Opinion
No. 898 C.D. 2011 No. 899 C.D. 2011
03-08-2012
Jeff and Mary Bretz, Appellants v. Buckingham Township, Central Bucks School District and Central Bucks East Patriot Stadium Committee, Inc. ("CBEPSC")
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Jeff and Mary Bretz (Neighboring Property Owners) appeal from an order of the Court of Common Pleas of Bucks County (trial court) affirming the Buckingham Township (Township) Board of Supervisors' (Boards) decision approving the Central Bucks School District's (District) plan for construction of a stadium and athletic fields. For the reasons that follow, we affirm.
This appeal has its origin over 12 years ago when, in May 1999, the District submitted a preliminary sketch plan for a new athletic stadium to be located next to Central Bucks East High School (High School). A preliminary plan and land development permit application were submitted with the Township in December 1999. A revised land development application was submitted on September 14, 2000. Under the Ordinance in effect in 1999, stadiums were not mentioned as a separate use. However, on June 27, 2001, the Ordinance was amended to provide for a stadium as a separate use, and it required that stadiums have one parking spot for every three seats.
Because the application could not be processed within the requisite time period for rendering decisions set forth in Section 508 of the Municipalities Planning Code (MPC), the District entered into a "Withdrawal Agreement" with the Township on October, 25, 2000, in which the District agreed to withdraw its plans and the Township agreed to permit the District to file a new plan within 90 days without being subject to any Ordinance changes in return. The District submitted a revised preliminary land development application and plan on December 14, 2000. At the March 14, 2001 meeting, the District granted the Township an extension of time for consideration, and a further extension was granted on June 27, 2001.
Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10508.
A second withdrawal agreement was entered into on June 26, 2002, which allowed the District to re-file the December 14, 2000 plan within 120 days without paying a new filing fee and under the Ordinance provisions in effect when the original preliminary plan was filed. As a condition of this withdrawal agreement, "the District agreed that it would forfeit the right to re-file the December 14, 2000 plan if it later submitted an alternative plan for a stadium and if such alternative plan were later granted by the Township." (Reproduced Record [R.R.] at 1430a (emphasis in original)). A 30-day extension of time for resubmission of plans was requested by the District with regard to this withdrawal agreement, which the Township approved. On November 22, 2002, the District resubmitted the December 14, 2000 plan to the Township, but it also represented to the Township that it intended to modify the plan to reduce the number of seats in the stadium, reconfigure the track, and include a sound system. On December 18, 2002, the Board approved the District's December 14, 2000 plan as amended, and its written decision was issued on January 31, 2003.
Neighboring Property Owners, who owned property that adjoined the land where the stadium was to be built (stadium tract), appealed the Board's approval to the trial court. They argued that the application should be subject to the increase in parking required by the amended 2001 Ordinance provisions and that the Township violated the MPC and Buckingham Township Subdivision and Land Development Ordinance (SALDO) requirements that waivers be specific and in writing. Over Neighboring Property Owners' objection, the trial court permitted the Central Bucks East Patriot Stadium Committee, Inc. (Committee) to intervene, finding that the Committee was an interested group of taxpayers and parents of students of the High School who had already been very active with the application and had invested a significant amount of time and money into its development. On January 3, 2004, the trial court remanded the case to the Board with the direction that the Board hold a public hearing on the District's requests for SALDO waivers and establish a full and complete record on those requests.
Neighboring Property Owners then requested that the remand order be amended to require that a new stadium plan be filed that was consistent with all requirements under the MPC and 2001 Ordinance and that the plan be consolidated into one land development application with the Kinney-Smith and Wenick tracts. The trial court denied the petition, and in a December 21, 2004 opinion, it reiterated that a full and complete record had to be established on remand but opined that the Board acted within its discretion in determining that the 1999 Ordinance applied. Neighboring Property Owners appealed to this Court, but the appeal was quashed in March 2005. Hearings were held on the remanded plan, but the application languished.
In a July 13, 2005 Board meeting, the District discussed proposed traffic improvements, changes to the storm water management system in the plan to suit neighbors' requests, and reducing the number of seats in the stadium, among other issues. (See R.R., at 507a-570a.)
On June 1, 2009, the District reactivated its application with an updated plan for the stadium that eliminated plans for widening the road at the intersection of Anderson and Holicong Roads and configured the parking lot exit to allow only left turns onto Anderson Road so as to keep traffic from flowing onto Durham Road, to the right of the stadium as cars exited, per the Township's request. The revised plan also removed proposed improvements from an adjoining tract known as the Wenick tract. The plan included the same proposed 3,000-seat stadium on the High School property, existing athletic fields on a neighboring tract across Anderson road from the High School parking lot (known as the Kinney-Smith tract), and an eight-foot wide bituminous bicycle path extending from the stadium along the parking lot and across the Kinney-Smith and Wenick tracts. One June 4, 2009, Knight Engineering, Inc. (Knight) submitted a review of the updated stadium plan to the Board. The review noted that the drainage design plans were substantially revised to significantly reduce the level of stormwater discharge onto Neighboring Property Owners' property. It also addressed a traffic impact study done by Knight and provided that because the degradation of traffic service levels would be extremely infrequent and because there would be a traffic management plan in place when traffic levels would peak due to stadium events, the originally planned road widening at Anderson and Holicong Roads was unnecessary. Next, the review indicated that all improvements except the bicycle path were removed from the Wenick tract, so the parcel was eliminated from the application. Knight also made recommendations for improvements to the plan with regard to landscaping, erosion control, and stormwater management and grading pursuant to the SALDO.
Hearings were held on the stadium plans on June 10, 2009 and July 8, 2009. Before the Board, Abraham Lucabaugh (Lucabaugh), principal of the High School, testified regarding athletic schedules and attendance. He stated that attendance at varsity football games ranged from approximately 1,200 to 4,000 fans, with the latter representing an annual game between district rivals (such as Central Bucks South or Central Bucks West). There was also discussion of junior varsity football, varsity field hockey, varsity lacrosse, and track and field, which drew anywhere from 50 to 300 spectators. Lucabaugh further testified that the Central Bucks Athletic Association used District athletic fields, including those on the Kinney-Smith tract, on some weekends, but attendance at those events was insignificant. Scott Kennedy (Kennedy), Director of Operations for the District, testified that it was his intention to limit use of the stadium to District activities to preserve the field.
David Horner (Horner) was qualified as an expert traffic engineer and discussed the traffic impact study done on the stadium site. Horner first testified that the study was done in accordance with the SALDO. As to the substance of the study, Horner stated that "all of the operating conditions in the peak periods of time for the school were a level of service A, B or C," indicating very good to average operating conditions, except at the intersection of Holicong and Anderson roads, where stop signs caused a "D" level of service when school let out between 2:30 and 3:30 in the afternoon on weekdays. (R.R. at 727-728.) As to the Saturday varsity football games that would occur at the stadium, the only "deficient condition," according to Horner, would occur following the games in the area where traffic would exit the parking lot onto Anderson Road. (R.R. at 736a.) For these periods, Horner expected an "F" level of service condition at the stadium exit and a "D" level at the intersection of Holicong and Anderson roads for approximately 30 minutes. He noted that the Ordinance required a "C" level of service. However, Horner stated that in his opinion, the traffic conditions would have a de minimis impact because of their infrequency. He also testified that he did not think that granting a waiver for traffic requirements would adversely affect the public interest and that it was consistent with the intent of the SALDO. On cross-examination, Horner stated that his study focused on high-attendance events such as varsity football games, and impacts on traffic from other, less popular events, would be negligible.
Thomas Hanna (Hanna) was qualified as an expert civil engineer and testified that a waiver was being sought for stormwater management requirements to install drainage features that would reduce the peak rate of water released onto Neighboring Property Owners' property to well below the Ordinance criteria, but would increase drainage in a different direction. Next, a request for modification was sought to remove the Wenick tract from the conditions to the plan because there was no plan for improving the property other than installing the bicycle path. Hanna stated that the Wenick tract should be removed from the conditions "for road widening purposes ... there is [sic] no improvements to that property and [it] shouldn't be part of the requirement to widen [the road] to Township standards." (R.R., at 783a.) Hanna testified that in his expert opinion, the grant of all of the waivers would not adversely impact public interest and the intent of the SALDO was being observed.
Other waivers sought included waivers relating to: cut and fill requirements, storm pipe material requirement, width of grass strips between a sidewalk and curb, manhole cover structural requirements in grass areas, and buffer plant requirements on the Kinney-Smith tract and school property. The District also proposed to retain painted pedestrian crosswalks rather than install raised ones.
On cross-examination, Hanna stated that if the District were required to comply with the Ordinance, it would be required to widen the roadway along parts of Holicong and Anderson Roads. He stated that the District sought the variance because widening the road would be unnecessary based on the circumstances and would place a hardship on taxpayers. Hanna said that the traffic service level waiver was sought because, according to Horner, there was no conceivable way to alleviate traffic issues. He also testified that the Wenick tract should be excluded from the land development because it was not integral to the application and the stadium would not benefit from it. Hanna also addressed parking issues with the stadium, and said that the primary parking lot for the stadium would be the same lot used by the High School with additional overflow parking on the nearby Midway Fire Lot and grass areas around the stadium. However, he pointed out on re-direct examination that the stadium and school would not be open and functioning concurrently.
Stephen Corr (Corr), President of the Central Bucks School Board, testified that the District requested the waiver to the road widening requirement because it would calm traffic and promote the safety of pedestrians and students in the area. He also mentioned that the infrequency of events at the stadium contributed to this decision, too. Corr addressed the removal of the Wenick tract from the land development, saying that the District did not intend to make any changes to the tract and the volume of water released to the property would be the same.
At a subsequent Board hearing on August 27, 2009, Francis Montgomery (Montgomery), an expert traffic engineer, reviewed the stadium traffic impact study prepared for the District and testified on the traffic management plan stating that where service went from a level "A" to a level "F" after an event, as was the case here, applicants were expected to indicate what improvements they would recommend. Montgomery said his recommendations would be "two turn lanes on the approach to Holicong Road." (R.R. at 992a.) He further testified that he saw no basis for waiving from Ordinance requirements for road improvements. On cross-examination, Montgomery conceded that these drops in levels of service would be infrequent and that using proposed traffic management police and shuttle services could be a cost-effective alternative.
Peter Anderson (Anderson), an expert civil engineer, testified that he believed the traffic management plan violated the 1999 Ordinance because he "[could] not find a place where a traffic management plan can be substituted for the requirements of the Ordinance." (R.R. at 1047a.) He further testified that the stadium would be an accessory use to the High School, so additional parking should be required. Anderson also said that the Ordinance would require 1,700- 1,800 parking spaces for both the stadium and High School, and the parking lot currently only had 826 spaces. His calculation did not include the proposed 100 spaces at Holicong Park and 150 spaces at Midway Fire Company because the Ordinance required that parking had to be within 300 feet of the lot, and those areas were further away. He also testified that the request for a road widening waiver was not supported by any special circumstances. As to the traffic level of service waiver, Anderson stated he understood that the justification for seeking the waiver was financial and he did not see that as a viable justification under the Ordinance. On cross-examination, Anderson said that his contention that additional parking or a special exception from the Board was needed to make the stadium plan compliant was premised on his position that the stadium was a separate use from the school. He also agreed that no additional parking was required if a school had a gymnasium. Anderson also stated that he did not believe that widening the road had any correlation to increasing speeding, but he did agree that it was generally not a traffic calming measure either.
Jeff Bretz (Mr. Bretz) testified that when he purchased his property, he knew it was contiguous with the High School property. He also knew that when the stadium plans were in the drafting phase in 1997 and 1998, residents of the District had already been pushing for a stadium to be built for approximately 30 years prior. In the early stages of planning, Mr. Bretz acknowledged that all neighbors from the area were invited to meetings, but he did not attend any of them. He stated that currently, the activities at the soccer and lacrosse fields on the Kinney-Smith tract caused some traffic issues.
Horner testified once again regarding Montgomery's statement that the traffic management study did not address the deficiencies in service with recommended mitigation measures, such as the right-turn lane at the intersection of Anderson and Holicong Roads. Horner said that in his opinion, the right-turn lane should not be constructed because the level of delay, at its peak, did not amount to an undue congestion condition. He also cited the infrequency at which traffic levels would drop.
The record was finally closed on October 14, 2009, and the Board issued a lengthy decision approving the revised final stadium plan subject to several conditions, including requirements that the parking lot exit drive be reconfigured to prohibit right turns onto Anderson Road and two raised crosswalks be installed to comply with the Ordinance. The road widening waiver was granted because the Board determined that doing so would not increase traffic service at the stadium at peak times, but would increase impervious surface in the area, thereby increasing the amount of stormwater runoff. Additionally, widening the road would "undermine the Board's goals of claiming vehicular traffic and promoting pedestrian safety in the area," and traffic levels would only increase a few times per year. (R.R., at 1359a.) A limited waiver was granted regarding the traffic level of service requirements because of the infrequency at which the levels would drop rendering the drop de minimis. The approval was conditioned on the implementation of the traffic management plan submitted by the District that would provide manual parking control during the biggest events. A waiver was also granted for inclusion of the Wenick tract in the land development because the tract was not integral to the development of the stadium or stormwater improvements to the stadium or Kinney-Smith tract, so it did not need to be included in the submitted plan. Regarding whether variances were needed from the Board, the Board said a variance was not required for the number of parking spaces because the stadium would be an "integral part of the use" of the High School, not a separate use requiring more parking or a variance. (R.R. at 1377a.) The Board reasoned that most other high schools in Bucks County had stadiums, so stadiums were clearly regular components of a high school campus.
Only those conditions relevant to this appeal are listed. (See R.R., at 1335a-81a.) The most extensive conditions were with regard to stormwater drainage issues.
Other waivers granted include waivers for curb and sidewalk requirements (in lieu of which the bike path would be installed), buffer planting requirements, manhole cover composition, partial requirements for stormwater runoff control and grass strip requirements between the sidewalk and curb, as well as a limited waiver for cut and fill requirements. (See R.R. at 1360a-75a.)
Neighboring Property Owners appealed to the trial court, which affirmed the Board's decision, finding that the Board had sufficiently documented its reasons for granting the waivers pursuant to the trial court's 2004 order. This appeal followed.
Where a trial court takes no additional evidence, our scope of review is limited to determining whether the board abused its discretion or committed an error of law. North Chestnut Hill Neighbors v. Zoning Board of Adjustment of the City of Philadelphia, 928 A.2d 418 (Pa. Cmwlth. 2007). The Board abuses its discretion only where its findings are not supported by substantial evidence. Id.; see also 2 Pa.C.S. §754(b). Substantial evidence is such relevant evidence as a reasonable person might consider sufficient to support a conclusion. Chestnut Hill Neighbors, 928 A.2d at 423 n.6. An error of law is committed if a board erroneously interpreted or misapplied the law to the facts in a case. Board of Supervisors of Upper Southampton Township v. Zoning Hearing Board of Upper Southampton Township, 555 A.2d 256 (Pa. Cmwlth. 1989).
I.
Neighboring Property Owners contend that the plan approved in 2009 is a new and separate submission rather than a modified plan stemming from the original one, and therefore, the amended Ordinance which was adopted in 2001 applies, as opposed to the Ordinance that was in effect when the initial plans were submitted in 1999. Because the 2001 Ordinance provides for a stadium and requires one parking spot for every three seats in the stadium, they contend that the stadium plan should have been denied because it did not comply with the applicable parking requirements.
The effect of a change in zoning is governed by Section 508(4) of the MPC, which provides, in relevant part:
[N]o subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied to affect adversely the right of the applicant to commence and to complete any aspect of the approved development in accordance with the terms of such approval within five years from such approval. The five-year period shall be extended for the duration of any litigation, including appeals, which prevent the commencement or completion of the development and for the duration of any sewer or utility moratorium or prohibition which was imposed subsequent to the filing of an application for preliminary approval of a plat. In the event of an appeal filed by any party from the approval or disapproval of a plat, the five-year period shall be extended by the total time from the date the appeal was filed until a final order in such matter has been entered and all appeals have been concluded and any period for filing appeals or requests for reconsideration have expired. (Emphasis added.)53 P.S. §10508(4)(ii). This plan has been in development since 1999, and was approved on December 18, 2002, with a written decision issued on January 31, 2003. Neighboring Property Owners appealed the decision in January 2003, the trial court remanded the case in 2004 for development of a full record, and the case has been ongoing since then. Any five-year window was extended by the drawn-out litigation that has been active since 2003, so the 2001 Ordinance is not applicable because of extended duration of this case.
Nor is the plan a revision for purposes of the SALDO. Section 3.2(G) of the SALDO says that the submission of a revised plan constitutes a new and separate submission and provides that "a revised plan shall mean: (1) A plan which is submitted after a previous plan has been withdrawn ... approved or rejected ... [or] demonstrate[s] an entirely new planning concept covering the same land that was included in the prior plan." (R.R. at 1622a.) Neighboring Property Owners posit that the 2003 and 2009 submissions constituted a revised plan because previous plans were withdrawn or the plans demonstrate new concepts with regard to drainage and configuration of the stadium. We agree with the trial court that any of the modifications to this plan do not constitute "an entirely new planning concept" because the core aspect of the initial plan for the stadium has always remained the same. Adjusting plans for traffic control and for the drainage management system to benefit Neighboring Property Owners did not fundamentally change the concept submitted in the initial plan for a high school football stadium.
Finally, the plan was not withdrawn for SALDO purposes. Although the withdrawal agreements were titled as such, their purpose was to enter into an agreement so that the Township's delay in rendering a decision on its application would not result in a deemed approval as set forth in Section 508(3) of the MPC. In effect, the withdrawal agreements were not withdrawals at all but were merely extensions of time for the Township to consider the plan. Because the agreements were not truly agreements to withdraw the plans, but were merely agreements for extensions of time granted pursuant to Section 508(3) of the MPC, the plan was not withdrawn as that term is used in Section 3.2(G)(1) of the SALDO.
II.
Neighboring Property Owners also contend that the June 26, 2002 "Withdrawal Agreement" between the District and the Board, in which it was agreed that the District would withdraw its December 14, 2000 plan and, in return, the Township would permit the District to file a new plan without being subject to the 2001 Amendment to the Ordinance, constitutes "contract zoning." This, they posit, renders the Withdrawal Agreement illegal, meaning that any changes in the application make it a new plan subject to the amended 2001 Ordinance provision requiring one parking spot for every three seats in the stadium.
"'Contract zoning' ... is a form of unlawful spot zoning where rezoning is permitted based on regulations and conditions devised by agreement between the municipality and the landowner, not on the basis of the enacted zoning ordinances." Baker v. Chartiers Township Zoning Hearing Board, 677 A.2d 1274, 1279 (Pa. Cmwlth. 1996).
However, the Withdrawal Agreement does not constitute "illegal" contract zoning because Section 508(3) of the MPC authorizes agreements to extend the period of time for a governing board to render a decision on a land development application. As mentioned, infra, the Withdrawal Agreement was entered into so that time would not run against the Board and falls within the ambit of Section 508(4)(i).
53 P.S. §10508(3) provides that a governing body shall render its decision on approval of a plat within 90 days "unless the applicant has agreed in writing to an extension of time or change in the prescribed manner of presentation of communication of the decision."
III.
Neighboring Property Owners next contend that even if the 2001 Ordinance does not apply, the District has to provide additional parking spaces under Section 405(H)(1) of the Zoning Ordinance because the Stadium is not included with the main school use but is an accessory use to the main school use. They acknowledge the parking requirement may be satisfied under Section 3011(H), which allows for two or more uses to utilize the same parking, but note that the Board has to so authorize by a special exception. Because the District did not obtain a special exception for parking or condition the approval of the land development plan on obtaining a special exception, Neighboring Property Owners contend that the Board's approval of the plan was illegal. The District, however, argues that the Stadium is not an accessory use, but a school use, much like a library or a gymnasium, and the required parking for the school covers the stadium, as well.
Section 405(H)(1) of the Ordinance provides that an accessory structure is:
[An] Accessory building or structure customarily incidental to the uses permitted within the zoning district except outside storage. This does not include any use that is separately defined in this Ordinance that must comply with the specific requirements for such use. Any building or structure accessory to a use permitted only as a special exception shall be established only and as provided in such exception.
A. Nonresidential accessory buildings shall meet the minimum setback for the principal noresidential use.
B. Parking: Additional parking shall conform to the requirements of the most closely related use.
We agree with the Board and the trial court that In re Appeal of Baldwin School, 932 A.2d 291 (Pa. Cmwlth. 2007), is controlling. In that case, neighbors of a private school argued that additional parking was required for a new gymnasium, three tennis courts, and a practice field. The gymnasium plan contained basketball and volleyball courts, a natatorium, a fitness room, an indoor track, locker rooms, coaches' meeting areas, and four squash courts. The gymnasium would provide seating for at least 250 and the natatorium would seat at least 80 spectators. Objectors contended that those facilities were not part of the school use and, therefore, had to satisfy additional parking requirements for a separate main use or accessory use. We rejected that contention, holding that the additional parking was not necessary because those facilities were part of the school use itself and were not an accessory or separate use. See also Mitchell v. Zoning Hearing Board of Mount Penn, 838 A.2d 819, 827-28 (Pa.Cmwlth.2003) (rejecting objectors' contention that auditorium and gymnasium for elementary school triggered parking requirements under ordinance provisions related to "auditoriums or other places of assemblage" or to "recreational establishment;" ruling that applicable parking requirements are those specifically required for the principal educational use).
This Court has repeatedly said that the principles of the Statutory Construction Act, 1 Pa.C.S. §§1501-1991, are to be applied to ordinances, as well. Glendon Energy Co. v. Borough of Glendon, 656 A.2d 170 (Pa. Cmwlth. 1995) (citing Patricca v. Zoning Board of Adjustment of City of Pittsburgh, 527 Pa. 267, 590 A.2d 744 (1990)). Therefore, where an Ordinance's language is not explicit, courts may ascertain the intent of the drafting governmental body by considering, among other things, the former law on the same or similar subjects, the consequences of an interpretation, and legislative and administrative interpretations of the Ordinance. See 1 Pa.C.S. §§1921(c)(5)-(6),(8). Additionally, "courts should give great weight and deference to the interpretation of a statutory or regulatory provision by the administrative or adjudicatory body that is charged with the duty to execute and apply the provision at issue." Johnston v. Upper Macungie Township, 638 A.2d 408, 412 (Pa. Cmwlth. 1994).
While Neighboring Property Owners contend that Baldwin School is significantly different because the facilities there were to be used by the school's students and would not lure large numbers of people to the campus as a stadium would, we specifically noted in Baldwin that there would be an occasional increase in spectator and athlete attendance. A school use is more than just students and teachers showing up and going home every day. Many activities, such as PTA meetings, science fairs, and community events held at a school attract "spectators." Stadiums are no different than gymnasiums, auditoriums, and other athletic fields that normally attract outside participants and spectators to a school and are an integral part of the main school use.
Neighboring Property Owners argue that even if the stadium is a principal use, it should essentially be considered another school and another principal use. We reject this notion, as those activities for which the stadium is to be used, such as football practice and games, are existing programs run through and financially supported by the High School.
IV.
Neighboring Property Owners also contend that the 2002 and 2009 plans were required to be submitted to the County Planning Commission (County Commission) for compliance with the Township's Ordinance provisions, specifically, parking and impervious surface requirements. Section 502(b) of the MPC states that "applications for subdivision and land development located within a municipality having adopted a subdivision and land development ordinance as set forth in this article shall be forwarded upon receipt by the municipality to the county planning agency for review." 53 P.S. §10502(b). While Neighboring Property Owners insist that this requires that all plans and revisions thereto be submitted to the county planning agency, the statute requires only that applications for land development be submitted. Because there is no contention that the actual application was not submitted, there was no requirement that the plan and its revisions be reviewed by the County Commission.
The record reflects that the application was in fact submitted to the County Commission on December 28, 2000. (R.R. at 39a.) Neighboring Property Owners contend that the lack of approval from the County Commission in the record indicates non-submission or non-approval by the County. However, Section 502(b) of the MPC provides that a municipality "shall not approve such applications until the county report is received or until the expiration of 30 days from the date the application was forwarded to the county." 53 P.S. §10502(b). Thus, written approval from the County Commission is not required.
Additionally, Neighboring Property Owners argue that the Township Planning Commission (Township Commission) needed to conduct a more extensive review of the land development application than it did, including a review for compliance with applicable Ordinance provisions. They contend that the Township Commission only reviewed the plan with regard to the waivers to be granted. Section 5.2(F) of the SALDO merely requires that the Township Commission "review all applicable reports ... determine whether the ... plan meets the objectives and requirements of the [SALDO] ... and recommend approval or disapproval of the ... Plan." (R.R. at 1625a.) There is nothing in the record to indicate that the Township Commission's review was not extensive enough because it reviewed reports and heard testimony from several sources in its consideration of the plan. The Township Commission primarily considered the waivers that were being sought by the District because the remand from the trial court ordered a more thorough record to be developed with regard to those waivers. Additionally, the transcript of the hearing before the Township Commission on July 21, 2009, provides no indication of Neighboring Property Owners' objection to the substance of the meeting at the time, or even of their attendance at the meeting.
V.
Neighboring Property Owners contend that the Wenick and Kinney-Smith tracts needed to be included in the land development because a bicycle path will cross those lots as well as the stadium tract and failing to do so violated the MPC and the SALDO. The Township has said that the Kinney-Smith tract is, in fact, included in the land development plan and that the Wenick tract need not be included because it will not be improved except for the bicycle path. Because we are unable to find any indication in the record that the Kinney-Smith tract was not included in the land development, and because the waiver itself speaks solely to the Wenick tract, we will address only that tract.
The MPC defines land development as:
(1) The improvement of one lot or two or more contiguous lots, tracts or parcels of land for any purpose involving:
(i) a group of two or more residential or nonresidential buildings, whether proposed initially or cumulatively, or a single nonresidential building on a lot or lots regardless of the number of occupants or tenure; or
(ii) the division or allocation of land or space, whether initially or cumulatively, between or among two or more existing or prospective occupants by means of, or for the purpose of streets, common areas, leaseholds, condominiums, building groups or other features.
(2) A subdivision of land.Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10107. This Court has held on numerous occasions that various minor improvements do not constitute land development under the MPC, including an antenna and its accessory structures, Borough of Moosic v. Zoning Hearing Board of Borough of Moosic, 11 A.3d 564 (Pa. Cmwlth. 2010), a medical office building on the grounds of a completed shopping center, Kirk v. Smay, 367 A.2d 760 (Pa. Cmwlth. 1976), and a billboard, Marshall Township Board of Supervisors v. Marshall Township Zoning Hearing Board, 717 A.2d 1 (Pa. Cmwlth. 1998).
(3) Development in accordance with section 503(1.1).
Here, the only improvements to the Wenick tract will be the eight-foot wide, bituminous bicycle path and a few buffer plants. These minor improvements are insufficient to warrant inclusion in the land development when other, more significant improvements to property, as set forth above, have been deemed excluded from the MPC's land development requirements.
VI.
Neighboring Property Owners also argue that the waivers granted for traffic service and road widening requirements constituted an abuse of discretion because the waivers did not meet the minimum requirements provided by the SALDO or the MPC, or because the District has not demonstrated undue hardship required by the MPC or the more rigorous "unnecessary hardship" set forth in the SALDO. They contend that the sole basis for the waivers was economic hardship that was self-imposed. To support their contention, Neighboring Property Owners rely on Section 910.2 of the MPC (and various cases dealing with the standard for granting or denying variances), which we note at the outset is not the proper standard.
"The governing body or the planning agency, if authorized to approve applications within the subdivision and land development ordinance, may grant a modification of the requirements of one or more provisions if the literal enforcement will exact undue hardship because of peculiar conditions pertaining to the land in question, provided that such modification will not be contrary to the public interest and that the purpose and intent of the ordinance is observed." Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, added by Section 40 of the Act of December 21, 1988, P.L. 1329, 53 P.S. §10512.1(a).
(R.R. at 1619a.).
Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, added by Section 40 of the Act of December 21, 1988, P.L. 1329, 53 P.S. §10910.2 ("The board shall hear requests for variances where it is alleged that the provisions of the zoning ordinance inflict unnecessary hardship upon the applicant" (emphasis added)).
See One Meridian Partners LLP v. Zoning Hearing Board of Adjustment, 867 A.2d 706 (Pa. Cmwlth. 2005) (denying variance for construction of 50-story apartment building in Philadelphia); Moyerman v. Glansberg, 391 Pa. 387, 138 A.2d 681 (1958) (granting variance where landowner unintentionally built onto neighbor's property).
"A [SALDO] waiver [is] proper where a development offers a substantial equivalent to a subdivision requirement, where an additional requirement would offer little or no additional benefit, and where literal enforcement of a requirement would frustrate the effect of improvements." Monroe Meadows Housing Partnership, LP v. Municipal Council, 926 A.2d 548, 553 (Pa. Cmwlth. 2007). "In deciding whether to grant a modification pursuant to Section 512.1(a) of the MPC, '[the governing body's] duty is to actively oppose schemes of development unreasonably proposed and conceived, but likewise, [its] duty is to sanction well planned development.'" Ruf v. Buckingham Township, 765 A.2d 1166, 1169 (Pa. Cmwlth. 2001) (quoting Raum v. Board of Supervisors of Tredyffrin Township, 370 A.2d 777, 781 (Pa. Cmwlth. 1977)).
Keeping this standard in mind, we do not believe the Board abused its discretion in granting the waivers. Considering the infrequency at which traffic service levels will drop—approximately six times per year—the Board properly determined that the level of service deficiency was de minimis. It is also important to note that the primary reason that the traffic service will decline is because traffic will only be able to turn left exiting the parking lot onto Anderson Road, and this change was made at the recommendation of the Township. The Board's decision on this matter was supported by ample evidence in the form of traffic management reports, expert traffic engineer testimony, and due consideration of the standard by which it was to approve or deny the grant of a waiver. Similarly, the road widening requirements were properly waived, as the Board found that requiring the District to widen the road would not offer any benefit because keeping the road in its current condition will prevent speeding in the area and promote pedestrian safety.
VII.
Finally, the Neighboring Property Owners argue that the Committee was improperly permitted to intervene because it does not have a legally enforceable interest. Specifically, they state that the Board permitting the Committee to be heard did not automatically qualify the Committee to intervene in the appeal.
The MPC provides that "[w]ithin the 30 days first following the filing of a land use appeal, if the appeal is from a board or agency of a municipality, the municipality and any owner or tenant of property directly involved in the action appealed from may intervene as of course by filing a notice of intervention, accompanied by proof of service of the same, upon each appellant or each appellant's counsel of record. All other intervention shall be governed by the Pennsylvania Rules of Civil Procedure." Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, added by Section 40 of the Act of December 21, 1988, P.L. 1329, 53 P.S. §11004-A. Intervention is a matter within the sound discretion of the trial court. We will not disturb the court's decision unless it abused its discretion or committed an error of law. Acorn Development Corporation v. Zoning Hearing Board of Upper Merion Township, 523 A.2d 436, 437 (Pa. Cmwlth. 1986) (quoting Wilson v. State Farm Mutual Automobile Insurance Co., 512 Pa. 486, 517 A.2d 944 (1986)). To satisfy Rule 2327(4), a party "must have some right, whether legal or equitable, which will be affected by the proceedings." Acorn Development Corp., 523 A.2d at 437-38.
Pa. R.C.P. No. 2327 provides that a party may intervene where:
(1) the entry of a judgment in such action or the satisfaction of such judgment will impose any liability upon such person to indemnify in whole or in part the party against whom judgment may be entered; or--------
(2) such person is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof; or
(3) such person could have joined as an original party in the action or could have been joined therein; or
(4) the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action.
The trial court determined that the Committee was permitted to intervene because the stadium will have an impact on the extended District community, the members have made substantial financial and other contributions to the development of the stadium, and the committee was active throughout the entire process of the stadium application. More specifically, the Committee prepared "fully engineered plans along with other land planning services." Because it has been directly active throughout the entire process of this case, the trial court did not abuse its discretion in permitting the Committee to intervene.
For the reasons set forth above, the decision of the trial court is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 8th day of March, 2012, the order of the Bucks County Court of Common Pleas, dated April 19, 2011, is hereby affirmed.
/s/_________
DAN PELLEGRINI, President Judge