Board of Commissioners v. Toll Bros.

607 A.2d 824, 147 Pa. Commw. 298, 1992 Pa. Commw. LEXIS 306
CourtCommonwealth Court of Pennsylvania
DecidedApril 14, 1992
DocketNo. 2601 C.D. 1990
StatusPublished
Cited by3 cases

This text of 607 A.2d 824 (Board of Commissioners v. Toll Bros.) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of Commissioners v. Toll Bros., 607 A.2d 824, 147 Pa. Commw. 298, 1992 Pa. Commw. LEXIS 306 (Pa. Ct. App. 1992).

Opinions

PALLADINO, Judge.

The Board of Commissioners of South Whitehall Township (Township) appeals an order of the Court of Common Pleas of Lehigh County (trial court) which directed the Township to issue building permits to Toll Brothers, Inc., on the terms of Township ordinances in effect when final plan approval was granted and to refund to Toll Brothers amounts paid under protest.

On stipulation of counsel, the trial court entered an order directing the case to be heard on briefs and oral argument. The undisputed facts of this case, as recited in the amended complaint of Toll Brothers and admitted in the Township’s answer, are as follows:

1. Plaintiff, Toll Brothers, Inc. is a Pennsylvania business corporation and the developer of two tracts of land located in South Whitehall Township, Lehigh County, Pennsylvania, known respectively as the “South Whitehall Estates” ... and “Spring Valley Estates” subdivisions____
3. The Spring Valley Estates subdivision, consisting of thirty-one (31) single family home building lots, received final approval from the Defendant Board of Commissioners on or about October 20, 1987. The Plan for Spring Valley Estates was subsequently recorded in the Office of Recorder of Deeds in and for Lehigh County on June 3, 1988.
4. The South Whitehall Estates subdivision, consisting of fifty-three (53) single family home building lots received final approval from the Defendant Board of Commissioners on or about May 17,1988. The Plan for South Whitehall Estates was subsequently recorded in the Office of the Recorder of Deeds in and for Lehigh County on December 13, 1988.
[301]*3015. At all times during the Township’s consideration of the subdivision plan for South Whitehall Estates and Spring Valley Estates, and at the time said Plan received final approval and was recorded, the relevant Township ordinance required the payment of a $500 water and sewer connection fee with respect to each lot in each of said subdivisions.
6. In accordance with said Ordinance, and subsequent to final plan approval of the Subdivisions, Plaintiff applied for and received nine (9) building permits for construction on nine (9) various lots in the Subdivisions upon the submission of the $500 per lot sewer and water connection fee.
7. Subsequent to the Township's final approval of the
Spring Valley Estates and Whitehall Estates Plans and subsequent to the Township’s issuance of the aforementioned water and sewer connection permits at the said fee of $500 per dwelling lot, the Board of Commissioners, on December 20, 1988, enacted Ordinance No. 88-444, which purported to increase the water and sewer connection fees required for each lot to $4,000.00____
8. During January 1989 and thereafter, Plaintiff requested building permits to be issued for several lots in the Subdivisions with fees equal to $500.00 per lot for water and sewer connection.
9. Immediately thereafter, Defendant refused to grant the requested building permits unless Plaintiff tendered $4,000.00 per lot for water and sewer connection.

Amended Complaint of Toll Brothers, at 2-3. The complaint sought an order in mandamus commanding the Township to issue to Toll Brothers building permits under the terms of the Township ordinances in effect at the time the Township approved the two subdivisions.1

[302]*302The trial court granted the relief requested, and ordered the Township to refund to Toll Brothers any excess fees paid under protest.2

The Township on appeal to this court3 presents one issue: Whether subsection 508(4)(ii) of the Municipalities Planning Code (MPC), Act of July 31,1968, P.L. 805, as amended, 53 P.S. § 10508(4)(ii), precludes a municipality from enacting an ordinance that increases water and sewer connection fees with respect to a developer whose subdivision plan has already been approved by the municipality.

Mandamus is an extraordinary writ which may be utilized to compel performance of a duty which is either purely ministerial or mandatory. Atland v. Sprenkle, 57 Pa.Commonwealth Ct. 548, 427 A.2d 275 (1981). To demonstrate entitlement to mandamus relief, a plaintiff must prove a clear entitlement to relief, for which there is a corresponding duty in the defendant, and that there is no other adequate remedy. Id.

[303]*303In this case, Toll Brothers argues that it was entitled to an order in mandamus because subsection 508(4)(ii) of the MPC precludes the Township from raising water and sewer fees of developments of Toll Brothers which were previously approved.

Subsection 508(4)(ii) states:

(ii) When an application for approval of a plat, whether preliminary or final, has been approved without conditions or approved by the applicant’s acceptance of conditions, no subsequent change or amendment in the zoning, subdivision, or other governing ordinance or plan shall be applied to affect adversely the right of the applicant to commence and to complete any aspect of the approved development in accordance with the terms of such approval within five years from such approval.

Based on the language of the above subsection, the issue becomes whether an ordinance that increases water and sewer connection fees is an “other governing ordinance” that “affects adversely the right” of Toll Brothers to commence and complete its approved developments.

The Township presents three arguments in support of its appeal. First, the Township argues that its ordinance does not affect “the right” of Toll Brothers to commence and complete its approved developments. The Township argues that “[t]he exercise of that right might not be as desirable or as profitable for Toll Brothers after sewer and water fees are increased, but the right itself is not the least bit infringed.” Township’s Brief, at 9.

However, the distinction suggested by the Township is tenuous. It seems apparent that at some point the magnitude of a fee increase adopted by a municipality can affect a developer so substantially as to render his “right” to develop meaningless.4

[304]*304We note that counsel has not cited, nor has our research disclosed, any pertinent case law interpreting subsection 508(4)(ii). However, this court does find instructive the case of Raum v. Board of Supervisors of Tredyffrin Township, 29 Pa.Commonwealth Ct. 9, 370 A.2d 777 (1977). In Raum, a township approved plans for subdivision of a particular development. Subsequently, the township enacted new zoning and subdivision ordinances which included in their provisions a substantial increase in fee schedules. This court held that landowners whose developments have been approved by a municipality have the right to rely upon the fee schedules in effect at the time of the approval of the plan.

As indicated in conclusion of law number 10 of the Raum decision:

10.

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Bluebook (online)
607 A.2d 824, 147 Pa. Commw. 298, 1992 Pa. Commw. LEXIS 306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-commissioners-v-toll-bros-pacommwct-1992.