Geerling Florist, Inc. v. Board of Supervisors of Warrington Township, 021220 PACCA, 470 C.D. 2018

Docket Nº:470 C.D. 2018
Opinion Judge:BONNIE BRIGANCE LEADBETTER, SENIOR JUDGE
Party Name:Geerling Florist, Inc. v. Board of Supervisors of Warrington Township, Appellant
Judge Panel:BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
Case Date:February 12, 2020
Court:Commonwealth Court of Pennsylvania
 
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Geerling Florist, Inc.

v.

Board of Supervisors of Warrington Township, Appellant

No. 470 C.D. 2018

Commonwealth Court of Pennsylvania

February 12, 2020

ARGUED: March 12, 2019

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION

BONNIE BRIGANCE LEADBETTER, SENIOR JUDGE

This is an appeal by the Board of Supervisors of Warrington Township (Board or Township), Bucks County, from an order of the Court of Common Pleas of Bucks County (trial court) in a novel and complex zoning matter. Geerling Florist, Inc. (Landowner), which owns the property, seeks to subdivide its 46.25-acre property formerly used as a nursery with mulching operation (Property) in the RA-Residential Agricultural Zoning District (RA District), into forty-nine single-family dwelling units. Under the relevant provisions then applicable to the RA District in the Warrington Township Zoning Ordinance (Ordinance), 1 Landowner could build only fourteen single-family detached houses by right. In order to increase the number of permitted lots for the subdivision, Landowner intended to convey transferable development rights (TDRs) to the Township. We have explained TDRs as follows: In transferable development rights (TDR) programs, landowners are compensated for loss of development opportunities by being given development rights that can be used elsewhere to exceed applicable restrictions in the "receiving area." In effect, TDRs involve shifting potential development from one area to another, with the result that sensitive land is preserved.

Crystal Forest Assocs., LP v. Buckingham Twp. Supervisors, 872 A.2d 206, 211 n.8 (Pa. Cmwlth. 2005). 2

Under the Ordinance, the use of TDRs requires conditional use approval from the Township. Ordinance § 370-411.G(6)(a)[1] ("[i]n the RA District, transferable development rights may be utilized for the development of single-family detached dwellings when authorized by the Board of Supervisors pursuant to a conditional use procedure"). At issue on appeal is the parties' dispute over the number of TDRs required to be conveyed for Landowner to be eligible for conditional use approval for its forty-nine lot subdivision. In simple terms, in order to calculate the required number of TDRs, the number of lots allowed by the relevant provision of the Ordinance (the "baseline") is subtracted from the number of proposed lots and the difference is the number of TDRs which must be conveyed. The parties disagree over which Ordinance provision should apply and, hence, what the baseline for the TDR provision should be.3 Landowner-seeking to minimize the number of TDRs it must surrender to the nineteen already conveyed to the Township-has argued, with the agreement of the trial court, that the baseline should be the number of dwelling units it could have had under the Ordinance's cluster development use provision as it then stood, Ordinance § 370-403.2.B (cluster development provision), 4 even though the proposed development would not meet the Ordinance requirements for a cluster development. The Board argues that the relevant provisions did not permit the cluster development number of dwelling units to be used as a baseline if the requirements of the cluster development provision were not met. Instead, the Board's suggested baseline-the number of dwelling units Landowner could have had by right-would be fourteen, resulting in the need to convey thirty-five TDRs to reach forty-nine dwelling units on the Property.5 We agree with the Board, and therefore reverse the decision of the trial court.

In 2016, Landowner applied for conditional use approval to develop the Property using TDRs. In its proposal, it calculated the number of TDRs using a baseline of thirty lots, the number of lots allowed for a cluster development by conditional use under its interpretation of the relevant provision. 6 After this initial application, the Township and Landowner agreed to a two-part application and review process for the ultimate TDR Development Plan, with a first step being consideration of a Cluster Development Plan, 7 although Landowner never intended to utilize the Cluster Development Plan except as a baseline.[8] After hearings, the Board issued a decision (Board Cluster Decision, Reproduced Record "R.R." 90-100a), which approved the Cluster Development Plan subject to conditions. Among those conditions was for any development utilizing the approved number of cluster dwelling units to preserve 83% of the site as open space in perpetuity and preserve the "maximum amount of agricultural soils on the Property" in accordance with the requirements of the cluster development provision in the Ordinance. (Board Cluster Decision at 10, R.R. at 99a.) After further hearings, the Board approved the TDR Development Plan in a separate decision (Board TDR Decision, R.R. 101-112a), but did so utilizing the "by right"9 number of dwelling units as the baseline (Board TDR Adjudication at 10, R.R. at 110a). The Board found that the TDR Development Plan for forty-nine single-family homes did not meet the requirements for cluster developments in the RA District, i.e., maintaining 83% of the Property as open space, Ordinance § 370-405.2.B(2) (R.R. at 73a), and preserving a majority of the prime agricultural soils, Ordinance § 370-403.B (R.R. at 69a). (Board TDR Adjudication at 6, Finding of Fact "F.F." No. 50, R.R. at 106a). Therefore, the Board ruled that the Cluster Development Plan could not be used as the baseline.

Landowner appealed the Board's decisions to the trial court, which did not take additional evidence. The trial court issued an order which, in salient part, found Section 370-411.G of the Ordinance ambiguous because it did not specify how to calculate a baseline for determining the number of TDRs to be conveyed. As a result, the trial court looked to Section 603.1 of the Pennsylvania Municipalities Planning Code (MPC), 10 and "interpreted"...

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