Green Acres One, LLC & Half Moon Acres, LLC v. Halfmoon Twp., Centre County, PA ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Green Acres One, LLC and Half Moon :
Acres, LLC, :
Appellants :
:
v. : No. 336 C.D. 2020
: Argued: December 8, 2020
Halfmoon Township, Centre County, :
Pennsylvania :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge1
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: April 21, 2021
Green Acres One, LLC and Half Moon Acres, LLC (collectively,
Landowners) appeal from a February 25, 2020 Order of the Court of Common Pleas
of Centre County (common pleas), which denied Landowners’ appeal from a
decision of Halfmoon Township, Centre County, Pennsylvania (Township), denying
Landowners’ Application for Preliminary Subdivision Plan (Application) and
Sewage Facilities Planning Module (Sewer Planning Module). Landowners contend
that common pleas erred by: (1) finding the Township’s denial complies with the
applicable law governing municipal decisions; (2) not finding the Township acted
in bad faith in summarily denying the Application and Sewer Planning Module just
nine days after submission; (3) finding the Township could deny the Application and
1
This case was assigned to the opinion writer prior to January 4, 2021, when Judge Brobson
became President Judge.
Sewer Planning Module based upon an ordinance that merely authorized the
Township to execute an agreement to amend its land use ordinances but did not
actually amend said ordinances; and (4) upholding the denial because Landowners
had a statutory right under the Pennsylvania Sewage Facilities Act2 to seek
Department of Environmental Protection (DEP) approval to revise the applicable
sewage facilities plan to authorize service to the proposed development with a
community treatment plant. We reverse common pleas’ Order because, although
the email denial satisfies the statutory requirements to constitute a municipal denial,
the ordinance upon which the email denial was based did not substantively amend
the Township’s land use ordinances, as the Township contends. Therefore, we
remand this matter for further remand to the Township, which is directed to consider
the Application and Sewer Planning Module in accordance with the Township’s
Zoning Ordinance3 and Subdivision and Land Development Ordinance4 (SALDO)
as they existed at the time of the Application.
I. BACKGROUND
Landowners own approximately 198 acres of land north of State Route 550 in
the Township upon which they propose to build 70 single-family detached dwellings
that would be served by a community sewage treatment plant that Landowners also
propose to construct.5 (Common pleas’ Opinion (Op.), Findings of Fact (FOF) ¶¶ 1,
2
Act of January 24, 1966, P.L. 1535, No. 537, as amended, 35 P.S. §§ 750.1-750.20a.
3
Zoning Ordinance of Halfmoon Township, Centre County, Pa. (Sept. 11, 1972), as
amended.
4
Subdivision and Land Development Ordinance of Halfmoon Township, Centre County,
Pa. (Oct. 14, 1985), as amended.
5
Landowners also own an additional 127 acres in neighboring Patton Township, which
will be developed into Greenmoore Village. A planning module for that development was
(Footnote continued on next page…)
2
12-13.) The property is located in an Agricultural Zoning District where the
Township’s Zoning Ordinance permits community sewage treatment plants as a
conditional use. (Zoning Ordinance, Section 255-13.C(3), Reproduced Record
(R.R.) at 600a.) The Township’s SALDO likewise permits community septic and
sewage systems provided the same are approved by the Board of Supervisors, DEP,
and the sewage enforcement officer. (SALDO, Section 215-19.A(4), R.R. at 804a.)
The Centre Region Council of Governments (CRCOG), of which the
Township is a member,6 updated its multimunicipal comprehensive plan, the Centre
Region Comprehensive Plan, in November 2013. (FOF ¶¶ 2-3.) Therein is a Future
Land Use Map identifying a Regional Growth Boundary and Sewer Service Area.
(Id. ¶ 4.) “The Regional Growth Boundary delineates a region where it was
determined growth should occur.” (Id. ¶ 5.) The Sewer Service Area was
established by the Centre Region Act 537 Sewage Facilities Plan (Act 537 Plan) and
identifies the area serviced by public sewer. (Id. ¶¶ 4, 8.) The boundaries of the
Sewer Service Area coincide with the Regional Growth Boundary. (Id. ¶ 8.) The
Township, and hence Landowners’ property, is entirely located outside of this area.
(Id. ¶ 7.) The rural areas outside of the Regional Growth Boundary are largely
devoted to farming and forestry, and while large-lot, single-family homes are
permitted, they cannot require the use of public sewer services. (Id. ¶ 6.) According
to Section IX of the Centre Region Growth Boundary and Sewer Service Area
Implementation Agreement (Implementation Agreement):
The [Act 537 Plan] identifies on-lot sewage disposal systems as the
only method for wastewater treatment outside of the Regional Growth
previously submitted and approved by Patton Township. If approved by the Township, both
developments will utilize the proposed treatment plant. (Reproduced Record (R.R.) at 99a.)
6
Other member municipalities include College Township, Ferguson Township, Harris
Township, Patton Township, and State College Borough.
3
Boundary and Sewer Service Area. If public sewer service is requested,
the University Area Joint Authority [(UAJA)] has been identified as the
provider for public services in the Centre Region.
(Implementation Agreement, Section IX, R.R. at 31a.)
Section IX of the Implementation Agreement prohibits alternative public
wastewater treatment systems outside of the Regional Growth Boundary and Sewer
Service Area. (Id.) The Implementation Agreement defines “[a]lternative [p]ublic
[w]astewater [t]reatment” as “any process designed to produce an effluent of higher
quality than normally achieved through primary and secondary treatment processes
and [which] does not utilize soils as the primary method for remediation.” (Id.,
Section II, R.R. at 21a.) Section IX concludes by stating that “by enacting this
[Implementation] Agreement, the Municipalities agree to incorporate the
requirements described above into their municipal sewage management ordinances.”
(Id., Section IX, R.R. at 31a.)
On December 17, 2013, the Township enacted Ordinance 2013-20 wherein
the Township Board of Supervisors indicated “the Township . . . wishe[d] to
adopt . . . [the] Implementation Agreement” and “authorize[d] the Chair and the
Secretary to execute said [Implementation] Agreement on behalf of the Board of
Supervisors of the Township . . . .” (Ordinance 2013-20, R.R. at 19a.) Ordinance
2013-20 included what is commonly referred to as a repealer provision, which
provided: “All existing agreements, resolutions, and ordinances which are contrary
to the provisions of this Ordinance are hereby repealed to the extent necessary to
give this Ordinance full force and effect.” (Id.) The Township’s Zoning Ordinance
and SALDO predate the Implementation Plan and Ordinance 2013-20. There is no
evidence either was amended to reflect the Implementation Agreement and its
requirements.
4
Consistent with their proposed development, Landowners submitted their
Application on August 8, 2018, and their Sewer Planning Module on August 9,
2018,7 requesting that the Township amend the Act 537 Plan to allow the
development to be served by Landowners’ proposed community plant. (FOF ¶¶ 11,
14.) Landowners did not request that the Regional Growth Boundary be expanded
to encompass the property or request an expansion of the Act 537 Plan so the
proposed development could be serviced by UAJA. (Id. ¶ 15.)
On August 17, 2018, the Township Manager sent Landowners’ representative
an email, denying the Application and Sewer Facilities Planning Module. The email
states:
Halfmoon Acres submitted its Application . . . for approximately 70 lots
North of [State Route] 550. [The A]pplication notes these dwelling
units will be served by an alternative wastewater system. To this end,
[Landowners] submitted a Sewer Planning Module [] a few days later
to the Township for approval. The Township hereby denies both the
[A]pplication . . . and Sewer Planning Module []for the reasons stated
below.
Staff stated to both of you at the pre-application meeting a week to 10
days ago, alternative wastewater systems are not allowed outside the
Regional Growth Boundary. We referred you to the . . .
Implement[ation] Agreement and Township Ordinance 2013-20 dated
December 17, 2013. Therefore, we stated, if an application for
subdivision was submitted to the Township for any lots to be served by
an alternative wastewater system as defined in both the Ordinance and
Agreement[,] staff would, under current law, have to summarily deny
same.
In further support of denying the application as submitted, I spoke to
Dan Thetford at DEP who would be reviewing and approving any
Sewer Planning Module[s] [] for the Township. He state[d] any
7
Landowners originally submitted their Sewage Facilities Planning Module in September
2010, supplemented it in November 2010, updated it in February 2011, and resubmitted it in July
2011 before updating and resubmitting it to the Township in August 2018. (R.R. at 80a.)
5
possible DEP approval is always contingent upon any system being
consistent with Township Ordinances or Regional policies. He also
state[d] the Township has sole power to dictate who it wishes to own
and operate any wastewater system within its boundaries. The
Township wants any wastewater system within the Township to be
owned and operated by a public entity. This means UAJA[,] and Cory
[Miller] at UAJA state[d] any system UAJA will own and operate will
have to be built to UAJA standards and must be approved by the region.
[Jim] May’s letter lays out two different options for [Landowners] to
pursue if [they] decide[] to submit a new application.
(R.R. at 17a.)
The letter referenced in the final paragraph of the email refers to an August
16, 2018 letter from the Director of Centre Regional Planning Agency (CRPA), to
the Township Manager (May’s letter). Therein, May stated he was “writing on
behalf of the CRPA to request that [the] Township consider rejecting the
[A]pplication” because “[t]he project proposes an alternative wastewater treatment
system that is prohibited by the . . . Implementation Agreement.” (Id. at 399a.)
May’s letter specifically cited Section IX.3 of the Implementation Agreement for
this proposition. (Id.) May’s letter concludes by stating:
[Landowners] should consider the two following options for
resubmittal if the Township chooses to reject the [A]pplication:
1. Redesign the subdivision to accommodate individual on-
lot or community on-lot septic systems and resubmit the
preliminary subdivision plan.
2. Request an expansion of the Regional Growth Boundary
[] and Sewer Service Area [] so that [] UAJA could serve the
property. If this is the case, the Township should not review the
subdivision unless [Landowners] first come[] to the Township to
request an expansion of the [Regional Growth Boundary and
Sewer Service Area], and the request is authorized by the
Township Board of Supervisors and ultimately approved by the
[CR]COG General Forum.
6
(Id. at 399a-400a.) Listed as being copied on the letter were CRCOG’s executive
director, UAJA’s executive director, Patton Township’s manager, two of CRPA’s
senior planners, the Township’s zoning officer, the Township’s engineer, and
someone from DEP’s Clean Water Program. (Id. at 400a.) It is not clear whether
May’s letter was attached to the Township Manager’s email.
On September 17, 2018, Landowners filed their notice of appeal to common
pleas, raising the same four issues raised before this Court.8 Without taking
additional evidence, common pleas issued its Order on February 25, 2020, denying
Landowners’ appeal. In an accompanying opinion, common pleas explained its
reasoning as follows. With regard to the sufficiency of the Township’s decision,
common pleas stated the email from the Township Manager explained the
Application was being denied because the community treatment plant would violate
the Implementation Agreement and Ordinance 2013-20. (Common pleas’ Op. at 7.)
In addition, common pleas found the email incorporated by reference May’s letter
providing two options for Landowners to resubmit the Application. (Id. at 7-8.)
Thus, common pleas found the email denial satisfied the statutory requirements for
a municipal decision and, therefore, no deemed approval occurred. (Id. at 8.)
Common pleas likewise was not persuaded by Landowners’ argument that the
Township acted in bad faith. Common pleas acknowledged that the Application was
denied within nine days of submission but explained that the denial occurred after a
pre-application meeting at which Township staff advised Landowners why the
8
Before common pleas, the Township challenged the timeliness of Landowners’ appeal on
the basis that it was filed 31 days after the email decision instead of within 30 days. Common
pleas deemed the appeal timely on the basis that 30 days after August 17, 2018, would have been
Sunday, September 16, 2018, giving Landowners until Monday, September 17, 2018, to file their
appeal, which they did. (Common pleas’ Op. at 7.) The Township does not challenge that
determination before this Court.
7
Application would be denied. (Id. at 8-9.) As a result, common pleas found that the
time between submission and denial was not indicative of bad faith. (Id. at 9.)
Common pleas further found that the Township provided Landowners with two
options regarding how to proceed. (Id.)
As to Landowners’ third argument, common pleas found Ordinance 2013-20
adopted the Implementation Agreement and repealed all ordinances that were
contrary thereto. (Id.) Thus, “the [Implementation Agreement] and the Regional
Growth Boundary have the legal effect of an ordinance,” to which Landowners are
bound, and the Township’s denial of the Application on the basis the Application
was contrary to a Township ordinance was not error. (Id. at 9-10.)
Finally, common pleas found the Township did not deny Landowners the right
to submit a private request to DEP to revise the Act 537 Plan as provided in the
Pennsylvania Sewage Facilities Act. Common pleas stated Landowners “have not
provided [common pleas] with evidence of a prior written demand to the Township,
and the Township’s subsequent written refusal to implement or revise the [Act] 537
Plan,” both of which are required under DEP’s regulations. (Id. at 10.) In addition,
common pleas found Landowners were provided two options for proceeding, to
which they did not avail themselves. (Id.)
Following Landowners’ appeal of common pleas’ Order to this Court,
common pleas issued an opinion pursuant to Rule 1925(a) of the Pennsylvania Rules
of Appellate Procedure, Pa.R.A.P. 1925(a) (1925(a) Op.), wherein it further
explained its reasoning related to the fourth issue. Common pleas explained that
even if it accepted Landowners’ argument that the Application and email denial
constituted a request and denial to amend the Act 537 Plan, Landowners’ fourth
“argument lacks merit.” (1925(a) Op. at 2.) According to common pleas,
8
Landowners’ “right to seek DEP approval did not mean the Township was required
to approve” Landowners’ Application. (Id. at 2-3.) Common pleas stated that DEP
approval would permit Landowners to proceed with their plan “notwithstanding the
lack of approval from the Township and notwithstanding any agreements of the
Centre Region [m]unicipalities.” (Id. at 3.) Common pleas explained that nothing
in DEP’s regulations “precluded [Landowners’] right to seek DEP approval” when
the request is denied by the Township. (Id.) Instead, common pleas found that the
regulations “actually require[] a denial by the Township before [Landowners] can
make the request.” (Id.) Common pleas further found that “[t]he Township did not
ignore [Landowners’] right to seek DEP approval, and actually consulted with DEP,
which informed the Township it would deny [Landowners’] Plan as well.” (Id.)
Lastly, common pleas reiterated that the Township provided Landowners with two
options, neither of which Landowners pursued. (Id. at 3-4.)
II. PARTIES’ ARGUMENTS
On appeal,9 Landowners argue that common pleas’ Order should be reversed
for four reasons. First, Landowners claim the email from the Township Manager
does not comply with the statutory requirements for a municipal decision and, as a
result, Landowners are entitled to a deemed approval of their Application and Sewer
Planning Module. Landowners assert that both Section 508(2) of the Pennsylvania
Municipalities Planning Code (MPC)10 and Section 215-7.F(3) of the Township’s
SALDO require a decision to describe the defects with an application, explain which
9
“In a land use appeal, where [common pleas] has not taken any additional evidence, this
Court’s scope of review is limited to a determination of whether the governing body has committed
an error of law or abused its discretion.” Koller v. Weisenberg Township, 871 A.2d 286, 289 n.2
(Pa. Cmwlth. 2005).
10
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10508(2).
9
requirements are not met, and cite specific provisions of an ordinance that are at
issue. Landowners argue the only ordinance referenced in the Township Manager’s
email is Ordinance 2013-20, which merely authorized the Township to adopt the
Implementation Agreement. Landowners dispute that May’s letter was incorporated
by reference into the email, as common pleas found. Landowners further argue May
is not a Township official. Assuming May’s letter was incorporated into the
Township Manager’s email, Landowners argue it only contains a recommendation
and does not provide a basis for the denial.
Second, Landowners argue the Township had a duty to act in good faith in
reviewing Landowners’ plans, which the Township did not do. As evidence,
Landowners argue the Application and Sewer Planning Module were denied just
nine days after submission and the email denial did not provide Landowners with an
opportunity to respond to modify the plan. To the extent common pleas found there
was no bad faith because May’s letter provided two options for resubmitting the
Application, Landowners argue neither of those options are feasible as on-lot
systems would be too expensive and approval by the Township and/or CRCOG to
amend the Act 537 Plan was unlikely.
Third, Landowners argue the Township never amended its ordinances in
accordance with the Implementation Agreement, and, therefore, the ordinances that
were still on the books allowed off-lot systems and alternative wastewater treatment
systems, such as community sewer treatment plants. Contrary to the Township’s
assertion, Landowners argue that Ordinance 2013-20 does not actually impose any
land use requirements; it merely authorizes Township officials to sign the
Implementation Agreement. For similar reasons, Landowners assert the repealer
provision in Ordinance 2013-20 does not save the Township. According to
10
Landowners, at best, the repealer provision only repeals any ordinances that would
prevent the Township from signing the Implementation Agreement, not any
substantive land use ordinances themselves.
Fourth and finally, Landowners argue it was error to deny the Application and
Sewer Planning Module because, under the Pennsylvania Sewage Facilities Act,
Landowners had the right to privately request that DEP revise the Act 537 Plan.
While common pleas found Landowners did not complete the prerequisites for such
relief, Landowners contend that they did comply with DEP’s regulations requiring a
request to a municipality, here, Landowners’ Application, and a denial by the
Township, here, the Township Manager’s email. Although common pleas, in its
Rule 1925(a) Opinion, found nothing prevented Landowners from still submitting
their request to DEP, Landowners argue DEP cannot require the Township to reverse
the denial. According to Landowners, the Township should have approved the
Application contingent upon Landowners receiving DEP approval. To the extent
common pleas found, based on a statement in the email denial, that the request to
DEP would have been futile, Landowners respond that this misses the point that
Landowners’ right to make the request cannot be circumvented.
The Township argues in response as follows. The email from the Township
Manager sufficiently sets forth the reasons for denial, cites Ordinance 2013-20 as a
basis, incorporates by reference May’s letter, which cites the Implementation
Agreement, and provides Landowners with two options. Therefore, there was no
deemed approval, and the Township acted in good faith. The Township argues
Landowners cite no authority for the proposition that the Township cannot
incorporate by reference a letter from a third party. The Township also argues that
it acted in good faith in reviewing the Application. The Township also points out
11
that Landowners were advised at a pre-application meeting of the deficiencies in
their plan. The Township further contends that Ordinance 2013-20 adopted the
Implementation Agreement, which requires individual or community on-lot sewer
systems, and there is no requirement that an ordinance must be part of a SALDO or
zoning ordinance if it relates to land use. For support, it provides as examples
ordinances related to driveways and stormwater management. The Township also
argues Ordinance 2013-20 contained a repealer provision, which would have
repealed any provisions from other ordinances that conflicted with Ordinance 2013-
20 and the Implementation Agreement it adopted. Finally, the Township argues
Landowners can still submit a private request to DEP for amendment of the Act 537
Plan. In fact, the Township points out, this was one of the two options provided for
in May’s letter. The Township asserts its denial actually opened the avenue for
Landowners to pursue that DEP approval because one of the prerequisites for such
relief is a denial by the municipality.
In their reply brief, Landowners disagree the email constituted a valid denial.
According to Landowners, the governing body of the Township, its Board of
Supervisors, did not even act on the Application; rather, its Township Manager
summarily denied it. Landowners also reiterate that the email did not incorporate
May’s letter and the options provided therein were not really options. The first
alternative essentially amounted to compliance, Landowners argue. The second
option was to request expansion of the Regional Growth Boundary, which would
have required the Township, which denied the Application, to authorize the request
to CRCOG’s General Forum. Landowners also reassert their argument that
Ordinance 2013-20 merely authorized Township officials to sign the
Implementation Agreement and nothing more and that the repealer provision did not
12
affect the ordinances which allow the alternative sewer system that Landowners
propose. Landowners argue that the Implementation Agreement requires the
member municipalities to amend their own ordinances, which the Township did not
do. Landowners also argue that they should not be left to guess what, if anything,
has been repealed. Finally, Landowners argue that the Township misses
Landowners’ point about the Act 537 Plan. Landowners contend they should have
been given the opportunity to make the request to DEP and the Township should
have approved the Application with the condition that Landowners receive such
approval.
III. DISCUSSION
Landowners first argue that the email denying the Application and Sewer
Planning Module did not comply with the statutory requirements for a municipal
decision. Section 508(2) of the MPC provides that a denial of an application “shall
specify the defects found in the application and describe the requirements which
have not been met and shall, in each case, cite to the provisions of the statute or
ordinance relied upon.” 53 P.S. § 10508(2). “It is well-settled that this provision is
mandatory.” Warwick Land Dev., Inc. v. Bd. of Supervisors of Warwick Twp.,
Chester Cnty., 695 A.2d 914, 918 (Pa. Cmwlth. 1997). Section 215-7.F(3) of the
Township’s SALDO also specifies the content of a decision by the Township: “If
the plan is not approved, the decision shall specify the defects found in the plan and
describe the requirements which have not been met and shall, in each case, cite the
provisions of this chapter from which such defects or requirements originate.”
(SALDO, § 215-7.F(3), R.R. at 776a.) The failure to comply with these
requirements results in a deemed approval of the application. 53 P.S. § 10508(3).
13
The Pennsylvania Supreme Court has explained that “the measure of the
adequacy of a decision depends on whether it is sufficient to permit the applicant to
understand the specific nature of the deficiency identified, so as to permit the
applicant to take whatever further action it deems necessary or appropriate.”
Kassouf v. Township of Scott, 883 A.2d 463, 474 (Pa. 2005). Importantly, the courts
have held that an applicant’s actual knowledge of the deficiencies of the plan does
not excuse noncompliance with Section 508(2). Lease v. Hamilton Township, 885
A.2d 684, 688 (Pa. Cmwlth. 2005); Dobrinoff v. Bd. of Supervisors of Franklin Twp.,
582 A.2d 1156, 1160 (Pa. Cmwlth. 1990); Bensalem Township v. Blank, 539 A.2d
918, 951 (Pa. Cmwlth. 1988). Rather, the test is “whether this information is
contained within the four corners of the written decision itself.” Bensalem
Township, 539 A.2d at 951.
That is not to say that a municipality cannot incorporate by reference another
document into its decision. In Kassouf, our Supreme Court addressed this exact
issue. The Supreme Court reasoned that
[i]f the reasons for a denial consist of defects which have already been
adequately set forth in an engineer’s report, or other documentation
provided to the developer and available to the municipal authority in its
decision-making process, it would be a pointless evaluation of form
over substance to require the authority to essentially cut-and-paste
those conclusions into its own decision letter.
Kassouf, 883 A.2d at 472.
The Supreme Court, however, cautioned that while “there is no absolute
impediment to incorporation by reference, [that] does not mean that any and all
references to supporting documentation will provide, as a substantive matter, an
adequate articulation of the reasons for a denial for purposes of Section 508(2).” Id.
There, the Supreme Court stated the municipality’s “letter d[id] not refer to a specific
14
report, identifiable by title or date or subject matter,” did not include the words
“incorporate by reference,” and did not attach the subject document to its letter. Id.
“Instead, the decision letter merely and variously refers to the township engineer’s
‘comments,’ ‘requests’ or ‘requirements,’ which [the landowner] failed to satisfy,
usually without any reference to the source or date of the comments.” Id. The
Supreme Court further reasoned
the subdivision applicant should not be left to guess at whether the
township was truly relying upon an external document in lieu of its own
Section 508 statement. Nor should the applicant be left to guess as to
which of multiple documents is the one that would serve as the
“incorporated” basis for the decision. If a municipal authority indeed
intends for an external document to serve as the substantive explanation
of the basis for its decision, it should make that point explicitly in the
decision letter, and not ask the applicant, and the court system, to infer
the point. Such a plain statement is a very simple task; and because the
township commissioners did not make clear that such was their
intention here, we must reject appellee’s incorporation by reference
argument.
Id. at 472-73. This Court has echoed that sentiment, holding “from a practical
standpoint, incorporation by reference and attachment of such documentation is not
in any way burdensome to the governing body and serves to protect it from claims
that the developer did not receive a list of a plan’s deficiencies.” Lease, 885 A.2d at
690.
Our Court has, on a number of occasions, reviewed the sufficiency of an
alleged decision letter. For instance, in Advantage Development, Inc. v. Board of
Supervisors of Jackson Township, 743 A.2d 1008 (Pa. Cmwlth. 2000), we held that
a decision that incorporated by reference a 16-page engineer’s report satisfied the
requirements of Section 508(2). However, we found a township’s decision did not
comport with Section 508(2) in Warwick Land Development where “we note[d] that
15
the [d]enial [l]etter itself d[id] not specifically cite any statute or ordinance provision
which [the p]roperty [o]wner’s subdivision plan [wa]s said to have violated.” 695
A.2d at 918. The only citations therein were to two sections of the zoning ordinance,
which did not “set forth any reason sufficient” to justify denial of the application.
Id. Moreover, we found the township’s attempt to incorporate other documents into
its decision was unsuccessful. We stated:
[T]he [d]enial [l]etter refers to four different documents which, in turn,
list numerous objections to [the p]roperty [o]wner’s subdivision plan.
The [b]oard of [s]upervisors, however, makes no attempt to identify
with any particularity which of the many concerns set forth in these
documents form the basis for the [a]pplication denial and why. Instead,
the [b]oard of [s]upervisors sweeps together the entire list of objections,
indiscriminately labelling them all as reasons to deny the subdivision
request without ever citing a single one of these reasons in the [d]enial
[l]etter itself. Although it may well have valid grounds to deny [the
p]roperty [o]wner’s subdivision plan, the [b]oard of [s]upervisors’
resort to this type of indeterminate approach does not in our view satisfy
the specificity requirements of [S]ection 508(2) of the MPC,
particularly where so many of the objections seem wanting or otherwise
fail to justify denial at this preliminary stage.
Id. at 920. Accordingly, we concluded the denial letter did not provide the property
owner with “the meaningful notice that [S]ection 508(2) was designed to provide.”
Id. at 920-21.
Here, the email appears to “specify the defects found in the [A]pplication and
describe the requirements which have not been met,” leaving only the question of
whether the email denial “cite[s] to the provisions of the statute or ordinance relied
upon.” 53 P.S. § 10508(2). Landowners argue the email denial does not, as it only
generally references Ordinance 2013-20 and the Implementation Agreement. The
Township contends that Landowners knew of the deficiencies with the Application
based upon a pre-application meeting with Landowners and that the email denial
16
incorporates May’s letter, which specifically identifies the relevant sections of
Ordinance 2013-20 and the Implementation Agreement.
As for the Township’s first argument, it is well-settled that an applicant’s
actual knowledge of a plan’s deficiencies does not excuse a municipality from
complying with Section 508(2) of the MPC and, here, the SALDO, which mirrors
the MPC’s language. Lease, 885 A.2d at 688; Dobrinoff, 582 A.2d at 1160;
Bensalem Township, 539 A.2d at 951. We evaluate the sufficiency of a
municipality’s decision based upon what “information is contained within the four
corners of the written decision itself,” Bensalem Township, 539 A.2d at 951, unless
the purported decision incorporates other documents by reference, in which case, we
may consider those other documents, Kassouf, 883 A.2d at 472.
That brings us to the Township’s second argument related to May’s letter.
The email denial concludes by stating that “May’s letter lays out two different
options for [Landowners] to pursue if [they] decide[] to submit a new application.”
(R.R. at 17a.) The Township argues, and common pleas found, this was sufficient
to incorporate May’s letter into the email denial. However, our Supreme Court has
held that “[i]f a municipal authority indeed intends for an external document to serve
as the substantive explanation of the basis for its decision, it should make that point
explicitly in the decision letter, and not ask the applicant, and the court system, to
infer the point.” Kassouf, 883 A.2d at 472 (emphasis added). “[A]ny and all
references to supporting documentation” does not mean the documentation has been
properly incorporated by reference, such that it can provide a basis for concluding
the requirements of Section 508(2) are satisfied. Id. Here, the passing reference to
May’s letter does not suffice. It is not clear whether May’s letter was attached to the
email denial or that Landowners had been provided a copy of same, as May’s letter
17
was not addressed to Landowners and Landowners were not listed as being copied
on same. Incorporating a document by reference “is a very simple task,” id. at 473,
which we cannot conclude was done here.11
Thus, we limit our review to “the four corners of the written decision itself.”
Bensalem Township, 539 A.2d at 951. As stated, the email denial references
Ordinance 2013-20 and the Implementation Agreement. Ordinance 2013-20 is a
simple one-page ordinance to which there was no specific provision that needed to
be cited. Although the Implementation Agreement is longer and contains multiple
sections, it is apparent from a review of the Implementation Agreement and the email
that Section IX requiring on-lot systems and prohibiting alternative public
wastewater treatment systems is the basis for the Township’s decision. Therefore,
the purpose behind Section 508(2) of the MPC appears to be satisfied and no deemed
approval occurred.
That brings us to the effect of Ordinance 2013-20. When interpreting an
ordinance, courts are guided by principles of statutory construction. THW Grp., LLC
v. Zoning Bd. of Adjustment, 86 A.3d 330, 336 (Pa. Cmwlth. 2014).
Like statutes, the primary objective of interpreting ordinances is to
determine the intent of the legislative body that enacted the
ordinance. . . . In pursuing that end, we are mindful that an ordinance’s
plain language generally provides the best indication of legislative
intent. . . . Thus, statutory construction begins with examination of the
text itself.
Id. (internal citations omitted).
11
Even if the email denial did successfully incorporate by reference May’s letter, at best,
it incorporated the two options May provided for resubmission. (See R.R. at 17a (“May’s letter
lays out two different options for [Landowners] to pursue if [they] decide[] to submit a new
application.”).) It makes no reference to the remainder of May’s letter such that one could
conclude that the Township intended to incorporate by reference the entirety of May’s letter.
18
Ordinance 2013-20 plainly states that it “authorize[d] the Chair and the
Secretary to execute [the Implementation] Agreement on behalf of the Board of
Supervisors of the Township. . . .” (Ordinance 2013-20, R.R. at 19a.) Pursuant to
Ordinance 2013-20, the Township did adopt the Implementation Agreement;
however, there is no evidence the Township incorporated the requirements of the
Implementation Agreement into its ordinances as required by Section IX of the
Implementation Agreement. Section IX of the Implementation Agreement provides
that “by enacting th[e Implementation Agreement], the [member m]unicipalities
agree to incorporate the requirements described [therein] into their municipal sewage
management ordinances.” (R.R. at 31a.)
The Township appears to argue that Ordinance 2013-20 was sufficient to
accomplish this because it contained a general repealer provision. However, the
repealer provision does not provide that it is incorporating the requirements of the
Implementation Agreement into the Township’s ordinances, as Section IX required;
it only discusses repealing “[a]ll existing agreements, resolutions, and ordinances
which are contrary to the provisions of this Ordinance.”12 (emphasis added). As
12
Had the repealer provision stated it was repealing “all existing agreements, resolutions,
and ordinances which are contrary to the provisions of the Implementation Agreement,” instead
of “contrary to the provisions of this Ordinance,” (R.R. at 19a (emphasis added)), we would agree
with the Township that it would have repealed the ordinances on its books, which were contrary
to the Implementation Agreement. While the Township may have intended for Ordinance 2013-
20 to accomplish this, its language did not do so. THW Grp., LLC, 86 A.3d at 336. A review of
the existing ordinances in the record provides further support for this conclusion. The Zoning
Ordinance and SALDO contain references to additions and amendments throughout, including
some that occurred after Ordinance 2013-20 was enacted. (See, e.g., R.R. at 827a-28a (reflecting
amendments made in 2017).) The Zoning Ordinance and SALDO also contain “Editor’s Note[s],”
which show that some provisions were repealed and/or deleted by subsequent ordinances. (See,
e.g., R.R. at 574a, 580a, 582a, 598a, 608a, 610a, 617a-19a, 622a, 626a, 653a, 683a, 693a-94a,
701a, 706a, 772a, 792a-93a, 797a, 804a, 819a, 833a-36a, 838a, 840a, 843a.) Notably, neither
Section 255-13.C(3) of the Zoning Ordinance nor Section 215-19 of the SALDO, both of which
(Footnote continued on next page…)
19
with statutes, the plain language of an ordinance is the best indicator of a
municipality’s intent. THW Grp., LLC, 86 A.3d at 336. We cannot conclude that a
repealer provision successfully incorporates new requirements into existing
ordinances when its plain language makes no mention of incorporation. Therefore,
the Application and Sewer Planning Module could not have been denied on that
basis.
IV. CONCLUSION
Although the email denial from the Township Manager was sufficient to
comply with Section 508(2) of the MPC and Section 215-7.F(3) of the Township’s
SALDO, the denial was based upon Article IX of the Implementation Agreement,
which could not serve as the basis for the Township’s denial because the
requirements set forth in the Implementation Agreement were never incorporated
into the Township’s existing ordinances, as the Implementation Agreement, by its
own terms, required. Accordingly, we reverse common pleas’ Order dismissing
Landowners’ appeal and remand this matter for further remand to the Township to
consider the Application and Sewer Planning Module under the Zoning Ordinance
and SALDO as it existed at the time Landowners submitted the Application.13
_____________________________________
RENÉE COHN JUBELIRER, Judge
permit community sewage plants, includes such references or “Editor’s Note[s].” (R.R. at 600a,
803a-04a.)
13
Given our decision, it is unnecessary to address Landowners’ remaining arguments.
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Green Acres One, LLC and Half Moon :
Acres, LLC, :
Appellants :
:
v. : No. 336 C.D. 2020
:
Halfmoon Township, Centre County, :
Pennsylvania :
ORDER
NOW, April 21, 2021, the Order of the Court of Common Pleas of Centre
County, dated February 25, 2020, is hereby REVERSED. This matter is remanded
for further proceedings consistent with the foregoing opinion.
Jurisdiction relinquished.
_____________________________________
RENÉE COHN JUBELIRER, Judge