Opinion
No. 970 C.D. 2011
03-14-2012
Ridge Associates, L.P., Appellant v. Board of Supervisors of Chadds Ford Township
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Ridge Associates, L.P. (Ridge Associates) appeals from the May 18, 2011 order of the Court of Common Pleas of Delaware County (trial court) denying its appeal from the Chadds Ford Township Board of Supervisors' (Board) conditional approval of its preliminary subdivision plan. Ridge Associates presents three issues for this Court's review: (1) whether the Board's conditions requiring reconstruction of an off-site culvert, construction of an off-site deceleration lane, and improvements to an off-site drainage and shoulder were arbitrary, capricious, an abuse of discretion and contrary to law; (2) whether the Board's decision to condition issuance of certificates of occupancy on completion of the Ridge Road Culvert and the Township engineer's approval was arbitrary, capricious, an abuse of discretion and contrary to law; and (3) whether the Board's condition requiring drainage and shoulder improvements were vague and overbroad and, therefore, arbitrary, capricious, an abuse of discretion and contrary to law. We affirm.
On March 1, 2005, Ridge Associates filed a preliminary subdivision plan (Plan) to divide and develop approximately 45 acres (Property) into 28 single-family dwelling lots, lying south of Ridge Road and west of Route 202 in Chadds Ford Township (Township), Delaware County. Ridge Associates requested six waivers from the requirements of the Township Code. The Plan was reviewed by Township engineer, Regester and Associates, Inc., and discussed at the Board's May 3, 2006 public meeting. On June 5, 2006, Pennoni Associates, the firm the Board asked to conduct a traffic engineering study, issued a review of the Plan. On June 7, 2006, the Board passed Resolution 13-2006 granting the waivers and approving the Plan subject to conditions. The following three conditions are at issue in this appeal.
Condition 3: Applicant is to reconstruct the Ridge Road Culvert (adjacent to Ridings Sewer Plant) including installation of a new culvert pipe to accommodate the ten[-] year storm and otherwise pursuant to plans to be approved to the satisfaction of the Township Engineer. All work with respect to the Ridge Road Culvert is to be completed and approved by the Township Engineer before the issuance of any Certificates of Occupancy.Reproduced Record (R.R.) at 22a, 24a.
. . .
Condition 12: The Plans must be evaluated and revised where possible prior to final submission pursuant to the comments contained in the review letter of Pennoni Associates dated June 5, 2006 (See Exhibit "B") including but not limited to:
a. A deceleration lane should be provided along Ridge Road to enter the proposed site;
b. Drainage and shoulder improvements should be provided along Ridge Road in the vicinity of the development . . . .
On June 29, 2006, Ridge Associates appealed the Board's conditions to the trial court, stating that the Board was without authority to impose off-site improvement conditions. Following oral argument, on May 18, 2011, the trial court denied Ridge Associates' appeal based on a determination that the conditions are onsite improvements. Ridge Associates filed a timely appeal to this Court.
In a case where the trial court takes no additional evidence, the appellate court's standard of review is limited to determining whether a township board of supervisors abused its discretion or committed an error of law. Morris v. S. Coventry Twp. Bd. of Supervisors, 898 A.2d 1213 (Pa. Cmwlth. 2006).
Ridge Associates first argues that the Board erred by conditioning its approval of the Plan on reconstruction of the Ridge Road Culvert, construction of a deceleration lane, and improvements to a drainage and shoulder adjacent to Ridge Associates' property. Specifically, Ridge Associates argues that the Board's conditions violate Article V-A of the Municipalities Planning Code (MPC) because the improvements would not be on property Ridge Associates owns or controls. It also argues that it cannot be responsible for pre-existing drainage issues, and that difficulties will result if neighboring property owners refuse to grant rights-of-way for the work. We disagree.
Act of July 31, 1968, P.L. 805, as amended, added by Section 1 of the Act of December 19, 1990, P.L. 1343, 53 P.S. §§ 10501-A - 10508-A; Section 10508-A was added by Section 14 of the Act of June 23, 2000, P.L. 495.
Section 501 of the MPC, 53 P.S. § 10501, provides in pertinent part:
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10501.
The governing body of each municipality may regulate subdivisions and land development within the municipality by enacting a subdivision and land development ordinance [(SALDO)]. . . . All powers granted herein to the governing body or the planning agency shall be exercised in accordance with the provisions of the [SALDO]."A governing body may impose on the approval of a subdivision reasonable and economically feasible conditions." Koresko v. Farley, 844 A.2d 607, 615 (Pa. Cmwlth. 2004). "A board may not condition its approval of a plan upon a developer meeting a standard not contained in statute or ordinance." Stauffer v. Weisenberg Twp. Bd. of Supervisors, 934 A.2d 783, 787 n.5 (Pa. Cmwlth. 2007). Section 503-A(b) of the MPC, 53 P.S. § 10503-A(b), also prohibits a municipality from requiring construction of off-site improvements as a condition for approval of a subdivision application, except those specifically authorized by the MPC. Section 502-A of the MPC, 53 P.S. § 10502-A, defines "[o]ffsite improvements" as "those public capital improvements which are not onsite improvements and that serve the needs of more than one development."
A municipality may, however, require a developer to construct onsite improvements as a condition of subdivision approval. 53 P.S. § 10503-A(e). "Onsite improvements" are defined as "all improvements constructed on the property abutting the applicant's property necessary for the ingress or egress to the applicant's property, and required to be constructed by the applicant pursuant to any municipal ordinance, including, but not limited to . . . [SALDO] . . . ." 53 P.S. § 10502-A. Thus, to the extent improvements are required by a municipality's ordinances and they are necessary for the ingress or egress to the applicant's property, even if the improvements are to abutting property, they are deemed onsite improvements.
The parties stipulated that on March 1, 2005, when Ridge Associates filed the Plan, Birmingham Township Ordinance No. 65, as amended, was in effect. Birmingham Township Ordinance No. 65 contains the Township's Subdivision and Land Development Ordinance of 1985, as amended (the Township's SALDO). The Township's SALDO clearly grants the Board authority to take the actions it did in this case.
As amended by Ordinance 66 (in 1985), 65A (in 1989), 65B (in 1992). Ordinance 65, Section 510 (Stormwater Management) and Ordinance 66 (Grading, Soil Erosion and Sedimentation Control and Stormwater Management) later rescinded with the enactment of Chadds Ford Ordinance No. 104 (Stormwater Management) in 2005.
Section 103.A. of the Township's SALDO provides that "[n]o subdivision . . . within the Township shall be made . . . except in accordance with the provisions of [SALDO]." Section 700 of the Township's SALDO prescribes:
All proposed subdivisions . . . shall be coordinated and planned so as to be compatible with adjoining or nearby neighborhoods or approved subdivisions or land developments to the end that harmonious development will result. Such coordination shall also pertain to subdivisions and land developments located adjacent to neighboring townships.To that end, Section 302.H.3. of the Township's SALDO (as amended by Township Ordinance 65(b)) provides that "the Board . . . [m]ay make its decision to grant approval of a Preliminary Plan subject to conditions, changes or additions."
The Board's conditions adhere to the purposes of the Township's SALDO. Section 101 of Township's SALDO reflects that it was enacted, inter alia, "[t]o ensure that the arrangement and design of subdivisions and land developments conforms to the . . . ordinances, codes, regulations, plans and maps adopted in furtherance thereof"; "[t]o promote and protect the health, safety and welfare of the residents of the Township"; "[t]o facilitate and accommodate prospective . . . vehicular movement, fire protection and . . . other essential services through a coordinated system and design of streets"; "[t]o ensure the coordination and conformity of subdivision . . . plans with the public improvement plans . . . regarding . . . streets, sewers and other facilities and improvements"; and, "[t]o establish minimum standards for the design and construction of improvements . . . such as streets . . . adequate drainage . . . ." Section 101.B., C., E., F. and I. of the Township's SALDO.
The Board's conditions adhere to the Township of Chadds Ford Ordinance No. 104 (Township Ordinance 104), effective February 18, 2005, which established a Township-wide stormwater management ordinance due to "[i]nadequate management of accelerated stormwater runoff resulting from development . . ." and because "[a] comprehensive program . . . [was] fundamental to the public health, safety, welfare, and the protection of the people of the Municipality . . . ." Township Ordinance No. 104, Section 101. Section 301 of Township Ordinance No. 104 prohibits any final plan approval, land disturbance activity, or permit issuance unless the applicant "has received written approval of a stormwater management plan from the Municipality."
Board Condition 3 requires Ridge Associates to reconstruct the Ridge Road Culvert with a new pipe sufficient to accommodate a ten-year storm. Township Ordinance 104 defines "culvert" as "[a] structure with appurtenant works that carries a stream under or through an embankment or fill." Township Ordinance No. 104, Article II. The Regester Associates' April 28, 2006 letter places the culvert "downstream from this [P]roperty." R.R. at 29a. Section 304.C.4. of Township Ordinance No. 104 (related to Stormwater Management Plan Contents) provides:
In its brief, the Board argues that Ridge Associates committed to replacing the Ridge Road Culvert. We find no basis for this contention. The only record of that commitment is hearsay appearing in the April 28, 2006 letter from Regester Associates. R.R. at 12a-13a, 29a.
The Board cited Section 105-11c(4) on page 12 of its brief for this quote. However, there does not appear to be a Section 105-11c(4) in the stipulated ordinances.
The Board of Supervisors may require that a . . . developer provide reasonable corrective measures to alleviate an existing off-site drainage problem, which may be affected by the proposed subdivision and/or land development. It shall be the responsibility of the . . . developer to obtain all drainage easements on, over, or through other properties . . . .During oral argument, Ridge Associates' counsel acknowledged the existing drainage problem and the new development's impact on the culvert. Based upon the facts and above-cited provisions, the Board is authorized to impose the culvert condition.
Similarly, the Board is authorized to impose the deceleration lane construction. Section 600.A. of the Township's SALDO (as amended by Township Ordinance 65(b)) states: "No subdivision . . . application . . . shall be finally approved unless the streets shown on such plan have been improved . . . as required by this Ordinance . . . ." Section 502.A.1. of the Township's SALDO states: "The proposed street pattern and layout shall be properly and logically related to the existing streets and their functional characteristics." Section 502.A.6. requires that "[p]rovisions shall be made for the extension and continuation of major and minor collector streets and local primary streets into and from adjoining areas . . . ." Section 502.C.20. of the Township's SALDO provides: "[D]eceleration lanes shall be provided to aid in ingress and egress relative to Major Arterial, Minor Arterial, Major Collector and Minor Collector Streets . . . " subject to PennDOT's standards if a state road, and to the Township Engineer's standards if a Township road. Section 503 the Township's SALDO sets forth the Township's requirements for street construction. Section 503(2)(ii) of the MPC, 53 P.S. § 10503(2)(ii), provides that a SALDO may include "[p]rovisions for insuring that . . . streets in and bordering a subdivision . . . 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 . . . ."
The Board cited Section 160-39(c)(22) on page 11 of its brief as: "Acceleration and deceleration lanes shall be provided to aid in ingress and egress relative to principal arterial and collector highways and local access highways and collector roads. . . ." However, there does not appear to be a Section 160-39(c)(22) in the stipulated ordinances.
In addition, the Board is authorized to impose the drainage and shoulder improvements. Section 600.A. of the Township's SALDO (as amended by Township Ordinance 65(b)) prohibits final approval of any subdivision application "unless . . . curbs, gutters, . . . water mains, sanitary sewers, [and] storm sewers . . . have been installed in accordance with this Ordinance." Section 502.A.2. of the Township's SALDO requires that "[t]he proposed street pattern and layout shall be properly and logically related to the topography of the land with regard to grades and conditions of drainage." Section 503.A. of the Township's SALDO requires that "[a]ll . . . methods of construction and drainage [of streets], shall be in accordance" with the [PennDOT]'s specifications, and provides specific standards for construction materials and procedures. Article 4 of Township Ordinance No. 104 sets forth in detail the Township's design criteria and standards for stormwater management. Section 406.H. thereof specifically addresses "existing points of concentrated drainage that discharge onto adjacent property," and Section 406.T. addresses culverts and drainage channels.
According to the Plan, the only access to the proposed development is via Ridge Road. Pennoni's recommendations for a deceleration lane and drainage and shoulder improvements along Ridge Road are "to maintain safety and circulation of additional traffic for the proposed development" and were adopted by the Board and set forth in the Resolution. R.R. at 24a, 33a. The Board states that the improvements are necessary safety measures since the requirement in Section 502.C.17. of the Township's SALDO requiring intersections to be at least 1,000 feet apart was waived for Ridge Associates.
Although the proposed deceleration lane would be located outside property owned or controlled by Ridge Associates, and the drainage and shoulder improvements are to the area along Ridge Road in the vicinity of the development, evidence in the record supports that those improvements are necessary for the safe ingress and egress to the proposed development and, to the extent the improvements are to abutting property, they are onsite improvements which the Board is authorized to impose. Thus, the Board did not err by conditioning its approval of the Plan on reconstruction of the Ridge Road Culvert, construction of a deceleration lane, and drainage and shoulder improvements.
Ridge Associates next argues that the Board's decision to condition issuance of certificates of occupancy on completion of the Ridge Road Culvert and the Township engineer's approval was arbitrary, capricious, an abuse of discretion and contrary to law. Ridge Associates argues that the Board is prohibited from conditioning its approval on Ridge Associates' completion of the culvert improvement. Ridge Associates, however, rests its argument on Section 503-A(f) of the MPC, 53 P.S. § 10503-A(f), which provides: "No municipality may . . . deny any application for . . . certificate-of-occupancy . . . for the reason that any project of an approved capital improvement program has not been completed." Since there has been no contention by either party that the culvert reconstruction would be part of an approved capital improvement program, Section 503-A(f) of the MPC does not apply. Accordingly, the Board did not abuse its discretion or commit an error of law by conditioning its issuance of certificates of occupancy on Ridge Associates' completion of the Ridge Road Culvert and the Township engineer's approval.
Ridge Associates finally argues that the Board's decision to condition preliminary approval of the Plan on vague and overbroad directions regarding drainage and shoulder improvements was arbitrary, capricious, an abuse of discretion and contrary to law. We disagree. The Board's Condition 12.b. is not vague or overbroad. The condition specifies that the nature of the work is drainage and shoulder improvements. The condition also places the location of the improvements "along Ridge Road in the vicinity of the development." R.R. at 24a. Section 502-A of the MPC further narrows the location to property along Ridge Road abutting the Ridge Associates' property. Therefore, Board Condition 12.b. is not vague or overbroad.
Because the Board did not abuse its discretion or commit an error of law by conditioning its approval of Ridge Associates' preliminary subdivision plan on Ridge Associates reconstructing the Ridge Road Culvert, and providing a deceleration lane and drainage and shoulder improvements along Ridge Road, or by conditioning its issuance of certificates of occupancy on Ridge Associates' completion of the Ridge Road Culvert and the Township engineer's approval, the trial court properly upheld the Board's conditional approval of the Plan. The trial court's May 18, 2011 order is, therefore, affirmed.
In its Brief, the Board stated: "if any condition is found invalid by this court, that the entire matter be remanded to the Board . . . for reconsideration of the waivers." Board's Br. at 4. In its Reply Brief, Ridge Associates argues that the Board's remand request was improper because it represents an appeal by the Board of its own decision. Because this Court did not find any of the Board's conditions invalid, this issue is moot. --------
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 14th day of March, 2012, the May 18, 2011 order of the Court of Common Pleas of Delaware County is affirmed.
/s/_________
ANNE E. COVEY, Judge