November 2008 Land Use Update
Land Use Case Update- November 6, 2008
Tobin v.
(Decided: July 31, 2008)
Facts: Michael T. Tobin (“Tobin”) and Kenneth Styer (“Styer”) (collectively, “Landowners”) purchased a 42-acre parcel of agricultural land in Centre Township, Berks County (“Township”), which was located in an R-2 Residential Zoning District. Since 1990, and continuing to the present, this parcel had been farmed by the Landowners pursuant to various leases. After the Landowners purchased the parcel, they granted Tobin Contractors the exclusive right to develop the property.
The Landowners filed a sketch plan with the Township to develop part of the property into a development to be called “Lincolntown Estates” and Tobin Contractors filed a sketch plan with the Township to develop the remainder of the property into a development to be called “Janos Estates.” Collectively, the two plans contemplated the construction of 369 homes, consisting of townhouses, duplexes and single residences. When the Landowners’ sketch plans were filed in 1989, the Township’s fee schedule for the review of land development plans (“1989 fee schedule”) was as follows: $500 for review of a residential subdivision sketch plan; $500 plus $100 per dwelling unit for review of a residential subdivision preliminary plan; and $500 for review of a final plan. This fee schedule imposed a fee upon the Landowners of $500 for review of their sketch plan; $37,400 for review of their preliminary plan; and $4,500 for review of their final plan.
In 1990, the Board revised its fees for reviewing land development plans (“1990 fee schedule”). Under the 1990 fee schedule, the Township charged developers $500 plus $250 per dwelling unit for a sketch plan; $500 plus $250 per dwelling unit for a preliminary plan; and $4,500 plus $100 per dwelling unit for a final plan. The 1990 fee schedule imposed a fee upon the Landowners in the amount of $92,750 for review of their preliminary plan and $37,400 for review of their final plan. According to the Joint Planning Commission (“Commission”), the fees were increased because the Commission had reviewed too many plans where the fees were inadequate, leaving the Commission without the funds to pay the costs it incurred for consulting engineers and performing percolation and other sewage-related tests.
Landowners submitted a preliminary plan to the Township and to the Commission without including the 1990 fee of $92,750 required to be tendered at the time of filing. Landowners proffered the fee owed under the 1989 fee schedule, along with a letter disputing the 1990 fee schedule and offering to negotiate a reasonable fee. The Commission voted not to accept the Landowners’ preliminary plan because it had not been accompanied by the proper fee. Both sides attempted to negotiate the proper fees, but failed to reach an agreement.
Tobin Contractors and the Landowners filed petitions to appoint a board of viewers, alleging a de facto taking by the Township and requested a determination of just compensation. A hearing took place and the record included the fees charged for review of a preliminary plan submitted by Glen Sandritter (“Sandritter”) for a proposed development consisting of 97 single-family homes, 24 multi-family homes and 6 commercial lots. Sandritter was charged a $3,000 fee for review of his preliminary plan. Under the 1990 fee schedule, which was in effect when Sandritter filed his plan, Sandritter’s plan required a fee of $30,750.
After the hearing, the trial court granted the Landowners’ and Tobin Contractors’ petitions for appointment of a board of viewers. The trial court found that the 1990 fee schedule imposed oppressive and unreasonable fees and, further, the Township should have reviewed the Landowners’ preliminary plan when filed in 1991, during which review of the amount of fees could have been resolved by negotiation. Based upon the fees charged to Sandritter, the trial court found that the 1990 fee schedule was inconsistently enforced and its adoption by the Commission to be “suspicious.” The Township appealed the trial court’s ruling to the Commonwealth Court.
Commonwealth Court Decision: The Commonwealth Court reversed the trial court, finding that a de facto taking did not occur because the Township’s regulation did not substantially deprive the Landowners and Tobin Contractors of the beneficial use and enjoyment of the property. The Court pointed to the fact that the Landowners were using their land for farming during the entire period of time in question and that there were other development opportunities available to the Landowners that would have been less costly to review under the 1990 fee schedule. Furthermore, the Court held that the 1990 fee schedule did not prohibit the Landowners from pursuing their planned development; it only made it more costly. Lastly, the Court ruled that the Landowners’ petition was not ripe because they had not exhausted the statutory remedies provided by Section 503 of the Municipalities Planning Code by failing to seek mandatory arbitration prior to appealing the fee schedule to the trial court.
2. Southdown Homes, L.P. v.
Opinion Not Reported (
Facts: Southdown Properties and Southdown Homes (collectively, “Southdown”) owned a parcel of land consisting of 119 acres in
The Township Board of Commissioners (“Commissioners”) entered an order granting Southdown a conditional use for the construction of 90 single family homes in the R-2 District portion of the property, using the cluster provisions of the Township Zoning Ordinance (“Ordinance”). Contemporaneously with the conditional use proceedings, the Commissioners also amended the Township Zoning Map and re-zoned the northern half of the parcel from I-1 Industrial to C-1 Thorndale Village District. As part of its conditional use presentation, Southdown proposed developing the northern half of the parcel with 210 townhouse units, which are permitted by right in the C-1 District. The development of the northern half of the parcel with such units did not form a part of the conditional use decision.
The Commissioners noted in its 2003 conditional use decision that it was not approving any land development plans for either the townhouses or the clustered single family detached dwellings nor guaranteeing final approval of any specific number of residential units. The Commissioners stated that the approval of the land development plans must await the Commissioners’ determination of compliance with all applicable Township ordinances and regulations during the land development review process.
In 2006, Southdown submitted a preliminary land development plan showing the lots proposed for the 90 single family detached dwellings in the R-2 District, as well as a separate lot for which Southdown proposed 210 townhouse units, which were to be owned as condominiums, in the C-1 District. The plan showed an access drive from South Caln Road, that according to the Ordinance, required a 50-foot-wide buffer yard and planting screen in the R-2 portion of the development “when the cluster development abuts existing single family detached residential dwellings along the property lines at the perimeter of the development tract to protect the privacy of the adjacent property owners.” A residential use adjoins the access driveway on the south; however, due to the required width of the access driveway and the narrowness of the subject property, the required 50-foot-wide buffer yard and planting screen did not appear capable of being accommodated on all points. The plan also showed the encroachment of the 50-foot-wide buffer yard and planting screen into the rear yards of the proposed Lots 2 and 3 of the cluster development in the R-2 portion of the development.
Southdown filed a zoning application with the Township Zoning Hearing Board (“Board”) requesting the following relief under the Ordinance: (1) a variance from the 50 foot buffer requirement of the Ordinance, with respect to the access drive boulevard entrance from South Caln Road to the proposed development; (2) an appeal from the Zoning Officer’s determination that the 50 foot wide buffer requirement of the Ordinance may not encroach into lots proposed for the R-2 portion of the development, specifically Lots 2 and 3; and (3) an appeal from the Zoning Officer’s determination that areas associated with rights-of-way in the C-1 townhouse portion of the development should be deducted in determining the developable lot area under the Ordinance.
After reviewing the evidence, the Board granted Southdown’s variance application and granted Southdown relief from the required 50-foot-wide buffer and planting screen along the access drive where such requirement cannot be accommodated. The Board denied Southdown’s appeal from the Zoning Officer’s determination that the 50-foot-wide buffer and planting screen required in the R-2 District may not encroach into a proposed lot for the cluster development in the R-2 portion of the project, specifically the rear yards of proposed Lots 2 and 3. The Board further determined that Southdown was not entitled to a variance to permit the 50-foot buffer to encroach into Lots 2 and 3 as the hardship with respect to those lots was self-created. Finally, the Board denied Southdown’s appeal from the Zoning Officer’s determination that areas associated with street rights-of-way must be deducted from the lot in order to ascertain the developable lot area. The Board also determined that Southdown was not entitled to a variance to construct 210 townhouses/condominiums in the C-1 portion of the development as there was no evidence of hardship other than economic hardship.
Southdown appealed the Board’s decision to the trial court, which affirmed. Southdown appealed the trial court’s decision to the Commonwealth Court making the following arguments: (1) the Board’s decision is contrary to the Commission’s 2003 conditional use decision approving Southdown’s townhouse development in the C-1 District; (2) the trial court erred and abused its discretion in concluding that the Ordinance required each townhouse dwelling unit have a minimum of 10,000 square feet of area and thereby indirectly imposed a density requirement; and (3) the trial court erred in upholding the Board’s imposition of the buffer yard requirement under the Ordinance insofar as such a requirement is vague and contrary to the 2003 conditional use decision.
Commonwealth Court Holding:
1. The Court held that the 2003 conditional use decision granting Southdown’s conditional use approval for 90 single family homes did not determine Southdown’s right to develop the remainder of the property in 210 townhouse units under the C-1 District provisions. The 2003 conditional use decision explicitly stated that it did not approve any land development plans for either the townhouses or the clustered single-family detached dwellings, nor guarantee final approval of any specific number of residential units.
2. Upon review of the relevant Ordinance provisions, the Court affirmed the Board and trial court in concluding that the Ordinance applied to Southdown’s proposed 210 townhouse development and that the Ordinance required each dwelling unit or townhouse unit to have a minimum of 10,000 square feet of area. Giving a common sense meaning to the plain and unambiguous definitions of the terms “dwelling unit,” “lot area” and “street,” the Court concluded that the Board properly found that each proposed townhouse was a “dwelling unit” and each required the dedication of 10,000 square feet of developable lot area within the townhouse development excluding all right-of-way areas for streets in the C-1 District portion of the development. The Court also rejected Southdown’s contention that since there were no lots for each unit, there can be no deduction for rights-of-way in the “lot” area calculations. The Court pointed to the fact that the Ordinance clearly set forth the minimum lot area and stated that 10,000 square feet is required per dwelling unit and concluded that this language undoubtedly anticipates more than one dwelling unit per entire lot and in so limiting the square feet per dwelling unit is controlling the number of residences on a single lot.
3. The Court agreed with Southdown that the Ordinance did not specifically prohibit the placement of a buffer yard within the boundaries of a proposed lot in a cluster development. However, after reading the Ordinance in its entirety, the Court ruled that it was clear that a buffer yard and planting screen must be located along the property lines at the perimeter of the development tract to protect the privacy of the adjoining landowners and that the design of such a buffer must create a visual barrier between the proposed development and adjoining residential uses or use districts. As such, any buffer yard or planting screen must be between the lots with single-family detached residential dwellings and the proposed lots in the cluster development and may not be located within the boundaries of a lot or lots of the proposed cluster development. In accordance with the language of the Ordinance, the Court concluded that Southdown must provide a 50-foot buffer yard and planting screen between the lots with existing single family residential dwellings and the rear property line of proposed Lots 2 and 3 in the cluster development in order to separate the two developments for the purpose of protecting the privacy of adjacent property owners.
3. Cottone v. Zoning Hearing Board of
(
Facts: The 16 lots consisting of the Robin Hood Lakes Development were owned by New 1901 Corporation from 1966 to 2003. In 1986, the Township enacted legislation effecting a change in the minimum lot size required for residential construction. This zoning ordinance required a lot size of at least one acre for construction of a home in the R-1 Zone that would not be served by central water and sewer. The 16 lots were located in the R-1 Zone and were not served by central water and sewer. In 2003, the Monroe County Tax Claim Bureau sold all 16 lots to Reflection Builders Enterprise (“Reflection”) by tax deed. Reflection then sold
In 2005, the Township Zoning Officer sent a letter to Cottone stating that
Cottone appealed to the trial court, and it affirmed the Board, thereby rejecting Cottone’s claim that the “grandfather” provision of Section 508 of the Municipalities Planning Code (“MPC”) exempted
Commonwealth Court Holding: Cottone argued that the trial court erred in concluding that the Ordinance merged
In order to meet this burden, Cottone introduced evidence
4. Worth v.
Reported (
Facts: Stephen Worth (“Worth”) is the owner of a 5.98 acre tract of land at 6486 Old Carversville Road,
In 2005, Worth sought to improve the Property by constructing an outdoor swimming pool, a pool house, and an additional 1800 square foot garage within steep slopes and reforested areas of the Property. Worth engaged Carter Van Dyke and Associates (CVDA), a landscape architectural firm, to assist him in designing and planning, including the submission of permits to the Township. CVDA sent a letter to the Old Township Zoning Officer regarding the proposed grading of steep slopes on the Property and concluded that the area of the proposed pool did not exceed the maximum disturbed percentages allowed by ordinance for those slope categories in the undisturbed/natural state of the site. The Old Township Zoning Officer sent a letter in response to CVDA’s letter stating that he agreed with CVDA’s interpretation of the steep slope provisions of the Township Zoning Ordinance (“Ordinance”) and approved Worth’s zoning permit application for the above-referenced swimming pool.
Worth interpreted the Old Township Zoning Officer’s letter as granting him the zoning permit to construct the proposed swimming pool and in reliance thereon spent approximately $20,000 preparing plans and documentation required by the Ordinance and Building Codes. In 2006, CVDA submitted an Erosion and Sedimentation Control & Grading Permit Plan (the “Plan”) for the proposed construction. By letter, the Township’s New Zoning Officer notified Worth that the Township’s Engineer required additional information in order to complete his review of the Plan. The New Township Officer also forwarded to Worth the Township Engineer’s report which concluded that Worth’s Plan did not comply with certain provisions of Article 15 of the Ordinance pertaining to preservation of existing natural resources, including Class III steep slopes, and that a zoning variance may be required. The New Township Zoning Officer sent a letter to CVDA stating that there were two issues concerning the construction of the swimming pool: (1) the proposed swimming pool encroached into the steep slope area and disturbance of the area was restricted by the Ordinance; and (2) the swimming pool encroached upon a reforestation area.
Worth advised the Township that in his view, the disturbance of steep slopes issued already had been resolved by the Old Township Zoning Officer’s prior letter and that the Ordinance did not apply to man-made slopes. The New Zoning Officer again contacted Worth by letter and enclosed a report from the Township Engineer informing Worth of issues that needed to be resolved before the Plan could be approved.
Thereafter, Worth filed an Application with the Board alleging a vested right, appealing the interpretation of the New Township Zoning Officer, or in the alternative, requesting a variance. The Board held a hearing on Worth’s application and denied Worth’s requested relief, concluding that Worth had no claim of a vested right and was not entitled to a variance. Worth then filed an appeal with the trial court, which affirmed, finding that (1) natural resource protection standards applied to all steep slopes including both man-made and natural slopes; (2) Worth had no recognizable claim under the vested rights doctrine; (3) Worth had failed to assert previously that he was permitted to construct the garage because it was shown on an approved subdivision plan; and (4) the Board did not abuse its discretion by finding that Worth was not entitled to a variance. Worth appealed the trial court’s decision to the Commonwealth Court, which affirmed.
Commonwealth Court Holding: Worth first argued that the Township’s “natural resource” protection standards did not regulate the disturbance of man-made steep slopes. The Court disagreed, finding that because the plain language of the Ordinance did not differentiate between man-made and natural steep slopes, the Township intended to regulate all steep slopes of any origin. Worth also argued that the definition of “natural resource” did not include man-made steep slopes. The Court likewise rejected this argument, concluding that man-made steep slopes are “natural resources” insofar as they could be considered “environmental features.”
Worth also argued that the Board erred in finding that he did not have a vested right to rely on the zoning permit approved by the Old Township Zoning Officer. The Court disagreed finding that: (1) Worth did not exercise due diligence in complying with the Ordinance insofar as CVDA relied upon an outdated version of the Ordinance; (2) Worth did not act in good faith by failing to disclose to the Old Township Zoning Officer that the proposed swimming pool encroached upon an area subject to a reforestation plan; (3) Worth failed to present conclusive evidence that the appeal period for the issuance of the zoning permit had expired; and (4) Worth failed to demonstrate that the use of the permit would not adversely affect individual property rights or the public health, safety or welfare.
Worth contended that Section 508(4)(iv) of the Municipalities Planning Code, (“MPC”) allowed him to construct the garage because the original approved subdivision and land development plan permitted him to do so. The Court rejected Worth’s argument, concluding that Section 508(4)(iv) of the MPC was inapplicable for two reasons: (1) the required improvements referenced in Section 508(iv)(4) did not include construction of a house or accessory buildings, but rather only applied to improvements such as public utilities or road construction; and (2) the five-year safe harbor period for Worth to develop the approved subdivision without complying with subsequent changes in local ordinances had expired.
Lastly, the Court denied Worth’s request for a variance from the Ordinance on account of the fact that Worth offered no evidence to demonstrate that the unique physical circumstances of the Property caused him an unnecessary hardship. The Court found that the Property would continue to function as a suitable single family dwelling if the variance were not granted.
5. Sabatine v.
2008) (Decided Sept. 18, 2008)
Facts: The Building Code Official (“Official”) of
Sabatine appealed the violation notice to the Uniform Construction Code Board of Appeal Slate Belt Council of Governments (“Board”). At the hearing, the Official testified that an inspection of Sabatine’s commercial property revealed the construction of precast concrete blocks, approximately three feet by five feet in size containing rebar which were permanently affixed to the ground with footers. The concrete blocks, referred to as gates, were above ground level in excess of four feet. According to the Official, the excavation for placement of the concrete blocks was below grade and the blocks were cemented or grouted together and were not removable. Sabatine testified that the concrete blocks were designed to hold removable gate sections in the event of a flood. He confirmed that the blocks were concrete with rebar inside and were not removable.
The Board determined that the construction which occurred on Sabatine’s property was governed by the Pennsylvania Construction Code Act (“Act”) and the regulations adopted by the Pennsylvania Department of Labor & Industry (“Regulations”) and that the construction at issue, consisting of precast blocks three feet by five feet in size, containing rebar, permanently affixed to the land with footers and gates above the ground level in excess of four feet, required a permit. Specifically, for a commercial property like Sabatine’s, only retaining walls less than four feet were exempt from the Act’s permit requirements.
Sabatine appealed to the trial court, arguing that the Act was only applicable to “buildings,” not “structures,” as those terms were defined in the Act. The trial court affirmed the Board’s determination that the Act and its regulations governed construction of the structure on Sabatine’s property. Sabatine appealed the trial court’s decision to the Commonwealth Court, which affirmed.
Commonwealth Court Holding: Sabatine argued that the Act did not apply to the construction on his property because it was a “structure” and not a “building.” The Commonwealth Court disagreed, finding that pursuant to the plain language of the Act and its accompanying Regulations, the Act applied to both “structures” and “buildings” and thus, Sabatine was required to obtain a permit for the construction of his retaining wall.
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