Metro Dev V, LP v. Davis-Haas
| Decision Date | 24 July 2014 |
| Docket Number | No. 1367 C.D. 2013,1367 C.D. 2013 |
| Court | Pennsylvania Commonwealth Court |
| Parties | Metro Dev V, LP v. Exeter Township Zoning Hearing Board, and Exeter Township and Sue Davis-Haas, Richard H. Haas, Ida C. Smith, Zildia Perez, Leon Perez, Donna Galczynski, Kevin Galczynski, Alan Ganas, Renee Froelich, Scott Matthews, Patricia Miravich and John J. Miravich Appeal of: Sue Davis-Haas, Richard H. Haas, Ida C. Smith, Zildia Perez, Leon Perez, Donna Galczynski, Kevin Galczynski, Alan Ganas, Renee Froelich, Scott Matthews, John J. Miravich and Patricia J. Miravich |
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
This appeal involves the appropriate procedure after this court has invalidated an agreement between a developer and a township which included a provision requiring the developer to withdraw its procedural validity challenge in return for the township's agreement to apply the prior ordinance to the developer's land development plan. Following this court's remand, Metro Dev V L.P. attempted to revive its validity challenge and the Zoning Hearing Board of the Township of Exeter (ZHB) held that it lacked jurisdiction because the challenge had been withdrawn. The Court of Common Pleas of Berks County reversed and remanded to the ZHB, and various objectors have now appealed to this court.
Appellants are owners of properties adjacent to the proposed residential development of Metro Dev. The subject property is approximately 47.294 acres in an area where the boundary lines of the Township of Exeter, Berks County, Pennsylvania (Township) and two surrounding municipalities, Lower Alsace Township and Alsace Township, meet.
Prior to July 25, 2005, the Township's Zoning Ordinance No. 500 (Old Ordinance) was in effect. Under the Old Ordinance, the property was zoned "Low Density Residential." On July 25, 2005, the Township1 enacted Zoning Ordinance No. 596 (New Ordinance), which changed the zoning classification of the property from low-density residential to suburban residential. The changed classification had the practical effect of reducing the number of residential lots permitted on the property from thirty to seven.
On August 24, 2005, Metro Dev filed a challenge to the validity of the New Ordinance with the ZHB pursuant to former Section 10909.1(a)(2) of the Pennsylvania Municipalities Planning Code (MPC),2 alleging proceduralirregularities in the adoption of that ordinance. On September 2, 2005, a preliminary subdivision plan was submitted for a residential development on the property called "Windy Willows," comprising thirty-four residential lots, twenty-six of which are located within the Township. The plan was based upon a sketch plan that had been previously submitted while the Old Ordinance was still in effect. Waivers were sought from the Township's Subdivision and Land Development Ordinance No. 550 (SALDO).
On September 26, 2005, the Township and Metro Dev entered into an "Agreement to Settle Litigation," whereby Metro Dev agreed to withdraw its procedural challenge to the New Ordinance in exchange for the Township's agreement to review and potentially approve the plan in accordance with the terms of the Old Ordinance. Settlement agreement at 1-2; R.R. 115a-16a. By letter dated October 3, 2005, Metro Dev withdrew its validity challenge. R.R. 151a-52a.
On July 14, 2008, the Township approved the plan, subject to certain conditions. The Township also granted waivers from certain sections of the SALDO, but expressly reserved its determination of other waiver requests until the final plan approval stage. Pursuant to the terms of the settlement agreement, the Township reviewed the plan under the provisions of the Old Ordinance.
On August 13, 2008, Appellants filed a land use appeal with the trial court and, in response, Metro Dev intervened. The Township filed a motion to dismiss the appeal, arguing that Appellants lacked standing to file the appeal for failure to appear in the proceedings below. The trial court granted the Township's motion and dismissed Appellants' appeal. On appeal to this court, we held that Appellants, as adjacent landowners, had substantive standing to object tosubdivision plans both before the Township and in land use appeals, even though they had not appeared before the Township or the Township's Planning Commission. Miravich v. Township of Exeter, 6 A.3d 1076, 1079-1080 (Pa. Cmwlth. 2010) (Miravich I). We reversed and remanded.
On remand, the trial court denied Appellants' land use appeal. The trial court determined that the Township did not err by reviewing the plan under the Old Ordinance based upon the terms of the settlement agreement because municipalities are legally authorized to settle challenges to zoning ordinances. The trial court also upheld the Township's grant of waivers to Metro Dev and held that the Developer had standing to submit the plan.
From this decision, Appellants filed another appeal with this Court, asserting that (1) the proper procedure to challenge the New Ordinance was to have a hearing before the ZHB; (2) the settlement agreement was an invalid exercise of the Township's authority to settle the challenge to the New Ordinance; (3) the Township erred by applying the Old Ordinance instead of the New Ordinance to the plan; (4) the Township's approval of the plan was defective; and (5) Metro Dev lacked standing to seek preliminary plan approval. Miravich v. Twp. of Exeter, 54 A.3d 106 (Pa. Cmwlth. 2012) (Miravich II).
This court held that the Township lacked authority to determine which zoning ordinance would be applied to the plan for three reasons. First, the court held that Metro Dev's procedural challenge fell within the exclusive jurisdiction of the ZHB, not the Township. Miravich II, 54 A.3d at 111 (). Second, the court held that Metro Dev filed its challenge with theZHB and did not bring the matter before the Township as a substantive challenge pursuant to Sections 10609.13 or 10916.1(a)(2)4 of the MPC. Id. Third, even if Metro Dev had filed its challenge with the Township, the Township was required to hold a hearing within sixty days of the request and provide notice of the hearing, events which did not occur. Id. The court concluded that by entering into the Settlement Agreement with Metro Dev and agreeing that the Old Ordinance would apply to the Plan, the Township completely usurped the role of the ZHB and violated the hearing and notice provisions of the MPC.5 Id.
The court also held that the settlement agreement was an invalid exercise of the Township's authority to settle the procedural validity challenge to the New Ordinance. 54 A.3d at 112. The court determined that the settlement agreement was akin to contract zoning, which the Pennsylvania Supreme Courthad expressly disapproved of in Carlino v. Whitpain Investors, 453 A.2d 1385, 1388 (Pa. 1982) ().
The court also held that the Township erred when it considered the plan under the Old Ordinance instead of the New Ordinance. 54 A.3d at 113. The court concluded that Metro Dev had submitted its plan after passage of the New Ordinance and, therefore, pursuant to Section 508(4)(i) of the MPC, 53 P.S. § 10508(4)(i), which provides that an application for subdivision approval is governed by the ordinance in effect at the time the application is filed, the New Ordinance applied.
With regard to Appellants' arguments that the Township's approval of the plan was defective, the court rejected some arguments and accepted others.6 The court rejected Appellants' assertion that the sewage certification was required at the initial stage. Id. at 114. The court held that Section 10512 of the MPC, 53 P.S. § 10512.1, vests discretion with the Township to grant or deny any and all waivers raised by Metro Dev. Id. The court concluded that because the Township had failed to explain the nature of the hardship for the waivers granted, it had failed to provide a proper basis for this court to determine whether the Township had erred or abused its discretion in granting the waivers. Id.
Finally, the court held that the developer had standing as an equitable owner to seek preliminary plan approval. Id. The court concluded by stating "we affirm in part, reverse in part and remand the matter for reconsideration in accordance with the foregoing opinion." Id.
Both parties filed petitions for allowance of appeal to the Pennsylvania Supreme Court, which were ultimately denied, and the plan approval appeal proceeded on remand.7 Meanwhile, however, while the allocator petitions were pending, Metro Dev sent a one page letter to the ZHB requesting that it conduct a hearing on its validity challenge Metro Dev filed in August 2005 and subsequently withdrawn pursuant to the terms of the settlement agreement. R.R. at 90a.8 The ZHB held a hearing on the validity challenge at which it heard testimony and received into evidence exhibits regarding the legal status of the 2005 challenge and the relevancy of the court's decision in Miravich II declaring the settlement agreement invalid. The ZHB concluded that there was nothing before it to consider because Metro Dev had unconditionally withdrawn its challenge in October 2005. ZHB's 2013 Opinion at 2. The ZHB also held that it could not exercise equity powers to conclude that Metro Dev's withdrawal of the challengewas nullified by ...
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