HomeMy WebLinkAbout92-4414 CivilSUMMERDALE ENTERPRISES and
CHARLES K. VANDENBURGH, IN THE COURT OF COMMON
Plaintiffs CUMBERLAND COUNTY PEN PLEAS OF
V. NSYLVANIA
BOARDOF COMMISSIONERS OF
CIVIL ACTION - LAW
EAST PENNSBORO TOWNSHIP,
Defendant NO. 4414 CIVIL 1992
IN MANDAMUS
IN RE: DEFENDANT'S PRELIMINARY OBJECTION TO
AMENDED COMPLAINT IN MANDAMUS P LAINTIFFS'
BEFORE SHEELY P.J. and OLER J.
ORDER OF COURT
AND NOW, this (tday of May, 1993 u
Aon careful consideration of Defendant's
Preliminary Abjection to Plaintiffs' Amended Com 1 '
ar
briefs P nt in 1Vlandamus, as well as the
and oral arguments on the matter, Defendant's Preliminary
urinary Objection is
Defendant is granted 20 days within which to file an Answer to Plaintiffs'
Amended Complaint in Mandamus.
BY THE COURT,
J• esley Oler, Jr.
J.
Dean A. Weidner, Esq.
David R. Getz, Esq.
508 North Second Street
P.O. Box 845
Harrisburg, PA 17108
Attorneys for Plaintiffs
James D. Young, Esq.
130 Locust Street
P.O. Box 811
Harrisburg, PA 17108
Attorney for Defendant
Henry F. Coyne, Esq.
3901 Market Street
Camp Hill, PA 17011
Attorney for Defendant
SUMMERDALE ENTERPRISES and IN THE COURT OF COMMON PLEAS OF
CHARLES K VANDENBURGH, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. CIVIL ACTION - LAW
BOARD OF COMMISSIONERS OF
EAST PENNSBORO TOWNSHIP, NO. 4414 CIVIL 1992
Defendant IN MANDAMUS
IN RE: DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFFS'
AMENDED COMPLAINT IN MANDAMUS
BEFORE SHEELY, P.J., and OLER J
OPINION AND ORDER OF COURT
Oler, J.
At issue in the present case is a preliminary objection in the nature of a
demurrer filed by the Board of Commissioners of East Pennsboro Township
(Defendant) to an amended complaint in mandamus filed by Summerdale Enterprises
and Charles K. Vandenburgh (Plaintiffs). For purposes of this Opinion, the facts, as
set forth in Plaintiffs' amended complaint, are as follows:
Summerdale Enterprises is a limited partnership located in Harrisburg,
Pennsylvania.' Charles K. Vandenburgh, who resides in Harrisburg, Pennsylvania,
is the general partner of Summerdale Enterprises.' Summerdale Enterprises and
Vandenburgh are the legal and equitable owners of a tract of land (Property) located
along Belle Vista Road in East Pennsboro Township, Cumberland County,
Pennsylvania.3 The Property consists of 102.81 acres and lies in three different
' Plaintiffs' Amended Complaint, paragraph 1.
2 Plaintiffs' Amended Complaint, paragraphs 2, 3.
3 Plaintiffs' Amended Complaint, paragraph 5.
zoning districts.4
On September 3, 1992, following repeated questions by Defendant as to
Plaintiffs' plans to develop the Property, Plaintiffs submitted a series of five
alternative sketch plans, as well as pre -application data, for the proposed development
of the Property.' These sketch plans and data were submitted pursuant to a township
ordinance which makes the submission of such information a prerequisite to the filing
of a preliminary development plan.' The sketch plans submitted by Plaintiffs
proposed between twenty-five and seventy-three various single-family units, with all
of the proposed units being permitted under the applicable zoning ordinance.' On
September 11, 1992, Plaintiffs submitted five amended sketch plans which made minor
modifications to the original sketch plans.'
On September 11, 1992, the Township held a meeting with Plaintiffs and their
attorney, at which time Plaintiffs were informed that "there was a moratorium on the
Property and on the entire mountain area pending rezoning of the mountain.i'
Subsequently, on September 23, 1992, Plaintiffs attended a meeting of the East
Pennsboro Township Environmental Advisory Committee (EAC) at which Plaintiffs
a Plaintiffs'
Amended Complaint, paragraph 8.
a Plaintiffs'
Amended Complaint, paragraphs 9-11, 17.
6 Plaintiffs'
Amended Complaint, paragraphs 13, 17.
' Plaintiffs'
Amended Complaint, paragraph 12.
S Plaintiffs'
Amended Complaint, paragraph 20.
9 Plaintiffs'
Amended Complaint, paragraph 22.
were permitted to present the five sketch plans.10 Following this presentation,
Plaintiffs were requested to leave the meeting, which they did under protest."
On November 12, 1992, the Planning Commission of East Pennsboro Township
held a meeting to consider the development plans of property adjacent to Plaintiffs'
property. At the same meeting, the Planning Commission also considered Plaintiffs'
sketch plans, although Plaintiffs were not given notice of this fact. 12 During this
meeting, the Township Manager submitted a memorandum to the Planning
Commission suggesting the rejection of Plaintiffs' sketch plans.13 Plaintiffs were
eventually permitted to address the Commission about the sketch plans, and at the
conclusion of this presentation the Commission declined to follow the Township
Manager's recommendation.14 At this time, the Commission did not make any
recommendation as to whether Plaintiffs' sketch plans should be approved.l5
On November 19, 1992, Defendant considered Plaintiffs' sketch plans.18 After
denying Plaintiffs' counsel the opportunity to address the Board, Defendant
unanimously rejected Plaintiffs' plans.17
By letter dated November 20, 1992, the Township Manager formally notified
to Plaintiffs'
Amended Complaint, paragraphs 23-25.
11 Plaintiffs'
Amended Complaint, paragraph 25.
12 Plaintiffs'
Amended Complaint, paragraphs 33, 34.
13 Plaintiffs'
Amended Complaint, paragraph 35.
14 Plaintiffs'
Amended Complaint, paragraphs 36, 37.
15 Plaintiffs'
Amended Complaint, paragraph 37.
's Plaintiffs'
Amended Complaint, paragraph 39.
17 Plaintiffs'
Amended Complaint, paragraph 40.
Plaintiffs that the sketch plans had been rejected.18 This rejection notice listed four
reasons for the rejection of Plaintiffs' sketch plans.19 For three of these reasons, the
letter did not cite to any provision of a statute or ordinance as authority for rejecting
the sketch plans. In stating the fourth reason for the rejection of the sketch plans,
Defendant cited to Section 301(1) of the Township Subdivision Ordinance, which
required that sketch plans submitted for approval contain typical lot widths and
depths, and noted that Plaintiffs' plans did not meet this requirement. However,
Plaintiffs contend that, since there was sufficient information on the sketch plans,
including a scale by which lot dimensions could be ascertained, since the lots depicted
in the plan were of different sizes and thus have no typical depths or widths, and since
Defendant had not "previously required applicants to include lot widths and depths on
sketch plans," the lack of typical lot widths and depths on the sketch plans cannot be
a basis for their rejection.20
Plaintiffs have filed the present mandamus action, requesting the Court to order
Defendant to approve Plaintiffs' five sketch plans,21 and seeking damages associated
with Defendant's actions in failing to reject Plaintiffs' sketch plans in accordance with
the procedures mandated by statute.22 In response, Defendant has filed the present
preliminary objection in the form of a demurrer, contending that "Plaintiffs fail to
18 Plaintiffs' Amended Complaint, paragraph 43.
is Plaintiffs' Amended Complaint, paragraph 47.
20 Plaintiffs' Amended Complaint, paragraph 47.
21 Plaintiffs' Amended Complaint, paragraph 55.
22 Plaintiffs' Amended Complaint, paragraphs 57-59.
allege any clear legal rights they retain," and that as such "[P)laintiffs fail to state a
cause of action upon which relief can be granted."23 For the reasons set forth below,
Defendants' preliminary objection must be denied.
It is well settled in Pennsylvania that in acting on a demurrer, a trial court
must accept as true "all material facts set forth in the complaint as well as all
inferences reasonably deducible therefrom." Eckell v. Wilson, 409 Pa. Super. 132, 135,
597 A.2d 696, 698 (1991), allocatur denied, 530 Pa. 643, 607 A.2d 253 (1992). "The
question presented by a demurrer is whether, on the facts averred in the complaint,
the law says with certainty that no recovery is possible." Vattimo v. Lower Bucks
Hospital, Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232 (1983). "A demurrer should be
sustained only in cases where the plaintiff has clearly failed to state a claim on which
relief may be granted." Eckell v. Wilson, 409 Pa. Super. 132, 135, 597 A.2d 696, 698
(1991), allocatur denied, 530 Pa. 643, 607 A.2d 253 (1992). Moreover, "[i]f there is any
doubt as to whether a claim for relief has been stated, the trial court should resolve
it in favor of overruling the demurrer." Creeger Brick and Building Supply v. Mid -
State Bank and Trust Co., 385 Pa. Super. 30, 33, 560 A.2d 151, 152 (1989).
With respect to an action in mandamus, it has been said that such a remedy "is
appropriate to secure the issuance of a permit where the right to it is clear and the
issuance constitutes no more than the performance of a ministerial act which involves
no discretion in the municipal officer." McCarron v. Upper Gwynedd Twp., 139 Pa.
Commw. 528, 533, 591 A.2d 1151, 1154 (1991). Mandamus has been held to be an
appropriate remedy in circumstances where a municipality's conduct by omission
23 Defendant's Preliminary Objection, paragraphs 5, 6.
supports a determination that approval of a plan is deemed to have occurred,24 and
where a municipality's positive action in rejection a plan is legally insupportable.25
On the issue of deemed approval, Section 508 of the Pennsylvania Municipalities
Planning Code (MPC) provides that "[w]hen the application [for approval of a plat] 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." Act of April 18,
1978, P.L. 30, §1, as reenacted and amended, 53 P.S. §10508(2) (1992 Supp.). Section
508 further specifies that the "[f]ailure of the governing body or agency to render a
decision and communicate it to the applicant ... in the manner required herein shall
be deemed an approval of the application in terms as presented." Act of April 18, 1978,
P.L. 30, §1, as reenacted and amended, 53 P.S. §10-508(3) (1992 Supp.).28
Moreover, although Section 508 mentions only that the requirements therein
apply to preliminary or final development plans, it has been held that, where the
submission of a tentative sketch plan is a mandatory step in the process of obtaining
subdivision approval, the mandatory notice requirements set forth in Section 508
24 See Malone v. West Marlborough Twp., 131 Pa. Commw. 347, 570 A.2d 147 (1990)
25 See Stoner v. Township of Lower Merion, 138 Pa. Commw. 257, 587 A.2d 879 (1991).
Although it has been said that in order to recover in mandamus a plaintiff must show that
there exists no other appropriate and adequate remedy at law [Gaster v. Twp. of Nether
Providence, 124 Pa. Commw. 595, 556 A.2d 947 (1989)], the existence of a land use appeal does
not necessarily foreclose an action in mandamus. See Stoner v. Township of Lower Merion,
138 Pa. Commw. 257, 587 A.2d 879 (1991), allocatur denied, 529 Pa. 660, 604 A.2d 252
(1992).
26 See Rosanelli v. Quakertown Borough Council, 43 Pa. Commw. 420, 402 A.2d 1115
(1979) (holding that Section §508 of the Municipalities Planning Code requires citations to the
specific provisions of the ordinance when an application is not approved).
apply. Board of Commissioners o f Abbington Twp. v. Quaker Construction Company,
65 Pa. Commw. 8, 441 A.2d 801 (1982).27 Thus, if the governing body or agency does
not comply with Section 508, in that it fails to set forth the defects found in the
tentative sketch, or in that it fails to cite the statute or ordinance relied upon in
describing the requirements which have not been met by the tentative sketch, it is
arguable that the sketch will be deemed approved. Id.
On the issue of a legally insupportable rejection, it has been said that "[w]here
the entitlement to a permit is clear, ... then the situation is such that no interpretation
is involved, and the duty to issue the requested permit or approval is a
nondiscretionary one." Stoner v. Township of Lower Merion, 138 Pa. Commw. 257,
269, 587 A.2d 879, 885 (1991), allocatur denied, 529 Pa. 660, 604 A.2d 252 (1992).
Thus, in Stoner the Commonwealth Court reversed a lower court's dismissal of a
landowner's mandamus count against a municipality which had rejected a preliminary
subdivision plan, citing certain ordinance provisions that the appellate court found did
not warrant the rejection. "[T]he availability of mandamus," the Court stated, "... goes
beyond its use in a situation where a public agency has declined to act or make a
decision." Stoner v. Township of Lower Merion, 138 Pa. Commw. 257, 269, 587 A.2d
879, 885 (1991), allocatur denied, 529 Pa. 660, 604 A.2d 252 (1992).
In the present case, Plaintiffs' Amended Complaint avers that "[t]he sketch
plans were submitted pursuant to ... [a township ordinance], which makes a sketch
27 See also Croft v. Board of Supervisors of Middleton Twp., _76 Pa. Commw. 488, 464 A.2d
625 (1983).
plan a mandatory step prior to filing a preliminary plan."28 Thus, the technical
requirements of Section 508 may be considered for present purposes to be applicable
to these sketch plans. As averred in Plaintiffs' Amended Complaint, three of the
reasons which Defendant enumerated in rejecting Plaintiffs' sketch plans fail to cite
to any statute or ordinance upon which the rejection is based.29 Under Section 508,
it is arguable that these reasons are ineffectual to negate approval. With regard to the
Defendant's fourth reason for rejection— that Plaintiffs' sketch plans did not contain
typical lot widths or depths and thus did not comply with the applicable Township
ordinance — we believe that, in light of Plaintiffs' allegations that Defendant has not
required typical lot widths and depths in the past, that the lots depicted in the plans
are of different sizes and therefore have no typical lot widths, and that in any event
the submitted sketch plans contained a legend by which these dimensions could be
determined, an argument can be made that the basis cited for rejection is not legally
supportable."
For these reasons, the Court is not in a position at this early stage of the
proceedings to say that, as a matter of law, Plaintiffs' Amended Complaint fails to set
forth a cause of action upon which relief can be granted. Consequently, Defendant's
preliminary objection must be denied.
2'8 Plaintiffs' Amended Complaint, paragraph 13.
zs Plaintiffs' Amended Complaint, paragraph 47.
30 See, e.g., Carbondale Nursing Home, Inc. v. Commonwealth of Pennsylvania, Dept. of
Public Welfare, 120 Pa. Commw. 186, 188, 548 A.2d 376, 378 (1988) ("Although an agency's
interpretation of its regulations is entitled to substantial weight, deference is inappropriate
where the interpretation is contrary to administrative and decisional precedent"); see also
Leader Nursing Center, Inc. v. Commonwealth o f Pennsylvania, Dept. of Public Welfare, 82 Pa.
Commw. 53, 475 A.2d 859 (1984).
ORDER OF COURT
AND NOW, this&4`day of May, 1993, upon careful consideration of Defendant's
Preliminary Objection to Plaintiffs' Amended Complaint in Mandamus, as well as the
briefs and oral arguments on ' the matter, Defendant's Preliminary Objection is
DENIED.
Defendant is granted 20 days within which to file an Answer to Plaintiffs'
Amended Complaint in Mandamus.
BY THE COURT,
J. Wesley Oler, Jr. J. Ac_
Dean A. Weidner, Esq.
David R. Getz, Esq.
508 North Second Street
P.O. Box 845
Harrisburg, PA 17108
Attorneys for Plaintiffs
James D. Young, Esq.
130 Locust Street
P.O. Box 811
Harrisburg, PA 17108
Attorney for Defendant
Henry F. Coyne, Esq.
3901 Market Street
Camp Hill, PA 17011
Attorney for Defendant