The Preserve at Blue Ridge, LLC v. Dorrance Twp. ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Preserve at Blue Ridge, LLC :
:
v. : No. 100 C.D. 2020
: Argued: November 12, 2020
Dorrance Township by, through and :
including Dorrance Township Board :
of Supervisors, :
Appellants :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON (P.), Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: December 14, 2020
Dorrance Township, including the Dorrance Township Board of
Supervisors (Board), appeals a December 12, 2019 Order of the Court of Common
Pleas of Luzerne County (Trial Court) reversing the Board’s denial of The Preserve
at Blue Ridge, LLC’s (Developer) application for approval of a planned residential
development (PRD). The Board argues that the Trial Court committed an error of
law or abused its discretion when it reversed the Board’s conclusions that
Developer’s Tentative PRD Application violated Sections 1602, 1603, 1604(C), and
1606(C) of the Zoning Ordinance.1 The Board also asserts that the order of the Trial
Court is immediately appealable to this Court. For the foregoing reasons, we affirm
the Order of the Trial Court.
1
Dorrance Twp., Pa., Zoning Ordinance §§1602, 1603, 1604(C), 1606(C) (Jan. 8, 2007).
I. Background
Developer owns 546.6 acres of property (the Property) surrounding and
including the Blue Ridge Trail Golf Club, a 78-acre, 27-hole golf course in Dorrance
Township, Luzerne County, Pennsylvania. Reproduced Record (R.R.) at 36.2 The
Property is located in a C-1 (Conservation) zoning district.3 Id. at 37; Zoning
Ordinance §§401 & 501. On February 2, 2016, Developer filed a conditional use
application with the Board as a condition precedent to developing the remaining
acreage on the Property into a PRD.4 R.R. at 150, 776-77.
2
Pennsylvania Rule of Appellate Procedure 2173 states, in pertinent part, as follows:
[e]xcept as provided in Rule 2174 (tables of contents and citations), the pages of
briefs, the reproduced record and any supplemental reproduced record shall be
numbered separately in Arabic figures and not in Roman numerals: thus 1, 2, 3,
etc., followed in the reproduced record by a small a, thus 1a, 2a, 3a, etc., and
followed in any supplemental reproduced record by a small b, thus 1b, 2b, 3b, etc.
Pa.R.A.P. 2173. We note that the reproduced record in this case does not follow the rule as stated
above.
3
Under Section 501.4 of the Zoning Ordinance, a PRD is a conditional use. Zoning
Ordinance §501.4. Article 7 of the Zoning Ordinance defines the procedure for conditional use
applications. In relevant part, Section 702 of the Zoning Ordinance states:
The authority for approving or denying applications for uses permitted as a
conditional use shall be vested in the [Board]. . . . Decisions by the [Board] shall
be made in accordance with standards and criteria set forth in [Article 7 of the
Zoning Ordinance], any studies and reports required within the context of an Impact
Analysis, . . . the respective zoning district in which the use is located, all other
applicable regulations of the [Zoning Ordinance], other ordinances of the Township
and all applicable State and/or Federal regulations.
Zoning Ordinance §702.
4
TFP Limited, the previous owner of the Property, filed an application for conditional use,
prior to transfer of the Property to Developer. On March 6, 2007, TFP Limited submitted an
application for tentative approval of a PRD on the Property. Reproduced Record (R.R.) at 150. In
(Footnote continued on next page…)
2
In its application, Developer sought approval for 193 residential units
in a five-phase plan. Id. at 776-77. From February 2016 to August 2017, the Board
held eight hearings related to Developer’s application. See id. at 804-1975. In
support of its application, Developer offered expert testimony and reports from five
professionals, including professional engineers in civil, environmental, and traffic
engineering, a professional geologist and soil scientist, and a certified planner. R.R.
at 842-44, 1027-30, 1134-35, 1305-09, 1892-1939.
The Board’s engineer, Chad Lello, participated in a “back and forth”
process with Developer from February 2016 to March 2017, modifying Developer’s
conditional use application, including plans and maps, to meet the requirements of
the Zoning Ordinance. Id. at 804-1975; Developer’s Br. at 8. On August 14, 2017,
the Board approved Phases 1 through 4 of Developer’s conditional use application,
but denied Phase 5. R.R. at 196-98. Without Phase 5, the PRD would be reduced
to 134 residential units. Id. at 203-04. The Board also imposed a requirement that
Developer comply with Article 16 (governing PRDs) of the Zoning Ordinance. Id.
at 196.
On August 7, 2018, Developer submitted its Tentative PRD
Application to the Board. Id. The Board conducted two additional public hearings
on the Application. Id. at 299, 445. The PRD plan, as submitted by Developer,
consists of 143 acres of wetlands, and the Application proposes to have streets
its application, TFP Limited proposed a total of 335 residential units on the Property and requested
waivers for certain zoning provisions. Id. at 150-51. The application was denied by the Board,
and TFP Limited appealed to the Trial Court. Id. at 165. The Trial Court reversed the decision of
the Board, and the Board appealed to this Court. Id. This Court remanded the 2007 application
matter to the Trial Court, determining that the Subdivision and Land Development Ordinance
(SALDO) applied at the tentative PRD stage. See TFP Limited v. Dorrance Twp. Bd. of
Supervisors (Pa. Cmwlth., No. 1484 C.D. 2009, filed Sept. 9, 2010), slip op. at 8, 2010 Pa. Cmwlth.
Unpub. LEXIS 603, at *10. After remand, the Trial Court affirmed the Board’s denial.
3
constructed within 100 feet of the wetlands. Id. at 47. On December 28, 2018, the
Board denied the Tentative PRD Application, concluding that the plan improperly
mixed two “principal” uses, failed to meet the density, setback, and water
requirements of the Zoning Ordinance, did not contain final, detailed design site
plans, did not secure an easement from the Pennsylvania Department of
Transportation (PennDOT), and did not obtain a certificate of public convenience
from the Pennsylvania Public Utility Commission. Id. at 33-46.
Developer appealed the Board’s decision to the Trial Court. On
December 12, 2019, the Trial Court reversed the decision of the Board, and ordered
that the matter be remanded to the Board for approval of the Tentative PRD
Application in a manner consistent with the Trial Court’s order. The Trial Court
found that the Board abused its discretion and misapplied the law in denying
Developer’s application. The Board now appeals to this Court.
II. Discussion
A. Appealability of the Trial Court’s December 12, 2019 Order
On February 24, 2020, this Court issued an order directing the Board
and Developer to address the question of whether the December 12, 2019 Order is
appealable. In its Order, the Trial Court remanded the proceedings to the Board for
it to approve Developer’s Tentative PRD Application. The Board asserts that, under
Pa.R.A.P. 311(f), the Order is immediately appealable. Rule 311(f) of the
Pennsylvania Rules of Appellate Procedure reads:
Administrative remand. An appeal may be taken as of right from: (1)
an order of a common pleas court or government unit remanding a
matter to an administrative agency or hearing officer for execution of
the adjudication of the reviewing tribunal in a manner that does not
require the exercise of administrative discretion; or (2) an order of a
4
common pleas court or government unit remanding a matter to an
administrative agency or hearing officer that decides an issue that
would ultimately evade appellate review if an immediate appeal is not
allowed.
Pa.R.A.P. 311(f).
The Board argues that the Trial Court’s December 12, 2019 Order
directs the Board to approve the Tentative PRD Application without the exercise of
administrative discretion. Board’s Br. at 13. The Order, in relevant part, reads:
2. [Developer’s] tentative planned residential development is approved
conditioned upon the approval of the necessary, relevant agencies as
defined by applicable state law.
3. This matter is hereby remanded [] to [the Board] for compliance
herewith and any further application for final approval must be in
compliance with all applicable conditions, applicable law and
applicable ordinances.
Board’s Br. at App. A. Further, Developer does not dispute that the Order is
appealable. Developer’s Br. at 19. “Provided that [Developer] complies with the
conditions set by such agencies, [the Board] has no discretion to deny tentative
approval, thereby rendering the Trial Court's Order immediately appealable under
Rule 311(f).” Id.
Where a local government agency must engage in fact finding, and
administrative discretion is involved, the order is not final, and the order is not
appealable. Arguelles v. Pa. Bd. of Prob. & Parole, 892 A.2d 912, 914 (Pa. Cmwlth.
2006). However, in the present case, both the Board and Developer contend that the
Trial Court directed the Board to approve the Application subject to compliance with
requirements imposed by state and federal regulations, without providing the Board
with the discretion to deny tentative approval. Developer’s Br. at 19; Board’s Br. at
13.
5
Further, the Board asserts that because the Trial Court decided the
merits of the Tentative PRD Application through its Order, upon completion of the
Trial Court’s directive to approve the Tentative PRD Application, the Board would
not have an opportunity to appeal the decision of the Trial Court. Thus, the issues
on appeal presently in this Court would evade appellate review. See Schultheis v.
Bd. of Supervisors of Upper Bern Twp., Berks Cnty., 727 A.2d 145, 148 (Pa.
Cmwlth. 1999) (this Court held that trial court order was appealable because its
decision decided the merits of the land use appeal before it remanded the matter to
the governing body); see also Vanvoorhis v. Shrewsbury Twp., 176 A.3d 429, 432-
33 (Pa. Cmwlth. 2017) (an order that settles the only point of contention between the
parties before remand is immediately appealable).
In issuing its Order, the Trial Court did not allow for administrative
discretion on the part of the Board. The Trial Court explicitly directed that the Board
approve Developer’s Tentative PRD Application, only “conditioned upon the
approval of the necessary, relevant agencies as defined by applicable state law.”
Trial Ct. Order, 12/12/2019. Therefore, the Trial Court did not contemplate a
subsequent approval process conditioned on the discretion of the Board, as described
in Pa.R.A.P. 311(f)(1) but instead, an automatic issuance of final approval for
Developer’s Tentative PRD Application. Upon consideration of the briefing
provided by both parties, as previously ordered by this Court, we hold that the Trial
Court’s order is a final, appealable order. Accordingly, we will proceed to consider
the merits of this case.
6
B. Merits of Developer’s PRD Application5
The Board argues that Developer’s plan violated several sections of the
Zoning Ordinance, specifically Sections 1602, 1603, 1604(C), and 1606(C), and
therefore, the plan was properly denied. The Board further asserts that the Trial
Court committed an error of law and abused its discretion by failing to give the
Board’s decision appropriate deference.
1. “Critical Areas”: Section 1603
The Board asserts that it properly found that Developer’s plan
impermissibly includes streets and building lots within “critical areas” in violation
of the Zoning Ordinance. Section 1603(B) of the Zoning Ordinance provides that
the net area available for development must be subtracted by “all environmentally
constrained land” including any area “which contains critical areas (as defined in
Article 2).” Zoning Ordinance §1603(B); R.R. at 261. “Critical areas” are defined
as:
[a]n area with one or more of the following characteristics: stream
corridors, streams, flood plain areas, wetlands, slopes which equal or
exceed [fifteen] percent, soils classified as highly acidic or highly
5
Developer notes in its brief that after it filed its Tentative PRD Application with the
Board, the Board “repealed in its entirety” Article 16, entitled “Planned Residential
Developments,” of the Zoning Ordinance. R.R. at 780-81. This decision eliminated the possibility
for future PRD applications, effectively rendering Developer’s Application, the subject of this
appeal, its last chance to effectively develop its property. Id. This Court has previously held,
under similar circumstances, that “[o]utright disapproval would be grossly unfair . . . in that it
would mean permanent rejection because of the changes in the zoning ordinance.” Valley Run
Inc. v. Swatara Twp. Bd. of Comm’rs, 347 A.2d 517, 521 (Pa. Cmwlth. 1975).
Interestingly, the most current version of the Zoning Ordinance is not presently reflected
on the Dorrance Township website where the Zoning Ordinance is officially published. The 2007
version of the Zoning Ordinance, which still includes Article 16, is the version that Dorrance
Township makes publicly available. Zoning Ordinance, Dorrance Twp.,
http://psatstwp.org/luzerne/dorrance/zoning-ordinance/ (last visited Dec. 11, 2020).
7
erodible, soils classified as having a high water table, land and
associated soils which display poor percolation, mature stands of native
vegetation and aquifer recharge and discharge areas.
Zoning Ordinance §203; R.R. at 238.
Timothy Connelly, a civil engineer for Developer, testified at a Board
hearing to the issue of “critical areas:”
Q: [T]here are road areas where roadways have to cross wetlands. Is
that ---?
A: Right.
Q: That’s correct?
A: Correct.
Board Hr’g Tr., 10/01/2018; R.R. at 347. The Board cited this testimony in finding
that “[s]treets crossing wetlands and residential building[s] located within critical
areas are damaging to critical areas, not within the public interest, and in violation
of the requirements of [Section] 1603 of the Zoning Ordinance.” R.R. at 41. In
total, Developer’s Property contains 143 acres of wetlands. Bd. Op., 12/10/2018,
Findings of Fact (F.F.) No. 22; R.R. at 37.
Developer argues that the Trial Court correctly decided that the Board
committed an error of law and abused its discretion in determining that Developer
did not meet the requirements of Section 1603 of the Zoning Ordinance.
Acknowledging a departure from its prior reading of Section 1603,6 the Trial Court
stated that “Section 1603(B) only describes the ‘methodology’ used to calculate area
6
Developer argues that the Board incorrectly relies on a prior Trial Court decision,
specifically an opinion issued in 2011 by the Trial Court in response to the prior owner’s PRD
application, in support of its interpretation of Section 1603 of the Zoning Ordinance. Further,
Developer notes that this argument is precluded on the basis of res judicata. At present, we review
the December 12, 2019 Order of the Trial Court. While this Court appreciates that the Property
has been the subject of prior litigation involving the Board, we must exclusively consider whether
the Trial Court committed an error of law or abused its discretion in issuing its December 12, 2019
Order, remanding the case to the Board to grant Developer’s Tentative PRD Application without
exercise of the Board’s discretion.
8
requirements. Nothing in Section 1603(B) states that [Developer] is prohibited from
building on any of the listed or critical areas.” Trial Ct. Op., 02/20/2020, at 8;
Board’s Br. at App. B.
In its December 12, 2019 Order, the Trial Court further held that, under
Section 1603(B) of the Zoning Ordinance, Developer must subtract the gross area
from the total acreage of the listed environmentally constrained land to calculate the
total net area available for development. Id. Adopting the view of the Trial Court,
Developer argues that it properly conducted this deduction to arrive at 134.48 acres
of developable space. R.R. at 315-16, 330, 340.
A municipality has a legal obligation to proceed in good faith in
reviewing and processing development plans. Kohr v. Lower Windsor Twp. Bd. of
Supervisors, 910 A.2d 152, 160, n.13 (Pa. Cmwlth. 2006) (quoting Raum v. Bd. of
Supervisors of Treddyffrin Twp., 370 A.2d 777, 798 (Pa. Cmwlth. 1977)). Where
deficiencies in subdivision or land development plans are relatively minor, the
municipality should permit the applicant to make a timely correction of its plans,
rather than reject the application outright. See Valley Run, Inc. v. Swatara Twp. Bd.
of Comm’rs, 347 A.2d 517, 520-21 (Pa. Cmwlth. 1975) (approval was improperly
denied on the basis of undisclosed engineering specifications). Section 603.1 of the
Pennsylvania Municipalities Planning Code (MPC),7 in relevant part states:
[i]n interpreting the language of zoning ordinances to determine the
extent of the restriction upon the use of the property, the language shall
be interpreted, where doubt exists as to the intended meaning of the
language written and enacted by the governing body, in favor of the
property owner and against any implied extension of the restriction.
53 P.S. §10603.1.
7
Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L.
1329, 53 P.S. §10603.1.
9
While we defer to the Board’s interpretation of its Zoning Ordinance,
with regard to credibility determinations, drawing of inferences, and the weighing
of evidence, where a board disregards “overwhelming evidence” “capriciously and
without reasonable explanation,” the decision, even if based on findings “minimally
supported by record evidence,” is subject to reversal on appeal. In re Realen Valley
Forge Greenes Assocs., 838 A.2d 718, 732 (Pa. 2003); Poster Advert. Co., Inc. v.
Zoning Bd. of Adjustment, 182 A.2d 521, 523 (Pa. 1962). Although the Board
provides testimony from Mr. Connelly, Developer’s expert, that the Tentative PRD
Application includes roadways that will cross wetlands, Section 1603(B) of the
Zoning Ordinance does not preclude development of this kind. Wetlands, and
“critical areas” more generally, must be subtracted from the overall area available
for development, and the Board does not provide evidence to support its alternative
interpretation. Therefore, the Trial Court did not err in issuing its December 12,
2019 Order on the basis of Developer’s compliance with the requirements involving
“critical areas.”
10
2. Wetland Setbacks: Section 1604(C)8
The Board asserts that the Trial Court committed an error of law and
abused its discretion in holding that Developer met the setback requirements of
Section 1604(C) of the Zoning Ordinance. The Board further contends that
Developer admits that it plans to locate roads and streets within 100 feet of wetlands
in violation of Section 1604(C). However, Developer counters that per the definition
of “open space” within Section 2039 of the Zoning Ordinance, surfaces designed or
intended for vehicular travel do not violate Section 1604(C) of the Zoning
Ordinance.
In its brief submitted to this Court, the Board argues that a plain reading
of the Zoning Ordinance indicates that roads and streets are “other surfaces designed
8
Section 1604(C) of the Zoning Ordinance reads:
Setback Requirements: The minimum front, side and rear setbacks for a
[PRD] shall each be not less than [50] feet to the property lines of adjoining
properties. A planting strip of not less than [20] feet in width shall be along all
property lines at the periphery of the development where necessary to preserve the
privacy of neighboring residents.
Land adjacent to a lake, pond, stream, wetland, or watercourse shall remain
as permanent open space for a distance of not less than [100] feet from the water’s
edge, unless superseded by more restrictive standards.
Zoning Ordinance §1604(C).
9
Section 203 of the Zoning Ordinance reads:
An area that is intended to provide light and air, and is designed for environmental,
scenic, or recreational purposes. Open space may include, but is not limited to,
lawns, decorative planting, walkways, active and passive recreation areas,
playgrounds, fountains, swimming pools, wooded areas, and watercourses. Open
space shall not be deemed to include driveways, parking lots, or other surfaces
designed or intended for vehicular travel.
Zoning Ordinance §203.
11
or intended for vehicular travel” and therefore, do not satisfy the “open space”
requirement within 100 feet of wetlands as outlined in Section 1604(C) of the Zoning
Ordinance. However, Developer directs this Court to the Board’s own discussion of
this provision in its decision denying Developer’s Tentative PRD Application, which
is the subject of the present appeal. See Bd. Op., 12/18/2018, Conclusions of Law
(C.L.) No. 24. “[T]he Board concludes that [exceptions to] open space d[o] not
intend to include streets or such words would have been specifically used in the
definition of open space.” C.L. No. 24; R.R. at 41.
The “[Board] is entitled to considerable deference in interpreting its
zoning ordinance.” Caln Nether Co., L.P. v. Bd. of Supervisors of Thornbury Twp.,
840 A.2d 484, 491 (Pa. Cmwlth. 2004). While the Court adheres to this principle,
in this case, the Board presents multiple interpretations of the same ordinance. On
appeal to this Court is the December 12, 2019 Order of the Trial Court that was based
on a review of the Board’s December 18, 2018 decision in which the Board
concluded that the definition, and relevantly the listed exceptions, of “open space”
does not include streets. Now, on appeal, the Board provides an alternative
interpretation to this Court, excluding roads and streets from the definition of open
space. As our review is limited to the Trial Court’s December 12, 2019 Order, we
must only consider the Board decision, and corresponding interpretation, that was
before the Trial Court at that time.
“Where doubt exists as to the intended meaning of a zoning ordinance,
that language shall be interpreted in favor of the property owner.” Latimore Twp. v.
Latimore Twp. Zoning Hearing Bd. 58 A.3d 883, 888 (Pa. Cmwlth. 2013) (quoting
Anter Assocs. v. Zoning Hearing Bd. of Concord Twp. 17 A.3d 467, 469 (Pa.
Cmwlth. 2011)). Therefore, in this case, where the Board presents two
12
interpretations of its ordinance, and the one most favorable to Developer was
presented within a Board decision considered in the December 12, 2019 Trial Court
Order that is the subject of this appeal, we determine that the exceptions to the
definition of “open space” do not include roads or streets. The Trial Court did not
err in reversing the decision of the Board as Developer did not violate the
requirements of Section 1604(C) by submitting a plan that included roads and streets
within 100 feet of wetlands.
3. Mixed Use: Section 160210
The Board also asserts that the Trial Court abused its discretion and
committed an error of law in concluding that Section 1602 of the Zoning Ordinance
does not prohibit mixed uses in a PRD. The Board previously found that because
Developer’s Tentative PRD Application included the existing golf course, which
would be a second principal use and a non-permitted commercial use, the PRD
violated the Zoning Ordinance, and therefore, was appropriately denied. Developer
contends that the Board erred in its finding because not only does Section 1602 not
contain a prohibition on “mixing uses,” but the golf course was removed from
calculations and not included within the PRD plan. R.R. at 260, 854.
10
Section 1602 of the Zoning Ordinance reads:
The principal permitted uses shall include:
A. Single-family Detached Dwellings
B. Two-family Dwellings
C. Townhouses
[D.] Accessory Uses: Customary accessory uses and buildings to the above
shall be permitted in accordance with the applicable provisions of the
Ordinance.
Zoning Ordinance §1602.
13
Developer agrees that, under Section 1602 of the Zoning Ordinance, a
golf course does not qualify as a “principal” permitted use. Developer’s Br. at 38.
However, Developer argues that its PRD plan involves the construction of 134
residential units surrounding an existing golf course. R.R. at 203-04. Additionally,
the operation of the golf course will not be changed by the PRD, as it has been
operating since the mid-1990s independently from any proposed PRD plan.
Developer further rejects the Board’s argument that the golf course is part of the
PRD plan, as the approximately 100 acres of land making up the golf course were
deducted from all calculations in determining net developable land and were not
included in the open space calculations. R.R. at 47, 203-04, 1922-23, 1933-34.
The Trial Court found that as the golf course is not part of the residential
development proposed in the PRD plan, Developer was in compliance with Section
1602 of the Zoning Ordinance. Further, the Trial Court did not find that the Zoning
Ordinance contained “exclusionary language” that would prohibit the existence of
the golf course with the subject of the PRD plan surrounding its perimeter. The Trial
Court also determined that Section 1602 does not prohibit residential neighborhoods
near commercial facilities or the “mixing of uses” that the Board suggests. Trial Ct.
Op., 02/20/2020, at 10; Board’s Br. at App. B.
The Board cites to the Pennsylvania Supreme Court’s decision in Slice
of Life, LLC v. Hamilton Township Zoning Hearing Board, 207 A.3d 886, 902 (Pa.
2019), in support of its assertion that the golf course is not expressly permitted in
Section 1602 of the Zoning Ordinance, and therefore, invalidates Developer’s PRD
plan. In Slice of Life, the Supreme Court held that where “the [o]rdinance clearly
and unambiguously excluded, in pertinent part, purely transient uses of property in”
the relevant zoning district, the use of a property for short-term rentals was not
14
permitted. Slice of Life, 207 A.3d at 899. Developer distinguishes the present case
before this Court, arguing that Section 1602 does not clearly exclude a golf course
from a PRD, and also, the golf course is not a component of the PRD plan, which
contains 134 residential properties. Developer argues that the 134 residential
properties, the subject of the PRD plan, must comply with the requirements of
Section 1602 of the Zoning Ordinance.
Section 107 of the MPC defines a PRD as:
an area of land, controlled by a landowner, to be developed as a single
entity for a number of dwelling units, or combination of residential
and nonresidential uses, the development plan for which does not
correspond in lot size, bulk, type of dwelling, or use, density, or
intensity, lot coverage and required open space to the regulations
established in any one district created, from time to time, under the
provisions of a municipal zoning ordinance.
53 P.S. §10107 (emphasis added). While Developer appreciates that Section 1602
of the Zoning Ordinance does not allow for construction of a PRD with a commercial
property as a “principal use,” Developer contends that the Board errs in stating that
a PRD may never include a “mixing of uses.” As described above, the MPC
contemplates the possibility of mixed use PRDs.
The Trial Court stated that:
[Developer] is not constructing a commercial golf course in an already
established PRD. Rather, [Developer] is constructing a PRD near a golf
course on the same property. The PRD would not be mixing
commercial and residential uses as the golf course was not included in
the PRD [p]lan or any of the calculations.
Trial Ct. Op., 02/20/2020, at 11; Board’s Br. at App. B. The golf course is a
preexisting structure that is not part of the new construction anticipated by the PRD
plan. Therefore, the existence of the golf course within the proximity of the
15
proposed 134 residential structures in the PRD plan does not violate Section 1602 of
the Zoning Ordinance. The Trial Court did not err in holding as such.
4. Water Supply: Section 1606(C)11
Finally, the Board argues that the Trial Court abused its discretion and
committed an error of law in concluding that Developer’s proposed water supply
system complies with Section 1606(C) of the Zoning Ordinance. The Board asserts
that Section 1606(C) of the Zoning Ordinance requires that the water supply for a
PRD be located “off-site.” The Board previously concluded that Developer’s
proposed well parcel is “on-site” and therefore does not conform to Section 1606(C)
of the Zoning Ordinance. Bd. Op., 12/18/2018, C.L. No. 42; R.R. at 44.
Article 2 of the Zoning Ordinance defines a centralized water supply
system as:
A public or privately owned system, under the jurisdiction of the
Pennsylvania Public Utility Commission, designed to transmit potable
water from a common source to users, and in compliance with the
governing standards of all applicable State agencies. Any water
supply system not deemed as centralized water supply system shall
be deemed to be an on-site water supply system.
Zoning Ordinance §2-29 (emphasis added). Four experts for Developer, including
Mr. Connelly, testified that the proposed water system is a centralized off-site system
11
Section 1606(C) of the Zoning Ordinance, Zoning Ordinance §1606(C), states:
Water Supply: The water supply shall be [an] off-site system supplied by a certified
public utility, a bona fide cooperative association of lot owners, or by a municipal
corporation, authority or utility. A copy of a Certificate of Public Convenience
from the Pennsylvania Public Utility Commission or an application for such a
certificate, a cooperative agreement or a commitment or agreement to serve the
planned residential development in question shall be required. Whichever form is
appropriate, shall be considered as acceptable evidence.
16
in compliance with the Zoning Ordinance. Further, the experts explained that an
“off-site [system] is synonymous with [a] central [system].” R.R. at 384, 411.
Because the plan does not provide for individual wells for each individual home site
for each of the proposed 134 residential structures, the water supply is off-site. See
id.
The Trial Court noted in its opinion, as did Developer in its brief to this
Court, that Developer attempted to address the concerns of the Board beyond the
requirements outlined within Section 1606(C) of the Zoning Ordinance. While
Developer has maintained that its proposed system is a centralized water supply
system, Developer subdivided a 2½-acre lot from the Property for the main well.
This voluntary modification eliminates any interpretation that the main well is
located within the PRD, and therefore, is “on-site.” Developer’s Br. at 47; Trial Ct.
Op., 02/20/2020, at 12; Board’s Br. at App. B.
Therefore, the Trial Court held that the Board’s denial of the PRD plan
on the basis of noncompliance with Section 1606(C) of the Zoning Ordinance was
not supported by substantial evidence and that the Board abused its discretion and
committed an error of law through its denial. As the testimonies of Developer’s
experts are unrefuted by the Board, the water supply system is off-site for purposes
of Section 1606(C) of the Zoning Ordinance. The Trial Court did not commit an
error of law or abuse its discretion in making this determination.
III. Conclusion
For the foregoing reasons, we affirm the December 12, 2019 Order of
the Trial Court.
______________________________
J. ANDREW CROMPTON, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Preserve at Blue Ridge, LLC :
:
v. : No. 100 C.D. 2020
:
Dorrance Township by, through and :
including Dorrance Township Board :
of Supervisors, :
Appellants :
ORDER
AND NOW, this 14th day of December 2020, we AFFIRM the
December 12, 2019 Order of the Court of Common Pleas of Luzerne County.
______________________________
J. ANDREW CROMPTON, Judge