Hines Nurseries, Inc. v. Plumstead Township Board of Supervisors

Dissenting OPINION BY

Judge FRIEDMAN.

I respectfully dissent. Unlike the majority, I believe the decision of the Plum-stead Township (Township) Board of Supervisors (Board) fails to comport with section 508(2) of the Pennsylvania Municipalities Planning Code (MPC).1 Therefore, I agree with Ari Van Wingerden’s (Van Wingerden) argument that the Subdivision and Land Development Application (Application) filed by Hines Nurseries, Inc., t/a Hines Color (Hines) should be deemed approved without conditions. On this basis, I would reverse the trial court’s order.

Compliance with section 508(2) of the MPC and the Board’s authority to consider the Stipulation

Initially, I agree with the majority that, because the Board has rejected Hines’ Application as filed, the Board’s decision must *928satisfy the requirements of section 508(2) of the MPC. That section provides:

When the 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) (emphasis added). Clearly, section 508(2) mandates identification of every application deficiency and contemplates that each defect found and each unmet requirement be based upon a statute or ordinance.

Therefore, the Board’s decision here must (1) specify the defects found in Hines’ Application,2 (2) describe the requirements that have not been met,3 and (3) “in each case” cite to the provision of the statute or ordinance relied upon. 53 P.S. § 10508(2); Warwick Land Development, Inc. v. Board of Supervisors, 695 A.2d 914 (Pa.Cmwlth.) (stating that section 508(2) is mandatory and enumerated defects without citation to the provisions of the statute or ordinance relied upon cannot support a denial of the application), appeal denied, 549 Pa. 709, 700 A.2d 446 (1997); Whiteland Manor Homes, Inc. v. Borough of Downingtown, 32 Pa.Cmwlth. 274, 378 A.2d 1311 (1977) (holding that compliance with section 508(2) cannot be achieved simply by citing relevant provisions of a statute; the decision must specify the defects in the plan and describe the requirements that have not been met, as well as cite to the statutory authority relied upon). Contrary to the majority’s conclusion, I believe the Board’s decision fails to satisfy these requirements.

As stated, section 508(2) requires that when an application is denied as filed, any inadequacies leading to denial must be based on a violation of a statute or ordinance, and section 508(2) requires further that the municipal authority specify the inadequacies and “cite to the provisions of the statute or ordinance relied upon” for the denial. 53 P.S. § 10508(2) (emphasis added); Board of Commissioners v. Haslett, 69 Pa.Cmwlth. 1, 450 A.2d 298 (1982). The Stipulation and Agreed Order is not a statute or ordinance.4 Therefore, pursuant to the plain language of section 508(2), the Stipulation and Agreed Order itself may not serve as the basis to deny, or place conditions on, the Application.5 See *929Haslett (holding that an agreement between the landowner, two prospective purchasers and the township did not constitute a legally valid independent basis for denial of the application); cf. Gulla v. North Strabane Township, 676 A.2d 709 (Pa.Cmwlth.1996) (holding that use restrictions contained in instruments of title and which are created by private contracts are not relevant in zoning cases), aff'd, 551 Pa. 588, 712 A.2d 281 (1998).

Nevertheless, the majority concludes that the Board’s decision satisfies the requirements of section 508(2) because, while the decision itself does not cite to a statute or ordinance provision, the decision incorporates by reference the Stipulation and Agreed Order, which, in turn, cites to section 302.2 of the Township’s Zoning Ordinance prior to amendment on July 18, 1989. (Maj. op. at 923.) I recognize that incorporation of a document by reference may be used to satisfy the requirements of section 508(2), see Advantage Development, Inc. v. Board of Supervisors, 743 A.2d 1008 (Pa.Cmwlth.2000); however, the incorporated document itself must satisfy those requirements.6 Because the incorporated Stipulation and Agreed Order fails to do so, I agree with Van Wingerden that the Stipulation and Agreed Order is not a legally valid basis for the Board to deny Hines’ Application.

In determining whether an application is defective, the Board may look only to the applicable statutes and zoning ordinance in effect at the time of its decision on that application. Here, however, the Board improperly relied on the Ordinance provision referenced in the Stipulation, i.e., section 302.2 prior to amendment on July 18, 1989. Because this Ordinance provision is no longer in effect, the Board may not rely on it as the basis for denial of the Application.

More importantly, section 302.2 cannot serve as grounds for the Board’s decision *930because that section is not material to the Application. Specifically, section 302.2, as referenced in the Stipulation and Agreed Order, addresses the construction of greenhouses/building coverage, whereas the Application proposes no new construction but, instead, concerns a lot line change only.7 Therefore, because the incorporated Stipulation and Agreed Order fails to cite with specificity to the section of the ordinance violated and fails to specify the defects found in the Application, the Board’s decision cannot satisfy the requirements of section 508(2). See Warwick; Whiteland Manor Homes. Consequently, I would reverse the trial court’s decision and hold that the Application should be deemed approved as filed.8 Section 508(3) of the MPC, 53 P.S. § 10508(3) (stating that failure of the agency to render a decision in the required manner shall be deemed an approval of the application in terms as filed).

Due process

Moreover, even if I were to decide not to reverse the trial court’s determination, because I believe Van Wingerden was denied due process, I would, at the very least, vacate the trial court’s order and remand this matter to the trial court to remand to the Board to conduct hearings which afford Van Wingerden his due process rights.

Van Wingerden argues that imposition of condition numbers 4, 5 and 6 violated his due process rights by restricting the use of his property without notice and an opportunity to be heard.9 The trial court disagreed, holding that Van Wingerden had notice of Hines’ Application. However, Van Wingerden maintains that notice of the Application for a lot line change was insufficient to satisfy due process because it gave him no reason to believe that any property other than that subject to the lot line change would be involved. Additionally, Van Wingerden points out that he was denied the opportunity to be heard by presenting evidence before the Board. I agree with Van Wingerden.

In the Application, Hines proposed no new construction. Hines sought nothing more than permission to change lot lines *931by combining a portion of Tax Map Parcel (TMP) 34-4-45, which is owned by Van Wingerden, with TMP 34-4-49, the adjacent land owned by Hines. Nevertheless, the Board’s decision imposed conditions that related to the construction of greenhouses and burdened portions of Van Wingerden’s property that were not involved in the request for a lot line change.10 Before property may be so burdened, due process requires that the owner receive proper notice and an opportunity to be heard. McKean Public Sewer Association v. Pennsylvania Infrastructure Investment Authority, 796 A.2d 379 (Pa.Cmwlth.2002). However, my review of the record reveals that Van Wingerden was not afforded notice that this part of his property would be affected, and he was denied the opportunity to present evidence before the Board at any hearings on Hines’ Application. This constitutes a denial of due process that invalidates the Board’s decision. Accordingly, although I believe reversal is proper, at the very least, I believe this court should vacate the trial court’s order and remand this matter to the trial court to remand to the Board to conduct hearings affording Van Winger-den the due process he thus far has been denied.11

President Judge COLINS and Judge SMITH-RIBNER join in this dissent.

. Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10508(2).

. The majority concludes that the Board's decision satisfies the requirement to specify the defects in Hines' Application, and, as an example, points out that paragraph 1 of the Board’s denial letter states that clarification is required with respect to the owner of parcel 34-4-39. (Maj. op. at 7 n. 11.) However, because this defect has nothing to do with the conditions challenged here, it is irrelevant to the issue Van Wingerden raises before us. Moreover, it is not based on a statute or ordinance.

. The majority also concludes that the Board’s denial letter satisfactorily describes the requirements that have not been met, and, as explanation, the majority simply restates the conditions set forth in the Board's denial letter. (Maj. op. at 8 n. 12.) For the reasons stated in my dissent, I believe this is insufficient to satisfy the mandates of section 508(2).

. A statute is a formal written enactment of a legislative body....” Black’s Law Dictionary 1410 (6th ed.1990) (emphasis added). An ordinance is a "rule established by authority; a permanent rule of action; a law or statute. In its most common meaning, the term is used to designate the enactments of the legislative body of a municipal corporation.” Black's Law Dictionary 1097 (6th ed.1990) (emphasis added).

. In concluding that the Stipulation and Agreed Order controls the disposition of this case, the majority misperceives Van Winger-den’s argument. Van Wingerden does not suggest that his property is not bound by the terms of the Stipulation and Agreed Order. To the contrary, Van Wingerden conceded at oral argument that his property is bound by the Stipulation and Agreed Order, and noth*929ing in his brief contradicts this admission. However, the Stipulation and Agreed Order only binds the parties with respect to issues regarding the construction of greenhouses and building coverage restrictions. Because the Application here does not propose to construct any additional greenhouses or other structures, the Stipulation and Agreed Order has no relevance to this Application, which only seeks a lot line change. Consequently, I submit that the majority's discussion of the legal effect of the Stipulation and Agreed Order on the Application is dicta.

. In Advantage, we held that the township's denial letter, which incorporated by reference an engineer’s report, fully complied with section 508(2), because, importantly, the engineer’s report complied with section 508(2). The engineer’s report contained fifty-three separately numbered paragraphs explaining how the plan at issue failed to conform to the township’s ordinance, and it specifically referenced the sections of the ordinance that were violated. Additionally, the engineer's report also explained in sixty-four separately numbered paragraphs how the plan at issue failed to conform to the stormwater, grading and erosion control standards at issue.

In comparison, in Warwick, we held that a property owner’s application was deemed approved as filed where the township’s denial letter which incorporated by reference four documents, but only attached three, failed to comply with section 508(2) of the MPC. Two of the three attached documents did not cite to any ordinance provisions justifying the denial. The third document, which included forty-two objections, failed to meet the requirements of section 508(2). Specifically, some of the objections did not cite to any ordinance or statute, and, for those objections that did cite a specific ordinance provision, the letter did not state that the plan did not meet those requirements or explain how the plan failed to meet those requirements. The case before us is more akin to Warwick in that, here too, the incorporated document fails to meet the requirements of section 508(2), and is distinguishable from Advantage, in which the incorporated document included precise information to comply with the requirements of section 508(2).

. I could not locate a copy of section 302.2 of the Ordinance prior to amendment on July 18, 1989, anywhere in the record. However, based on the Stipulation, that section apparently relates strictly to a fifteen percent building coverage restriction, and neither the Township nor the Board asserts that section 302.2 prior to amendment on July 18, 1989, concerns lot line changes. Thus, section 302.2 is not material to the Application here.

. Although I would reverse the trial court and deem the Application approved without any conditions, alternatively, at the very least, I would strike condition numbers 4, 5 and 6, and, thus, I would reverse the trial court to the extent that it upheld those conditions.

. The constitutional guarantee of due process is as equally applicable to administrative proceedings as it is judicial proceedings. Gaudenzia, Inc. v. Zoning Board of Adjustment, 4 Pa.Cmwlth. 355, 287 A.2d 698 (1972). Due process requires that there be notice and an opportunity to be heard. McKean Public Sewer Association v. Pennsylvania Infrastructure Investment Authority, 796 A.2d 379 (Pa. Cmwlth.2002). In concluding that Van Wing-erden has not been denied due process, the majority states that, but for the Stipulation, the Board’s ruling on the lot line adjustment would not have impacted Van Wingerden. Thus, the majorily concludes, "[tjhat Van Wingerden did not foresee the subsequent ramifications of that Stipulation does not mean there has been a denial of due process.” (Maj. op. at 925.) I strongly disagree with this conclusion; indeed, forseeability has no relevance to whether there has been a denial of due process. Moreover, the majority’s perception that the Stipulation controls the decision on Hines' Application is erroneous. Again, the Application is for a lot line change only; "Hines' Application did not propose the construction of any additional greenhouses or other structures.” (Maj. op. at 922.)

. The Application proposed to transfer 17.22 acres from TMP 34-4-45, which currently contains 75.15 acres, to TMP 34-4-39, which currently contains 19+ acres. TMP 34 4-39 has 12.041 acres of existing plastic-covered greenhouses. (Board’s decision.)

The five parcels subject to the Stipulation contain a total of 140 acres. The Board determined that the Stipulation permits a maximum of 21 acres of plastic-covered greenhouses on the 140 acres and that 80 acres of open lot are needed to comply with the Stipulation. (Board’s condition nos. 3-6.) Consequently, the Board decided that at least 80 acres must be "set aside” and that this "80 acre tract may be shown on any of the parcels, or a combination thereof, that were listed in the [Stipulation and [Agreed 0]rder.” (Board’s condition no. 5) (emphasis added). Additionally, the 80 acre tract must be shown on the final plans by heavy line or cross hatching; the final plans would be released by the Township for recording once certain conditions are satisfied. (Board's condition nos. 5, 6.)

The Stipulation, as written, limits the amount of structures on the total acreage and requires that land be preserved for open space in relation to the acreage of greenhouses. The Stipulation contains no requirements regarding the precise location of the greenhouses or the open land or which party could build the greenhouses or had to maintain open space; instead, the Stipulation grants the parties flexibility on these issues. While the Board’s conditions may not change the total acreage of structures to built, the Board’s conditions restrict the flexibility permitted in the Stipulation to determine precise locations in the future and, thus, may change who can build those structures and the location of the structures and the open space. Thus, by requiring that the location of the land to be "set aside” be designated in a plan that will be recorded, the Board seeks to rewrite the Stipulation and Agreed Order, which the Board contends is controlling.

Finally, Van Wingerden argues that the trial court erroneously concluded that, by requiring the signatures of all owners involved in the lot line change, the Board did not deny Van Wingerden due process. Van Wingerden argues that, because he could be compelled by the sales agreement to sign the final plans embodying the Board’s conditions and, thus, acquiesce in the Board's conditions, and because he maintains the conditions are inconsistent with the Stipulation and Agreed Order, Van Wingerden should have been given the opportunity to present evidence regarding the sales agreement, the interpretation of the Stipulation and the adverse impact of the Board’s "set aside” condition. I agree. Notice and an opportunity to be heard are to be given before property rights are affected by any zoning decision imposing conditions; simply requiring the affected property owner to sign plans after the fact is insufficient to cure any defects in the process due.

. Based on my resolution of Van Winger-den’s first three arguments, I would not find it necessary to address Van Wingerden's remaining arguments.