In Re Appeal of Busik

COLINS, Judge.

Before the Court is the issue of whether a subdivision applicant who accepts a condition on preliminary approval and does not appeal from that approval and imposition of condition has waived his right to challenge that condition on final approval. Solebury Township appeals from the December 28, 1998 order of the Court of Common Pleas of Bucks County (trial court) directing that the proposed subdivision plan of J. Kevan and Julia K. Busik (the Busiks) be deemed approved and striking Condition No. 4, which required the Busiks to enter into an agreement with neighboring landowners.

The Busiks own an 83.23-acre tract of land in Solebury Township that is zoned RA, Residential Agricultural. Their property wholly surrounds a parcel of land owned by the DeLaszlos. On May 13, 1991, the Busiks submitted a proposal and preliminary plan to the Township to subdivide their property into seven residential lots.

On January 5, 1993, the Township Board of Supervisors (Board) held a regular meeting at which time the Busiks’ proposed subdivision was discussed.’ At that meeting, the Busiks agreed to, inter alia, Condition No. 4, which required the Busiks and DeLaszlos to reach an agreement with respect to the terms and conditions governing the use of a road that traverses the property of the respective landowners.1 *419On March 16, 1993, the Board granted preliminary approval of the proposed subdivision, subject to the conditions enumerated in the approval letter. (R.R. 15a)

The Busiks complied with all of the conditions except Condition No. 4. At the September 7, 1993 meeting, the Busiks advised the Township that their attempts to negotiate with the DeLaszlos had failed and requested that Condition No. 4 be eliminated or modified to provide that a court decide the respective rights of the landowners. Thereafter, the Busiks submitted a revised preliminary plan to the Board and requested final approval. The Board granted final plan approval to the Busiks, with the identical Condition No. 4, on September 16, 1993. The Busiks appealed to the trial court.

The trial court determined that the Bu-siks’ appeal of the final plan approval was proper even though the condition being appealed from was identical to the condition that appeared in the preliminary plan approval. The trial court interpreted two sections of the Pennsylvania Municipalities Code (MPC) in reaching that result.2

In pertinent part, Section 1002-A of the MPC, 53 P.S. § 11002-A, provides as follows: 3

All appeals from all land use decisions ... shall be taken to the court of common pleas ... and shall be filed within 30 days after entry of the decision ... or, in the case of a deemed decision, within 30 days after the date upon which notice of said deemed decision is given....

Section 107(b) of the MPC, 53 P.S. § 10107(b), contains the definition of “decision.”

“Decision,” final adjudication of any board or other body granted jurisdiction under any land use ordinance or this act to do so, either by reason of the grant of exclusive jurisdiction or by reason of appeals from determinations. All decisions shall be appealable to the court of common pleas of the county and judicial district wherein the municipality lies.

Citing those two sections of the MPC, the court rejected the Township’s argument that the phrase “all land use decisions” includes preliminary plan approvals. The court stated that, because the definition of “decision” provides that it is a “final adjudication,” it is clear that a preliminary plan approval is not an appealable decision. Thus, the court concluded that the Busiks’ appeal from final plan approval was proper. The court noted that the Township cited no case law standing for the proposition that a party must appeal from an adverse preliminary plan approval.

In addition, the court decreed that the Busiks’ proposed subdivision plan be deemed approved. The court reasoned that because the Board had approved the final plan in spite of the Busiks’ disagreement with the condition imposed, the Board’s decision was really a deemed rejection of the application as filed. See Board of Township Commissioners of Annville Township v. Livengood, 44 Pa.Cmwlth. 336, 403 A.2d 1055 (1979)(township’s conditional approval of developer’s plan deemed a rejection where applicant did not accept conditions). Further, the court concluded that because there was a rejection, the Board was then obligated to comply with the provisions of Section 508(2) of the MPC,4 which require it to specify any defects in the application, any requirements that have not been met, and *420the provisions of any statutes or ordinance relied upon. See Id.

Finally, the trial court determined that it was appropriate for it to strike Condition No. 4 because the approval contained conditions that the applicant had rejected and that were unsupported by statute or ordinance. In support of its action, the court cited Montgomery Township v. Franchise Realty Interstate Corp., 54 Pa.Cmwlth. 535, 422 A.2d 897 (1980). In that case, the township had attempted to condition approval of the developer’s plan on the condition that the patrons of its proposed McDonald’s restaurant be permitted to turn only right upon exiting. We affirmed the trial court’s decision where it directed that the proposed plan be deemed approved, but subject only to the conditions acceptable to the developer. We reasoned that a deemed approval with only the conditions acceptable to the developer was appropriate because the township had attempted to condition approval upon the developer meeting a standard not contained in its regulations and which the developer had rejected.

In the instant case, the township filed a timely notice of appeal of the trial court’s order with this Court.5 On appeal we must decide the effect of the Busiks’ acceptance of Condition No. 4 at the preliminary approval stage, their failure to appeal from preliminary approval, their interim attempt to comply with that condition, their subsequent refusal to accept that condition on final approval, and the Board’s final approval that included Condition No. 4.

The Township argues that an applicant must file an appeal from preliminary plan approval if he disagrees with or does not accept a condition imposed on preliminary plan approval. In support of its argument, the Township cites the phrase “all land use decisions,” found in Section 1002-A of the MPC6 and contends that preliminary plan approvals are appealable decisions that applicants must appeal to the common pleas court if they wish to preserve their challenge to the conditions imposed.

The Busiks reject the Township’s argument; rather, they argue that where a municipality approves a subdivision application, but the approval is subject to certain conditions that are not acceptable to the applicant, the municipality’s only option is to disapprove. See Livengood. They note that where a municipality does not rescind its conditional approval, there is a deemed rejection of the application as filed. Id. Thus as the trial court concluded, they contend that the Township in the instant case was required to comply with the mandatory provisions of Section 508(2) of the MPC, which mandates that the municipality issue specific reasons for not approving the application as filed and the provisions of the statutes and ordinances relied upon. 53 P.S. § 10508(2).

Further, the Busiks contend that, under Section 508(3) of the MPC, 53 P.S. § 10508(3), the Township’s failure to comply with the requirements of 508(2) will result in a deemed approval of the application as filed. Interpreting Sections 508(2) and (3) together, the Busiks argue that since the Township in its notice of final approval failed to specify any defects in the application, the trial court correctly found a deemed approval. The Busiks challenge the validity of the Township’s argument that preliminary approval is a decision that must be appealed if the conditions imposed at final approval are subject to challenge, regardless of the facial invalidity of the conditions.

We disagree with the trial court’s determination that preliminary plan ap*421proval does not constitute a final appeal-able decision. We have stated

[I]f a governing body imposes a condition that the applicant believes is illegal or otherwise unacceptable, the applicant has the right not to accept and to appeal the denial of the application to the court of common pleas. However, the applicant has a duty to exercise its right to appeal within the time prescribed by statute.

Bonner v. Upper Makefield Township, 142 Pa.Cmwlth. 205, 597 A.2d 196, 200 (1991). Furthermore, we have noted that requiring the submission of both preliminary and final plans is not a mere technical filing formality. Tuscarora Forests, Inc. v. Fermanagh Board of Supervisors, 80 Pa.Cmwlth. 108, 471 A.2d 134 (1984). Municipalities may require a two-step preliminary approval process, each step of which serves different functions and requires more detailed information. See Belber v. Lower Merion Township, 163 Pa.Cmwlth. 127, 639 A.2d 1325 (1994). Thus, having concluded that preliminary plan approval with conditions may constitute a final decision, we turn to the effect of the Busiks’ failure to appeal from the preliminary approval.

The Busiks concede that while it is proper to permit an applicant to appeal from a preliminary plan decision in order to secure or clarify rights, it makes no sense to force them to resort prematurely to the courts when there may be some chance that the issues can be resolved otherwise. They contend that, absent the obligation to accept or reject conditions at the preliminary stage, they acted appropriately in attempting to ascertain whether they would be able to fulfill Condition No. 4 prior to submitting their application for final approval. They aver that they acted responsibly by advising the Board that they could not fulfill Condition No. 4 and by asking that the condition be stricken or modified in order to allow the landowners to resolve any dispute that might arise regarding the road in court. We disagree.

It is well established that a municipality may attach conditions to a subdivision approval, so long as the applicant accepts the conditions. Doylestown Township v. Teeling, 160 Pa.Cmwlth. 397, 635 A.2d 657, petition for allowance of appeal denied, 539 Pa. 697, 653 A.2d 1234 (1993). It is equally well established that acceptance of conditions imposed on a subdivision constitutes a waiver of future challenges to those conditions. See Bonner, Board of Supervisors of Charlestown Township v. West Chestnut Realty Corp., 110 Pa.Cmwlth. 481, 532 A.2d 942 (1987), petition for allowance of appeal denied, 519 Pa. 657, 546 A.2d 61 (1988).

In the instant case, while it is undisputed that the Busiks attempted to negotiate with the DeLaszlos and comply with Condition No. 4, it is similarly undisputed that the Busiks agreed to the imposition of Condition No. 4. Despite the good faith effort by the Busiks, we cannot protect parties from accepting imprudent conditions.7 Accordingly, the trial court’s order directing that the plan be deemed approved without Condition No. 4 is reversed, and the order of the Board granting the Busiks final plan approval subject to condition No. 4 is reinstated.

ORDER

AND NOW, this 9th day of August 2000, the order of the Court of Common Pleas of Bucks County in the above-captioned matter is reversed, and the order of the Sole-bury Township Board of Supervisors granting final plan approval subject to conditions is reinstated.

. Condition No. 4 provided as follows:

Prior to the signing of final linen plans and their being recorded, you shall enter into a license agreement with Michael and Barbara DeLaszlo ... upon terms and conditions mutually agreeable to both, to provide for a license of ingress and egress and regress over and through said lands. Upon execution of such license agreement you shall then extinguish the easement across Tax Map Parcel 41-18-71 [the DeLaszlos' property].

. Act of July 31, 1968, P.L. 805, as amended, 53 P.S.§§ 10101-11202.

. Section 1002-A was added by Section 101 of the Act of December 21, 1988, P.L. 1329.

. That section provides as follows:

(2) 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 the provisions of the statute or ordinance relied upon.

53 P.S. § 10508(2).

. Where, as here, the trial court takes no additional evidence, we are limited to determining whether the governing body, committed an abuse of discretion or erred as a matter of law. Hallett’s Wood Homeowners’ Ass'n v. Upper Mount Bethel Township Planning Commission, 688 A.2d 748 (Pa.Cmwlth.1997).

. 53 P.S. § 11002-A.

. See Bonner, 597 A.2d at 201 ("The subdivi-der’s decision to accept the condition imposed by the Township may or may not have resulted from ‘unequal bargaining.’ However, the courts cannot protect all persons from their own failure to assert their rights.”)