In Re: Appeal of Dogwood Dr., L.P. from the April 17, 2020 Decision of the Lower Makefield Twp. Bd. of Supers. ~ Appeal of: Dogwood Dr., L.P. ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Dogwood Drive, :
L.P. from the April 17, 2020 Decision :
of the Lower Makefield Township : No. 373 C.D. 2021
Board of Supervisors : Argued: November 18, 2021
:
Appeal of: Dogwood Drive, L.P. :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: April 29, 2022
Appellant Dogwood Drive, L.P. (Dogwood) appeals from the Court of
Common Pleas of Bucks County’s (Common Pleas) March 24, 2021 order, which
affirmed Appellee Lower Makefield Township (Township) Board of Supervisors’
(Board) April 17, 2020 denial of Dogwood’s final subdivision and land development
plan application (Final Application) for a residentially zoned, 14.7377-acre parcel
of land in the Township (Property). This denial was prompted by Dogwood’s refusal
to comply with the Township’s subdivision and land development ordinance
(SALDO) by either agreeing to plant a large number of trees to replace those that
would be removed as a result of the Property’s development or, in lieu of replacing
the removed trees, deposit hundreds of thousands of dollars into the Township’s
replacement tree capital account. After thorough review, we vacate Common Pleas’
order and remand with instructions that it dismiss Dogwood’s appeal to that court
for lack of jurisdiction, due to the untimeliness of that appeal.
I. Background
On May 18, 2017, Dogwood submitted a revised preliminary subdivision and
land development plan application (Revised Preliminary Application) to the
Township, through which it detailed its proposal for building five single-family
homes on the Property. See Reproduced Record (R.R.) at 82a-111a. The Revised
Preliminary Application indicated that Dogwood intended to remove 277 existing
trees from the Property and would replace 66 of those trees with new ones on-site.
Id. at 111a. The Board considered the Revised Preliminary Application at a public
hearing on July 19, 2017, and then granted conditional approval on September 19,
2017;1 of relevance to this appeal, one of these conditions was that the question of
whether Dogwood’s development proposal complied with the Township’s tree
protection standards ordinance (Protection Ordinance) would be deferred until
Dogwood submitted its final subdivision and land development plan (Final Plan) for
review. Id. at 19a-21a.
This Protection Ordinance provides, in relevant part:
(1) No tree shown to remain on an approved subdivision
or land development plan shall be removed without prior
Township approval unless it is the cause of immediate
danger to life or property.
(2) No tree shown to remain on an approved subdivision
or land development plan other than that which is the
cause of immediate danger to life or property shall be
removed without Township approval based upon a
determination that any of the following considerations
exist:
(a) Affliction by a disease which threatens injury or
destruction of other trees.
1
The letter informing Dogwood of this approval was not sent until December 11, 2017.
R.R. at 19a.
2
(b) Federal, state or Township laws, ordinances or
regulations superseding this chapter require
removal.
(c) The tree has been substantially damaged or has
died.
(3) In the event that a tree over three-inches caliper which
is shown on an approved plan to remain and which must
be removed in accordance with Subsection H(1) or (2)
above, such tree shall be replaced with a tree a minimum
of three inches in caliper of the same species or as
approved by the Township at a rate of one new tree for
every tree removed.
(4) Replacement sizes; alternatives.
(a) Trees of 10 inches caliper or more which are
proposed to be removed during any stage of
development, grading and/or construction within a
subdivision or land development shall be replaced
with an approved tree or trees of the type provided
for in this chapter. Said replacement trees shall meet
the following size limitations:
[1] Trees with a diameter of 10 inches or
more but less than 18 inches which are
removed shall each be replaced with no less
than four trees measuring 2 1/2 to three
inches in caliper.
[2] Trees with a diameter of 18 inches or
more but less than 30 inches which are
removed shall each be replaced with no less
than seven trees measuring 2 1/2 to three
inches in caliper. Trees with a diameter of 30
inches or more which are removed shall each
be replaced with no less than 10 trees
measuring 2 1/2 to three inches in caliper.
[3] Trees with a diameter of 30 inches or
more which are removed shall each be
replaced with no less than 10 trees measuring
2 1/2 to three inches in caliper.
SALDO § 178-85.H.(1)-(4)(a)[3]. The Protection Ordinance also allows an
applicant, at its discretion, to make a payment into the Township’s replacement tree
3
capital account (Tree Account) in lieu of planting replacement trees on-site; such
funds are earmarked by the Township for funding the planting of trees elsewhere in
the municipality. See id. at § 178-85.H.(4)(d).2
Dogwood subsequently submitted its Final Application to the Township on
November 13, 2017. R.R. at 31a-55a. Therein, it stated that it intended to remove
279 trees from the Property in furtherance of its desired development and would
plant 66 new trees on-site. Id. at 52a. The Board then convened a public hearing on
April 15, 2020, at which it considered the Final Application. During the course of
this hearing, Dogwood’s counsel stated that it would not agree to comply with the
Protection Ordinance by either planting the necessary number of additional
replacement trees on-site, which the Township had determined was 1,190, or by
paying the necessary amount in lieu of doing so into the Tree Account, which the
2
This subsection states, in relevant part:
[1] A replacement tree capital account (“tree bank”) will be
established by the Township where fees in lieu of on-site
improvement shall be deposited. These funds shall be used for the
purpose of planting replacement trees at approved locations in the
Township.
[2] The contribution by the developer to the tree bank will be $315
per replacement tree. Three years after adoption of this subsection,
and every three years thereafter, the contribution per replacement
tree will be adjusted to reflect the compounded annual changes in
the All Urban Consumers Price Index (CPI-U) as reported by the
U.S. Bureau of Labor Statistics. Any increase in the amount of the
tree bank contribution shall be memorialized by the approval of a
resolution by the Board . . . .
[3] The contribution to the tree bank will be due at the time of the
final execution of the development agreement with the Township.
SALDO § 178-85.H.(4)(d)[1]-[3].
4
Township had calculated as $381,780.3 Id. at 2a, 5a-9a. As a consequence of this
refusal, the Board unanimously denied Dogwood’s Final Application. Id. at 11a. The
Township’s solicitor formally notified Dogwood of this denial through an emailed
letter on April 17, 2020. See Dogwood’s Br., App. A.
Dogwood responded by appealing the Board’s decision to Common Pleas on
June 3, 2020. Common Pleas took no additional evidence and, on March 24, 2021,
affirmed the Board in full. See id., App. B. Dogwood’s appeal to our Court of
Common Pleas’ order then followed.
II. Discussion
Under normal circumstances, we would now review and analyze Dogwood’s
substantive appellate arguments. However, we are without jurisdiction to do so, due
to Dogwood’s failure to appeal the Board’s denial of its Final Application to
Common Pleas in a timely way. Pursuant to Section 752 of the Local Agency Law,
“[a]ny person aggrieved by an adjudication of a local agency who has a direct
interest in such adjudication shall have the right to appeal therefrom to the court
vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to
judiciary and judicial procedure).” 2 Pa. C.S. § 752. Accordingly, “an appeal from a
tribunal or other government unit[, e.g., a local agency,] to a court . . . must be
commenced within 30 days after the entry of the order from which the appeal is
3
Both the replacement tree number and the required payment figure reflected the Township
Environmental Advisory Council’s (EAC) determination that, per the terms of the Protection
Ordinance, Dogwood was required to replace 1,278 trees in total, as well as the EAC’s
recommendation that Dogwood should receive credit for 88 replacement trees that were going to
be planted in the proposed development (66 on-site and 22 at various points along the
development’s streets). See R.R. at 2a-3a, 5a, 16a. Neither of these calculations, however, reflected
the EAC’s suggestion that the figures be reduced to reflect the amount of sickly ash trees that were
on the Property, the precise number of which the EAC suggested could be verified by the Township
engineer’s arborist. Id. at 16a.
5
taken, in the case of an interlocutory or final order.” 42 Pa. C.S. § 5571(b).4 The
Board is undoubtedly a local agency and challenges to its decisions are thus
governed by the Local Agency Law. See Consumer Inv. Fund v. Supervisors of
Smithfield Twp., 532 A.2d 543, 546 (Pa. Cmwlth. 1987). Therefore, as the Board
issued its formal denial via email on April 17, 2020, Dogwood needed to comply
with the Local Agency Law’s appeal requirements in order to preserve its ability to
challenge that denial. Given this, Dogwood had until May 18, 2020, to appeal that
denial to Common Pleas and stood to forfeit its appellate rights in the event it failed
to do so.5 As Dogwood did not appeal the Board’s denial to Common Pleas until
June 3, 2020, that appeal was clearly untimely and should have been quashed by the
lower tribunal on its own initiative, due to lack of jurisdiction. See City of
Philadelphia v. Frempong, 865 A.2d 314, 317 (Pa. Cmwlth. 2005) (internal citation
4
There are a handful of exceptions to this rule that are enumerated in 42 Pa. C.S. § 5571(c)
and 42 Pa. C.S. § 5571.1, none of which are applicable to this matter.
5
As the 30th day of the appeal window fell on May 17, 2020, a Sunday, Dogwood had
until the end of the following day to file its appeal. See 1 Pa. C.S. § 1908. Furthermore, though
May 18, 2020, was within the time period affected by the then-active statewide COVID-19 judicial
emergency, there were no concomitant orders relieving Dogwood of its obligation to appeal the
Board’s denial by that date. See In Re: General Statewide Judicial Emergency, Emergency Order
of Statewide Judicial Administration Applicable from May 1, 2020, Through June 1, 2020 (Pa.,
Nos. 531 and 532 Jud. Admin. Docket 2020, filed Apr. 28, 2020), at 5, available at
https://www.pacourts.us/Storage/media/pdfs/20210510/223934-file-9158.pdf (last order issued by
Supreme Court during COVID-19 judicial emergency that impacted filing deadlines, which
suspended those deadlines through May 8, 2020); In Re: Extension of Judicial Emergency for All
Courts of the Seventh Judicial District Due to Exigent Circumstances Created by COVID-19,
Emergency Order No. 2020-13.1 (Pa. Ct. Common Pleas, Bucks Cnty., No. 43 MM 2020, filed
Apr. 30, 2020), at 1, available at https://www.buckscounty.gov/DocumentCenter/View/2514/
Emergency-Order-131-PDF (last order issued by Common Pleas during COVID-19 judicial
emergency that affected filing deadlines, which suspended those deadlines through May 8, 2020);
see also In Re: General Statewide Judicial Emergency, Cessation of Statewide Judicial Emergency
After June 1, 2020 (Pa., Nos. 531 and 532 Jud. Admin. Docket 2020, filed May 27, 2020), at 5,
available at https://www.pacourts.us/Storage/media/pdfs/20210510/224144-file-9376.pdf
(Supreme Court order ending statewide COVID-19 judicial emergency effective June 1, 2020).
6
omitted) (“The timeliness of an appeal is jurisdictional, and the issue of timeliness
may be raised by any party, even by the Court on its own motion, at any stage of the
proceedings. . . . An untimely appeal must be quashed absent a showing of fraud or
a breakdown in the court’s operation.”).
III. Conclusion
Consequently, we vacate Common Pleas’ March 24, 2021 order and remand
this matter to that court, with instructions that it dismiss Dogwood’s appeal to
Common Pleas for lack of jurisdiction, due to the untimeliness of that appeal.
__________________________________
ELLEN CEISLER, Judge
Judge Covey did not participate in the decision of this case.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Dogwood Drive, :
L.P. from the April 17, 2020 Decision :
of the Lower Makefield Township : No. 373 C.D. 2021
Board of Supervisors :
:
Appeal of: Dogwood Drive, L.P. :
ORDER
AND NOW, this 29th day of April, 2022, it is hereby ORDERED that the
Court of Common Pleas of Bucks County’s (Common Pleas) March 24, 2021 order
is VACATED. It is FURTHER ORDERED that this matter is REMANDED to
Common Pleas, with instructions that it dismiss Appellant Dogwood Drive, L.P.’s
June 3, 2020 appeal to Common Pleas, which pertained to Appellee Lower
Makefield Township Board of Supervisors’ April 17, 2020 denial of Dogwood’s
final subdivision and land development plan application, due to the untimeliness of
that appeal and Common Pleas’ consequent lack of jurisdiction.
Jurisdiction relinquished.
__________________________________
ELLEN CEISLER, Judge