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Home My WebLink About2009-8295 GAUGHEN, LLC, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 09-8295 CIVIL BOROUGH COUNCIL OF THE : BOROUGH OF : MECHANICSBURG, : Defendant : IN RE: PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, P.J. AND MASLAND, J. OPINION AND ORDER On November 26, 2008, the plaintiff submitted to defendant an application for approval of a preliminary/final land development plan for an apartment complex. The plan was placed on the agenda for the next regularly scheduled meeting of the defendant on December 10, 2008. Plaintiff argues that pursuant to the Mechanicsburg Subdivision and Land Development Ordinance (SALDO), a decision on plaintiff’s development plan was due and required to have been communicated to plaintiff on or before February 24, 2009. As no decision was rendered or communicated to plaintiff by February 24, 2009, and pursuant to the SALDO, as well as the Pennsylvania Municipalities Planning Code (MPC), plaintiff believes that the development plan was thereby automatically “deemed approved.” Defendant maintains that the SALDO and the MPC indicate that the ninety-day automatic approval period would not begin to run until “receipt” of the plan at the next regularly scheduled meeting of the defendant, which in this case occurred on December 10, 2008. Therefore, defendant argues that any ninety-day period for automatic approval would not have run until March 10, 209. Pennsylvania Rule of Civil Procedure 1034 provides that: (a) After the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings. (b)The court shall enter such judgment or order as shall be proper on the pleadings. A motion for judgment on the pleadings may be granted only when there are no disputed facts, the moving party’s right to succeed is certain, and the case is so free from doubt that a trial would be a fruitless exercise. Beardell v. Western Wayne School District, 91 Pa.Cmwlth. 348, 496 A.2d 1373 (1985). When considering a motion for judgment on the pleadings, the court must consider the pleadings and relevant documents, including preliminary objections, and must accept as true all well-pleaded statements of fact, admissions and any documents properly attached to the pleadings presented by the non-moving party. Id. In the present case, several material issues are disputed. The most salient concerns the question of when the ninety-day automatic approval period begins to run as set forth in the SALDO and the MPC. The MPC provides, in relevant part, as follows: Section 508. Approval of Plats. All applications for approval of a plat … whether preliminary or final, shall be acted upon by the governing body or planning agency within such time limits as may be fixed in the subdivision and land development ordinance but the governing body or the planning agency shall render its decision and communicate it to the applicant not later than 90 days following the date of the regular meeting of the governing body or the planning agency (whichever first reviews the application) next following the date the application is filed … (1)The decision of the governing body or the planning agency shall be in writing and shall be 2 communicated to the applicant personally or mailed to him at his last known address not later than 15 days following the decision … (3)Failure of the governing body or the planning agency to render a decision and communicate it to the applicant within the time and 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 manner of presentation of communication shall have like effect. 53 P.S. § 10508. The SALDO, in effect at the time the development plan was submitted provides, in relevant part, as follows: §22-402(3) Submission of Plan, Time Limits and Public Hearings (2)Preliminary and final plans shall be acted on by the Borough Council and the decision shall be in writing and shall be communicated to the applicant or mailed to him at his last known address within 90 days from the date such application is filed in the office of the Borough Manager. §220493(11) Preliminary Plan (11) Failure of the Borough Council to act on the preliminary plan submission and to notify the applicant of its action within 90 days of their receipt of said submission shall constitute automatic approval. §22-404(10) Final Plan (10) Failure of the Borough Council to act on the 3 final plan submission and to notify the applicant of its action within 90 days of the filing of said plan shall constitute automatic approval. Mechanicsburg Subdivision and Land Development Ordinance, Section 22-402 through 22-404. Plaintiff argues in its amended complaint that the development plan submitted on November 26, 2008, was automatically deemed approved ninety days later, on February 24, 2009, as required by SALDO § 22-403(11), because defendant failed to take the mandatory official action necessary. This section confers that the operative date for the ninety days to begin running occurs upon receipt of the preliminary plan. However, in its motion for judgment on the pleadings and in subsequent filings, plaintiff also cites to the language in § 22-402(3), which states that the time frame for defendant to respond, begins to toll “90 days [from the date] of the filing of said plan with the Borough Manager.” Defendant correctly notes that under the MPC, the ninety-day deadline does not begin to run until the next regular meeting of the governing body or planning agency, following the date the application is filed, which, in the instant action, took place on December 10, 2008. As such, defendant argues that the earliest date by which a decision was due, was March 10, 2009. Defendant maintains that § 22-403(11) of the SALDO is consistent with the relevant language in the MPC, in that “receipt” of the submission occurs at the “date of the regular meeting.” Plaintiff, however, believes that the deadlines under the SALDO and the MPC are two different dates, and the language of the MPC is preempted by the SALDO. Under the SALDO, in order for a deemed approval to have occurred, the defendant must have failed to act and notify plaintiff of its action within ninety days of their “receipt” of the submission, as stated in § 22-403(11). The language in § 22-402(3) is inapposite, because it does 4 not contain a deemed approval provision. In LVGC Partners, LP v. Jackson Township Board of Supervisors, 948 A.2d 235 (Pa.Cmwlth. 2008), the court held that violating the SALDO provision which required a shorter time period for the governing body or planning agency to act than that found in the MPC, did not constitute a deemed approval because the ordinance did not contain a deemed approval provision. “Because the deemed approval only applies to the fifteen- day period set forth in the MPC, we cannot graft a deemed approval provision into Section 22- 303(3)(E) to penalize the Board’s procedural tardiness where such is expressly lacking.” Id. at 238. in the case sub judice, the parties differ on whether the plan was received when it was submitted on November 26, 2008, or at the next regularly scheduled meeting on December 10, 2008. In this regard, defendant alleges that plaintiff’s preliminary plan did not conform to the requirements of the SALDO. This is important because the SALDO states: No application shall be considered as filed for the purpose of this chapter unless the same conforms in every respect to the requirements of this ordinance. The acceptance of an application by a Borough official does not waive the requirement that it conforms in every respect to this ordinance. § 22-402(2). Defendant maintains that plaintiff’s preliminary plan, submitted on November 26, 2008, did not conform to all of the requirements of the SALDO and, therefore, the plan was tabled at the December 10, 2008 Planning Commission meeting. During the meeting, multiple concerns were discussed regarding plaintiff’s plan, including concerns with parking, the need for a fifteen (15)-foot-wide buffer yard, concerns as to lot and sidewalk width, the need for a possible traffic impact study, the need for additional trees and clarification as to identification of the plan submission as a single-family or multi-family development. 5 Furthermore, defendant claims to have received a written extension from plaintiff on February 25, 2009. The deemed approval provision in the MPC states that a party may surpass the ninety-day time limit if the “applicant has agreed in writing to an extension of time…” 53 P.S. § 10508(3). If the ninety-day period to respond expired on February 24, 2009, as argued by plaintiff, this argument is moot. If, on the other hand, the ninety-day period to respond expired on March 10, 2009, it then becomes necessary to determine if a written extension was properly obtained, a matter which not surprisingly is disputed by the parties. Defendant argues that on February 25, 2009, it contacted plaintiff’s engineer, Thomas Scully, and he returned a signed written extension as the authorized representative and agent for plaintiff. Defendant claims that Mr. Scully signed the extension as an authorized agent of plaintiff and that he held himself out, expressly and impliedly, as plaintiff’s agent with respect to development plan matters. Plaintiff argues that Mr. Scully had no authority, actual or implied, to grant an extension of time. To bolster its argument, plaintiff points to the fact that on February 24, 2009, an employee of defendant, Ms. Trish Hammaker, called Kevin Gaughen (officer of plaintiff) directly, during which Ms. Hammaker requested an extension of time. Mr. Gaughen allegedly denied that request in the telephone conversation. Plaintiff claims that regardless of whether defendant believed that Mr. Scully had expressed or implied agency status, once defendant asked plaintiff for the extension and having received a denial, defendant is then prohibited from arguing that they believed in good faith that Mr. Scully had the authority to contradict Mr. Gaughen. It is clear that this case is rife with fact-sensitive legal issues. Accordingly, in the absence of a full factual record, it is inappropriate to grant a judgment based on the pleadings alone. 6 ORDER th AND NOW, this 18 day of May, 2011, the plaintiff’s motion for judgment on the pleadings is DENIED. The defendant’s cross-motion for judgment on the pleadings is DENIED. Defendant’s cross-motion to dismiss plaintiff’s amended complaint with prejudice is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Steven R. Snyder, Esquire For the Plaintiff John P. Gonzales, Esquire For the Defendant :rlm 7 GAUGHEN, LLC, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 09-8295 CIVIL BOROUGH COUNCIL OF THE : BOROUGH OF : MECHANICSBURG, : Defendant : IN RE: PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, P.J. AND MASLAND, J. ORDER th AND NOW, this 18 day of May, 2011, the plaintiff’s motion for judgment on the pleadings is DENIED. The defendant’s cross-motion for judgment on the pleadings is DENIED. Defendant’s cross-motion to dismiss plaintiff’s amended complaint with prejudice is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Steven R. Snyder, Esquire For the Plaintiff John P. Gonzales, Esquire For the Defendant :rlm