IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Station Place, LLC :
From the Decision of North Wales :
Borough Council Dated : No. 29 C.D. 2019
December 26, 2017 : ARGUED: November 9, 2020
:
Appeal of: Station Place, LLC :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE MICHAEL H. WOJCIK, Judge (P)
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: February 9, 2021
Appellant Station Place, LLC (Station Place) appeals from the Court of
Common Pleas of Montgomery County’s (Common Pleas) December 14, 2018
order, which upheld North Wales Borough Council’s (Borough Council) December
26, 2017 decision. In that decision, Borough Council denied Station Place’s
application for approval (Application) of a revised preliminary land development
plan (Revised Plan) that pertained to a 6.49-acre property, located at 501 East Walnut
Street in North Wales, Pennsylvania. Reproduced Record (R.R.) at 3a, 113a. After
thorough review, we affirm.
I. Facts and Procedural History
The property at issue in this matter (Property) “is bounded by South 5[th]
Street, South 6[th] Street, and a three-story twin house[,]” and “is unique in its
proximity to Southeastern Pennsylvania Transportation System [a SEPTA] train
station and residential development.” Id. at 4a. On June 15, 2015, Station Place filed
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
an application with the Borough’s Zoning Hearing Board (Zoning Board), through
which it requested use and dimensional variances to facilitate the construction of 10
townhomes on the Property, which would be subdivided into 10 lots, i.e., 1 for each
townhome, as part of the project. Id. at 3a-9a. The Zoning Board convened a public
hearing and, on August 20, 2015, subsequently granted the desired variances, subject
to the following conditions:
1. [Station Place] shall maintain the Property now and
during the land development process, and after
construction on the Property any undeveloped portion of
the Property shall be grass and shall be maintained.
2. [Station Place] shall discuss with the Borough and the
affected neighbors at 113 S. 5[th] Street the separation of
the properties and any permanent fencing.
3. [Station Place] shall adhere to the Exhibit A-5
([Concept Townhouse Architecture Plan by Minno Wasko
Architects and Planners]) rendering for the proposed
development as the minimum standard for development of
the Property and shall discuss the rendering with Borough
Council and other applicable commissions and implement
recommendations of Borough Council and the other
applicable commissions.
4. The building coverage on Lots 1 through 10 shall not be
increased.
5. [Station Place] shall proceed in conformance with the
testimony and exhibits presented at the [Zoning Board
h]earing.
6. In all other respects, [Station Place] shall comply with
all provisions of the statutes, laws, regulations, rules,
codes and ordinances of the United States,
Commonwealth of Pennsylvania, Montgomery County,
[the] Borough and any other municipal entity having
jurisdiction over this matter.
Id. at 12a.
2
With these variances in hand, Station Place then submitted a preliminary land
development plan (Original Plan) to the Borough on October 15, 2015. Id. at 48a.
Amy Riddle Montgomery, P.E., the Borough’s Engineer, reviewed the Original Plan
and, on July 1, 2016, sent a review letter to Borough Manager Christine Hart. Id.
Therein, Montgomery explained that the Original Plan failed to comply with
numerous sections of various Borough ordinances, including its Zoning Ordinance,2
Subdivision and Land Development Ordinance (SALDO),3 Stormwater
Management Ordinance,4 and Streets and Sidewalks Ordinance,5 and, furthermore,
contained a multitude of other inconsistencies and deficiencies. See id. at 49a-57a.
Montgomery also noted that townhomes were not permitted by right on the Property,
which was zoned R-C residential, and suggested that the Borough apply the Zoning
Ordinance’s setback, lot width, side yard, and refuse collection requirements that
pertained to properties zoned RM residential multifamily. Id. at 49a-50a. As a result,
Montgomery recommended that Station Place be required to adequately address
these issues before the Borough approved the Original Plan. Id. at 57a-58a.
2
BOROUGH ORDINANCE #796 (2014), available at http://northwalesborough.org/wp-
content/uploads/2014/07/Zoning-Ordinance-796-07-11-2014.pdf (last visited February 8, 2021).
3
BOROUGH ORDINANCE #787 (2012), available at http://northwalesborough.org/wp-
content/uploads/2010/12/Chapter-184-Subdivision-and-Land-Development.pdf (last visited
February 8, 2021).
4
The Stormwater Management Ordinance referenced by Hart in this letter was repealed
and replaced on October 10, 2017 by a new ordinance that incorporated and “[i]mplemented the
[r]equirements of the Wissahickon Stormwater Management Plan[.]” BOROUGH ORDINANCE #807
(2017), available at https://northwalesborough.org/wp-content/uploads/2010/12/Chapter-180-
Stormwater-Management-1.pdf (last visited January 15, 2021).
5
BOROUGH ORDINANCE #181 (1965), as amended, available at https://
northwalesborough.org/wp-content/uploads/2018/10/Chapter-181-Streets-and-Sidewalks. pdf
(last visited February 8, 2021).
3
Station Place then submitted its Revised Plan to the Borough on September
29, 2017. Id. at 60a. Montgomery reviewed the Revised Plan and, on October 31,
2017, sent another review letter to Hart. Id. According to Montgomery, the Revised
Plan complied with the Zoning Ordinance’s setback, lot width, and side yard
regulations for properties zoned RM residential multifamily. Id. at 61a. However,
the Revised Plan still did not satisfy many requirements imposed by the SALDO and
the Stormwater Management Ordinance and contained a number of other
deficiencies, including ones that Montgomery had previously identified in her July
1, 2016 letter. Id. at 62a-66a. Consequently, Montgomery recommended that the
Borough refrain from approving the Revised Plan until Station Place had addressed
these issues to the Borough’s satisfaction. Id. at 66a.
Station Place elected not to return to the drawing board and instead presented
the Application, which contained the Revised Plan, to the Borough for consideration
and approval. Id. at 14a. On December 6, 2017, the Borough’s Planning Commission
reviewed the Revised Plan, heard public comment thereon, and then voted to
recommend to the Borough Council that the Application be denied. Tr. Ct. Record
(T.R.) at 297-300.6 The Borough Council then held a public hearing regarding the
Revised Plan on December 12, 2017, after which it denied the Application on
December 26, 2017. R.R. at 14a. The Borough Council explained that this denial
was warranted for the following reasons:
1. The [Revised] Plan fails to take into consideration many
of the comments or proposals by the Borough Engineer, as
well as . . . Montgomery County[’s] and . . . [the]
Borough[’s respective] Planning Commissions. The . . .
6
The Trial Court Record does not have pages that are sequentially numbered. We have
nevertheless elected to cite to specific portions of Trial Court Record using the relevant pages’
locations in this document (e.g., the 50th page of the Trial Court Record would be cited as “T.R.
at 50”).
4
Borough[’s] Planning Commission reviewed the matter
and voted to recommend that Borough Council deny [the
Application].
2. The [Revised Plan] fail[s] to move a driveway that is
less than forty feet from the street intersection. A proposed
driveway on South Fifth Street for the townhouse
proposed on Lot 1 is between 27’ and 31’ from the
intersection of South Fifth Street and East Walnut Street.
(SALDO Section 184-10.D(1)).
3. The [Revised Plan has] proposed lot widths less than
25’. [Station Place] neither requested nor received zoning
relief from the . . . Zoning . . . Board to have dwelling units
less than 25’, Section 208-54 of the . . . Zoning
[Ordinance] requires lot widths of 25’ for each dwelling
unit. The review of the Decision of the . . . Zoning . . .
Board discloses that [Station Place] neither applied for a
variance for a reduced lot width, nor [was it] granted any
variance relief for reduced lot width ([See] Zoning
Application No. Z-15-05 Application and Decision and
Order).
4. [Station Place’s Revised Plan has] driveways that are
located less than 5’ from any side or rear property lines.
The proposed driveways of lots 1-4 and 6-9 are located
closer than 5’ to the side property lines (in violation of . .
. Zoning [Ordinance] Section 208-54). [Station Place]
neither requested zoning relief nor was specifically
granted zoning relief with regard to this zoning provision.
5. [Station Place’s Revised Plan] would include one off-
street parking space in a garage, and one off-street parking
space in a driveway stall directly outside of the garage.
One of the factors considered at the . . . [Zoning Board
h]earing . . . specifically requested zoning relief to allow
three stories, so that [Station Place] could provide two-car
garages on the first floor of each townhouse and still be
able to provide two (2) full stories of living space. ([See]
Zoning [Board] Decision and Order paragraph #19).
[Station Place] has not provided two-car garages, nor
enough room to have two cars park in the area outside of
the garage. Per paragraph 25 of the Zoning Decision and
Order, [Station Place] was to provide two-car garages on
each lot, and two parking spaces outside the garage.
5
6. Pursuant to paragraph 33 of the . . . Zoning [Board]
Decision and Order, [Station Place] was required to appear
before the [Borough’s] Shade Tree Commission as part of
the Land Development process[,] which never occurred.
[Station Place] advised that it was [its] belief that many of
the trees were in bad shape and would need to be removed,
but never appeared before the [Borough’s] Shade Tree
Commission as provided by [the Borough’s] Shade Tree
Regulations, as well as the Zoning [Board] Decision and
Order.
7. [Station Place] was required to discuss with the
Borough and the [a]ffected neighbors at South Fifth Street
the separation of the properties and any permanent fencing
([See] paragraph #2 of the . . . Zoning [Board] Decision
dated August 20, 2015). [Station Place] has failed to
comply with #2 of said Zoning Order.
8. Pursuant to the above mentioned Zoning [Board]
Decision and Order, [Station Place] was to discuss the
renderings with Borough Council and other applicable
commissions to implement a development that would meet
the minimum standards of development and not become
an eye[]sore at a prominent location in the Borough . . . .
[Station Place] was to implement recommendations of
Borough Council and other applicable commissions. Said
renderings were never provided at the December 12, 2017
[h]earing, and therefore [Station Place] has not
implemented the recommendations of Borough Council
and other applicable commissions as provided by Order of
the Zoning [Board] Decision of August 20, 2015 ([See]
paragraph #3 of Zoning [Board] Decision and Order).
9. [The Revised Plan] did not contain a 20’ wide easement,
maintained as lawn, for the proposed storm sewer located
behind the proposed lots and through [L]ot 1. The width
of the proposed storm water management easement at
South Fifth Street is only 13’ wide and must be revised to
provide the minimum required width of 20’ (SALDO
Section 184-10.B.(1)(a), (c), and Section 184-15.F).
10. As of the [h]earing date of December 12, 2017,
[Station Place] has never met with the [Borough’s] Shade
Tree Commission as required and therefore all the issues
6
addressed in SALDO provisions 184-25 et al. have not
been addressed nor complied with.
R.R. at 15a-16a.
Station Place appealed the denial of its Application to Common Pleas on
January 25, 2018. Common Pleas took no additional evidence and, on December 14,
2018, affirmed Borough Council’s decision. This appeal to our Court followed.7
II. Discussion
The Pennsylvania Municipalities Planning Code (MPC)8 sets forth the
parameters for how local governmental entities shall handle land development
applications. Of relevance to this matter, Section 508(2) of the MPC establishes that
[w]hen [such an] application is not approved in terms as
filed the decision 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). “Where a subdivision plan complies with all objective provisions
of the applicable subdivision ordinance as well as all other applicable regulations,
the plan must be approved. . . . The rejection of a plan may stand, however, if validly
supported by even one of several objections.” Herr v. Lancaster Cnty. Planning
Comm’n, 625 A.2d 164, 168-69 (Pa. Cmwlth. 1993) (internal citation omitted).
“[T]he unmet requirements must be objective in order to justify outright rejection of
a plan. This means that the ordinance must contain standards by which compliance
7
Since Common Pleas considered no additional evidence, our standard of review is limited
to determining whether Borough Council abused its discretion, committed an error of law, or
violated Station Place’s constitutional rights. 2 Pa. C.S. § 754(b). “An abuse of discretion will be
found only if [a local agency’s] findings are not supported by substantial evidence, that is, such
relevant evidence that a reasonable mind might accept as adequate to support a conclusion.”
Zoning Hearing Bd. of Sadsbury Twp. v. Bd. of Supervisors of Sadsbury Twp., 804 A.2d 1274,
1278 (Pa. Cmwlth. 2002).
8
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
7
can be measured. . . . Similarly, . . . the unmet requirements must be substantive, not
technical.” Robal Assocs., Inc. v. Bd. of Supervisors of Charlestown Twp., 999 A.2d
630, 636 (Pa. Cmwlth. 2010) (internal citation omitted). A municipality does not
abuse its discretion by declining to approve a land development plan when it reviews
it in good faith, gives the applicant a reasonable chance to remedy the objective,
substantive deficiencies discovered therein, and ultimately concludes thereafter that
one or more deficiencies remain. See Abarbanel v. Solebury Twp., 572 A.2d 862,
865 (Pa. Cmwlth. 1990). Furthermore, when a municipality’s zoning hearing board
grants relief contingent upon adherence to certain conditions, the applicant’s
subsequent violation of any of these conditions is the functional equivalent of
violating that municipality’s zoning ordinance. See Kulak v. Zoning Hearing Bd. of
Bristol Twp., 563 A.2d 978, 980 (Pa. Cmwlth. 1989).
With these dictates in mind, we look to Station Place’s appellate arguments,
which we summarize and reorder as follows. First, Borough Council abused its
discretion by denying the Application for the reasons presented in paragraph one of
its December 26, 2017 decision, as they are neither supported by citations to a
Borough ordinance, nor backed by substantial evidence. Station Place’s Br. at 15-
16. Second, Borough Council abused its discretion and committed an error of law
by denying the Application on account of paragraph two, as the SALDO provision
cited therein is not applicable to the Revised Plan and, furthermore, sets forth only
general guidance, rather than specific prerequisites for approval. Id. at 17-19. Third,
Borough Council abused its discretion by denying the Application for the reasons
articulated in paragraphs three and four, as they are “inherently contradictory” to the
variance relief granted to Station Place by the Zoning Board. Id. at 19-21. Fourth,
Borough Council abused its discretion by denying the Application on the bases of
8
paragraphs five, seven, and eight, as Borough Council’s determinations on these
points are not supported by substantial evidence. Id. at 21-24. Fifth, the justifications
articulated in paragraphs six and ten are similarly unsupported by substantial
evidence or any articulated, ordinance-based requirement. Id. at 16-17. Finally,
Borough Council committed an error of law by denying the Application for the
reason articulated in paragraph nine, as the SALDO provision cited therein is not
applicable to the Revised Plan. Id. at 24-25. Furthermore, Station Place complied to
the greatest possible extent with that provision’s requirements, given the contours of
the Property, as well as because this “hyper-technical issue” should not have
impeded approval of the Revised Plan. Id. at 25-27.
These arguments, however, do not warrant disturbing Borough Council’s
denial of the Application. With regard to paragraph two, Section 184-10.D(1) of the
SALDO, which Borough Council cited, states in relevant part:
Driveways shall be so located, as to provide reasonable
sight distance at intersections with streets. A stopping area
measured 20 feet behind the right-of-way line shall be
provided not to exceed a 4% grade. Whenever practicable,
driveways shall be located not less than 40 feet from the
street intersection.
SALDO § 184-10.D(1); see R.R. at 15a. There is no dispute that one of the Revised
Plan’s proposed driveways is closer than 40 feet from an intersection. See Station
Place’s Br. at 17-18. The SALDO itself mandates strict compliance with its terms,
9
SALDO § 184-3.A,9 and Station Place presented no evidence suggesting that it could
not comply with the 40-foot requirement.10
Respecting paragraphs three and four, though the use variance allowed Station
Place to build townhomes on the Property, it did not also free Station Place from the
Zoning Ordinance’s requirements pertaining to lot width11 and driveway/parking
9
Section 184-3.A states:
No subdivision or land development of any lot, tract, or parcel of
land shall be made, and no street, alley, sanitary sewer, storm drain,
water main, gas, oil and electric transmission line, or other
improvements in connection therewith, shall be laid out, constructed
or dedicated for public use, or travel, or for the common use of
occupants of a building abutting thereon, except in strict accordance
with this chapter.
SALDO § 184-3.A.
10
Station Place argues that Section 184-10.D(1) applies to driveways that access two-way
streets, but not those like the driveway that is at issue here, which empties onto a one-way street.
Station Place’s Br. at 18. We disagree, as there is nothing about the plain language of this ordinance
provision that would support such a reading. See 1 Pa. C.S. § 1921(b) (“When the words of a
statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext
of pursuing its spirit.”); Geerling Florist, Inc. v. Bd. of Supervisors of Warrington Twp., 226 A.3d
670, 676 (Pa. Cmwlth. 2020) (“Although the Statutory Construction Act of 1972, 1 Pa. C.S. §§
1501-1991, is not expressly applicable to the construction of local ordinances, the rules of statutory
construction are applicable to statutes and ordinances alike.”); see S & H Transp., Inc. v. City of
York, 210 A.3d 1028, 1038 (Pa. 2019) (interpreting the language used in a local ordinance, rule,
or regulation is a legal question for which our standard of review is de novo and our scope of
review is plenary).
11
Section 208-54 states, in relevant part:
The width of each lot shall be not less than indicated below and shall
be maintained for the entire depth.
....
B. Single-family semidetached dwelling: 25 feet.
Zoning Ordinance § 208-54(B).
10
space setbacks.12 See R.R. at 15a. Thus, it was incumbent upon Station Place to either
abide by these provisions or request dimensional variances therefrom, rather than to
embark upon its choice of a third path.
In relation to paragraph five, the Zoning Board noted that Station Place had
committed to “providing two-car garages on each lot and two . . . parking spaces
outside [each] garage.” R.R. at 6a. The Zoning Board also conditioned its grant of
variance relief upon “[Station House] proceed[ing] in conformance with the
testimony and exhibits presented at the [Zoning Board’s h]earing.” Id. at 12a.
Though Station Place contests Borough Council’s conclusion that the Revised Plan
does not offer two garage spaces for each townhome, Station Place is conspicuously
silent about Borough Council’s concomitant determination that the Revised Plan
only provides one outside parking space per townhome. See Station Place’s Br. at
21-22. In doing so, Station Place effectively admits that the Revised Plan calls for
fewer outdoor parking spaces than what was presented to the Zoning Board.
As for paragraphs six and ten, the Revised Plan involves both planting and
removing trees on the Property. See R.R. at 127a-29a. Section 185-25 of the SALDO
thus applies, as does the Borough’s Shade Tree Ordinance;13 these provisions
collectively establish the manner in which this type of arboreal work must be done,
as well as that permits authorizing this work must be obtained from the Borough’s
12
Borough Council again cited Section 208-54 as the reason for denial, but, in context, it
appears that Borough Council intended to reference Section 208-56 instead, which specifically
pertains to “[p]arking and access.” R.R. at 15a; see Zoning Ordinance § 208-56.
Section 208-56 establishes: “All off-street parking spaces and access driveways shall be a
minimum of 10 feet in width and shall be located not less than five feet from any side and/or rear
lot lines.” Zoning Ordinance § 208-56.
13
BOROUGH ORDINANCE #780 (2011), available at https://northwalesborough.org/wp-
content/uploads/2010/12/Chapter-174-Shade-Trees-2012.pdf (last visited February 8, 2021).
11
Shade Tree Commission. See SALDO § 184-25 (governing the “[p]reservation and
replacement of existing vegetation”); Shade Tree Ordinance §§ 174-4—174-14
(articulating Borough’s permitting process for activities affecting and/or involving
shade trees); R.R. at 15a-16a (referencing the Borough’s “Shade Tree Regulations”
and SALDO § 184-25). Despite these directives, there is no evidence in the record
showing that Station Place obtained such permits, let alone applied for them in the
first place. Cf. Shade Tree Ordinance § 174-6 (an application of this nature must be
filed with the Borough Manager, who passes it on to the Shade Tree Commission,
which will consider it at the Commission’s next hearing).
Next, in the context of paragraph seven, the Zoning Board made its decision
to grant Station Place’s desired variances contingent, in relevant part, upon Station
Place “discuss[ing] with the Borough and the affected neighbors at 113 S. 5th Street
the separation of the properties and [installation of] any permanent fencing.” R.R. at
12a. There is no evidence in the record showing that Station Place ever conferred
with the owners of that adjoining parcel about these issues. Moreover, even if we
were to take Station Place’s word that such a conversation took place, see Station
Place’s Br. at 22-23, it remains that Station Place does not claim that it also
communicated with the Borough about such matters.
Finally, regarding paragraph nine, Section 184-10.B(a) and (c) of the SALDO
collectively state:
(a) If easements are used at the rear of lots to provide
sanitary sewer, storm sewer, water or gas mains, a
minimum easement of 10 feet from the rear of each lot
must be provided, or a total minimum easement of 20 feet.
....
(c) Nothing shall be permitted to be placed, set or put
within the area of an easement. It shall be maintained as
lawn.
12
SALDO § 184-10.B(a), (c); see R.R. at 16a (citing these ordinance provisions). In
addition, Section 184-15.F imposes upon developers the twin burdens of securing
all easements necessary to handle the flow of storm water or surface water and to
dedicate those easements, upon demand, to the Borough. SALDO § 184-15.F; see
R.R. at 16a (citing this ordinance provision).
Here, the easement section at issue is in the side yard of one of the proposed
subdivided lots. See R.R. at 16a; T.R. at 430. Therefore, Borough Council
improperly relied upon Section 184-10.B(a) here, as that provision only applies to
rear yard easements. See SALDO § 184-10.B(a). Section 184.15.F is similarly
inapplicable, as there is no evidence to suggest that this easement section is legally
inadequate or that the Borough ever sought to have Station Place dedicate any
portion of the easement area.
Nevertheless, these errors do not render paragraph nine fully invalid. Section
184-10.B(c) states that “nothing” can be placed within an easement of this nature,
which must “be maintained as lawn.” Id. § 184-10.B(c); see R.R. at 16a (citing this
ordinance provision). Given that the Revised Plan calls for planting trees within this
easement section, it fails to comply with this rigid dictate. See R.R. at 128a; T.R. at
436.
III. Conclusion
In summation, at least eight of the paragraphs in Borough Council’s
December 26, 2017 decision thus state legally and factually valid reasons for
13
denying the Application.14 Therefore, on the basis of the foregoing analysis, we
affirm Common Pleas’ December 14, 2018 order.
__________________________________
ELLEN CEISLER, Judge
14
As for the remaining two paragraphs, each may be either factually unsupported or legally
erroneous. Paragraph one contains general, nonspecific language and is devoid of citations to
ordinances or the aforementioned Zoning Board decision. See R.R. at 15a. Next, paragraph eight
posits that Station Place did not present Borough Council with a rendering of the proposed
development or discuss this rendering at the December 12, 2017 hearing, in violation of the
conditions imposed by the Zoning Board. See id. at 16a. The Zoning Board decision specifically
identifies this rendering as Exhibit “A-5: Concept Townhouse Architecture Plan by Minno Wasko
Architects and Planners[.]” R.R. at 4a. There is a rendering in the record submitted to Common
Pleas by Borough Council that fits this description, though that rendering does not contain a
notation indicating that it is indeed Exhibit A-5. See T.R. at 63, 425. At minimum, there is a strong
likelihood that paragraph one is contingent upon non-objective requirements, as well as that
paragraph eight rests upon a faulty premise. We need not conclusively resolve these issues,
however, as determinations in Station Place’s favor on these points would not change the outcome
in this matter.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Station Place, LLC :
From the Decision of North Wales :
Borough Council Dated : No. 29 C.D. 2019
December 26, 2017 :
:
Appeal of: Station Place, LLC :
ORDER
AND NOW, this 9th day of February, 2021, it is hereby ORDERED that the
Court of Common Pleas of Montgomery County’s December 14, 2018 order, which
upheld North Wales Borough Council’s December 26, 2017 decision to deny
Appellant Station Place, LLC’s application for approval of a revised preliminary
land development plan, is AFFIRMED.
__________________________________
ELLEN CEISLER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Station Place, LLC :
From the Decision of North Wales :
Borough Council Dated December 26, : No. 29 C.D. 2019
2017 : Argued: November 9, 2020
:
Appeal of: Station Place, LLC :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge(P)
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
CONCURRING OPINION
BY PRESIDENT JUDGE LEAVITT FILED: February 9, 2021
I agree with the result reached by the majority. The North Wales
Borough Council needed only one objective ground on which to deny Station Place,
LLC’s application for approval of its revised preliminary land development plan.
Borough Council identified several such grounds. I write separately to note that
Borough Council’s decision improperly relied on zoning standards to deny Station
Place’s application.
As the majority opinion points out, a land development plan that
complies with all “objective provisions of the applicable subdivision ordinance as
well as all other applicable regulations … must be approved.” Herr v. Lancaster
County Planning Commission, 625 A.2d 164, 168 (Pa. Cmwlth. 1993).
Pennsylvania law separates subdivision and land development approvals, which lie
within the jurisdiction of the municipal governing body, from zoning issues, which
fall within the jurisdiction of the zoning hearing board. See generally Section 909.1
of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. §10909.1.1 Thus,
when a governing body reviews a land development plan and discovers a zoning
issue, it should condition approval on the applicant obtaining a permit from or
determination by the zoning officer, which is subject to further review by the zoning
hearing board. See, e.g., Borough of Jenkintown v. Board of Commissioners of
Abington Township, 858 A.2d 136 (Pa. Cmwlth. 2004).
In the case at bar, the Borough’s Subdivision and Land Development
Ordinance (SALDO)2 contemplates that procedure. It states:
The applicant must submit a tentative, minor subdivision, minor
land development, standard preliminary, or final plan for review,
prior to applying to the Zoning Hearing Board for the granting of
variances, special exceptions, and conditional uses. If during the
review process it is determined that a variance, special exception,
or a conditional use is necessary, then the applicant shall apply
to the Zoning Hearing Board for such.
SALDO §184-35G.
Here, Borough Council improperly relied on zoning standards as a basis
for rejecting Station Place’s land development plan. Specifically, in paragraphs
three and four of its decision, Borough Council denied the application on the grounds
that Station Place had not received variances from the minimum lot width and
driveway setback limitations in the Borough’s Zoning Code.3 Borough Council
1
Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L. 1329,
53 P.S. §10909.1.
2
BOROUGH OF NORTH WALES SUBDIVISION AND LAND DEVELOPMENT ORDINANCE, Ordinance No.
787-2012 (SALDO). The SALDO is available online at http://northwalesborough.org/wp-
content/uploads/2010/12/Chapter-184-Subdivision-and-Land-Development.pdf (last visited
February 8, 2021).
3
BOROUGH OF NORTH WALES ZONING CODE, Ordinance No. 796-2014 (Zoning Code). The
Zoning Code is available online at http://northwalesborough.org/wp-
content/uploads/2014/07/Zoning-Ordinance-796-07-11-2014.pdf (last visited February 8, 2021).
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should have reviewed the plan for compliance with the objective provisions of the
Borough’s SALDO and other applicable regulations and, assuming there were no
issues, conditioned its approval on Station Place obtaining the necessary variances
from the lot width and driveway setback limitations. I recognize that Station Place
did things out of order by obtaining a variance to construct townhomes before
presenting its preliminary plan to Borough Council. Nevertheless, Borough Council
still lacked authority to deny the application based on its findings that Station Place
did not yet have all of the necessary variances. Further, Borough Council should
have been more cooperative with Station Place since it was the Borough’s own
engineer who suggested that the Borough apply the lot width and setback
requirements for a different zoning district.4 Presumably, Station Place drew up its
plan with those requirements in mind.
Nevertheless, I agree with the majority that Borough Council did not
err or abuse its discretion by rejecting Station Place’s application for noncompliance
with the objective requirements of the Borough’s SALDO and Shade Tree
Regulations.5 These grounds for rejecting the application were set forth in
paragraphs two, six, nine and ten of Borough Council’s decision. I concur in the
Section 208-54 of the Zoning Code requires a lot width of 25 feet for a single-family semidetached
dwelling. Section 208-56 of the Zoning Code requires a driveway to be located not less than five
feet from any side or rear lot line.
4
In Raum v. Board of Supervisors of Tredyffrin Township, 370 A.2d 777, 798 (Pa. Cmwlth. 1977),
this Court stated that
[a] municipality has a legal obligation to proceed in good faith in reviewing and
processing development plans. The duty of good faith includes discussing matters
involving technical requirements or ordinance interpretation with an applicant, and
providing an applicant a reasonable opportunity to respond to objections or to
modify plans where there has been a misunderstanding or difference of opinion.
5
The Borough’s Shade Tree Regulations, Borough Ordinance No. 561-1982, as amended, are
available online at https://northwalesborough.org/wp-content/uploads/2010/12/Chapter-174-
Shade-Trees-2012.pdf (last visited February 8, 2021).
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majority’s analysis with respect to those paragraphs and affirmance of the trial
court’s order.
_____________________________________
MARY HANNAH LEAVITT, President Judge
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