HomeMy WebLinkAbout95-4193 CivilIRVIN E. and THELMA G.
STAMBAUGH,
Appellants
Ve
BOARD OF COMMISSIONERS OF
EAST PENNSBORO TOWNSHIP,
Appellee
and
MICHAEL C. MANNING
& ASSOCIATES,
Intervenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-4193 CIVIL TERM
IN RE: LAND USE APPEAL
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this ~day of July, 1996, upon consideration of
Appellants' land use appeal, and for the reasons stated in the
accompanying opinion, the decision of the Board of Commissioners of
East Pennsboro Township approving
subdivision plan is AFFIRMED.
Intervenor's
preliminary
BY THE COURT,
Dean A. Weidner, Esq.
508 North Second Street
P.O. Box 845
Harrisburg, PA 17108-0845
Attorney for Appellants
Henry F. Coyne, Esq.
Lisa Marie Coyne, Esq.
3901 Market Street
Camp Hill, PA 17011
Attorneys for Appellee
Anthony J. Nestico, ~sq.
One South Market Square Building
213 Market Street
Harrisburg, PA 17101
Attorney for Intervenor
: rc
IRVIN E. and THELMA G.
STAMBAUGH,
Appellants
Ve
BOARD OF COMMISSIONERS OF
EAST PENNSBORO TOWNSHIP,
Appellee
and
MICHAEL C. MANNING
& ASSOCIATES,
Intervenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-4193 CIVIL TERM
IN RE: LAND USE APPEAL
BEFORE OLER, J.
OPINION and ORDER OF COURT
In this land use appeal, the Appellants, Irvin E. Stambaugh
and Thelma G. Stambaugh, are owners of property adjoining a tract
of land proposed for subdivision by the Intervenor, Michael C.
Manning & Associates. Appellants have appealed from approval by
Appellee, the Board of Commissioners of East Pennsboro Township, of
Intervenor's preliminary subdivision plan.
No evidence in addition to that considered by the board of
commissioners has been received by the Court.~ For the reasons
stated in this opinion, the decision of the board approving the
preliminary subdivision plan will be affirmed.
PROCEDURAL HISTORY; FINDINGS OF FACT
On September 26, 1994, Michael C. Manning & Associates filed
an application with the Township of East Pennsboro in Cumberland
County, Pennsylvania, for approval of a preliminary subdivision
See Order of Court, March 22, 1996.
NO. 95-4193 CIVIL TERM
plan. The plan encompassed a 23.12 acre tract of land lying
generally north of Weymouth Drive, south of Sullivan Street, east
of Kent Drive, and west of Acri Meadow Road.2 The proposed
subdivision was designated as "Hickory Ridge, Phase I.''3
Basically, the plan provided for forty-five residential lots
traversed by one north/south road, one east/west road, an existing
storm sewer easement, an existing Pennsylvania Power and Light
Company easement, and a proposed sanitary sewer easement.4
A slightly revised version of the plan was filed with the
township on February 17, 1995.s This filing included an erosion
and sedimentation control plan, which was also submitted to the
Cumberland County Conservation District for approval.6
The preliminary subdivision plan was considered at a meeting
of the township's planning commission on March 2, 1995.7 Following
2 Certified Record, filed September 1, 1995, Item 1
(Preliminary Subdivision Plan for Hickory Ridge, Phase I, submitted
September 26, 1994).
Id.
Id.
s Certified Record, filed September 1, 1995, Item 2
(Preliminary Subdivision Plan for Hickory Ridge, Phase I, submitted
February 17, 1995).
~ Id. at 14; Certified Record, filed January 16, 1996, Item
1 at 3 (Agenda and Minutes of Planning and Zoning Commission's
Meeting of March 2, 1995).
7 Certified RecOrd, filed January 16, 1996, Item 1 (Agenda
and Minutes of Planning and Zoning Commission's Meeting of March 2,
1995).
2
NO. 95-4193 CIVIL TERM
discussion, which included the subject of stormwater calculations
being undertaken by the applicant, the planning commission
recommended that the plan be approved by the township's board of
commissioners.8
The preliminary subdivision plan was further refined in
revisions filed with the township on March 20, 1995 and June 22,
1995.9 These revisions included (a) the addition of a notation on
the plan providing that "a restrictive covenant ... for the purpose
of conserving all woodlands on the steep sloping areas ... shall be
prepared in a form approved by the Township solicitor and shall be
incorporated in the final plan for each lot,''~8 and (b) a change in
the location of the proposed sanitary sewer easement.~
Prior to consideration of the plan by the township's board of
commissioners, the applicant directed inquiries to the Buckeye Pipe
Line Company and to the Pennsylvania Power and Light Company as to
B Id., at 4.
9 Certified Record, filed September 1, 1995, Item 3
(Preliminary Subdivision Plan for Hickory Ridge, Phase I, submitted
March 20, 1995); Certified Record, filed September 1, 1995, Item 4
(Preliminary Subdivision Plan for Hickory Ridge, Phase I, submitted
June 22, 1995).
~0 Certified Record, filed September 1, 1995, Item 3
(Preliminary Subdivision Plan for Hickory Ridge, Phase I, submitted
March 20, 1995).
~ Certified R~cord, filed September 1, 1995, Item 4
(Preliminary Subdivision Plan for Hickory Ridge, Phase I, submitted
June 22, 1995.)
NO. 95-4193 CIVIL TERM
the locations of any public utilities on the site.~2 The former
company reported that it had no underground facilities on the site;
the latter noted that it had power lines located on the site and
indicated that special procedures needed to be followed regarding
the lines.~3
On July 5, 1995, at a regular township meeting, the board of
commissioners reviewed, and eventually voted upon, the preliminary
subdivision plan as revised and filed June 22, 1995.TM The meeting
at which this occurred was not held at the township's community and
municipal center--the location advertised at the beginning of the
year for the board's regular meetings __,~5 but at the West Enola
Fire Company building.~6
The change in location of the meeting was announced to the
public in the July/August 1995 East Pennsboro Township Newsletter.~7
~2 Certified Record, filed May 6, 1996, Item 1 (Memo, dated
September 26, 1994, from Buckeye Pipe Line Company to Michael C.
D'Angelo); Certified Record, filed May 6, 1996, Item 3 (Memo, dated
March 16, 1995, from PP&L to Michael Manning & Associates).
~4 Certified Record, filed September 1, 1995, Item 8 (Minutes
of Board of Commissioners' meeting of July 5, 1995).
~5 Certified Record, filed May 6, 1995, Item 2 (Proof of
Publication of Township Meetings, dated December 29, 1994).
~6 Certified Record, filed September 1, 1995, Item 8 (Minutes
of Board of Commissioners' meeting of July 5, 1995.).
~7 Certified Record, filed May 6, 1996, Item 9 (East Pennsboro
Township Newsletter, July/August 1995).
NO. 95-4193 CIVIL TERM
Notices were also posted at the township's community and municipal
center informing the public of the meeting's location.~8 Among
those who were aware of the change in the location of the meeting
were Appellants, who were represented at the meeting.~9
At the commissioners' meeting, one of the topics of discussion
was the status of a sewer planning module relating to the proposed
subdivision.2° Conditional approval had been given by the
Pennsylvania Department of Environmental Resources (hereinafter
"DER") on June 15, 1995 for a module submitted by the applicant.2~
Although Appellants had filed a notice of appeal and petition for
supersedeas with the Environmental Hearing Board opposing DER
approval of the sewer module, the board decided that, until such
time as a supersedeas was actually granted, the board's decision
regarding the preliminary plan would not be affected by Appellants'
action against DER.~
~8 Certified Record, filed September 1, 1995, Item 6 at 2
(Proof of Publication of Board of Commissioners' Meeting for July
5, 1995 and Notice of Location of Meeting posted in Township
building).
~9 Certified Record, filed September 1, 1995, Item 8 (Minutes
of Board of Commissioners' meeting of July 5, 1995).
Id., at 3, 5-6.
~ Certified Record, filed September 1, 1995, Item 7
dated June 15, 1995, from DER conditionally approving
module).
(Memo,
sewer
~2 Certified Record, filed September 1, 1995, Item 8 at 6
(Minutes of Board of Commissioners' meeting of July 5, 1995).
5
NO. 95-4193 CIVIL TERM
Accordingly, after discussion with the township staff
confirming that the preliminary plan conformed to the requirements
of the East Pennsboro Subdivision and Land Development Ordinance,
the preliminary plan was approved, subject to two conditions: final
DER approval of the sewer planning module, and Cumberland County
soil erosion and sedimentation plan approval.23
On August 4, 1995, one month after approval of the preliminary
subdivision plan by the board of commissioners, pursuant to a
stipulation of settlement agreement entered into by the parties to
the DER sewer module appeal, the applicant agreed to withdraw the
sewer planning module and DER rescinded its conditional approval of
the module.24 The aforesaid actions were without prejudice to the
rights of the parties to refile.~s No action was taken by the board
of commissioners to rescind its approval of the preliminary
subdivision plan as a result of this development.
Appellants challenge the board's approval of the preliminary
subdivision plan on a number of grounds. Appellants contend that
the board abused its discretion by not rescinding approval of the
preliminary plan when DER withdrew its approval of the sewer
planning module. Appellants further contend that board approval of
Id., at 5-6.
~4 Notice of Appeal, paragraph 11. The agreement does not
appear in the Certified Record, but both parties appear to agree to
these facts.
NO. 95-4193 CIVIL TERM
the preliminary subdivision plan was inappropriate because the
preliminary plan failed to comply with the East Pennsboro
Subdivision and Land development Ordinance26 (hereinafter the
Ordinance) in the following ways:
1. Stormwater calculations required by
Sections 302(1)(e)(1)27 and 302(1)(e)(2)~8 of
the Ordinance were allegedly not submitted.
2. The inclusion of a proposed sanitary sewer
easement on the preliminary plan which the
26 East Pennsboro Township Subdivision and Land Development
Ordinance, 82-60 (February 7, 1995).
2v Section 302(1)(e)(1) provides that if the applicant's tract
is located where a flood hazard exists:
The applicant shall prepare a topographic map
of the proposed area with such contour
intervals as the Planning Commission shall
determine to be necessary and shall prepare
drainage plans or flood control devices
satisfactory to the Planning Commission
whenever the Planning Commission shall
consider that such are necessary. No plat
shall be approved for which the Planning
Commission finds that drainage or flood
control protection is necessary until the
Planning Commission shall approve the plans
for drainage and flood control."
Section 302(1)(e)(2) provides that:
Land subject to flooding and/or deemed to be
topographically unsuitable shall not be
platted for residential occupancy, nor for
such other uses as may increase danger of
health, life, or property, or aggravate
erosion or flood hazard. Such land within the
plat shall be set aside on the plat for such
uses as shall not be endangered by periodic or
occasional inundation or shall not produce
unsatisfactory living conditions.
NO. 95-4193 CIVIL TERM
applicant did not own allegedly violated the
requirements of Sections 302(1)(h)29 and
302(2)(b)3° of the Ordinance.
3. The failure to include a Buckeye Pipe Line
Company pipeline on the preliminary plan and
to submit a statement from the Buckeye Pipe
Line Company setting forth special conditions
allegedly violated Sections 302(1)(b)3~ and
514(3) of the Ordinance.32
4. A statement of special conditions from the
Pennsylvania Power and Light Company required
by Section 514(3) of the OrdinanceTM was
allegedly not submitted.
5. A draft of proposed protective covenants
Section 302(1)(h) provides that:
[Applicant shall] present deed references
according to records of office of Recorder of
Deeds; title under which plat is to be
recorded; names and addresses of owners;
acreage, scale, North point, datum,
benchmarks, certification of registered civil
engineer or surveyor, date of survey.
30 Section 302(2)(b) provides in relevant part that the
preliminary plat "shall show all existing conditions required in
'Topographic Data' and shall show all proposals including ...
location, width and purpose [of easements]."
3~ Section 302(1)(b) provides that "location, width and
purpose [of existing easements]" be submitted by the applicant.
Section 514(3) provides that:
Where natural gas, petroleum, or high-tension
lines are located within or adjacent to the
subdivision or land development, the applicant
shall provide the Planning Commission with a
statement from the utility company involved
setting forth any special conditions which
they may r~quire.
8
NO. 95-4193 CIVIL TERM
required by Section 302(5) of the Ordinance34
was allegedly not included on the plan.
6. Applicant allegedly failed to submit the
preliminary plan to the board at least ten
days before the July 5, 1995 meeting as
required by Section 304(3) of the Ordinance.35
7. Applicant failed to supply a bond, deposit
of funds, or other security to cover the cost
of improvements for the development as
allegedly required by Section 703(5) of the
Ordinance.36
34 Section 302(5) provides that the applicant shall submit "[a
draft of protective covenants] whereby the applicant proposes to
regulate land use in the subdivision or land development and
otherwise protect the same."
Section 304(3) provides that:
Ail applications for development shall be
submitted to the Township Manager or his
authorized representative at least ten (10)
days prior to the regular meeting of the
Planning Commission at which it is desired to
seek approval thereof.
Section 703(5) provides that:
Before approving any subdivision or land
development plan the Governing Body shall
require a written agreement that the necessary
grading, paving, street improvements, curbs,
sidewalks, street lights, fire hydrants, water
mains, and sanitary sewers, as may be required
by the Governing Body, shall be installed in
strict accordance with the standards and
specifications by the applicant within a
specified time period. The written agreement
which shall include a bond deposit of funds,
or other securities sufficient in amount as
shall be d~termined by the Municipal Engineer
and acceptable to the Governing Body;, to
cover the cost of such improvements.
9
NO. 95-4193 CIVIL TERM
8. Fees allegedly required by Section 304(2)37
of the Ordinance were not paid.
9. No variances which were allegedly
necessary were formally requested or granted
under the procedures set forth in Section 401
of the Ordinance.38
Finally, Appellants contend that the board's approval was void
37 Section 304(2) provides that "Every application for
approval of a final plan shall be accompanied by a fee payable to
the Township in the sum of [$25.00 for the first 5 lots, $3.50 per
lot for the next 50, $2.00 per lot for the next 100, and $1.00 per
lot for over 155 lots.].
Section 401 provides that:
1. Where, owing to special conditions, a
literal enforcement of the provisions of this
ordinance will result in unreasonable
hardship, the Governing Body may make such
reasonable variances thereto which are in
accordance with modern and evolving principles
of site planning and land development which
are not contrary to the public interest and so
that the spirit of this ordinance shall be
observed and substantial justice done.
2. Applications for any variance shall be
submitted in writing by the applicant at the
time the preliminary plat is filed with the
Commission. The application shall state fully
the grounds and all the facts relied upon by
the applicant.
3. Whenever a variance is requested by the
applicant or is deemed necessary by the
Commission, the Commission shall submit the
preliminary plat and a copy of its findings to
the Governing Body, which reserves the right
of final approval on any such variances.
4. In gra~ting any variance the Governing
Body shall record its action and the grounds
for granting any variance in its minutes.
10
NO. 95-4193 CIVIL TERM
because it violated the Sunshine Act.39 The Court will discuss
these contentions below. 40
DISCUSSION
In land use cases of the present type, where the court of
common pleas takes no additional evidence, the standard of review
is whether the governing body (in this case the board of
commissioners) committed an error of law or a manifest abuse of
discretion. Valley View Civil Ass'n v. Zoning Bd. of Adjustment,
501 Pa. 550, 554, 462 A.2d 637, 639 (1983); South WhitfordAssocs.,
Inc. v. Zoning Hearing Bd. of West Whiteland Township, 157 Pa.
Commw. Ct. 387, 394-5, 630 A.2d 903, 907 (1993); Brauns v.
Swarthmore Borough, 4 Pa. Commw. Ct. 627, 630, 288 A.2d 830, 832
(1972). "If the record does not include findings of fact ... the
court, shall make its own findings of fact based on the record
below .... " Act of July 31, 1968, P.L. 805, No. 247, art. X-A, 65
P.S. Sll005-A (Supp. 1996). It is also pertinent to note that
"municipal officers are presumed to act properly in furtherance of
39 Act of July 3, 1986, P.L. 388, 65 P.S. §§271-86 (Supp.
1996).
40 With respect to Appellants' claims that the township's
zoning map and comprehensive plan are outdated and require
amending; that the preliminary plan does not comply with the
comprehensive plan; and that the board's approval of the
preliminary plan violated Appellants' state and federal
constitutional rights, Appellants have not briefed these issues and
they must therefore be deemed waived. Rule 210-7, adopted November
27, 195, effective J~nuary 1, 1986, Rules of Court of the Ninth
Judicial District, Cumberland County, Pennsylvania, April 1995.
11
NO. 95-4193 CIVIL TERM
the public good." Keystone Sanitation Co., Inc. v. Union Township,
104 Pa. Commw. Ct. 521, 531, 522 A.2d 691, 696 (1987).
With respect to Appellants' claim that the board abused its
discretion by not rescinding its conditional approval of the
preliminary subdivision plan when DER rescinded its conditional
approval of a sewer planning module for the proposed subdivision on
August 4, 1995, it may be observed that, "where a preliminary plan
fails to comply with the substantive requirements of the
subdivision ordinance, its rejection or conditional approval is
within the discretion of the governing body.''4~ "[C]onditional
approval should be granted where objections to an application
concern compliance with other non-subdivision requirements."42
Rejection is appropriate only "where the objections concern
fundamental defects in the plan.''~3
The record indicates that the board approved the preliminary
plan on condition that DER give final approval for a sewer planning
~ Herr v. Lancaster County Planning Comm., 155 Pa. Commw. Ct.
379, 395, 625 A.2d 164, 172 (1993) (emphasis added).
~ Herr v. Lancaster County Planning Comm., 155 Pa. Commw. Ct.
379, 394, 625 A.2d 164, 172; see also Stein v. Eastown Township
Board of Supervisors, 110 Pa. Commw. Ct. 293, 306, 532 A.2d 906,
912 (1987) (approval of a preliminary plan should not be denied
based on need for DER approval); Harrisburg Fore Assocs. v. Lower
Paxton Township, 21 Pa. Commw. 137, 143, 344 A.2d 277, 281-82
(1975) (approval should not be denied based on need for PennDot
permit).
~ Herr v. Lancaster County Planning Comm., 155 Pa. Commw. Ct.
379, 395, 625 A.2d 164, 172 (1993).
12
NO. 95-4193 CIVIL TERM
module for the proposed subdivision.44 The record further indicates
that DER had already given conditional approval for such a sewer
planning module.4s Under these circumstances, it cannot be said
that the board abused its discretion in conditionally approving the
preliminary plan when it did.
Appellants, however, contend that the rescission of the
conditional DER approval of the sewer planning module on August 4,
1995, left the preliminary subdivision plan so substantially flawed
that the board should have taken action on its own initiative to
revoke or rescind its decision of July 5, 1995. In consideration
of the fact that the DER's rescission was prompted by a settlement
agreement and not because the sewer planning module was rejected on
its merits, and that the subdivider did not give up its rights to
submit a new plan, this Court agrees with Appellee that DER's
rescission of its conditional approval of the sewer planning module
did not substantially alter the conditions under which the board
had originally granted conditional approval of the preliminary
plan. Thus, the board did not abuse its discretion by allowing the
conditional approval of the preliminary plan to stand.
With respect to Appellants' position that the preliminary plan
4~ Certified Record, filed September 1, 1995, Item 8 at 6
(Minutes of Board of Commissioners' meeting of July 5, 1995).
~s Certified Re~ord, filed September 1, 1995, Item 7 (Memo,
dated June 15, 1995, from DER conditionally approving sewer
module).
13
NO. 95-4193 CIVIL TERM
failed to comply with the municipality's subdivision and land
development ordinance in nine ways, the Court is unable to agree in
any particular.
First, Appellants contend that the preliminary plan did not
comply with Sections 302(1)(e)(1) and (2) of the Ordinance because
storm water management calculations necessary to support an erosion
and sedimentation control and storm water management plan for the
subdivision were allegedly not submitted, reviewed, or approved
before the Board made its decision. A review of Section 302 of the
Ordinance indicates that Sections 302(1)(e)(1) and (2) apply only
"[i]f the applicant's tract is located where flood hazard exists."
The certified record does not indicate that the proposed
subdivision is located where a flood hazard exists.
Furthermore, without regard to whether the tract in question
is located where a flood hazard exists, it is the rule that a
governing body, such as the board of commissioners, may
conditionally approve a preliminary plan at its discretion,
rejection of the plan being warranted only "where the objections
concern fundamental defects in the plan."46 A review of the record
indicates that storm water calculations were submitted to the
township;47 that an erosion and sedimentation control plan was
~ Herr v. Lancaster County Planning Commn., 155 Pa. Commw.
Ct. 379, 395, 625 A.2d 164, 172 (1993).
~7 Certified Record, filed May 6, 1996, Items 5-8 (Letters of
Transmittal dated September 23, 1994, November 28, 1994, March 20,
14
NO. 95-4193 CIVIL TERM
attached to the preliminary plan and submitted to the Cumberland
County Conservation District;48 that storm water management and
erosion control measures for the subdivision were discussed and
reviewed by township staff prior to the planning commission's
recommendation that the preliminary plan be approved;49 and that the
board's approval of the preliminary plan was conditioned on
Cumberland County soil erosion and sedimentation plan approval.5°
Under these circumstances, it cannot be said that lack of erosion
and sedimentation control and storm water management plan approval
left the preliminary plan so defective that the board's conditional
approval was an abuse of discretion.5~
1995, and June 22, 1995 from Michael C. D'Angelo re: Hickory
Ridge); Certified Record, filed January 16, 1996, Item 1 (Agenda
and minutes of Planning and Zoning Commission's meeting of March 2,
1995).
~8 Certified Record, filed September 1, 1995, Item 2, at 14,
Item 3 at 14, Item 4 at 14 (Preliminary Subdivision Plans for
Hickory Ridge, Phase I, submitted February 17, 1995, March 20,
1995, and June 22, 1995); Certified Record, filed January 16, 1996,
Item 1 (Agenda and Minutes of Planning and Zoning Commission's
meeting of March 2, 1995).
49 Certified Record, filed January 16, 1996, Item 1 (Agenda
and Minutes of Planning and Zoning Commission's Meeting of March 2,
1995).
50 Certified Record, dated September 1, 1995, Item 8 at 6
(Minutes of Board of Commissioners' meeting of July 5, 1995).
~ An erosion and sedimentation control plan was approved by
the Cumberland Count~ Conservation District on October 30, 1995.
Certified Record, fiI%d May 6, 1996, Item 10 (Approval of Erosion
and Sedimentation Control Plan for Hickory Ridge, dated October 30,
1995).
15
NO. 95-4193 CIVIL TERM
Second, Appellants contend that Sections 302(1)(h) and (2)(b)
of the Ordinance were violated because the preliminary plan
included a proposed sanitary sewer easement which the developer did
not own. However, Section 302(2)(b) requires only that the
location, width, and purpose of proposed easements be indicated on
the preliminary plan; it does not require that evidence of
ownership be submitted,s2 Section 302(1)(h) does not pertain to
easements and is thus inapplicable in this case. As Appellants do
not point to any requirements in the Ordinance that evidence of
ownership of easements must be submitted in the preliminary plan,
this part of their argument must also fail.
Third, Appellants allege that the failure to include a Buckeye
Pipe Line Company pipeline on the preliminary plan and to submit a
statement of special conditions from the Buckeye Pipe Line Company
violated Sections 302(1)(b) and 514(e) of the Ordinance. Section
302(1)(b) requires that the location, width and purpose of existing
easements be indicated on the preliminary plan. Section 514(e)
requires the submission of a statement of special conditions from
utilities having natural gas, petroleum, or high-tension lines
located within the subdivision. The record demonstrates that these
claims are without merit as the Buckeye Pipe Line Company had
indicated on September 26, 1994, that it had no underground
52 Though not indluded in the Certified Record, Appellee avers
that a sewer easement has been recorded in the Cumberland County
Recorder of Deeds Office at Miscellaneous Book 514, page 575.
16
NO. 95-4193 CIVIL TERM
facilities at the site.53
Fourth, Appellants
conditions, as required
claim that a statement of special
by Section 514(3) of the Ordinance,
regarding power lines owned by the Pennsylvania Power and Light
Company was not submitted. This claim is also without merit as the
record does include the necessary statement,s4
Fifth, Appellants maintain that the preliminary plan does not
comply with Section 302(5) of the Ordinance, which requires the
submission of a draft of any protective covenants proposed for the
subdivision. While an examination of the record does not indicate
that a formal draft of proposed protective covenants was submitted,
included on the preliminary plan was a note stating that "a
restrictive covenant ... for the purpose of conserving all
woodlands on the steep sloping areas ... shall be prepared in a
form approved by the Township solicitor and shall be incorporated
in the final plan for each lot.''Ss As this note constituted
substantial compliance with the requirements of Section 302(5), it
cannot be said that the board abused its discretion by approving
s3 Certified Record, filed May 6, 1996, Item 1 (Memo, dated
September 26, 1994, from Buckeye Pipe Line company to Michael C.
D'Angelo).
~4 Certified Record, filed May 6, 1996, Item 3 (Memo, dated
March 16, 1995, from PP&L to Michael Manning & Associates).
~ Certified Redord, filed September 1, 1995, Item 4, at 1
(Preliminary Subdivision Plan for Hickory Ridge, Phase I, Submitted
June 22, 1995).
17
NO. 95-4193 CIVIL TERM
the preliminary plan without a formal draft of a proposed covenant
being included.
Sixth, Appellants allege that the preliminary plan approved by
the board on July 5, 1995, was not submitted to the Township
Manager or his authorized representative at least ten days before
the board meeting at which approval was sought, and therefore
violated Section 304(3) of the Ordinance. The record shows that
the preliminary plan approved by the board was received by the
township on June 22, 1995, which was more than ten days prior to
the July 5, 1995, meeting.56
Seventh, Appellants claim that Section 703(5) of the Ordinance
applies to preliminary plans and that the failure of the subdivider
to supply a bond, deposit of funds, or other security to cover the
cost of grading, paving, and other similar improvements to the
township with the preliminary plan as required by Section 703(5)
violated the Ordinance. In view of the fact that a preliminary
plan, as defined by Section 201 of the Ordinance, is "a tentative
subdivision plan ... showing approximately proposed street and lot
layout as a basis for consideration prior to preparation of a final
plan," a requirement that a subdivider raise capital or other
security to make improvements to a subdivision which has not even
passed through the preliminary approval stage would seem an
unlikely municipal ogjective. Appellee's argument that Section
18
NO. 95-4193 CIVIL TERM
703(5) was meant to apply only to final plan submissions is
persuasive, and the failure of the applicant to submit such
security at the preliminary approval stage cannot be said to
violate the Ordinance.
Eighth, Appellants complain that fees required by the township
for the filing of an application for development or approval of a
preliminary plan, as allegedly required by Section 304(2) of the
Ordinance, were not paid. However, Section 304(2) refers to a fee
that is to be paid on a per lot basis by an applicant who is
applying for approval of a final plan and does not appear to apply
to preliminary plan approval. The record contains an account
ledger which demonstrates that all of the requisite fees for
preliminary plan review have been paid.$7
Ninth, Appellants argue that only a formal waiver by the board
could excuse the alleged violations detailed above. Since no
variances were formally requested or granted, as required by
Section 401 of the Ordinance, Appellants maintain that the alleged
waiver of the above requirements by the board violated the
Ordinance. However, because the Court has not concluded that the
Ordinance was violated, it follows that no waivers or variances
were needed.
With respect to Appellants' claim that the board's approval
s7 Certified Record, filed May 6, 1996, Item 4 (Hickory Ridge
Escrow Account Ledger).
19
NO. 95-4193 CIVIL TERM
was void due to a failure to give proper public notice in a
newspaper of general circulation of the date, time, and place of
the July 5, 1995 board of commissioners' meeting, as required by
the Sunshine Act, the Court does not agree,s8 In cases where a
violation of the Sunshine Act is alleged, "should the court
determine that the meeting did not meet the requirements of [the]
act, it may in its discretion find that any or all official action
taken at the meeting shall be invalid.''s9 Thus, even if it is
assumed that there was a violation of the Sunshine Act, the Court
has the discretion to refuse to declare the action void.6° Such a
result is particularly appropriate in cases where the violation was
merely technical and there are no allegations that anyone was
harmed by the non-compliance.6~
A review of the record shows that while the original December,
1994, announcement listed one location for the meeting to be held
on July 5, 1995, the changed location was announced in the
July/August 1995 issue of the East Pennsboro Township newsletter.
58 Act of July 3, 1986, P.L. 388, 65 P.S. ~273, 279 (Supp.
1996).
Id. at ~283 (emphasis added).
6o Bradford Area Education Ass'n. v. Bradford Area School
District, 132 Pa. Commw. Ct. 385, 389, 572 A.2d 1314, 1316
(1990).
6~ In re Petitioh of Bd. of Directors of Hazleton Area School
District, 107 Pa. Commw. 110, 114, 572 A.2d 1314, 1316 (1987);
Bradford, 132 Pa. Commw. Ct. at 385, 389 A.2d at 1316.
20
NO. 95-4193 CIVIL TERM
In addition, notices of the changed location were also posted at
the location originally advertised.62 Finally, Appellants'
representatives knew of the correct location of the July 5, 1995
meeting and were able to attend the meeting and actively voice
Appellants' objections to the preliminary plan at the meeting.63
Thus, since notification of the change of location was given to the
public and Appellants were not harmed by the change, the court will
not, in the exercise of its discretion, rule the board's action
invalid under the Sunshine Act.
For the foregoing reasons, the following order will be
entered:
ORDER OF COURT
AND NOW, this day of July, 1996, upon consideration of
Appellants' land use appeal, and for the reasons stated in the
accompanying opinion, the decision of the Board of Commissioners of
East Pennsboro Township approving Intervenor's preliminary
subdivision plan is AFFIRMED.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
62 Certified Re~ord, filed May 6, 1996, Item 2 (Proof of
Publication of Township Meetings, dated December 29, 1994); Id.,
Item 9 (East Pennsboro Township Newsletter, July/August 1995);
Certified Record, filed September 1, 1995, Item 6 at 2 (Notice of
Location Meeting posted in Township Building).
63 Certified Record, filed September 1, 1995, Item 8 at 2-4
(Minutes of Board of Commissioners' Meeting of July 5, 1995).
21
NO. 95-4193 CIVIL TERM
Dean A. Weidner, Esq.
508 North Second Street
P.O. Box 845
Harrisburg, PA 17108-0845
Attorney for Appellants
Henry F. Coyne, Esq.
Lisa Marie Coyne, Esq.
3901 Market Street
Camp Hill, PA 17011
Attorneys for Appellee
Anthony J. Nestico, Esq.
One South Market Square Building
213 Market Street
Harrisburg, PA 17101
Attorney for Intervenor
: rc
22