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HomeMy WebLinkAbout93-1813 Civil LawDONALD GROUP, WILLIAM McCOY, : IN THE COURT OF COMMON PLEAS OF JOAN POSEY and MARJORIE : CUMBERLAND COUNTY, PENNSYLVANIA GROUP, : Appellants : : v. : : BOARD OF SUPERVISORS OF : SOUTH MIDDLETON TOWNSHIP, : CIVIL ACTION - LAW Appellee : : and : : PINE ROAD HEIGHTS CITIZENS : GROUP, ROBERT BEAR and : CLARENCE BRICKER, : Intervenors : NO. 1813 CIVIL 1993 IN RE: LAND USE APPEAL BEFORE BAYLEY* and OLER, JJ. ORDER OF COURT AND NOW, this ~day of February, 1995, upon consideration of Appellants' appeal from Appellee's Decision dated May 12, 1993, disapproving Appellants' revised preliminary subdivision plan for South View Estates, the case is remanded to Appellee for further proceedings consistent with this Opinion. Jurisdiction is RELINQUISHED. BY THE COURT, J. Jr., J. Dale F. Shughart, Jr., Esq. 28 South Pitt Street P.O. Box 208 Carlisle, PA 17013 Attorney for Appellants Edward E. Harker, Esq. Farmers Trust Building One West High Street Carlisle, PA 17013 Attorney for Appellee Charles E. Zaleski, Esq. 10 South Market Square P.O. Box 1265 Harrisburg, PA 17108 Attorney for Intervenors *Bayley, J., did not participate in the consideration or disposition of this case. DONALD GROUP, WILLIAM McCOY, : IN THE COURT OF COMMON PLEAS OF JOAN POSEY and MARJORIE : CUMBERLAND COUNTY, PENNSYLVANIA GROUP, : Appellants : : v. : BOARD OF SUPERVISORS OF : SOUTH MIDDLETON TOWNSHIP, : CIVIL ACTION - LAW Appellee : : and : : PINE ROAD HEIGHTS CITIZENS : GROUP, ROBERT BEAR and : CLARENCE BRICKER, : Intervenors : NO. 1813 CIVIL 1993 IN RE: LAND USE APPEAL BEFORE BAYLEY* and OLER, JJ. OPINION and ORDER OF COURT Oler, J. This case is an appeal by a landowner from a municipality's disapproval'of a preliminary subdivision plan.~ No evidence in addition to that considered by the municipality has been received by the Court.2 ~ See Act of July 31, 1968, P.L. 805, §§1001-A et seq., as added, 53 P.S. SSll01-A et seq. (1994 Supp.) (provisions for land use appeals to courts of common pleas from municipal decisions under article IX of act); id., §909.1(b)(2), as added, 53 P.S. §10909.1 (1994 Supp.) (inclusion in article IX of act of decisions of governing bodies on subdivision plans). 2 See Act of July 31, 1968, P.L. 805, ~1005-A, as added, 53 P.S. §l105-A (1994 Supp.) (provision for receipt of additional evidence in proper case). With respect to the certified record in this case, the court has informally requested counsel to supply of record the following items which appear to be missing from the materials received by the prothonotary: Michael Nawrocki's engineering reports; a videotape submitted by adjoining landowners; the application, decision and appeal relating to the zoning hearing board's determination; and a July 2, 1992, FEMA LOMA. To the No. 1813 CIVIL 1993 STATEMENT OF FACTS The preliminary subdivision plan in question provides for the division of an approximately 64-acre tract into 99 lots for single- family residences.3 Disapproval of the plan has resulted from the municipality's concerns over an abundance of water on the land, including floodwater.4 The history of the plan is briefly summarized as follows: In November of 1988, the owners (Appellants) of a 63.7-acre tract of land in South Middleton Township, Cumberland County, Pennsylvania, filed a preliminary subdivision plan entitled "South View Estates.''~ The tract is situated south of the Pine Road (L.R. 21008) and a creek known as the Yellow Breeches Creek, north of a Conrail railroad track, and west of Pennsylvania State Route 34.6 extent that these items have not been filed prior to issuance of this Opinion, it is suggested that they be made part of the record before Appellee during proceedings conducted pursuant to the remand ordered herein. 3 Certified Record, Preliminary Subdivision Plan for South View Estates (Feb. 10, 1993, revision). ~ See Certified Record, Decision [of Board of Supervisors], May 12, 1993. s Certified Record, Preliminary Subdivision Plan for South View Estates (Feb. 10, 1993, revision); Group v. Bd. of Supervisors, No. 1927 C.D. 1989 (Aug. 9, 1990) (slip. op. at 2). It is believed that the latter unreported memorandum opinion of the Commonwealth Court may be cited under Section 414 of the Court's Internal Operating Procedures as involving the same case. 6 Certified Record, Preliminary Subdivision Plan for South View Estates (Feb. 10, 1993, revision); id., Flood Insurance Rate Map (FIRM) (July 9, 1992, revision). 2 No. 1813 CIVIL 1993 From the inception of the plan, the township found itself apprehensive about the potential for water on parts of the tract.7 This concern was summarized almost five years later, in April of 1993, by a statement of Township Supervisor Jim Baker: [W]e've been dealing with this for four and a half years, ... Mr. Mortimer [a second supervisor] and I have. And we're more well aware of it. And I think the reason we've been dealing with it four and a half years is we're just trying to put a square peg in a round hole. It's just - there is a hundred houses for this [water-susceptible] area and it's just unbelievable.8 The preliminary plan was initially disapproved by the Board of Supervisors (Appellee) in February of 1989.9 The reasons given for disapproval focused upon flood plain, flood-proneness, and stormwater considerations.~° The landowners appealed the board's decision to the Court of Common Pleas, which affirmed the decision in September of 1989.~ The Court noted that "certain lots in the northeastern corner of the development [appear to be] subject to 7 See Certified Record, Minutes, Bd. of Supervisors, January 5, 1988, et seq.; id., Minutes, Planning Commission, December 8, 1989, et seq. 8 Transcript at 39, Bd. of Supervisor's Meeting, April 29, 1993. 9 Certified Record, Minutes, Bd. of Supervisors, February 2, 1989; Group v. Bd. of Supervisors, 40 Cumb. L.J. 6, 7 (1989). ~0 Certified Record, Minutes, Bd. of Supervisors Meeting, February 2, 1989. ~ Group v. Bd. of Supervisors, 40 Cumb. L.J. 6 (1989). 3 No. 1813 CIVIL 1993 inundation in the 100-year flood," and that, "[a]t the very least, an interpretation of the boundaries of the Flood Plain Area is far from clear and, more importantly, the Township's decision that a portion of the subdivision lies in the flood plain can hardly be described as involving such a conclusion concerning the facts as would constitute an abuse of discretion or a violation of the law...~2 The landowners appealed to the Commonwealth Court. In August of 1990, the Commonwealth Court, observing that the plan had been disapproved by the supervisors largely because of a finding that part of the tract was in a flood plain area, reversed the decision and remanded the case for a determination by the township's zoning hearing board of the exact boundaries of the flood plain.~3 By November of 1990, it apparently was the opinion of the landowners and the township that the Federal Emergency Management Agency (FEMA) should be requested to map the flood plain boundary in a manner assuring conformity with a certain flood insurance study.TM The process of FEMAreview eventually included an analysis Group v. Bd. of Supervisors, 40 Cumb. L.J. 6, 10 (1987). Group v. Bd. of Supervisors, No. 1927 C.D. 1989 (August 9, 1990). See Certified Record, Letter of Dale F. Shughart, Jr., Esq., dated November 1, 1990; id., Letter of Edward W. Harker, Esq., dated November 16, 1990. 4 No. 1813 CIVIL 1993 of new data with a view toward revision of the boundary.~s By May of 1992, however, release of a newly-formulated boundary was still pending.~ In that month, the zoning hearing board, presumably desirous of giving effect to the Commonwealth Court's decision without further delay, made its own determination as to the flood plain boundary.~7 The township, however, was not satisfied with the boundary as determined by the zoning hearing board, inasmuch as the board drew the line without regard to elevations of the land.~8 Consequently, the township filed an appeal from the zoning hearing board's decision regarding the flood plain boundary to this Court.~9 With this appeal pending, in December of 1992 FEMA issued a letter of map revision (LOMR) which reflected, in the agency's words, "a redelineation of the Yellow Breeches Creek 100-year ~ See Certified Record, Letter of William R. Locke, Chief, Risk Studies Division, Federal Insurance Administration, dated June 20, 1991. ~ See Certified Record, Letter of William R. Locke, Chief, Risk Studies Division, Federal Insurance Administration, dated December 16, 1992. ~7 Certified Record, Minutes, Board of Supervisors, May 19, 1992; Notice of Appeal from zoning hearing board decision, paragraph 4, Bd. of Supervisors v. South Middleton Township Zoning Hearing Board, No. 2222 Civil 1992 (filed June 18, 1992). ~8 Notice of Appeal from zoning hearing board decision, paragraph 4, Bd. of Supervisors v. South Middleton Township Zoning Hearing Board, No. 2222 Civil 1992 (filed June 18, 1992). ~9 Bd. of Supervisors v. South Middleton Township Zoning Hearing Board, No. 2222 Civil 1992. 5 No. 1813 CIVIL 1993 floodplain in the vicinity of the proposed Southview Estates development."2° In part, the letter stated as follows: Based on our review of the submitted data, we are issuing this LOMR to reduce the 100-year floodplain (Zones A3 and A4) along Yellow Breeches Creek from a point approximately 1.3 miles downstream of the corporate limits to a point approximately 0.6 mile downstream of the corporate limits. Please note that the base (100-year) flood elevations of Yellow Breeches Creek remain unchanged.2~ The letter noted that the proposed Southview Estates development was located approximately 0.7 mile downstream of the corporate limits.22 In addition, the FEMA letter stated the following: [A]n overland flow area south of Pine Road exists as a result of a swale flowing toward Yellow Breeches Creek. This overland flow is shown on the FIRM [Flood Insurance Rate Map] as Zone B because it is an area of 100-year flooding with a drainage area less than one square mile and with average depths of less than one foot as defined on the Township of South Middleton FIRM.23 20 Certified Record, Letter fromWilliamR. Locke, Chief, Risk Studies Division, Federal Insurance Administration, dated December 16, 1992. 2~ Certified Record, Letter from William R. Locke, Chief, Risk Studies Division, Federal Insurance Administration, dated December 16, 1992. 22 Certified Record, Letter from William R. Locke, Chief, Risk Studies Division, Federal Insurance Administration, dated December 16, 1992. 23 Certified Record, Letter fromWilliamR. Locke, Chief, Risk Studies Division, Federal Insurance Administration, dated December 16, 1992. 6 No. 1813 CIVIL 1993 Notwithstanding the absence of a decision on the township's appeal from the boundary decision of the zoning hearing board, and apparently with the view that the LOMR from FEMA did not require reflection on the plan,24 the landowners chose to submit a revised preliminary plan, dated February 10, 1993, to the township,25 intended to show the flood plain boundary in conformity with the decision of the zoning hearing board.~ This revised plan was considered at a meeting of the township supervisors on April 29, 1993, and disapproved unanimously.27 The written decision of the board, dated May 12, 1993, is attached to this Opinion as an Appendix. As was the case with the previous disapproval of the plan, the propriety of the decision depended in large part upon a proper delineation of the flood plain boundary. The landowners have appealed from the decision of the board disapproving the preliminary plan.28 However, on January 30, 1995, ~4 See Transcript at 42-44, Bd. of Supervisors Meeting, April 29, 1993. ~s This action of the landowners was obviously taken in the interest of expediting the plan review process and involved a calculated risk as to the outcome of the township's appeal of the zoning hearing board's decision. Appellants' Brief, at 3. ~6 Certified Record, Preliminary Subdivision Plan for South View Estates (Feb. 10, 1993, revision); Transcript at 18, Bd. of Supervisors Meeting, April 29, 1993; Appellants' Brief, at 2. ~7 Transcript at 57, Bd. of Supervisors Meeting, April 29, 1993; Certified Record, Minutes, Bd. of Supervisors, April 29, 1993. ~8 Notice of Appeal, filed May 28, 1993. 7 No. 1813 CIVIL 1993 a decision affecting this appeal was issued by the Honorable George E. Hoffer of this Court on the township's appeal from the boundary decision of the zoning hearing board.29 In Board of Supervisors v. South Middleton Township Zoning Hearing Board, No. 2222 Civil 1992 (January 30, 1995), Judge Hoffer held, upon an analysis of the township's zoning ordinance, that the boundary in question should have been determined on the basis of elevation data.3° Accordingly, the Court remanded the case to the zoning hearing board for a boundary redetermination on this basis.3~ A collateral benefit of the remand, the Court noted, would be the provision of an opportunity for the zoning hearing board to consider FEMA determinations not available at the time of its earlier decision.32 In the present case, both the revised preliminary plan submitted by Appellants and Appellee's decision on the plan were 29 See Opinion and Order of Court, January 30, 1995, Bd. of Supervisors v. South Middleton Township Zoning Hearing Bd., No. 2222 Civil 1992. 30 In so holding, the Court noted that "[t]he ordinance states · .. that 'elevation, rather than location relative to the 100-year flood boundary, shall be the determining factor as to the definition of the Flood-Fringe District.'" Bd. of Supervisors v. South Middleton Township Zoning Hearing Bd., No. 2222 Civil 1992 (January 30, 1995) (slip op. at 3). 3~ Order of Court, January 30, 1995, Bd. of Supervisors v. South Middleton Township Zoning Hearing Bd., No. 2222 Civil 1992. ~2 Bd. of Supervisors v. South Middleton Township Zoning Hearing Bd., No. 2222 Civil 1992 (January 30, 1995) (slip op. at 4). 8 No. 1813 CIVIL 1993 predicated upon a boundary which is now to be redetermined. For this reason, the case must be remanded to Appellee for further action at such time as a revised preliminary plan is submitted by Appellant pursuant to a new boundary determination by the zoning hearing board in accordance with the Opinion issued by Judge Hoffer. ORDER OF COURT AND NOW, this day of February, 1995, upon consideration of Appellants' appeal from Appellee's Decision dated May 12, 1993, disapproving Appellants' revised preliminary subdivision plan for South View Estates, the case is remanded to Appellee for further proceedings consistent with this Opinion. Jurisdiction is RELINQUISHED. BY THE COURT, J. Wesley Oler, Jr., J. Dale F. Shughart, Jr., Esq. 28 South Pitt Street P.O. Box 208 Carlisle, PA 17013 Attorney for Appellants Edward E. Harker, Esq. Farmers Trust Building One West High Street Carlisle, PA 17013 Attorney for Appellee 9 No. 1813 CIVIL 1993 Charles E. Zaleski, Esq. 10 South Market Square P.O. Box 1265 Harrisburg, PA 17108 Attorney for Intervenors : rc 10