Gross v. New Britain Township

75 Pa. D. & C.4th 76, 2005 Pa. Dist. & Cnty. Dec. LEXIS 83
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedJune 28, 2005
Docketno. 04-00035-30-5
StatusPublished

This text of 75 Pa. D. & C.4th 76 (Gross v. New Britain Township) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gross v. New Britain Township, 75 Pa. D. & C.4th 76, 2005 Pa. Dist. & Cnty. Dec. LEXIS 83 (Pa. Super. Ct. 2005).

Opinion

CEPPARULO, J,

I. INTRODUCTION

Susan Gross and Robert J. Kolmus (appellants) have appealed from the December 8,2003 decision of the New Britain Township Board of Supervisors denying appellant’s curative amendment challenge, which was filed on November 13, 2000. This court held a Bucks County Rule of Civil Procedure *27 conference on August 19,2004, and oral argument was held thereafter on November 22,2004. This court then reviewed the briefs submitted by each party as well as the voluminous record created during the hearings held before the New Britain Township Board of Supervisors on appellants’ curative amendment challenge. This opinion is offered to explain the court’s order dated June 28, 2005.

II. PROCEDURAL AND FACTUAL BACKGROUND

Appellants are the owners of two adjoining tracts of land comprised of approximately 37 acres located on Old Limekiln Road in New Britain Township, Bucks County, Pennsylvania. The property is located in the RA-1 and RA-2 Rural Agricultural Zoning Districts. The property has been used for agricultural purposes — specifically, for [78]*78growing apples and grapes — by appellant Gross since 1967. In the early 1980s, appellants expanded the use of the property by opening the Peace Valley Winery, which remains in operation today. The board found that “[virtually the entire area of the subject tract consists of Class I and Class II soils” which was described by the township’s expert, Michael Frank, as “a uniquely high proportion of the site’s soils.” (Adjudication, 12/08/2003, p. 11.)1 Further, the board found, based on testimony by Mr. Frank, that the area in which the property is located is “very rural, with numerous cultivated fields, open farm fields, and dispersed residential development.” (Adjudication, 12/08/2003, p. 11.)

On January 3,2000, the New Britain Township Board of Supervisors adopted Resolution no. 2000-02 invoking the procedure for municipal curative amendments as set forth in section 609.2 of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. §10609.2. Under section 609.2 of the MPC, a municipality has 180 days from the date of adoption of a Municipal Curative Amendment Resolution during which no curative amendment filed by a landowner will be considered. Resolution 2000-02 declared that the township’s zoning ordinance was potentially invalid because “[tjhe current minimum lot sizes in the RA-1, RA-2 and CR zoning districts for residential housing may not be justified” and because “[t]he Natural Resource Protection Standards and dimensional requirements of the zoning ordinance may not adequately preserve prime agriculture, farmland and existing natural resources considering topography, soil [79]*79type and classification, and present use.” (See tab 36 in return of cert, for copy of Resolution 2000-02.) Therefore, the Resolution directed the New Britain Township Planning Commission “to prepare and consider a curative amendment amending the New Britain Township Zoning Ordinance so as to cure the declared potential invalidity.”

On June 12, 2000, the board held a hearing to consider an amendment that would reduce the minimum lot sizes in the RA-1 and RA-2, as well as the CR zoning districts from five acres per dwelling unit to one and one-half acres per dwelling unit. No amendment was adopted on that date. On July 3, 2000, the 180-day statutory period during which the municipality may refrain from considering landowner curative amendments expired. The township subsequently referred to a professional staff the question of amending the zoning ordinance to reflect a change in lot size. The professional staff proposed an ordinance that incorporated agricultural soil protection, a minimum lot size of 1.38 acres and the transfer of development rights between certain districts. The first two public hearings on the proposed ordinance were held on August 14,2000 and September 27,2000. Appellants attended both of these hearings and commented on the various drafts of the ordinance. Appellants filed a landowner curative amendment challenge on November 13,2000.

The third and final public hearing on the proposed ordinance was held on December 20,2000. At this hearing, the board amended the township’s zoning ordinance by adopting Ordinance 2000-12-02. Ordinance 2000-12-02 declares that the RA-1 zoning district “is envisioned as an area which will permit low density residential development in order to preserve agricultural soils, exist[80]*80ing groundwater supplies and other natural resources and to maintain the current semi-rural character of the community.” Ordinance 2000-12-02 further states that the purpose of the RA-2 zoning district “is to preserve agricultural soils and other natural resources and character of the community by permitting only low density development in the currently semi-rural areas of the township.” To fulfill these purposes, Ordinance 2000-12-02 imposes various restrictions and requirements on land located in the CR, RA-1 and RA-2 zoning districts.

In both the RA-1 and RA-2 districts,2 a landowner’s ability to subdivide or develop his tract of land is restricted based on the size of the tract at the time of the adoption of Ordinance 2000-12-02. Under the restrictions and requirements placed on land in the RA-1 and RA-2 districts by Ordinance 2000-12-02 that apply to “all sites containing 10 acres or more,” the minimum lot size for principal and accessory uses is 1.9 acres in both districts.3 In both districts, no more than 50 percent of Class I, II or III soils may be developed except for agricultural uses, excluding commercial kennels and animal hospitals.4

[81]*81For the land that is available for development after setting aside at least 50 percent of agricultural soils, both districts have identical requirements regarding the depth and width of lots, the maximum building coverage, the maximum impervious surface ratio and the minimum front, side and rear yard measurements. In both districts, the minimum lot size is required to be expanded so that each lot will contain a contiguous unrestricted area of one acre, which may not contain watercourses, floodplains, floodplain soils, wetlands, lakes, ponds, or zones 1 and 2 of a riparian buffer area.5 In addition, the con[82]*82tiguous one-acre area may not contain more than 40 percent of slopes of eight to 15 percent grade, more than 30 percent of slopes of 15 to 20 percent grade, more than 25 percent of slopes of 25 percent or steeper grade, more than 20 percent of forest areas, or more than 20 percent of wetland margin areas. Further, in both districts, no more than 50 percent of Class I, II or III soils may be developed except for agricultural uses, excluding commercial kennels and animal hospitals.

The board held hearings on appellants’ landowner curative amendment challenge between January 24,2001 and February 24, 2003.6 The board issued a decision denying appellant’s challenge on December 8, 2003. Appellants appeal from this decision. A Rule *27 conference was held by this court on August 19, 2004, after which both sides submitted briefs, and oral argument was held on November 22, 2004.

III. ISSUES

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Bluebook (online)
75 Pa. D. & C.4th 76, 2005 Pa. Dist. & Cnty. Dec. LEXIS 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gross-v-new-britain-township-pactcomplbucks-2005.