Opinion
No. 1469 C.D. 2011
04-26-2012
Metro Bank, Appellant v. Board of Commissioners of Manheim Township, Pennsylvania
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Metro Bank appeals the order of the Court of Common Pleas of Lancaster County (trial court) granting the Board of Commissioners (Board) of Manheim Township's (Township) motion to quash Metro Bank's land use appeal and denying the Board's motion to quash Metro Bank's refund appeal. We affirm.
On September 28, 2005, Commerce Bank filed a land development plan to build a bank at 1461 Manheim Pike in the Township. Commerce Bank hired Herbert, Rowland, & Grubic, Inc. (HRG) to conduct a traffic impact study for the new branch. On March 9, 2006, the Township's Department of Planning and Zoning issued a report imposing a traffic impact fee of $156,742.40 based upon its determination that the new branch would generate 80 peak trips per day. On April 10, 2006, the Board approved Commerce Bank's plan subject to the payment of the traffic impact fee. On October 19, 2006, Commerce Bank paid the traffic impact fee and a building permit was issued. The new branch was constructed and opened in 2007. Commerce Bank was subsequently acquired by Metro Bank.
An impact fee is defined by section 502-A of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, added by the Act of December 19, 1990, P.L. 1343, as amended, 53 P.S. §10502-A, as "a charge or fee imposed by a municipality against new development in order to generate revenue for funding the costs of transportation capital improvements necessitated by and attributable to new development. 53 P.S. §10502-A. In determining the amount of the impact fee to be imposed, section 505-A(a)(2) of the MPC states, in pertinent part:
(2) The specific impact fee for a new development ... within the service area for road improvements shall be determined as of the date of preliminary land development ... approval by multiplying the per trip cost established for the service area as determined in section 503-A(a) by estimated number of peak hour trips to be generated by the new development ... using generally accepted traffic engineering standards.53 P.S. §10505-A(a)(2). Moreover, section 505-A(e) provides, in pertinent part, that "[a]ll transportation impact fees imposed under the terms of this act shall be payable at the time of the issuance of building permits for the applicable new development...." 53 P.S. §10505-A(e).
In May of 2010, Metro Bank commissioned HRG to conduct a new traffic impact study for this branch. On July 6, 2010, the study was completed and contained a number of peak trips that was fewer than the number of peak trips upon which the impact fee was based. As a result, on July 8, 2010, Metro Bank filed an application with the Board for a refund of the impact fee that was paid.
Section 505-A(a)(3) states, in pertinent part, that "[a] developer or municipality may, however, at any time, voluntarily prepare and submit a traffic study for a proposed development or may have such a study prepared at its expense after the development is completed to include actual trips generated by the development for use in any appeal as provided for under this act...." 53 P.S. §10505-A(a)(3). Likewise, section 6.D. of the Township's ordinance provides, in pertinent part, that "[a]n applicant may, at any time, voluntarily prepare and submit a traffic study for a proposed Project or may have such a study prepared at its expense after the Project is completed to include actual trips generated by the Project for use in any appeal as provided for under [the MPC] or this Ordinance." (R.R. at 011.)
Section 505-A(g) of the MPC provides for the refund of impact fees if: (1) there are undisbursed funds after the capital improvements plan is completed or terminated; (2) the municipality does not commence construction of any transportation service area road improvements within three years of the construction date; (3) the actual expenditures of the capital project are less than 95% of the costs properly allocable to the fee paid within the transportation service area in which the improvement was adopted; and (4) if the new development for which the impact fees were paid is not commenced prior to the expiration of the building permits or the building permit is altered thereby reducing the impact fee due. 53 P.S. §10505-A(g).
Finally, Section 9 of the Township's Ordinance No. 1999-8 (ordinance) states, in pertinent part:
Section 9. Refunds. An Applicant who has paid an impact fee may make an application for a refund of such impact fee (including interest earned thereon to the extent that the Township shall be required by statute to pay such interest) where [the MPC] requires the Township to refund an impact fee. The Applicant desiring a refund of the impact fee shall file a written application with the Township requesting such a refund within thirty (30) days after the event which gives rise to the right to claim a refund unless a different procedure is required by [the MPC].... The Board shall act upon a request for a refund within ninety (90) days.(R.R. at 012-013.)
By letter dated September 16, 2010, the Board notified Metro Bank that it scheduled a hearing on Metro Bank's refund request for September 27, 2010. The Board's letter read as follows:
Re: Metro Bank - 1461 Manheim Pike, Impact Fee Refund Request
Dear Mr. Hurst:
At their [sic] meeting on Monday, September 13, 2010, the Board of Commissioners of the Township of Manheim scheduled a public hearing regarding the impact fee refund request for Metro Bank and authorized the necessary advertising for the public hearing. The public hearing shall be set for September 27, 2010 at 6:30 p.m. here at the Township offices, 1840 Municipal Drive.(R.R. at 149.)
Should you have any questions regarding this matter, please feel free to contact Lisa Douglas, Director of Planning and Zoning at the Municipal Office.
Sincerely,
MANHEIM TOWNSHIP COMMISSIONERS
On September 27, 2010, prior to the hearing on its refund request, Metro Bank filed a land use appeal in the trial court under section 506-A(a) of the MPC and section 933 of the Judicial Code alleging that it "[i]s entitled to a refund of the traffic impact fee it paid to [the] Township for the approval of the Plan for development of the Property...." (R.R. at 002, 004.)
Section 506-A of the MPC states, in pertinent part:
(a) Any person required to pay an impact fee shall have the right to contest ... the imposition of impact fees, ... the refund of impact fees and all other matters relating to impact fees, including the constitutionality or validity of the impact fee ordinance by filing an appeal with the court of common pleas.53 P.S. §10506-A(a)-(c). Likewise, section 12 of the Township's ordinance provides that "[a]n appeal from a determination [regarding a traffic impact fee] under this Ordinance shall be made in accordance with Section 506-A of [the MPC]." (R.R. at 014.)
* * *
(c) Any cost incurred by parties in such an appeal shall be the separate responsibility of the parties.
Section 933(a)(3) of the Judicial Code provides, in pertinent part, "[e]xcept as otherwise prescribed by any general rule adopted pursuant to section 503 (relating to reassignment of matters), each court of common pleas shall have jurisdiction of appeals from final orders of government agencies in ... [a]ppeals jurisdiction of which is vested in the courts of common pleas by any statute hereinafter enacted." 42 Pa.C.S. §933(a)(3).
The Board conducted a public hearing on Metro Bank's refund request on September 27, 2010. On November 11, 2010, the Board issued a decision denying Metro Bank's refund request. (R.R. at 274.)
On December 6, 2010, Metro Bank filed the refund appeal in the trial court from the Board's decision denying its refund request. On January 21, 2011, the Board filed a motion to quash Metro Bank's land use appeal and Metro Bank's refund appeal, alleging that they were both untimely.
The Township's Department of Planning and Zoning (Department) participated in the proceedings before the trial court.
On July 12, 2011, the trial court issued the instant order granting the Board's motion to quash Metro Bank's land use appeal as untimely and denying the Board's motion to quash Metro Banks" refund appeal, which had been timely filed. The trial court determined, inter alia, that the provisions of section 1002-A(a) of the MPC were to be read together with the provisions of section 506-A so that a 30-day limitation in section 1002-A applied to appeals filed under section 506-A. (Trial court 7/12/11 opinion at 4-6.) The trial court noted that "[t]he impact fee was imposed on April 10, 2006 and paid by Metro on October 19, 2006. Metro did not file the instant appeal of this impact fee until September 27, 2010, more than three years after the impact fee was imposed and paid, and well beyond the 30 day appeal period provided by § 11002-A...." (Id. at 6.) On August 8, 2011, Metro Bank filed this appeal of the trial court's order.,
Added by the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §11002-A(a). Section 1002-A states, in pertinent part:
(a) All appeals from all land use decisions rendered pursuant to Article IX shall be taken to the court of common pleas of the judicial district wherein the land is located and shall be filed within 30 days after entry of the decision as provided in 42 Pa.C.S. § 5572 (relating to time of entry of order) or ... within 30 days after the date upon which notice of said deemed decision is given as set forth in section 908(9). It is the express intent of the General Assembly that, except in cases in which an unconstitutional deprivation of due process would result from its application, the 30-day limitation in this section should be applied in all appeals from decisions.
On August 10, 2011, the trial court issue an order directing Metro Bank to file a concise statement of errors complained of on appeal by August 31, 2011, pursuant to Pa.R.A.P. 1925(b). However, Metro Bank did not file a concise statement until September 6, 2011. As a result, the trial court determined that Metro Bank had waived all claims of error in this appeal. (Trial court 9/30/11 amended opinion at 3.)
Our scope of review of a trial court's order quashing an appeal as untimely is limited to determining whether the trial court abused its discretion or committed an error of law. Southern Chester County Concerned Citizens Organization v. Zoning Board of Lower Oxford Township, 937 A.2d 1141, 1143 n. 4 (Pa. Cmwlth. 2007), appeal denied, 599 Pa. 697, 960 A.2d 842 (2008).
In this appeal, Metro Bank claims that the trial court erred in holding that it lacked jurisdiction over the land use appeal. Metro Bank also alleges that the trial court erred in determining that it waived its claims in this appeal by failing to file a timely statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Metro Bank first claims that the trial court erred in holding that it lacked jurisdiction over the land use appeal. Metro Bank asserts that its land use appeal was timely because it was filed within 30 days of the Board's September 16, 2010, decision denying its refund request. Although the trial court erroneously determined that it was without jurisdiction over Metro Bank's land use appeal because it was an untimely appeal from the imposition of the impact fee in 2006, the trial court was without jurisdiction because the Board's September 16, 2010, letter was not an appealable decision under the MPC.
It is well settled that we may affirm the trial court's order for any valid reason appearing in the record. Ario v. Ingram Micro, Inc., 600 Pa. 305, 315-16, 965 A.2d 1194, 1200 (2009).
Metro Bank filed its refund request with the Board on July 8, 2010. Thus, the Board was required to act on the request within 90 days, or before October 6, 2010, under section 9 of the Township's ordinance. The Board's September 16, 2010, letter scheduling a public hearing to consider Metro Bank's refund request on September 27, 2010, was well within this statutory timeframe for disposition of the request. Contrary to Metro Bank's characterization of the Board's September 16, 2010, letter, the letter did not dispose of Metro Bank's refund request in any respect; rather, the letter merely notified Metro Bank of the hearing on its refund request prior to the Board's disposition. (R.R. at 149.)
As noted above, section 1002-A(a) of the MPC states, in pertinent part, that "[a]ll appeals from all land use decisions ... shall be taken to the court of common pleas of the judicial district wherein the land is located and shall be filed within 30 days after entry of the decision...." 53 P.S. §11002-A(a). In turn, section 107(b) of the MPC, 53 P.S. §10107(b), defines "decision" in relevant part, as a "[f]inal adjudication of any board ... granted jurisdiction under any land use ordinance or this act to do so.... All decisions shall be appealable to the court of common pleas of the county and judicial district wherein the municipality lies." 53 P.S. §10107(b). Although the MPC does not define the term "adjudication", that term is defined in section 101 of the Administrative Agency Law, 2 Pa.C.S. §101, as "[a]ny final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to a proceeding in which the adjudication is made." Because the Board's September 16, 2010, letter scheduling a public hearing to consider Metro Bank's refund request did not affect Metro Bank's rights regarding its refund request, the letter was not an appealable "decision" under the MPC. Therefore, the trial court properly quashed Metro Bank's land use appeal. See, e.g., Allegheny West Civic Council, Inc. v. City Planning Commission of the City of Pittsburgh, 470 A.2d 1122, 1123 (Pa. Cmwlth. 1984) (holding that a planning commission's action on a conditional use application was merely recommendatory and, therefore, lacked the requisite finality to constitute an adjudication appealable to the court of common pleas under section 101 of the Administrative Agency Law).
"'Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things.' [Section 1932(a) of the Statutory Construction Act,] 1 Pa.C.S. §1932(a)." Narberth Borough v. Lower Merion Township, 590 Pa. 630, 644 n. 15, 915 A.2d 626, 634-35 n. 15 (2007).
We need not reach Metro Bank's second allegation of error based upon our disposition of the first claim in this appeal. --------
Accordingly, the trial court's order is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 26th day of April, 2012, the July 12, 2011, order of the Court of Common Pleas of Lancaster County is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge