IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ann Feldman and Kim Manufacturing :
Company Stewart Hall, L.P. : No. 1498 C.D. 2015
and The Board of Supervisors of : Argued: February 8, 2016
East Caln Township and Progressive :
Housing Ventures, LLC and J. Loew :
and Associates, Inc. and The Borough :
Council of the Borough of Downingtown :
:
Appeal of: Ann Feldman :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: April 18, 2016
Ann Feldman (Objector) appeals the order of the Court of Common
Pleas of Chester County (trial court) affirming the Board of Supervisors (Board) of
East Caln Township’s (Township) decision that granted the conditional use
application1 of Progressive Housing Ventures, LLC and J. Loew & Associates, Inc.
1
Section 603(c)(2) of the Municipalities Planning Code (MPC), Act of July 31, 1968,
P.L. 805, as amended, 53 P.S. §10603(c)(2) states, in relevant part:
Zoning ordinances may contain . . . provisions for conditional uses
to be allowed or denied by the governing body . . . pursuant to
express standards and criteria set forth in the zoning ordinance. . . .
In allowing a conditional use, the governing body may attach such
reasonable conditions and safeguards . . . in addition to those
expressed in the ordinance, as it may deem necessary to implement
the purposes of this act and the zoning ordinance[.]
(Footnote continued on next page…)
and the Borough of Downingtown (Borough) (collectively, Developers) to
(continued…)
See also Section 909.1(b)(3) of the MPC, added by the Act of December 21, 1988, as amended,
53 P.S. §10909.1(b)(3) (“The governing body . . . shall have exclusive jurisdiction to hear and
render final adjudications . . . [on a]pplications for conditional use under the express provisions
of the zoning ordinance pursuant to section 603(c)(2).”); Section 913.2(a), added by the Act of
December 21, 1988, as amended, 53 P.S. §10913.2(a) (“Where a governing body, in zoning
ordinances, has stated conditional uses to be granted or denied by the governing body pursuant to
express standards and criteria, the governing body shall hold hearings on and decide requests for
such conditional uses in accordance with such standards and criteria. . . . In granting a
conditional use, the governing body may attach such reasonable conditions and safeguards, in
addition to those expressed in the ordinance, as it may deem necessary to implement the
purposes of this act in the zoning ordinance.”).
As this Court has explained:
A conditional use is a special exception which falls within
the jurisdiction of the municipal legislative body rather than the
zoning hearing board. The municipal legislative body may grant a
conditional use pursuant to express standards and criteria set forth
in the zoning ordinances enacted pursuant to the police powers to
regulate land use. The fact that a use is permitted as a conditional
use, rather than prohibited, reflects a legislative decision that the
use is not per se adverse to the public interest.
In order to demonstrate that the applicant is entitled to the
conditional use, the applicant initially bears the burden of
establishing that the application complies with the objective
standards and criteria of the particular ordinance. Satisfaction of
the applicant’s burden establishes a legislative presumption that the
use is consistent with the health, safety, and welfare of the
community. Once the applicant has satisfied this initial burden, the
burden shifts to the objectors to rebut this presumption by
establishing that the use will have a detrimental impact on the
surrounding community.
In re Richboro CD Partners, L.P., 89 A.3d 742, 745 (Pa. Cmwlth.), appeal denied, 97 A.3d 746
(Pa. 2014) (citations omitted).
2
construct multi-family dwelling units on a parcel of land in the Township.2 We
affirm.
Developers are the equitable owners of a 7-acre parcel in the
Township’s R-4 Low Density Cluster Residential zoning district, Tax Parcel 40-1-
23, that the Borough originally condemned and currently uses for composting and
storage. This parcel was never part of Kardon Park. Developers propose to build
70 multi-family dwellings on the property. This is a permitted conditional use in
the R-4 zoning district under Sections 225-7.B.(3)(d) and 225-7.F. of the
Township’s Zoning Ordinance. However, the Zoning Ordinance requires a gross
tract area of 20 acres.
2
This appeal is the latest chapter in a line of cases involving the development of a
number of parcels of property in and near Kardon Park, located partly in the Borough and partly
in the Township. In Feldman v. Board of Supervisors of East Caln Township, 48 A.3d 543 (Pa.
Cmwlth. 2012), appeal denied, 71 A.3d 245 (Pa. 2013), this Court reversed the trial court’s
affirmance of an earlier Board decision granting a conditional use application for the
development because restrictions under the Project 70 Land Acquisition and Borrowing Act
(Project 70 Act), Act of June 22, 1964, Special Sess., P.L. 131, 72 P.S. §§3946.1-3946.22,
precluded the use of Tax Parcel 40-1-23.1 to meet open space or storm water management
requirements of the Township’s Zoning Ordinance. In Borough of Downingtown v. Friends of
Kardon Park, 55 A.3d 163 (Pa. Cmwlth. 2012), appeals denied, 63 A.3d 1241 (Pa. 2013), this
Court vacated the trial court’s order denying the Borough’s petition for approval of the sale and
remanded because, inter alia, the trial court failed to consider Project 70 Act with respect to the
alienation of Tax Parcels 11-4-23 and 40-1-23.1 and whether construction, maintenance, and
utility easements over, under, and through Tax Parcels 11-04-23 and 40-1-23.1 were inconsistent
with its park use. In In re Council of the Borough of Downingtown, (Pa. Cmwlth., No. 2205
C.D. 2011, filed June 18, 2013), this Court vacated a trial court order declaring that no court
approval was needed and that the Donated or Dedicated Property Act (DDPA), Act of December
15, 1959, P.L. 1772, as amended, 53 P.S. §§3381-3384, and the Public Trust Doctrine were not
implicated by the easements, and we remanded for further consideration. In Petition of the
Borough of Downingtown, 116 A.3d 727 (Pa. Cmwlth. 2015), appeals granted, ___ A.3d ___
(Pa. Nos. 358-361 MAL 2015, 410-413 MAL 2015, 424-427 MAL 2015, filed February 17,
2016), this Court affirmed the portion of the trial court’s order holding that the DDPA did not
apply to the Borough’s sale of a portion of Tax Parcel 40-1-23.1 or the easements with respect to
Tax Parcels 11-4-23 and 40-1-23.1.
3
The application proposes to use the adjacent 14.2-acre Tax Parcel 40-
1-23.1, part of Kardon Park that was purchased with Project 70 Act funds,3 and 1.6
acres of the 7.6-acre Tax Parcel 11-4-23, also part of the park, to satisfy this
requirement. An agreement between the Borough and Developers (Agreement)
will convey Tax Parcel 40-1-23 and 3 adjoining acres to Developers,4 but the
Borough will retain ownership of the remaining acreage for park use. Developers
propose improvements for those portions of Kardon Park that are included in the
development plans, including moving and extending the Lions Trail, a paved
walking, jogging, and biking trail, to replace the existing trail and the construction
of additional parking for the park.
A pond known as “Fourth Lake” is located on Tax Parcel 40-1-23.1
and a portion of “Third Lake” is on Tax Parcel 11-4-23. There is also a “forebay”
or “Fifth Lake” immediately north of Fourth Lake which is located on both Tax
Parcels 40-1-23 and 40-1-23.1. The ponds were originally fed by a man-made
diversion from the Brandywine River to power mills in the area, but they are now
fed mostly by untreated storm water runoff from an adjacent subdivision and the
Route 30 Bypass. Developers propose to improve the water quality of the forebay
and Fourth Lake through the use of additives and plantings. They also propose the
3
Section 2(4) of the Project 70 Act authorizes the Commonwealth to incur debt to assist
political subdivisions with acquiring land for recreation, conservation, and historical purposes.
72 P.S. §3946.2(4). Section 20(b) restricts the political subdivisions from disposing of or using
this land for any other purposes without the General Assembly’s approval. 72 P.S. §3946.20(b).
4
The Agreement provides, in relevant part, that “‘Parcel 2’ consists of approximately 3.0
acres located in [the] Township and is identified as being within Tax Parcel No. 40-1-23.1 and a
part of Tax Parcel No. 11-4-23 as schematically depicted on the Tax Parcel Plan,” and that
“‘Parcel 3’ consists of approximately seven (7.0) acres located in [the] Township and is
identified as Tax Parcel No. 40-1-23 . . . .” Reproduced Record (R.R.) at A-1051.
4
use of best management practices (BMPs) on Tax Parcel 40-1-23, such as amended
soils and rain gardens for storm water discharge associated with the development
to diminish the impact on Fourth Lake and the other lakes in the park.5
The property was formerly used as a quarry and unregulated landfill
so a significant amount of the property is currently contaminated. Developers
propose substantial remediation of the majority of the contaminated portions of the
property. Developers also propose to use the adjacent Borough park land as open
space to meet the requirements of the Township’s Zoning Ordinance.6
5
With respect to storm water management, Section 225-7.F.(3)(f) of the Township’s
Zoning Ordinance provides that “[t]he control of erosion and sediment during construction, and
the ongoing management of stormwater on the tract, shall be accomplished in accordance with
the [Township’s] Subdivision and Land Development Ordinance [(SALDO)] (Chapter 185). . . .”
6
Section 225-3 of the Zoning Ordinance defines “open space” as “[a]n area to remain in
a substantially undeveloped condition in perpetuity providing for natural resource preservation
and/or passive recreational uses including public access to same.” Section 225-7.F.(1)(f) states
that “[a] minimum of 40% of the tract area shall consist of open space, complying with the
provisions of §225-7 F.(4).” Section 225-3 defines “tract” as “[o]ne or more lots assembled for
the purpose of development under provisions of this chapter.” In turn, Section 225-7.F.(4)
provides, in pertinent part:
(a) A minimum of 40% of the tract to be developed shall be
designed, restricted and used as open space (“open space”).
(b) Areas counted for the open space requirement may be used
in whole or in part for passive recreational uses and for natural
resource preservation. . . .
***
(f) Open space may be dedicated to the Township if accepted
by the Township or to the [Borough] if not accepted by the
Township. Proposed open space already owned by the Borough
may be retained in the Borough’s ownership.
(Footnote continued on next page…)
5
In addition to conveying title to Tax Parcel 40-1-23, the Agreement
grants construction, maintenance, and utility easements over, under, and through
the portions of Tax Parcels 11-4-23 and 40-1-23.1 that are retained by the
Borough, subject to the Township’s approval of the proposed development. 7 To
(continued…)
(g) In the event that the open space is not accepted by the
Township or the [Borough], the landowner shall provide for and
establish an organization for the ownership and maintenance of the
open space. Such organization shall not be dissolved nor shall it,
or the Borough, dispose of the open space by sale or otherwise . . .
except by dedication to the Township. . . . All property owners
within the multifamily development shall be members of said
organization. The organization may lease open space lands to the
developer or other qualified person or corporation for operation
and maintenance of open space lands . . . .
7
The Agreement states, in relevant part, that “[t]he Park Property shall at Closing be
subject to such easements to be granted to Buyer (collectively, the ‘Development Easements’) as
may be necessary for the installation of stormwater management facilities, wetlands plantings,
walkways, public parking, grading, utilities and, if required, extension of a public street . . . .”
R.R. at A-1051. The Agreement also provides:
(iv) The homeowners’ association [(HOA)] shall be obligated by
recorded covenant (“Park Maintenance Covenant”) to maintain the
stormwater management facilities and wetlands plantings. The
[HOA] shall have the right, but not the obligation to enter upon
and perform general open space maintenance activities with the
approval of, and subject to such reasonable conditions as may be
imposed, by Seller.
(v) Consistent with Parcel 1 Approval, the Park Maintenance
Covenant shall include a financial commitment of the [HOA] to
contribute annually to the cost of maintaining the Park Property the
extent and nature of which financial commitment shall be mutually
approved by Buyer and Seller during the Public Approvals
process. . . .
(Footnote continued on next page…)
6
that end, Developers filed the instant application for conditional approval of the
multi-family dwellings.8 Objector was granted party status and a number of
hearings before the Board ensued at which a number of witnesses, including
Objector, testified and a number of exhibits were introduced.9
(continued…)
Id. at A-1052.
8
Prior to the filing of the application, the General Assembly enacted the Act of June 18,
2014, P.L. 747, which released the Project 70 Act restrictions on Tax Parcel 40-1-23.1 subject to
the following conditions: (1) the Project 70 Act restrictions removed shall be for $285,000
which is the fair market value of the restrictions as established by an appraisal by a certified real
estate appraiser; (2) any land sold by the Borough without the restrictions shall be for an amount
equal to or greater than the foregoing amount; (3) the sale proceeds shall be deposited into an
interest-bearing account by the Borough; (4) the funds shall be used by the Borough solely for
improvements to Kardon Park in accordance with a development plan; and (5) the Borough shall
certify that an area of land of not less than 20 acres has been deed restricted for a public park use
and recorded.
9
As summarized by the trial court:
During the Hearing, [Developers] submitted and presented
a number of plans and various reports, including 30 exhibits that
were accepted into the record, including, among others, the
following: Revised Conditional Use Plan for Kardon Ponds –
Phase 1, Layout Comparison Plan of “The Millrace,” Written Site
Concept Design Standards Report, Landscape Plan (Phase 1) for
the Mill Race at Kardon Ponds, Conditional Use Narrative Report,
Conceptual Stormwater Management Report, DEP Approval Letter
of Cleanup Plan, Post Remediation Care Plan, Fiscal Impact
Analysis, Traffic Impact Study, Approximate Limit of
Contaminated Fill Plan, Phase 1 Environmental Remediation Plan,
Wetlands Creation and Mitigation Plan and Cleanup Plan for
Kardon Park Site.
[Developers] also presented the testimony of several expert
witnesses who testified to [Developers’] compliance with the
conditional use standards set forth in the Zoning Ordinance, all of
(Footnote continued on next page…)
7
In March 2015, the Board issued a decision granting Developers’
application and imposing a number of conditions on development including, inter
alia:
• Developers shall comply with their testimony and
exhibits and must obtain final SALDO approval in
accordance with the Township’s Zoning and SALDO
regulations including the execution of financial security
and development agreements and the recording of all
required easements and restrictive covenants;
• to the extent that improvements, including the rain
garden above the forebay, are proposed within the
floodplain, the improvements shall be relocated outside
the floodplain unless permitted by the Army Corps of
Engineers, a map revision based on a site delineation of
(continued…)
whom were admitted as expert witnesses without objection by
[Objector]. The reports along with the testimony of [Developers’]
expert witnesses more than met their burden of demonstrating
compliance with the specific Zoning Ordinance criteria.
***
The only testimony presented by [Objector] and Kim was that of
[Objector], Sarah Brown, and Donald Greenleaf, all of whom
offered nothing more than lay testimony, i.e., mere speculation,
unsupported allegation and personal opinion, as to the
development proposal. This is insufficient to meet the heavy
burden placed on objectors in zoning proceedings. . . . The fact that
[Objector], in her personal opinion, disagrees with the expert
testimony and reports offered by [Developers] is insufficient to
justify the denial of the Application, and the Board did not commit
an error of law or abuse its discretion in determining that
[Developers] were entitled to the grant of the requested conditional
use approval.
R.R. at A-35, A-38.
8
the floodplain, or the Township’s Zoning Hearing Board
if appropriate for encroachments into the flood fringe
portion of the floodplain;
• so long as the Borough retains park land as
required by the decision, the Development’s HOA shall
not control the Borough’s maintenance or management,
but upon Borough approval, the HOA may be delegated
the responsibility to maintain Fourth Lake and the
forebay with reasonable expenses credited against the
HOA’s maintenance obligation for park land;
• except as provided above, the Borough shall be
solely responsible for maintaining all proposed park
lands subject to any right of contribution from the HOA,
but the Borough’s failure to collect the HOA contribution
shall not relieve the Borough of its maintenance
responsibilities;
• Developers shall ensure the removal of any Project
Act 70 deed restrictions including the timely payment of
$285,000 pursuant to the release of the property from any
Act 70 restrictions; and
• a fence with child proof self-closing and self-
latching gates shall be installed and maintained between
the housing units and Fourth Lake.10
See R.R. at A-67-A-75. Objector appealed the Board’s decision to the trial court
and, following a hearing, the trial court affirmed the Board’s decision. Objector
then filed the instant appeal.11, 12
10
This condition was based on the Board’s finding that the proximity of the proposed
dwellings to the forebay and Fourth Lake results in inadequate separation between the dwellings
and the water particularly with respect to the safety of young children. R.R. at A-61.
11
In a land use appeal where the trial court does not take additional evidence, our review
is limited to determining whether the local governing body abused its discretion or committed an
error of law. In re Thompson, 896 A.2d 659, 666 n. 4 (Pa. Cmwlth. 2006), appeal denied, 916
A.2d 636 (Pa. 2007). In conditional use proceedings where the trial court has taken no additional
evidence, the governing body is the finder of fact empowered to judge the credibility of the
(Footnote continued on next page…)
9
I.
Objector first claims that in its opinion affirming the Board’s decision,
the trial court adopted verbatim Developers’ brief written by a former law partner
in violation of the court’s duty to act impartially and fairly and to avoid the
appearance of impropriety. Objector argues that the trial court’s verbatim adoption
of that brief as an opinion violates due process because it is not the result of the
trial court’s independent judgment and precludes this Court from exercising
effective appellate review. As a result, Objector submits, this Court must reverse
the trial court’s order and remand the matter for another judge to conduct an
independent analysis of the Board’s decision.
However, in Pennsylvania it is presumed that a judge is unbiased and
impartial, Beharry v. Mascara, 516 A.2d 872, 875 (Pa. Cmwlth. 1986), appeal
denied, 527 A.2d 548 (Pa. 1987), and that a judge has the ability to assess his or
her ability to make rulings impartially and without prejudice. Commonwealth v.
Tedford, 960 A.2d 1, 55 (Pa. 2008). Additionally, it is well settled that a party
seeking recusal or disqualification of a trial judge must raise the objection at the
earliest possible moment or the claim will be regarded as time barred. Reilly v.
(continued…)
evidence and the weight it should be afforded; a court may not substitute its interpretation of the
evidence for that of the governing body. In re Richboro CD Partners, L.P., 89 A.3d at 754-55.
The governing body abuses its discretion when its findings of fact are not supported by
substantial evidence. In re Thompson, 896 A.2d at 666 n.4. Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
(citations omitted).
12
Kim Manufacturing Company and Stewart Hall, L.P. filed a Notice of Non-
Participation in Objector’s appeal. Pursuant to Pa. R.A.P. 2137, the Borough Council joined in
and adopted by reference Developers’ appellate brief.
10
Southeastern Pennsylvania Transportation Authority, 489 A.2d 1291, 1300 (Pa.
1985). “Once the trial is completed with the entry of a verdict, a party is deemed
to have waived his right to have a judge disqualified, and if he has waived that
issue, he cannot be heard to complain following an unfavorable result.” Id.
(citation omitted). Objector has failed to allege or demonstrate that she objected to
the trial court’s consideration of her appeal prior to its disposition so any allegation
of error in this regard has been waived.
Moreover, our review of the record demonstrates that the trial court
disposed of this matter in a just and expeditious manner and in conformity with
due process. In its supplemental Pa. R.A.P. 1925(a) opinion, the trial court
outlined the independent judgment that was exercised and listed the chronology of
its review of the case over a seven-week period prior to oral argument. See R.R. at
2-3. As a result, the trial court did exercise independent judgment in disposing of
Objector’s appeal and merely adopted Developers’ brief as its opinion “because it
exactly expressed what the court wanted to say in its decision” and because the
“brief was also particularly lucid.” Id. at 3.
II.
Objector next claims that the Board erred in granting the conditional
use application because the open space, minimum tract size, and storm water
management requirements were met through an easement on adjacent Borough
park land, which requires court approval under the DDPA and the Public Trust
Doctrine. See In re Erie Golf Course, 992 A.2d 75 (Pa. 2010) (requiring Orphans’
Court approval for a private developer to use or sell public park land already used
for a public use); Board of Trustees of Philadelphia Museums v. Trustees of the
11
University of Pennsylvania, 96 A. 123 (Pa. 1915) (precluding the sale or use of
public park land while still in active use).13 Objector also asserts that Developer
alleges that the park will not be used for storm water management but that is
unlikely, and Fourth Lake will ultimately be the main source of the development’s
storm water management. Objector concludes that Developer is impermissibly
seeking to use the park to satisfy its private responsibilities. See White v. Township
of Upper St. Clair, 799 A.2d 188 (Pa. Cmwlth. 2002) (holding that the lease of
park land for the construction of a communications tower as a sale or alienation
under the DDPA).
13
As this Court has explained:
“Under the common law public trust doctrine, when land has been
dedicated and accepted for public use, a political subdivision is
estopped from interfering with or revoking the grant at least so
long as the land continues to be used, in good faith, for the purpose
for which it was originally dedicated.” In re Estate of Ryerss, 987
A.2d 1231, 1237 n.8 (Pa. Cmwlth. 2009) (citation omitted).
***
Regarding the common law “public trust doctrine,” we explained
in [Borough of Downingtown], that our Supreme Court held in [In
re Erie Golf Course] that the DDPA incorporates the “salient
common-law principles” of the public trust doctrine and, “[t]o the
extent the [DDPA] modifies the public trust doctrine, the prior
common-law principles are superseded.” Id. [992 A.2d at 86
n.16].
In re Council of the Borough of Downingtown, slip op. at 2 n.1, 8 n.13. Objector asserts that the
instant easements are clearly alienations or restrictions on park land within the purview of the
DDPA. See Assalita v. Chestnut Ridge Homeowners Association, 866 A.2d 1214 (Pa. Cmwlth.
2005) (holding that an easement appurtenant is also an encumbrance that can conceivably last
forever).
12
However, regarding the open space requirement, Section 225-
7.F.(4)(f) of the Township’s Zoning Ordinance specifically permits the use of
Borough land to satisfy this requirement, stating “[o]pen space may be dedicated to
the Township if accepted by the Township or to the [Borough] if not accepted by
the Township,” and “[p]roposed open space already owned by the Borough may be
retained in the Borough’s ownership.” Section 225-7.F.(4)(b) also provides that
“[a]reas counted for the open space requirement may be used in whole or in part
for passive recreational uses and for natural resource preservation. . . .” See Morris
v. South Coventry Township, 836 A.2d 1015, 1018 (Pa. Cmwlth. 2003) (holding
that the applicable zoning ordinance did not preclude ownership of open space by
neighboring residential lots in a preliminary land approval).
We previously held that the use of the adjoining park land to satisfy
the open space requirement of the Township’s Zoning Ordinance does not violate
the DDPA, explaining:
As to the use of [a] portion of parkland to satisfy
an open space requirement, while that may be
problematic in the land use sense, the matter before us is
whether the use of open space will substantially impede
the public’s use of the property as a park in violation of
the DDPA. There is nothing to indicate that allowing
Developer to use the property to satisfy the open space
requirement for the adjoining residential development
will have any impact whatsoever on the park use.
In re Borough of Downingtown, 116 A.3d at 743.
Likewise, this Court has also rejected Objector’s argument that the
use of easements violates the DDPA with respect to these parcels, explaining:
Neither the utility or storm water easements in any
way impede with the use of Kardon Park because the
construction easements are temporary; the maintenance
13
easements allow access and are not intrusive; and the
utility easements are underground. As to the storm water
easements, those easements may well require changes in
Kardon Park, but none of those changes are inconsistent
with the use of the property as a park. While there may
be a reduced shoreline at the Fourth Lake, there are new
vegetative wetlands that serve a park purpose; while part
of the Lions Trail will be relocated, there will still be a
trail; and while there will be new parking areas, they will
allow individuals to access Kardon Park. Nothing
requires that the property be used in the way Objectors
believe Kardon Park should be used, just that it be used
as a park.
In re Borough of Downingtown, 116 A.3d at 743. Again, this would apply equally
to Objector’s Public Trust doctrine claim. Id. at 739 n.18. Moreover, Developers
demonstrated that the development does not involve the use of Fourth Lake for
storm water management purposes. R.R. at A-316-322, A-334, A-1162-1203.14
Finally, with respect to the sale of a portion of Tax Parcel 40-1-23.1,
this Court held that “[t]he releases of the General Assembly essentially voided the
dedication required under the Project 70 Act and permit the conveyance of these
14
The Board imposed the following conditions with respect to storm water management:
7. Final design of [Developers’] storm water management
improvements, including the enclave area “sponge,” and
[Developers’] reliance on evapotranspiration, shall be subject to
Township approval at the time of Final Subdivision and Land
Development Approval; including compliance with [the]
Township’s Act 167.
R.R. at A-68. The Board’s action in this regard was appropriate. See Robert S. Ryan, 1
Pennsylvania Zoning Law and Practice §5.2.7 (2004) (“Where the only valid reason for denying
a special exception relates to the drainage of surface waters, and the evidence indicates that the
problem can be solved by the imposition of conditions governing the diversion of surface waters,
the zoning board must grant a special exception subject to the conditions rather than deny it
outright. Sibley v. Plymouth Township, 92 Montg. Co. L.R. 33 (1969).”).
14
parcels. To hold that these parcels are also subject to the disposition requirements
of the DDPA would render section 20 of the Project 70 Act a nullity.” In re
Borough of Downingtown, 116 A.3d at 739. This applies equally to Objector’s
claim regarding the Public Trust doctrine. Id. at 739 n.18 (quoting Borough of
Downingtown, 55 A.3d at 173).15 In sum, the Board did not err in granting the
conditional use application where, as here, Developers met the requirements of the
Township’s Zoning Ordinance and it was not shown, with a high degree of
probability, that the use will adversely impact the public interest. See, e.g.,
Brentwood Borough v. Cooper, 431 A.2d 1177, 1179-80 (Pa. Cmwlth. 1980)
(holding that applicant was entitled to grant of a conditional use permit to construct
garden apartments where the specific requirements of the zoning ordinance were
met notwithstanding the borough’s concerns regarding traffic congestion, storm
sewer problems, fire hazards, and diminishment of the tax base).16
15
We have specifically rejected Objector’s reliance on White, stating:
While the parcels at issue in this case were similarly dedicated to a
public park use, unlike the land in White, the parcels herein were
actually acquired with Project 70 Act funds. When applied, the
Project 70 Act contains specific provisions whereby the General
Assembly has authorized a political subdivision to dispose of lands
acquired with such funds. The Borough complied with these
provisions and obtained the appropriate releases under the Project
70 Act. As noted above, these releases essentially voided the
public dedication of these parcels, rendering White distinguishable.
In re Borough of Downingtown, 116 A.3d at 740.
16
As a corollary to this claim, Objector argues that the proposed rain garden and road in
the floodplain are also illegal because they are not permitted uses in this area under Section 225-
24(c) of the Township’s Zoning Ordinance and violate federal regulations, 44 C.F.R. §60.3
(relating to flood plain management criteria for flood-prone areas), requiring permits for such
construction. The Board found that “Objectors have raised valid concerns about the possible
(Footnote continued on next page…)
15
III.
Objector next claims that the Board erred in granting the application
because the requirements for the use of the portion of the park land purchased with
Project 70 Act funds have not been satisfied. Objector argues that the General
Assembly removed the Project 70 Act restrictions on Tax Parcel 40-1-23.1 through
the Act of June 18, 2014, but imposed the condition that the Borough deposit
$285,000 into an interest-bearing account to be used for improvements to Kardon
Park in accordance with a development plan. Objector asserts that the money has
not been deposited so the condition has not been met and the restrictions on the
alienation of that parcel have not been removed.
This Court has previously held that the removal of the Project 70 Act
restrictions could not be a condition for final approval of the development because
the General Assembly could not be compelled to enact the legislation removing the
restrictions. Feldman, 48 A.3d at 550-51. However, as noted above, the General
Assembly enacted the Act of June 18, 2014, which released the Project 70 Act
(continued…)
installation of improvements within the floodplain on the Property.” R.R. at A-61. As a result,
the Board imposed the following condition to address these concerns:
6. To the extent proposed improvements, including but not limited
to the rain garden above Fourth Lake forebay, are proposed within
the floodplain, such improvements shall be relocated outside the
floodplain unless otherwise permitted by the Army Corps of
Engineers, by a map revision based upon a site delineation of the
floodplain, or by the Township Zoning Hearing Board if
appropriate for encroachments into the flood fringe portion of the
floodplain.
Id. at A-68. Again, the Board’s action in this regard was appropriate. See fn.14 supra.
16
restrictions on Tax Parcel 40-1-23.1 subject to a number of conditions. Because
the Project 70 Act restrictions have been conditionally removed by the General
Assembly, they are no longer an impediment to the use of this parcel as part of the
development. In re Borough of Downingtown, 116 A.3d at 739.
Moreover, this Court has explained that only the Commonwealth, and
not a private citizen, has the authority to enforce the Project 70 Act use restrictions.
Borough of Downingtown, 55 A.3d at 173-74; Feldman, 48 A.3d at 449. As a
result, to the extent that the Project 70 Act restrictions are still in place, the
Commonwealth, and not Objector, has the authority to enforce the restrictions on
the use of the parcel.
IV.
Objector next claims that the Board erred in granting the application
because the HOA cannot have responsibility for maintaining the open space and
water management requirements on public park land. Objector argues that using
public park land to satisfy a developer’s requirements is not in the public’s
interests and violates a number of zoning ordinance provisions protecting such
interests. Objector contends that the Borough will ultimately give control over the
use of public park land to the HOA and that there is no precedent allowing an
HOA to control the funds and improvements on public park land. Objector also
asserts that access to the lakes will be severely restricted, thereby impacting the
public’s use of the park, and the HOA’s control over park upkeep will have a
further negative impact.
As outlined above, Section 225-7.F.(4)(b) of the Zoning Ordinance
provides that “[a]reas counted for the open space requirement may be used in
17
whole or in part for passive recreational uses . . . .” Section 225-7.F.(4)(f) provides
that “[p]roposed open space already owned by the Borough may be retained in the
Borough’s ownership.” Moreover, Section 225-7.F.(4)(g) specifically
contemplates that the HOA may own and maintain the open space if the open
space is not accepted by the Township or the Borough. Finally, the Board imposed
a condition that “the [HOA] shall have no control over the Borough’s maintenance
and management of such park land; provided, upon approval by the Board, the
[HOA] may be delegated the responsibility for maintenance of Fourth Lake and its
forebay, with any reasonable expenses credited against any HOA maintenance
obligation for the park land.” R.R. at A-69. Contrary to Objector’s assertion, the
conditional use and condition conform to the Township’s Zoning Ordinance.
V.
Finally, Objector argues that the Board erred in granting the
conditional use application because such use violates Article 1, Section 27 of the
Pennsylvania Constitution. However, the entirety of Objector’s argument on this
issue is as follows:
Clearly, allowing a private developer to use public
parkland and public resources for private gain which will
only be given to the [HOA] to maintain is wrong and in
clear violation of this particular Constitutional provision.
***
The Board of Supervisors of [the] Township erred
in allowing public parkland to be used for private use
which violated Article I, Section 27 of the Pennsylvania
Constitution, which gives the people the right to clean
18
air, water, etc., and preservation of the natural
environment.
Brief of Appellant at 73, 79-80.
Objector has waived this claim by failing to cite legal authority or
otherwise develop any discussion in support of this constitutional issue in the
Argument portion of her brief. See Pa. R.A.P. 2119(a) (“The argument . . . shall
have at the head of each part . . . the particular point treated therein, followed by
such discussion and citation of authorities as are deemed pertinent.”); In re Estate
of Ryerss, 987 A.2d at 1236 n.7 (Pa. Cmwlth. 2009) (holding that arguments not
properly developed in an appellate brief will be deemed waived by this Court
under Pa. R.A.P. 2119(a)); Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super.
2006) (holding that the failure to cite pertinent authority results in waiver under
Pa. R.A.P. 2119).
Accordingly, the trial court’s order is affirmed.
MICHAEL H. WOJCIK, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ann Feldman and Kim Manufacturing :
Company Stewart Hall, L.P. : No. 1498 C.D. 2015
and The Board of Supervisors of :
East Caln Township and Progressive :
Housing Ventures, LLC and J. Loew :
and Associates, Inc. and The Borough :
Council of the Borough of Downingtown :
:
Appeal of: Ann Feldman :
ORDER
AND NOW, this 18th day of April, 2016, the order of the Court of
Common Pleas of Chester County dated July 27, 2015, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge