Opinion
No. 1050 C.D. 2013
01-17-2014
Appeal of Cornell Homes from the Decision of the Upper Darby Council Dated October 17, 2012 Appeal of: Upper Darby Township
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Upper Darby Township (Township) appeals from an Order of the Court of Common Pleas of Delaware County (trial court) which: (1) sustained the appeal of Cornell Homes (Cornell) from the Decision of the Township Council; (2) remanded the matter with direction to grant Cornell's request for a modification from the horizontal curve requirements (Request) found in Section 403.3.2(1) of the Township Subdivision and Land Development Ordinance (SALDO); and (3) directed the Township Council to take whatever action was required with Cornell's application for preliminary subdivision approval as a result of the trial court's Order. On appeal, the Township argues that the Township Council properly denied Cornell's modification request because: (1) the requested modification from the 100-foot horizontal curve design would create dangerous complications for emergency response vehicles; (2) the proposed modification is contrary to public interest; and (3) the purpose and intent of the SALDO requires that the Request be denied. Therefore, the Township urges this Court to reverse the trial court's Order. Discerning no error, we affirm.
The issue presented in this appeal is whether the Township Council erroneously denied Cornell's Request to design a horizontal curve with a reduced radius of 65 feet where Section 403.3.2(1) of the SALDO mandates that a horizontal curve be designed with a minimum radius of 100 feet. Section 403.3 of the SALDO provides, in pertinent part, as follows:
403.3.1 - Whenever street centerlines are deflected more than five (5) degrees, connection shall be made by horizontal curves.(R.R. at 211a.) Section 503(8) of the Pennsylvania Municipalities Planning Code (MPC) provides that a SALDO may include:
403.3.2 - Horizontal curves shall be designed with the following minimum radii:
1) local streets - one hundred (100) feet.
(8) Provisions for administering waivers or modifications to the minimum standards of the ordinance in accordance with section 512.1, when the literal compliance with mandatory provisions is shown to the satisfaction of the governing body or planning agency, where applicable, to be unreasonable, to cause undue hardship, or when an alternative standard can be demonstrated to provide equal or better results.53 P.S. § 10503(8). Section 512.1 of the MPC provides:
(a) 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.53 P.S. § 10512.1. Thus, the applicant has the burden of proving entitlement to a modification from a local SALDO.
(b) All requests for a modification shall be in writing and shall accompany and be a part of the application for development. The request shall state in full the grounds and facts of unreasonableness or hardship on which the request is based, the provision or provisions of the ordinance involved and the minimum modification necessary.
(c) If approval power is reserved by the governing body, the request for modification may be referred to the planning agency for advisory comments.
(d) The governing body or the planning agency, as the case may be, shall keep a written record of all action on all requests for modifications.
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10503(8).
Added by Section 40 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10512.1.
The Township has the discretion, pursuant to Section 512.1(a) of the MPC, to grant or deny any and all SALDO waivers requested in a subdivision plan. Miravich v. Township of Exeter, Berks County, 54 A.3d 106, 114 (Pa. Cmwlth. 2012), appeal denied, ___ Pa. ___, 75 A.3d 1283 (2013). However, such discretion is not unfettered. 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. 1976)). "Further, where literal enforcement of a requirement under the [SALDO] will frustrate the effect of the improvements designed to implement other requirements, grant of a waiver is proper under Section 512.1(a) of the MPC." Id.; see also Monroe Meadows Housing Partnership, LP v. Municipal Council, 926 A.2d 548, 553 (Pa. Cmwlth. 2007) ("[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.").
In this matter, Cornell is the equitable owner of 5.5 acres of property (Property) that is part of a total of 32 acres that is owned by Har Jehuda. The remaining 26.5 acres of the 32 acre parcel is operated as a cemetery. The Property is separated from the remaining 26.5 acres by a creek. The Property is zoned R-3, which permits attached single-family dwelling units. Cornell submitted Preliminary Subdivision and Land Development Plans (Plans) to the Township seeking approval to subdivide the Property into 24 attached single-family dwelling lots. The Plans also provide for construction of an extension of the existing roadway, Marvine Avenue (Marvine Avenue Extension), to allow for access to the proposed subdivision. The Plans provide that the extended portion will be widened from a width of 24 feet to a width of 30 feet, with a cul-de-sac at the end of the roadway. Cornell also requested, pursuant to Section 512.1 of the MPC, a modification of Section 403.3.2(1) of the SALDO, which requires a minimum horizontal curve radius of 100 feet. Cornell's Request was to construct a connecting horizontal curve having a radius of 65 feet. In addition, Cornell proposed that there be no parking permitted on both sides of the Marvine Avenue Extension within 100 feet of the horizontal curve or in the curve itself.
The Township previously adopted the Delaware County SALDO as its own. (Trial Ct. Order ¶ 5.)
See attached site location map depicting the proposed subdivision and Marvine Avenue Extension. (S.R.R. at 1b.) The site location map shows that there are no dwellings or lots proposed for the area on either side of the connecting horizontal curve. (S.R.R. at 1b.) These areas are depicted as open space. (S.R.R. at 1b.)
A hearing was held before the Township Council on Cornell's Request. In support of its Request, Cornell introduced documentary evidence and presented the testimony of its Owner, a Traffic Engineer, and a Civil Engineer. In opposition, the Township presented three exhibits and the testimony of its Fire Chief and Engineer. The Township Council voted at the conclusion of the hearing to deny Cornell's Request for modification of Section 403.3.2.(1) of the SALDO and, by Resolution No. 36-12 adopted October 17, 2012, the Township Council reaffirmed the denial and also denied Cornell's application for approval of its Plans. The Township Council found, "[b]ased on the testimony presented at the hearing," that granting the Request "would create potential safety issues, including limitations on the safe ingress and egress to and from the proposed new homes by emergency vehicles." (Township Resolution No. 36-12 at 2, R.R. at 218a.) Thus, the Township Council concluded "that it would not be in the public interest nor would the purpose and intent of the [SALDO] be observed by the granting of such modification or waiver." (Township Resolution No. 36-12 at 2, R.R. at 218a.) Cornell appealed the Township Council's Decision to the trial court.
Three neighbors testified in opposition to Cornell's application for subdivision approval and one neighbor testified in support of the application.
The trial court did not take additional evidence but, upon review, the court reversed the Township Council's denial of Cornell's Request. The trial court determined that: (1) "[l]iteral enforcement of Section 403.3.2(1) of the [SALDO] exacts an undue hardship because of the peculiar conditions pertaining to the Subject Property"; (2) the Township's concerns and fears regarding the potential safety issues were based on speculation; and (3) the record did not support the Township Council's conclusion denying Cornell's Request. (Trial Ct. Order ¶¶ 25, B-F.) Accordingly, the trial court concluded that the Township Council abused its discretion and committed an error of law when it denied Cornell's "request for a modification from Section 403.3.2(1) of the [SALDO] on the basis of potential safety issues," that "it would not be in the public interest," and "that the purpose and intent of the [SALDO] would not be observed." (Trial Ct. Order ¶ G.) The Township now appeals from the trial court's Order.
"Where the trial court takes no additional evidence, our scope of review in a land use appeal is limited to determining whether the local governing body committed an error of law or an abuse of discretion." Miravich, 54 A.3d at 110 n.4. "The governing body abuses its discretion when its findings are not supported by substantial evidence, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Ruf, 765 A.2d at 1168 n.2.
In support of this appeal, the Township argues as follows. The denial of Cornell's Request was proper because the requested deviation from the 100-foot horizontal curve design would create dangerous complications for emergency response vehicles. Literal enforcement of the SALDO would not exact undue hardship based upon conditions of the Property because Cornell's subdivision application is the basis for the claimed hardship of the Property. Cornell chose this particular 5.5 acres for subdivision and there is no evidence that other portions of the overall 32 acres could not be subdivided as proposed by Cornell without redesigning the roadway.
The Township argues further that the testimony it presented is far from speculative and supports the conclusion that the proposed modification is contrary to public interest. Improperly parked cars could prevent fire trucks from entering the single access neighborhood and Cornell's own Traffic Engineer testified that municipalities often experience people parking cars in "no parking" zones.
Finally, the Township contends that permitting Cornell to construct the horizontal curve with a reduced radius runs afoul of the purpose and intent of the SALDO. The prudence of the 100-foot standard for a horizontal curve of the roadway is demonstrated under the facts of this case. The Township cannot police all roadways at all times in order to enforce "no parking" regulations; however, the Township can provide for the safe and ordinance-compliant construction of new residential roadways, particularly those with a single point of vehicular ingress, to minimize the potential complication for life-saving emergency response within a residential community. As currently designed, there is only one way in and one way out of the planned subdivision. While Cornell argued and attempted to present evidence that a gate emergency access may be contemplated over Township-owned property adjacent to the Property, there is no agreement among the parties for use of the Township's land.
Upon review of the record in this matter, we conclude, as did the trial court, that the Township Council abused its discretion by denying Cornell's Request. Initially, we note that although the Township argues here that literal enforcement of Section 403.3.2(1) of the SALDO will not exact undue hardship because the hardship is self-created, the Township did not present any evidence to rebut Cornell's evidence of undue hardship and the Township Council did not address this requirement in its Decision. The trial court set forth the peculiar conditions of the Property, based on the testimony of Cornell's Owner, as follows:
Because of the configuration of the Har Jehuda cemetery property with Naylor's Run Creek running through the property, essentially bisecting the five and a half (5 ½) 5.5 acre Subject Property from the remainder of the cemetery property, [Cornell] would have to apply for and receive a variance from Section 704 of the Upper Darby Zoning Code to allow for encroachment upon the fifty (50) foot riparian buffer to permit compliance with . . . Section 403.3.2(1) of the [SALDO]. The road could not be repositioned on its other side so that it laid at least fifty (50) feet from the riparian buffer and complied with Section 403.3.2(1) because the side of the proposed roadway facing away from Naylor's Run Creek presents a topographical problem because of a steep bank, which has rock throughout it. (N.T. 10/10/2012, pg[.] 24).(Trial Ct. Order ¶ 25.) Cornell's Civil Engineer testified that the horizontal curve could not be constructed in accordance with Section 403.3.2(1) of the SALDO without encroaching on the 50-foot riparian buffer required by the Township's zoning ordinance because of the location of Naylor's Creek Run. (Hr'g Tr. at 25-26, R.R. at 29a-30a.) Thus, in order to construct the horizontal curve with a 100-foot radius, a variance from the requirements of the zoning ordinance would need to be granted to Cornell by the Township. (Hr'g Tr. at 26, 31, R.R. at 30a, 35a.) Therefore, the undisputed record evidence supports a determination that literal enforcement of Section 403.3.2(1) of the SALDO would exact an undue hardship because of the peculiar conditions pertaining to the Property.
This does not end our inquiry. Section 512.1(a) of the MPC provides that the Township Council:
may grant a modification of the requirements of one or more provisions [of the SALDO] 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.53 P.S. § 10512.1(a) (emphasis added). As stated previously, the Township Council found, based on the testimony presented, that granting the Request "would create potential safety issues, including limitations on the safe ingress and egress to and from the proposed new homes by emergency vehicles." (Township Resolution No. 36-12 at 2, R.R. at 218a.) Thus, Township Council concluded that "it would not be in the public interest nor would the purpose and intent of the [SALDO] be observed by the granting of such modification or waiver." (Township Resolution No. 36-12 at 2, R.R. at 218a.) However, the record does not support the Township Council's finding and resulting conclusion.
A subdivision and land development ordinance may include, but need not be limited to, provisions for ensuring that "streets in and bordering a subdivision or land development shall be coordinated, and be of such widths and grades and in such locations as deemed necessary to accommodate prospective traffic, and facilitate fire protection." Section 503(2)(ii) of the MPC, 53 P.S. § 10503(2)(ii). Here, the evidence reveals that the intent of Section 403.3.2(1) of the SALDO, which requires a minimum radius of 100 feet when designing a horizontal curve, is to provide for sufficient "widths and grades and in such locations as deemed necessary to accommodate prospective traffic, and facilitate fire protection." Id. The Township Engineer testified that the 100-foot minimum radius set forth in Section 403.3.2(1) of the SALDO is related to public safety. (Hr'g Tr. at 136, R.R. at 140a.) Cornell's Civil Engineer testified that the 100-foot radius is seen quite frequently in subdivision and land development ordinances because such distance provides for negotiating the turn safely. (Hr'g Tr. at 27-28, R.R. at 31a-32a.) Therefore, there is no dispute that the intent and purpose of Section 403.3.2(1) of the SALDO is to ensure public safety.
Cornell provided expert testimony based upon traffic and engineering studies that emergency vehicles similar to the vehicles utilized by the Township, and other vehicles similar to a 30-foot moving truck, would be able to safely traverse the Marvine Road Extension with a reduced minimum radius of 65 feet. (Hr'g Tr. at 26-28, 36, 40-41, 47-49, 59-63, 68-69, R.R. at 30a-32a, 40a, 44a-45a, 51a-53a, 63a-67a, 72a-73a.) The Township's Fire Chief disputed, based upon his 42 years of experience as a fire fighter in the Township, Cornell's experts' opinion that emergency vehicles could safely traverse the Marvine Road Extension if cars were parked in or near the horizontal curve designed with the proposed reduced radius.
The Township's Fire Chief provided Cornell's experts with the dimensions of the Township's largest fire truck, which is a 48-foot ladder truck. (Hr'g Tr. at 62, 102, R.R. at 66a, 106a.)
The Fire Chief believed that, because there was no secondary means of egress, emergency vehicles would not be able to turn around and get out of the development. (Hr'g Tr. at 98, R.R. at 102a.) He also believed that entrance into the development would be a problem if cars were parked in the horizontal curve because, in emergency situations, the fire trucks are driven at high rates of speed causing the trucks to travel down the center of the road rather than next to the curb. (Hr'g Tr. at 99-105, R.R. at 103a-09a.) The Fire Chief testified that he had personal experience with the manner in which people park in the Township and that, due to previous parking concerns, the Township established fire zones where no parking is permitted and that these zones have worked well. (Hr'g Tr. at 108-09, R.R. at 112a-13a.) The Fire Chief testified further that the Township prevents parking within 15 or 20 feet of an intersection to enable emergency vehicles to turn safely. (Hr'g Tr. at 109, 126, R.R. at 113a, 130a.)
As observed by the trial court:
[Cornell] proposed a secondary means of egress to the cul-de-sac across [the Township's] property and was in the process of requesting . . . permission to construct an emergency access only driveway across . . . Township Council's property. However, the Plan[s] did not provide for such emergency only access because . . . Township Council had not agreed to allow [Cornell] to construct the emergency only access at the time that [Cornell] presented its Plan[s]. (10/10/2012 N.T. pp[.] 133-137).
While the Fire Chief testified that there are problems with people parking in the designated fire zones and within 15-20 feet of an intersection, he did not offer any concrete examples of when emergency vehicles attempting to respond to emergency situations in the Township were hampered or unable to complete a mission because illegally parked cars hindered access to the area in need of emergency services. (Hr'g Tr. at 109-10, R.R. at 113a-14a.) Instead, the Fire Chief testified that he thought that emergency vehicles would not have the ability to safely and efficiently get people out if the horizontal curve was modified from 100 feet to 65 feet and there was no secondary means of egress. (Hr'g Tr. at 110, R.R. at 114a.)
This Court realizes that concern for public safety is of upmost importance to a governing body, such as the Township Council in this matter, and that local public safety officials have the knowledge and first-hand experience necessary to maintain safety in a municipality. However, the foregoing testimony shows that the Fire Chief's safety concerns are based upon speculation and do not constitute competent evidence to support the Township Council's Decision. Moreover, the Fire Chief conceded that he could request that the Township Council pass an ordinance, as it did to restrict parking at intersections, to prohibit parking within 100 feet of the proposed horizontal curve. (Hr'g Tr. at 126, R.R. at 130a.) In addition, the Township's Engineer testified that emergency vehicles would be able to safely traverse the Marvine Avenue Extension if no vehicles were parked in the horizontal curve. (Hr'g Tr. at 135, R.R. at 139a.)
See Bailey v. Upper Southampton Township, 690 A.2d 1324, 1327 (Pa. Cmwlth. 1997) (local governing body's finding that proposed conditional use would increase traffic was not supported by substantial evidence where it was based solely on speculative testimony). --------
Accordingly, without sufficient evidence to support a finding that granting the proposed modification would actually create or result in safety issues, the Township Council erred in concluding that granting the Request would neither be in the public interest nor would the purpose and intent of Section 403.3.2(1) of the SALDO be observed. Thus, we are constrained to affirm the trial court's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge
Image materials not available for display. ORDER
NOW, January 17, 2014, the Order of the Court of Common Pleas of Delaware County entered in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge
(Trial Ct. Order ¶ 38.)