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HomeMy WebLinkAbout2005-2555 Civil PAMELA A. HOLLIDAY, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : KELLI C. CHESTNUT, BRIAN K. : DEITRICH, SCOTT J. PAWLEK AND : TOWNSHIP OF DICKINSON BOARD : OF SUPERVISORS, : DEFENDANTS : 05-2555 CIVIL TERM IN RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT BY PLAINTIFF, PAMELA A. HOLLIDAY, AND DEFENDANT, TOWNSHIP OF DICKINSON BOARD OF SUPERVISORS BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., March 12, 2008:-- July 5, 1994 On , the Board of Supervisors of Dickinson Township approved a final subdivision plan for Mt. Rock Manor which contained three lots, Numbers 17, 18 1 and 19. Plaintiff, Pamela A. Holliday, purchased Lot 18 in 1995, and constructed a home with an address of 103 Lesli Lane. Defendant, Kelli C. Chestnut, lives in a home constructed on Lot 19, at 105 Lesli Lane. Defendants, Brian K. Deitrich and Scott J. May 18, 2005 Pawlek, live in a home constructed on Lot 17, at 101 Lesli Lane. On , plaintiff, Pamela A. Holliday, filed a complaint against Kelli C. Chestnut, Brian K. Deitrich, Scott J. Pawlek and the Township of Dickinson Board of Supervisors. In her complaint against the Township of Dickinson Board of Supervisors, plaintiff seeks the __________ 1 In May 1994, Penn Township had approved a plan for sixteen lots in Mt. Rock Manor that are in Penn Township. 05-2555 CIVIL TERM following relief: (1) Direct Defendant Dickinson Township to immediately remove all dirt, debris, obstructions and rocks from Lesli Lane and to restore it to its original condition so as to allow Plaintiff reasonable and safe access to her property; and (2) Direct Defendant Dickinson Township to complete the installation [sic] Lesli Lane as depicted on the Plan of Lots in accordance with township road specifications and maintain such roadway as a township street so as to allow for the roadway to be reasonably used by Plaintiff, her guests and invitees, as well as municipal service and safety vehicles; and (3) Enter an Order of court directing Defendant Dickinson Township to pay for and assume all costs incurred by Plaintiff to date in improving Lesli Lane to a mud-free and passable condition; and (4) Enter an Order of Court directing Defendant to pay for and assume Plaintiff’s court costs and fees; and (5) Any other relief deemed just and equitable. October 25, 2007 On , defendant, Township of Dickinson Board of Supervisors, January 3, 2008 filed a motion for summary judgment. On , plaintiff filed a motion for summary judgment against defendant, Township of Dickinson Board of Supervisors. February 27, 2008Washington v. The motions were briefed and argued on . In Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary judgment. A court: must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992). In order to withstand a motion for summary judgment, a non-moving party “must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Ertrel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996). -2- 05-2555 CIVIL TERM The plan of Mt. Rock Manor contains a 50 foot right-of-way for Lesli Lane with a 16 foot cartway, a compacted sub grade, six inches of compacted shale on the top of the sub grade and two inches compacted 2A modified stone on top of the shale. The plan sets forth: The 50 foot private right-of-way shall be maintained and repaired by the owners or tenants of Lot 17, 18 and 19. Said maintenance and repairs shall include road bed repair, ice and snow removal, and upkeep of the drainage facilities. If in the future the private right-of way is offered for dedication to Dickinson and Penn Townships the following stipulations shall be met. (1) That the road shall be in a good state of repair as certified by the Engineer, or that the owners of the lots along it agree to include with the offer of dedication sufficient money, as estimated by the Engineer, to pave and/or restore the paving to meet the standards of the Dickinson and Penn Townships Subdivision and Land Development Ordinance. (2) That an offer to dedicate the road shall be made only for the road as a whole. (3) That an agreement to offer the road for dedication by two of three owners of the lot shall be binding on the owner of the remaining lot. (4) All local public street requirements in effect at the time of dedication shall be satisfied. These requirements shall include but not limited to: cartway width, shoulder construction, drainage facilities, and pavement. The expense for meeting these requirements shall be borne equally by the lot owners. This 50 foot right-of-way provides access to Lot 17, 18 and 19 from Mt. Rock Road. It has never been offered for dedication to Dickinson Township. Plaintiff maintains that the Supervisors of Dickinson Township should not have approved the plan of Mt. Rock Manor without requiring that Lesli Lane be constructed pursuant to Sections 400, 1100, 1101 and 1102 of the Dickinson Township Subdivision and Land -3- 05-2555 CIVIL TERM Development Ordinance. Those provisions provide: Section 400. Control of Subdivisions and Land Developments. no subdivision or From and after the effective date of This Ordinance development of any lot, tract or parcel of land with the Township shall be made, and no street, sanitary sewer, storm sewer water main or in connection therewith shall be laid out, constructed, other facility opened or dedicated for public use of travel or for the common use of occupants abutting thereon, except in strict accordance with the provisions of This Ordinance. The subdivider or Section 1100. Construction of Improvements. developer shall grade and pave the streets and install all other necessary improvements at no expense to the township including where required, curbs, sidewalks, water mains, erosion, sedimentation and water management control facilities, sanitary and storm sewers, street lights, fire hydrants, street name signs, and other facilities and utilities required by the Board, in strict accordance with the requirements of this Article and the standards and specifications of the Township. Construction and inspection of all such facilities and utilities shall be subject to inspection by appropriate Township officials during the The subdivider or developer shall not begin progress of the work. work on structures in any part of the subdivision or land development until the streets in that part have been graded to within four inches (4”) of the finished grade. (Emphasis supplied). In lieu of the Section 1101. Guarantee of Improvement Completion. completion of any improvements required as a condition for the final approval of a plat, the Board of Supervisors may accept for deposit with the Township a corporate bond or other acceptable security from the subdivider or developer in an amount sufficient to cover the costs of any improvements which may be required. Such acceptable security shall be renewed after two (2) years or contain an inflationary stipulation. Such bond or other security shall provide for, and secure to the Township, the completion of any improvements which may be required within the period fixed in this Ordinance for such completion. In the case where development is projected over a period of years, the Board of Supervisors may authorize submission of final plats by section or stages of development subject to such requirements or guarantees as to improvements in future sections or stages of development as it finds essential for the protection of any finally approved section of the development. (Emphasis supplied). When the subdivider Section 1102. Release From Improvement Bond. or developer has completed all of the necessary and appropriate -4- 05-2555 CIVIL TERM improvements, the developer shall notify the Board of Supervisors, in writing, by registered or certified mail, of the completion of the aforesaid improvements and shall send a copy thereof to the Township Engineer. The Township Engineer shall inspect the improvements and recommend approval or rejection of the improvements according to the procedure set forth in Action 247 (P.O. 805, July 31, 1968). (Emphasis supplied). Plaintiff argues that Dickinson Township has a duty under the Pennsylvania Municipalities Planning Code, 53 P.S. § 10509, to ensure that the developer of Mt. Rock Manor completed the infrastructure of Lesli Lane pursuant to the requirements in the Township’s Subdivision and Land Development Ordinance. Section 10509(a) provides in pertinent part: No plat shall be finally approved unless the streets shown on such plat have been improved to a mud-free or otherwise permanently passable condition, or improved as may be required by the subdivision and land development ordinance and any walkways, curbs, gutters, street lights, fire hydrants, shade trees, water mains, sanitary sewers, storm sewers and other development ordinance have In lieu of the been installed in accordance with such ordinance. completion of any improvements required as a condition for the final approval of a plat, including improvements or fees required pursuant to section 509(i), the subdivision and land development ordinance shall provide for the deposit with the municipality of financial security in an amount sufficient to cover the costs of such improvements or common amenities including, but not limited to, roads , storm water detention and/or retention basins and other related drainage facilities, recreational facilities, open space improvements, or buffer or screen plantings which may be required. The definition of “street” in Section 10107 of the MPC, provides: Street, “” includes street, avenue, boulevard, road, highway, laneany other ways freeway, parkway, , alley, viaduct and used or whether public or intended to be used by vehicular traffic or pedestrians private. -5- 05-2555 CIVIL TERM Plaintiff argues that the failure of Dickinson Township to ensure that the developer of Mt. Rock Manor constructed Lesli Lane pursuant to the requirements of the Township Ordinance has created a mandatory duty on the Township to now Stivala Investments, Inc. v. South complete the infrastructure at its expense. In Abington Township Board of Supervisors, 815 A.2d 1 (Pa. Commw. 2002), the Commonwealth Court of Pennsylvania stated: Section 503 of the MPC authorizes local municipalities to issue regulations governing the standards by which streets “shall be designed, graded and improved, and walkways, curbs, gutters, street lights, fire hydrants, . . . and other improvements.” 53 P.S. § 10503. While it is the abutting property owner’s responsibility to pay for the first paving, a municipality may condition approval of a subdivision on the requirement that the subdivider or developer improve the street in accordance with its subdivision ordinance. . . . While Section 509 of the MPC does establish a duty upon municipalities to require completion of improvements or secure guarantee thereof as a prerequisite to final approval of a subdivision plot, it must be observed that this code is merely enabling legislation and there must be an implementing ordinance. See P.S. § 10101, Historical Note. When a municipality approves a subdivision plan without requiring completion of streets according to its subdivision ordinance or fails to obtain financial security for completion of the streets in conformity with its subdivision ordinance, as in Safford v. Board of Commissioners, Annville Township, 35 Pa.Cmwlth. 631, 387 A.2d 177 (1978), we have held that in certain instances, the municipality is obligated to complete the streets according to its ordinance at its own expense. The error in plaintiff’s legal position is that the Dickinson Township Subdivision and Land Development Ordinance does not require that Lesli Lane, a private right-of- way, be constructed pursuant to Sections 400, 1100, 1101 and 1102. That is because those sections of the Ordinance apply to streets. Article X in the Dickinson Township Subdivision and Land Development Ordinance sets forth, in Section 1000, the -6- 05-2555 CIVIL TERM standards of design to judge the adequacy of development proposals. Section 1003, which applies to private right-of-ways, provides: g. Access. Streets may be laid out to make provisions for access to all lots and undeveloped areas within the project and the subdivider or developer shall improve these access streets to the limits of the To further this requirement, but to subdivision or land development. also address the development needs of Dickinson Township residents, the following shall apply. Private easementsorrights-of-way controlling access to (1) subdivisions or land developments shall be permitted providing no more than three (3) lots or dwelling unitsare serviced by such private easements or rights-of-way. Furthermore, all private easements or rights-of-way shall have a minimum width of twenty feet (20’) and shall be so noted on the recorded plan. Access by private easements or rights-of-way provided to (2) any subdivision or land development ofmore than three (3) lots or dwelling units shall, as a minimum, be designed as a minor street with a width of fifty feet (50’) in accordance with This and shall comply with Section 1003 (r) Ordinance , Private Streets. (Emphasis added.) Where a plan, such as Mt. Rock Manor, contains only three lots in Dickinson Township, under Section 1003(g)(1) there is no requirement that the private right-of- way comply with the standards otherwise required in the Ordinance for streets. Therefore, under Section 10509 of the MPC, which does apply to public and private streets used for vehicular traffic, there was no requirement for Dickinson Township to require that Lesli Lane be improved to anything other than “a mud-free or otherwise permanently passable condition.” The approved plan for Mt. Rock Manor required that Lesli Lane be constructed with a “compacted sub grade, six inches of compacted shale on the top of the sub grade and two inches of compacted 2A modified stone on top of -7- 05-2555 CIVIL TERM the shale.” There is no evidence that the developer did not comply with this requirement or that the construction did not meet the minimum requirement set forth in Section 10509 of the MPC. What the evidence shows is that over an extended period of time Lesli Lane has deteriorated and is in need of maintenance and repair. That is the responsibility of the owners or tenants of Lots 17, 18 and 19. For the foregoing reasons, the Township of Dickinson Board of Supervisors cannot be required to perform and pay for the relief sought in plaintiff’s complaint. Therefore, the following order is entered. ORDER OF COURT IT IS ORDERED: AND NOW, this _________ day of March, 2008, (1) The motion of plaintiff for summary judgment against defendant, Township of IS DENIED. Dickinson Board of Supervisors, (2) The motion of defendant, Dickinson Township Board of Supervisors, for IS GRANTED. summary judgment against plaintiff, Plaintiff’s complaint against IS DISMISSED. defendant, Dickinson Township Board of Supervisors, By the Court, Edgar B. Bayley, J. Andrew Sheely, Esquire For Plaintiff Mark T. Riley, Esquire For Dickinson Township Board of Supervisors -8- 05-2555 CIVIL TERM E. Ralph Godfrey, Esquire For Kelli Chestnut James Goldsmith, Esquire For Brian K. Deitrich and Scott J. Pawlek :sal -9- PAMELA A. HOLLIDAY, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : KELLI C. CHESTNUT, BRIAN K. : DEITRICH, SCOTT J. PAWLEK AND : TOWNSHIP OF DICKINSON BOARD : OF SUPERVISORS, : DEFENDANTS : 05-2555 CIVIL TERM IN RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT BY PLAINTIFF, PAMELA A. HOLLIDAY, AND DEFENDANT, TOWNSHIP OF DICKINSON BOARD OF SUPERVISORS BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT IT IS ORDERED: AND NOW, this _________ day of March, 2008, (1) The motion of plaintiff for summary judgment against defendant, Township of IS DENIED. Dickinson Board of Supervisors, (2) The motion of defendant, Dickinson Township Board of Supervisors, for IS GRANTED. summary judgment against plaintiff, Plaintiff’s complaint against IS DISMISSED. defendant, Dickinson Township Board of Supervisors, By the Court, Edgar B. Bayley, J. 05-2555 CIVIL TERM Andrew Sheely, Esquire For Plaintiff Mark T. Riley, Esquire For Dickinson Township Board of Supervisors E. Ralph Godfrey, Esquire For Kelli Chestnut James Goldsmith, Esquire For Brian K. Deitrich and Scott J. Pawlek :sal -2-