utility improvements are needed.” This
statement is not consistent with the proposed plan. \[A\] report submitted
with the original plan included a recommendation to “widen and improve
the alley to a three-lane road which will operate as the site driveway.”
Therefore, \[the solicitor\] recommended that Council deny the waiver of
requirements of Camp Hill SALDO Section 403 regarding preliminary
162
plan.
This recommendation was followed and Appellee’s borough council denied the
163
requested waiver.
With respect to action on the plan itself, the borough’s solicitor, according to the
minutes,
explained that Borough Council must decide to approve, conditionally
approve, or deny the plan. If the plan complies with all objective provisions
of the Borough’s Subdivision and Land Development Ordinance (SALDO),
as well as all other applicable regulations, the plan must be approved.
However, if the plan does not comply, Council has discretion to deny the
plan. Council may also approve the plan with conditions. For example, if
permits are required from other government agencies, Council should not
deny the plan but should require the developer to obtain the appropriate
permits as a condition of approval.
160
Certified Record, at CP1139.
161
Certified Record, at CP1140.
162
Certified Record, at CP1139.
163
Certified Record, at CP1139.
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2020-00747 CIVIL TERM
The Borough’s professionals have reviewed and offered comments on the
plan. The comment letters were provided to the developer and posted on
the Borough’s website.
The Planning Commission reviewed the Plan in August. At that meeting,
the developer offered to extend Council’s deadline to act on the plan, to
give the developer time to meet with Borough representatives, respond to
professional review comments, and submit a revised plan. Borough
representatives met with the developer the following week. Legal counsel
for the Borough and the developer negotiated a new schedule for
submission and review of a revised plan, which was approved by Borough
Council in September. However, on October 22, the developer’s attorney
notified the Solicitor that a revised plan will not be submitted.
The Planning Commission met on November 19. The floor was opened,
but no one from the developer appeared or made a presentation to the
Planning Commission. The Planning Commission recommended that
Council deny the Plan. The Planning Commission cited the outstanding
comments in: (i) the review letter of the Borough engineer dated August
19, 2019, (ii) the review letter of the transportation impact study dated
August 19, 2019, (iii) the zoning officer memorandum, amended August
29, 2019, (iv) the review letter of the Post Construction Stormwater
Management Plan, dated August 28, 2019, and (v) the Cumberland
County Subdivision and Land Development Review Report dated
December 20, 2018.
The Planning Commission’s recommendations are advisory and non-
164
binding on Council.
On this issue, as further indicated by the minutes of the borough council meeting,
\[Councilman\] Guerin made a motion \[to\] deny the Preliminary/Final
Subdivision & Land Development Plan for the proposed Chick-fil-A at
3115-3133 Chestnut Street, for the reasons set forth in: (i) the review letter
of the Borough engineer dated August 19, 2019, (ii) the review letter of the
transportation impact study dated August 19, 2019, (iii) the zoning officer
memorandum, amended August 29, 2019, (iv) the review letter of the Post
Construction Stormwater Management Plan, dated August 28, 2019, and
(v) the Cumberland County Subdivision and Land Development Review
Report dated December 20, 2018. \[Councilwoman\] Twiford seconded.
\[Councilman\] Schultz requested clarification that the motion reflected that
council denied the waiver for preliminary plan and \[the borough’s solicitor\]
confirmed that it did. The motion passed with all in favor \[with one
165
abstention\].
164
Certified Record, at CP1139.
165
Certified Record, at CP1140.
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2020-00747 CIVIL TERM
In a written decision dated December 19, 2019, supporting the plan’s denial,
166
Appellee’s borough council enumerated 33 reasons for its action. A number of the
reasons are technical in nature and would not normally rise to the level of irremediable,
fatal defects in the plan. For instance,
3. ZO § 903.A, Table 9-3, distinguishes between parking for fast food
restaurants and sit down restaurants. The Parking Data Table on Sheet 5
was not updated to read “Restaurant, Fast Food Restaurant” instead of
167
“Restaurant.” (Aug 2019 Review Comment No. 17).
4. SALDO § 502.1.B requires that “streets shall be laid out to preserve the
integrity of their design” and that “local access streets shall be laid out to
discourage their use by through traffic.” The plan fails to meet this
requirement because it does not clarify the direction of traffic flow of the
east/west alley and the north/south alley. (SALDO 502.1B) (Aug 2019
168
Review Comment 18).
* * * *
7. ZO 731.C requires the plan to incorporate “the transportation related
improvements required to provide safe and convenient ingress and egress
to the development site.” SALDO § 502.1B provides that “local access
streets shall be laid out to discourage their use by through traffic.” The
plan does not meet these requirements because it fails to incorporate into
the plan the direction of all proposed stop and no thru traffic signs on the
plan to clarify the recommended direction of travel (as utilized and
confirmed in the traffic impact study). (Aug 2019 Review Comment No.
169
22).
17. The plan does not comply with SALDO § 405.2.I . . . because it fails to
remove STOP sign at the internal intersection. (Aug 2019 TIS Revised
Plans Comment No. 3).
18. The plan does not comply with SALDO § 405.2.I because it fails to
remove or properly sign crosswalk at menu boards in order to address
pedestrian safety concerns. (Aug 2019 TIS Revised Plans Comment No.
170
4).
166
Certified Record, at CP1144-CP1148.
167
Certified Record, at CP1144.
168
Certified Record, at CP1145.
169
Certified Record, at CP1145.
170
Certified Record, at CP1147.
49
2020-00747 CIVIL TERM
30. SALDO § 502.11.B requires a valid highway occupancy permit where
applicable. The plan does not meet this requirement because the
developer failed to apply for an HOP from PennDOT for a proposed
mountable curb providing direct access to an old unpermitted driveway
onto S.R. 15 at the location of the East-West Alley (Aug. 29, 2019
171
Comment 3f).
While these purported deficiencies may be technical and remediable in nature, it must
also be noted that Appellant has declined to submit a remediated plan addressing them.
In addition to technical and normally remediable grounds for disapproval, several
of the reasons proffered by Appellee are clearly substantive in nature. For instance, with
respect to compliance with the borough’s zoning ordinance the decision includes the
following reasons for denial of the project as proposed:
12. ZO § 902.D provides “in no case shall there be unrestricted access
from a lot along the length of a street or alley.” The perpendicular parking
spaces proposed along the north/south alley violate this requirement
because they provide unrestricted access from the lot along the length of
the alley. (March 2019 Review Comment No. 7; Aug 2019 TIS Review
Comment No. 7).
24. Based on the definition of “lot line” (ZO § 202), the right-of-way lines of
streets constitute lot lines. The plan does not meet this requirement
because it does not depict lot lines coinciding with the right-of-way lines
for the North-South alley or the East-West alley. (Aug 29, 2019 Comment
172
No. 2a).
25. ZO Table 5-3 requires 30-foot rear yard setbacks. The plan does not
meet this requirement because it fails to measure a 30-foot rear yard
setback from the western edge of the new right-of-way in the CG District.
(Aug 29, 2019 Comment No. 2b).
26. ZO Table 5-3 requires 12-foot side yard setbacks. The plan does not
meet this requirement because it fails to measure a 12-foot side yard
setback from the northern edge of the boundary of the East-West alley.
(ZO Table 5-3) (Aug 29, 2019 Comment No. 2c).
27. Based on the definition of “lot line” (ZO § 202), the right-of-way lines of
streets constitute lot lines. The plan does not meet this requirement
because the plan does not depict any setbacks from the right-of-way lines
171
Certified Record, at CP1148.
172
Certified Record, CP1146-CP1147.
50
2020-00747 CIVIL TERM
from the North-South alley or the East-West alley. (Aug 29, 2019
Comment No. 2d).
28. SALDO § 502 requires streets to conform to certain standards
including but not limited to Table I requirements for minor streets for
industrial/commercial uses. The Proposed “alley R.O.W.” and “access
easement” do not conform to SALDO § 502 for minor streets for
industrial/commercial uses. (Aug. 29, 2019 Comment No. 3c).
29. ZO § 902.D provides “in no case shall there be unrestricted access
from a lot along the length of a street or alley.” The proposed “alley
R.O.W.” and “access easement” do not meet this requirement because
they provide for unrestricted access to the lot along their entire lengths.
173
(Aug 29, 2019 Comment No. 3d).
* * * *
31. ZO Table 5-3 requires 35 foot front yard setbacks. The plan does not
meet this requirement because the front yard setbacks on Chestnut St and
nd
32 St must be 35 feet. (Aug 29, 2019 Comment 4b).
32. If portions of the proposed “alley R.O.W.” and “access easement” are
not part of any alley or street, then the proposed use of the portions of
those driveways on land located within the Low Density Residential
District or High Density Residential Office District for any use not allowed
in those districts under the Zoning Ordinance is prohibited because the
increase in the volume of traffic is not consistent with the current volume
of traffic. (Aug 29, 2019, Comments 5a and 5b).
33. Per above TIS review comments, there is a failure to comply with ZO
174
§ 731. (Aug 29, 2019, Comments 6a-6d).
On other subjects of a substantive nature, the decision includes the following in
its rationale for denial of the plan:
1. SALDO § 407.1A(2) requires the plan to show right-of-way lines of
streets, easements and other rights of way. SALDO 407.1A(5) requires
the plan to show certification of title showing that the applicant is the
owner of land or agent of landowner. The plan does not meet these
requirements because the plan does not provide: (i) a metes and bounds
description for the proposed easement/option area for a driveway and
nd
fence onto the adjacent property (133 South 32 Street LLC); (ii) proof of
right of the applicant to construct the facilities and occupy the area from
property owner. (Dec 2018 Review Comment No 21; Mar 2019 Review
Comment 14; Aug 2019 Review Comment No. 13).
173
Certified Record, at CP1148.
174
Certified Record, at CP1148.
51
2020-00747 CIVIL TERM
2. The plan does not meet the requirements of SALDO § 407.1A(2&5), as
described in the previous paragraph, because the plan does not provide:
(i) a metes and bounds description of the proposed easement for the
nd
drainage facilities onto the adjacent property (133 South 32 Street LLC);
and (ii) proof of the right of the applicant to construct the facilities and
occupy the area from property owner. (Dec 2018 Review Comment No.
21; March 2019 Review Comment No. 14; Aug 2019 Review Comment
175
No. 14).
With this background, Appellant’s land use appeal was filed on January 21,
176
2020. As noted, the grounds for the appeal are that (a) the municipality’s lack of
timely action on his application has resulted in a deemed approval of the project, (b) the
municipality acted in bad faith with respect to the project, and (c) the municipality’s
177
denial of his subdivision and land development plan lacked legal justification.
DISCUSSION
Deemed Approval
Under Section 508 of the Municipalities Planning Code, it is provided as follows:
All applications for approval of a plat . . . , whether preliminary of final,
shall be acted upon by the governing body . . . within such time limits as
may be fixed in the subdivision and land development ordinance but the
governing body . . . 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 . . . 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 . . . 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.
175
Certified Record, at CP1144.
176
Appellant’s Notice of Appeal.
177
Appellant’s Notice of Appeal.
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2020-00747 CIVIL TERM
(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.
53 P.S. §10508(1), (2). Appellee’s subdivision and land development ordinance
178
mirrors this provision.
The state act further provides that a failure of the governing body 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 unless the applicant has
agreed in writing to an extension of time or change in the prescribed
manner of presentation of communication of the decision, in which case,
failure to meet the extended time or change in the manner of presentation
of communication shall have like effect.
53 P.S. §10508(3). Appellee’s subdivision and land development ordinance contains a
179
similar provision.
For purposes of these provisions, a “plat” is defined as “the map or plan of a
180
subdivision or land development, whether preliminary or final.” 53 P.S. §10107(a).
While conceding that Appellee took action within the extended time period to
deny the “plan” in this case, Appellant argues that this was not the equivalent of denying
181
the more inclusive application. Appellant also notes that the written decision issued
did not reference the denial of Appellant’s request for a waiver of preliminary
178
Camp Hill Borough Subdivision and Land Development Ordinance, §406.15, Certified
Record, at CP1549 (hereinafter Subdivision and Land Development Ordinance, §___,
Certified Record, at ___).
179
Subdivision and Land Development Ordinance, §406.16, Certified Record, at CP1549-
CP1550.
180
Subdivision and Land Development Ordinance, §301, Certified Record, at CP1532.
181
Appellant’s Brief, at 18-19.
53
2020-00747 CIVIL TERM
182
submission requirements. As a consequence, it is contended, the “application,”
183
including each of its constituents, has been deemed approved.
This argument is not persuasive. First, by the terms of the applicable statute and
ordinance, the deadline for action by the governing body relates to a decision on
approval of the submitted plat, or “plan.” Second, this understanding of the provisions’
import was common to both parties, as evidenced by Appellant’s reference to the “plan”
in proffers of extensions of the deadline for borough action. Third, as a practical matter,
the rejection of a development plan is the functional equivalent of a denial of the
associated application. Finally, neither the statute nor the ordinance equates a denial of
a request for modification of preliminary submission requirements with a formal
disapproval of a plan, for purposes of the requirement for a written decision defending
the action.
Accordingly, Appellant’s position that his development project has been deemed
approved by Appellee on grounds of untimeliness cannot be sustained.
Good Faith
“A municipality has a legal obligation to proceed in good faith in reviewing and
processing development plans. The duty of good faith includes discussing matters
involving technical requirements or ordinance interpretation with an applicant and
providing an applicant a reasonable opportunity to respond to objections or to modify
plans where there has been a misunderstanding or difference of opinion.” Raum v.
Board of Supervisors of Tredyffrin Township, 370 A.2d 777, 798 (Pa. Cmwlth. 1976)
182
Appellant’s Brief, at 18-19; Appellant’s Reply Brief, at 14.
183
Appellant’s Brief, at 18-19.
54
2020-00747 CIVIL TERM
(bad faith shown in municipality’s deprivation of developer’s rights under prior
adjudication). An example of bad faith can be found in a municipality’s refusal to advise
an applicant on how to cure deficiencies in its plans, as well as the municipality’s
interpretation of its ordinance. Highway Materials, Inc. v. Board of Supervisors of
Whitemarsh Township, 974 A.2d 539 (Pa. Cmwlth. 2009).
However, in Abarbanel v. Solebury Township, 132 Pa.Cmwlth. 326,
572 A.2d 862 (1990), \[the Commonwealth\] Court held that where a
municipality has reviewed plans for the development of property in good
faith, has highlighted the plan’s deficiencies, and has given the developer
an opportunity to cure those deficiencies, the municipality will not be found
to have abused its discretion in denying an application based on failures of
the plan to comply with township ordinances. Further, \[the\] Court
reasoned in Abarbanel that “similar to a municipality’s duty under Raum, a
developer has a reciprocal good faith duty to submit revised plans in a
reasonable and timely manner, which will enable a municipality to comply
with its duties under (Section) 508 (of the MPC) and Raum. \[Abarbanel v.
Solebury Township, 132 Pa. Cmwlth. 326, 331, 572 A.2d 862, 864
(1990)\]. Finally, in Herr \[v. Lancaster County Planning Commission, 155
Pa. Cmwlth. 379, 625 A.2d 164 (1993), the Commonwealth\] Court
concluded that there was no evidence of bad faith where the applicant
was given two weeks to address the deficiencies in its plan and
distinguished Raum as a basis for finding bad faith because the
deficiencies in the plan were substantive rather than the frivolous technical
details cited as a basis for the rejection in Raum.
Delchester Developers, L.P. v. London Grove Township Board of Supervisors, 161 A.3d
1106, 1116 (Pa. Cmwlth. 2017).
In the present case, a number of factors militate against a conclusion that the
borough’s review of Appellant’s land development plan was designed to frustrate or
delay his right to approval. First, the borough acted affirmatively to facilitate Appellant’s
development of the site by transferring a parcel of land at the intersection in question to
him. Second, the municipality initially attempted to accommodate Appellant’s concept
of the site as a non-corner lot, reaching a different conclusion only when it became
obvious that the zoning ordinance could not sustain such a construction.
55
2020-00747 CIVIL TERM
Third, as opposition to the project intensified, the borough issued a public
statement advising the community of the developer’s right to a fair process of review of
the plan, of the right of a property owner to use his or her property in conformity with
applicable zoning designations and regulations, and of the adverse consequences to a
municipality of a failure to respect those rights. Fourth, the borough’s solicitor publicly
advised the municipality of its duty to act in good faith with respect to a review of the
project, of the legal requirement that the plan be approved if it complied with applicable
ordinances and regulations, and of the necessity for conditional approval in appropriate
circumstances.
Fifth, the borough granted every extension proffered by Appellant with respect to
a deadline for action to accommodate revised submissions, and it was Appellant who
ultimately terminated the review process. Finally, and perhaps most important, the
record evidences a conscientious effort by municipal officials and consultants, including
the borough’s planning commission, to properly resolve complex legal and practical
issues presented by a controversial development plan that was significantly
reconfigured during the course of review.
Under these circumstances, support cannot be found for Appellant’s contention
that Appellee acted in bad faith with respect to its review of the project.
Sufficiency of Legal Rationale for Denial of Plan
General principles. A party seeking approval of a land development plan bears
the burden of showing its entitlement to approval. Ball v. Montgomery Township Board
of Supervisors, 598 A.2d 633 (Pa. Cmwlth. 1991).
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2020-00747 CIVIL TERM
On a land use appeal from a governing body’s decision on a land development
plan, “where the court receives no additional evidence, . . . the standard of review is
whether the \[governing body\] committed an abuse of discretion, an error of law, or
made findings that are not supported by substantial evidence.” LTS Development, Inc.
v. Middle Smithfield Township Board of Supervisors, 2003 WL 23864650, at 2 (Monroe
County 2003) (citations omitted); see Wolter v. Board of Supervisors of Tredyffrin
Township, 828 A.2d 1160 (Pa. Cmwlth. 2003).
Where a “plan complies with all objective provisions of the applicable subdivision
\[and land development\] ordinance as well as all other applicable regulations, the plan
must be approved.” Herr v. Lancaster County Planning Commission, 625 A.2d 164, 168
(Pa. Cmwlth. 1993). However, “\[w\]here significant use or zoning issues are apparent on
the face of a site plan application, it does not offend policy to deny approval of the plan
and require the developer to resolve the use or zoning issue first.” Bell Atlantic Mobile
Systems, Inc. v. Zoning Hearing Board of the Township of O’Hara, 676 A.2d 1255, 1263
(Pa. Cmwlth. 1996). Importantly, “\[a\] rejection of the plan may stand . . . if validly
supported by even one of several objections.” Id. at 387, 625 A.2d at 168-69 (emphasis
added).
In this context, courts are instructed to exercise deference “when reviewing a
governing body’s interpretation of the ordinances it enacts and applies.” In re Provoco,
216 A.3d 512, 517-518 (Pa. Cmwlth. 2019).
With respect to split-zoned land, it has been said that, “\[w\]here two adjacent lots
are split-zoned commercial and residential, and the owner proposes a single
commercial use, the appropriate procedure is to request a variance to use the
57
2020-00747 CIVIL TERM
residential parcel for commercial purposes.” Zoning Board of Adjustment of Philadelphia
v. Fun Bun, Inc., 291 A.2d 344, 346 (Pa. Cmwlth. 1972); see LHT Associates, LLC v.
Township of Hampton, 809 A.2d 1072 (Pa. Cmwlth. 2002).
Rear yard setback. Under the Appellee’s zoning ordinance, a corner lot is “\[a\] lot
at the junction of and abutting on two (2) or more intersecting streets, excluding
184185
alleys.” As described by the ordinance, a corner lot has one rear yard.
The rear yard’s “lot line” (the “line that separates the lot from another lot or from a
186
street or any other public or private space”), from which the setback (the required
distance “between a . . . setback line and an abutting lot line or street right-of-way line,
187188
as applicable”) for placement of “a use, structure and/or building” is measured,
“shall coincide with the lot line abutting any alley, otherwise it shall be the lot line
189
opposite the lot line along the street of address,” according to the ordinance.
A “street” includes any way “used or intended to be used for vehicular traffic,”
190
including an alley. A “right-of-way” includes a strip of land “intended to be occupied
191
by a road, street . . . \[or\] other similar uses, whether public or private,” and a “street
184
Zoning Ordinance, §202.A, Certified Record, at CP1214.
185
Zoning Ordinance, §202.A (“LOT, CORNER”), Certified Record, at CP1214.
186
Zoning Ordinance, §202.A (“LOT LINE”), Certified Record, at CP1215 (emphasis added).
187
Zoning Ordinance, §202.A (“SETBACK”), Certified Record, at CP1227.
188
Zoning Ordinance, §202.A (“SETBACK LINE”; “SETBACK, REAR”), Certified Record, at
CP 1227, CP1229.
189
Zoning Ordinance, §202.A (“LOT, CORNER”; “LOT LINE, REAR”), Certified Record, at
CP1214, CP1215).
190
Zoning Ordinance, §202.A (“STREET”), Certified Record, at CP1236.
191
Zoning Ordinance, §202.A (“RIGHT-OF-WAY”), Certified Record, at CP1224 (emphasis
added).
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2020-00747 CIVIL TERM
line/right-of-way line” is “\[a\] line defining the edge of a street right-of-way and separating
192
the street line from an abutting property or lot,” under the ordinance.
The rear yard setback under the ordinance in a General Commercial Zoning
District is 30 feet, “except \[it is\] . . . 40 feet for a new or expanded principal
nonresidential building from a directly abutting residential lot in a Residential Zoning
193
District.”
In the present case, it appears clear that the project site is a corner property for
purposes of Appellee’s zoning ordinance, and that its rear yard is on the eastern side of
the property in which the north/south corridor resides. Appellant’s contention that the
corridor is a street, and therefore not subject to the use restrictions of the Low Density
194
Residential District in which it is partially situated, has been accepted by the borough
195
for the sake of argument. However, a consequence of this proposition, according to
the borough, is that the rear yard setback is to be measured from the street’s right-of-
196
way line, as a species of lot line. It is not disputed that Appellant’s plan does not
197
conform to this interpretation of the ordinance, and Appellant’s contention is that for
setback purposes the lot line “can be either the line separating the lot from another lot
192
Zoning Ordinance, §202.A (“STREET LINE/RIGHT-OF-WAY LINE”), Certified Record, at
CP1236.
193
Zoning Ordinance, Table 5-3, Certified Record, at CP1283.
194
See Strasburg Associates I v. West Bradford Township, 465 A.2d 124 (Pa. Cmwlth. 1983).
195
Appellee’s Brief, at 9.
196
Appellee’s Brief, at 9-11.
197
See Appellant’s Brief, at 15-16; Appellant’s Reply Brief, at 9-11; Appellee’s Brief, at 9-11.
59
2020-00747 CIVIL TERM
or a line separating a lot from a street or a line separating a lot from a public or private
198
space.”
In the court’s view, Appellee’s interpretation of its ordinance is the more
reasonable one. When all of the provisions of the ordinance quoted above are
considered, it does not seem likely that multiple versions of a lot line for purposes of
setback were intended where a developer has employed a street in the project.
Unrestricted lot access along street. While permitting driveways and access
drives with respect to lots, the borough’s zoning ordinance provides that “\[i\]n no case
199
shall there be unrestricted access from a lot along the length of a street or alley.” It
appears that unrestricted-access parking spaces line the north/south corridor on
200
Appellant’s plan to a substantial degree, although not, as Appellant would point
201
out, along its entire length.
The purpose of this proscription in the zoning ordinance is obviously to prevent
the chaotic situation that would result from vehicles moving onto and off streets at
innumerable points along a site’s frontage. As such, Appellee’s interpretation of the
provision to encompass the condition proposed by Appellant seems to the more
practical application of the proscription than the construction that Appellant infers was
intended.
Certification of title. Under Section 407.1.A(5) of the borough’s subdivision and
land development ordinance, final approval of a plan is dependent upon “\[c\]ertification
198
Appellant’s Brief, at 16.
199
Zoning Ordinance, §902.D, Certified Record, at CP1408.
200
Certified Record, at CP0732.
201
See Appellant’s Reply Brief, at 7.
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2020-00747 CIVIL TERM
of title showing that the applicant is the owner of the land, agent of the landowner or
202
tenant with permission of the landowner.” In this case, the development as proposed
appears to be projected onto neighboring property for purposes of a driveway, drainage
and fencing.
Early in the process, the concern of the aforesaid engineering company with
regard to Appellant’s right to extend the project onto adjoining property elicited
Appellant’s promise to submit “\[a\] copy of the drainage easement prior to approval of
203
the final plan.” Subsequently, Appellant’s representative assured the borough that
proof of the owner’s consent for the drainage and fence easement would be provided
204
“once finalized.”
In his brief, Appellant argues that “any disputes between property owners as to
the use of a private easement is a private matter between property owners that cannot
205
justify a land use denial.” In this regard, it is true that a municipality’s governing body
may not premise the denial of a development plan upon the existence of a dispute as to
the scope of an easement possessed by the developer, inasmuch as a court is the
206
proper forum for resolution of such a dispute.
On the other hand, the assertion of at least a colorable claim to entitlement to a
projection of a proposed land development onto adjoining property would appear to be a
reasonable concern of the governing body charged with approval of the plan, and
202
Subdivision and Land Development Ordinance, §407.1.A(5), Certified Record, at CP1551.
203
Certified Record, at CP0429.
204
Certified Record, at CP0724.
205
Appellant’s Reply Brief, at 9.
206
B.R. Associates v. Board of Commissioners of Township of St. Clair, 136 A.3d 548 (Pa.
Cmwlth. 2016).
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authority to act upon this concern is found in the provision of Appellee’s subdivision and
land development ordinance quoted above. Cf. Hummelstown Swim Club v. Borough of
Hummelstown, 2017 WL 2118776, at 11 (Pa. Cmwlth. 2017) (“Council could require that
title issues be resolved before approval of the proposed development.”) (cited pursuant
to Section 414 of the Commonwealth Court’s Internal Operating Procedures).
Accordingly, Appellant’s argument is not persuasive that Appellee committed an
error of law or abuse of discretion in its application of Section 407.1.A(5) of its
subdivision and land development ordinance in declining to give final approval to
Appellant’s plan.
Waiver of preliminary submission requirements. Under Article IV of Appellee’s
Subdivision and Land Development Ordinance, a three-step procedure for review of
most subdivision and land development plans within the borough is provided for. The
207
second step is governed by Sections 404 (Preliminary Plats: Procedure) and 405
208
(Preliminary Plat: Specifications) of the ordinance. This procedure includes
submission of a preliminary plat, including with it the following items, inter alia:
A copy of a report, where deemed necessary by the Borough Council or
Borough Engineer, indicating an estimated volume of vehicular traffic
movement and the adequacy of the proposed and existing streets and
highways to carry the traffic both within and beyond the proposed
development including possible solutions to such problems as may be
thereby identified.
Where the proposed subdivision abuts a State Highway (Pennsylvania
Route or United States Route), evidence in writing from the Pennsylvania
Department of Transportation indicating the Department’s concurrence
207
Subdivision and Land Development Ordinance, §404, Certified Record, at CP1541-
CP1542.
208
Subdivision and Land Development Ordinance, §405, Certified Record, at CP1543-
CP1545.
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with the proposed design for driveway access and drainage required for
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issuance of the Department Highway Occupancy permits.
Review of the project by both the planning commission and the borough council is
contemplated under this procedure, and preliminary approval is effective for a period of
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five years.
A waiver of the requirement for a preliminary plat may be granted by the borough
council if (a) inter alia, the proposed project “is on an existing street and no new streets
211
are involved” or (b) the requirement would impose an undue hardship upon the
applicant due to “peculiar conditions pertaining to the land in question, provided that
such \[a waiver would\] not be contrary to the public interest and that the purpose and
212
intent of \[the ordinance\] would be observed.”
In the present case, where (a) it is more than arguable that the development
involves a new street in the form of the expanded north/south corridor for traffic, (b) an
undue hardship is not implicated by peculiar conditions pertaining to the land, (c)
Appellant elected to make no presentation before the planning commission with respect
to the latest, substantially reconfigured version of the development plan, and (d)
Appellant chose not to address numerous concerns arising out of the revised plan by
way of an amended submission, it cannot be found that the borough council’s
unwillingness to approve the plan as a final plat is an abuse of discretion.
CONCLUSION
209
Subdivision and Land Development Ordinance, §§405.2.I, 405.2.G, Certified Record, at
CP1545.
210
Subdivision and Land Development Ordinance, §404, Certified Record, at CP1541-
CP1542.
211
Subdivision and Land Development Ordinance, §403, Certified Record, at CP1539.
212
Subdivision and Land Development Ordinance, §901.1, Certified Record, at CP1597.
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Appellant’s frustration with the result obtained with respect to the land
development plan sub judice is understandable, given the effort and resources
expended upon it and the perceived early prospect of success, much of the delay in the
approval process was occasioned by Appellant’s initial characterization of the site as a
non-corner lot, a legal position that ultimately proved unsustainable. Based upon the
foregoing, and without exhausting the analysis of other reasons proffered for
disapproval of the plan, including traffic, safety, and front yard setback issues, the
record does not support Appellant’s contentions that the plan has been deemed
approved by operation of law, that Appellee acted in bad faith in its review of the plan,
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or that a legal justification was lacking for denial of the plan.
Accordingly, the following order will be entered:
ORDER OF COURT
th
AND NOW, this 30 day of October, 2020, upon consideration of Appellant’s
Notice of Appeal in the above-captioned case, filed January 21, 2020, following oral
argument held on June 19, 2020, and for the reasons stated in the accompanying
opinion, the appeal is denied.
BY THE COURT,
______________________
Thomas A. Placey C.P.J.
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From an aerial view, not caught up in the unkind and discourteous statements of a minority
of the Camp Hill citizenry, there is merit in the development of these lots for the betterment
of the borough. The attorneys are commended for keeping above that petulant fray and
entreating the citizenry to follow their civil example.
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Helen L. Gemmill, Esq.
Charles M. Courtney, Esq.
McNEES WALLACE & NURICK LLC
100 Pine Street
Harrisburg, PA 17111
Attorneys for Appellant
Joshua D. Bonn, Esq.
NAUMAN, SMITH, SHISSLER & HALL, LLP
th
18 Floor
200 North Third Street
P.O. Box 840
Harrisburg, PA 17108-0840
and
Ronald M. Lucas, Esq.
Ambrose W. Heinz, Esq.
STEVENS & LEE
th
16 Floor
17 N. Second Street
Harrisburg, PA 17101
Attorneys for Appellee
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Appendix, Certified Record 19 sheet 5 of 16-26-Petitioners’ Plan 7 Image taken from Court Ex 1 at CP0732
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