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

845 A.2d 918, 2004 Pa. Commw. LEXIS 129

• Court: Commonwealth Court of Pennsylvania
• Decided: February 20, 2004
• Status: Published

Opinions

OPINION BY

Judge COHN.

Ari Van Wingerden (Van Wingerden) appeals from that portion of the February 11, 2002 order of the Court of Common Pleas of Bucks County that affirmed the decision of the Plumstead Township (Township) Board of Supervisors (Board) to attach certain conditions to the Subdivision and Land Development Application (Application) filed by Hines Nurseries, Inc. Va Hines Color (Hines). Van Wing-erden challenges three of nine conditions imposed by the Board, and presents the following issues for the Court’s review: (1) the Application should be deemed approved without conditions because the Board failed to conform to the mandate of Section 508(2) of the Municipalities Planning Code (MPC);¹ (2) the Board had no authority to consider a prior stipulation between the Township and Van Winger-den; (3) conditions 4, 5 and 6 are invalid because they restrict the use of the Van Wingerden’s property without due process; (4) the trial court should have granted Van Wingerden’s request to present evidence; (5) the Board’s interpretation of the stipulation should not be enforced; (6) the conditions imposed by the Board are an unconstitutional taking; and (7) the conditions imposed by the Board are illegal as spot zoning. We will address these issues seriatim after a recitation of pertinent facts.

Hines is the owner of a 19.43-acre property on Durham Road in the Township, Bucks County, Pennsylvania, identified as Bucks County Tax Map Parcel (TMP) No. 34-4-39. Hines is also the lessee and equitable owner of an adjacent 17.22-acre property, which is part of a larger property owned by Van Wingerden and identified as Bucks County TMP No. 34-4-45. Hines conducts an intensive agricultural use on these properties utilizing greenhouses.

The aforementioned properties are among five parcels that are subject to a Stipulation, dated August 4, 1989, and an Agreed Order entered by the trial court adopting the Stipulation, dated August 7, 1989, which settled a zoning dispute between Van Wingerden and the Township concerning Van Wingerden’s request for a building permit to construct additional greenhouses on the properties. Pursuant to the Stipulation and Agreed Order, all present and future plastic-covered greenhouse structures were to be regarded as buildings under the Township’s Zoning Ordinance (Ordinance), and, as such, they were subject to the fifteen percent building coverage restriction set forth in Section 302.2 of the Ordinance prior to amendment on July 18, 1989.² (Stipulation, August 4, 1989, No. 3.) Additionally, the Stipulation and Agreed Order provided that the Township issue Van Wingerden a building permit for five acres of greenhouses, but permit no more than twenty-one acres of plastic-covered greenhouse structures on the subject parcels.³ (Id., No. 4.)

On September 11, 2000, Hines submitted an Application to the Board; the Application was in the nature of lot line adjustment, which proposed to consolidate the; 17.22 acres leased by Hines from Van Wingerden, currently part of TMP No. 34-4-45, with TMP No. 34-4-39, the adjacent land owned by Hines. Hines’ Application did not propose the construction of any additional greenhouses or other structures.

At a Board meeting, the Board members considered the Application,⁴ and indicated that they were inclined to grant conditional approval, provided that there was an understanding, based on the Stipulation and Agreed Order, regarding the restrictions relating to the greenhouses. Subsequently, the Board sent a letter (Decision) to Hines granting conditional approval of the Application, subject to nine conditions. Hines filed a land use appeal with the trial court, challenging condition numbers 5, 6, 8 and 9 of the Board’s Decision. Subsequently, the trial court granted Van Wingerden leave to intervene, but denied his request to present evidence. Van Wingerden challenged condition numbers 4, 5 and 6.⁵ The trial court struck condition numbers 8 and 9 of the Board’s Decision, but upheld the remaining conditions challenged by Hines and Van Wing-erden. Van Wingerden now appeals to this Court from the trial court’s order.⁶

Van Wingerden first argues that the Application should be deemed approved without conditions⁷ because the Board’s Decision failed to specify the defects in Hines’ Application and failed to cite to the provisions of the statute or ordinance relied upon, as required by Section 508(2) of the Pennsylvania Municipalities Planning Code (MPC).

Section 508(2) of the MPC 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 ease, cite to the provisions of the statute or ordinance relied upon.

58 P.S. § 10508(2). Because Hines rejected some of the conditions in the Board’s preliminary, conditional approval letter of April 2, 2001, the Board is deemed to have rejected the application as filed. Board of Township Commissioners of Annville Township v. Livengood, 44 Pa.Cmwlth. 836, 403 A.2d 1055 (1979). Therefore, the mandatory language of Section 508(2) requires that the Board’s decision specify the defects found in the application, describe the requirements that have not been met, and cite to the provision of the statute or ordinance relied upon. 53 P.S. § 10508(2); Board of Commissioners of Lower Merion Township v. Haslett, 69 Pa.Cmwlth. 1, 450 A.2d 298 (1982).

Although the denial letter itself does not specifically cite a statute or ordinance provision, it incorporates by reference, and attaches a copy of the previously mentioned Stipulation and Agreed Order,⁸ which cites to Section 302.2 of the Township Zoning Ordinance prior to amendment on July 18, 1989. (Letter to Counsel for Hines regarding preliminary approval of subdivision plan, dated April 2, 2001, (Denial Letter), pp. 1-2, no. 2;⁹ Stipulation, p. 1, no. 3.) Incorporation of a document by reference may be used to satisfy the requirements of Section 508(2). Advantage Development, Inc. v. Board of Supervisors of Jackson Township, 743 A.2d 1008 (Pa.Cmwlth.2000). The Stipulation, dated August 4, 1989, and Agreed Order, dated August 7, 1989, pertain to five parcels of land, two of which are directly involved in Hines’ application. Hines owns one of the five parcels subject to the stipulation, and this parcel is involved in the application. Van Wingerden owns the other four parcels, one of which is involved in this application. The Stipulation interprets Section 302.2 of the ordinance, prior to amendment on July 18, 1989, and describes in detail the law that controls development on the parcels of land involved in this case.¹⁰ The Board’s letter specified the defects in Hines’ application,¹¹ described the requirements that have not been met,¹² and included the provision in the Ordinance relied upon, and thus, adequately complied with the requirements of Section 508(2) of the MPC.

In his next argument, Van Winger-den relies on Amerikohl Mining, Inc. v. Mount Pleasant Township, 727 A.2d 1179 (Pa.Cmwlth.1999) (holding that property settlement agreements are regarded as contracts), and In re Michener, 382 Pa. 401, 115 A.2d 367 (1955) (holding that consideration of building restrictions placed upon property by private contract has no place in proceedings under zoning laws), when he claims that the Board had no authority to consider' a prior stipulation between the Township and him in making its decision, because the Stipulation is a contract, and as such, is irrelevant to land use determinations. We disagree.

The stipulation between Van Wingerden and the Township was the result of a settlement of a judicial proceeding under court supervision and has the force and effect of law. Court-approved settlements of zoning cases are lawful. See Summit Township Taxpayers Association v. Summit Township Board of Supervisors, 49 Pa.Cmwlth. 459, 411 A.2d 1263 (1980). Further, “parties may stipulate the law of the case and be bound by their act in all matters which affect them so long as the stipulation does not affect the jurisdiction and prerogatives of the court.” Conyer v. Borough of Norristown, 58 Pa.Cmwlth. 629, 428 A.2d 749, 751 (1981) (emphasis added). Here, it is obvious that the Stipulation did not affect the trial court’s jurisdiction or prerogatives; indeed, it affirmed the Board’s decision, which was, in turn, based on the Stipulation. In essence, therefore, Van Winger-den and the Township stipulated to the law of the case, and both are thus bound by the terms of that Stipulation, which interprets an ordinance that applies to all property in the Township, including land that Van Wingerden owns. Van Wingerden is attempting to sell Hines a parcel of his property; that property is bound by the terms of the Stipulation. Therefore, it would have been error for the Board not to have considered the Stipulation in its decision.

Further, basic facts in Amerikohl Mining and Michener differ from those in the case at bar. Those cases concerned building restrictions placed upon property by private contract; the private parties alone possessed the right to enforce the restrictions.¹³ However, such is not the case in the matter sub judice. The 15% building coverage restriction involved here is applicable not only to Van Wingerden’s property, but to any and all property within the Township harboring an intensive agricultural use. (See Ordinance, Section 302.2, prior to amendment of July 18,1989.)

We next address Van Wingerderis third issue, that conditions 4, 5 and 6 are invalid because they restrict the use of his property without due process. Van Wingerden argues that, because he was not a party to Hines’ application, he had no way of knowing that the Board might impose conditions on its approval of Hines’ application that would require concessions to other land he owns that was not the subject of the subdivision application. However, but for the Stipulation that Van Wingerden had previously agreed to, no action on the part of the Board in ruling on the lot line adjustment would have impacted on Van Wingerden. That Van Winger-den did not foresee the subsequent ramifications of that Stipulation does not mean there has been a denial of due process.

As his fourth issue, Van Wingerden argues that the trial court should have granted his request to present evidence because he was denied the opportunity to present evidence before the Board. He also claims that without such evidence, the trial court could not adequately consider the issues or properly adjudicate the case.

Contrary to his argument here, Van Wingerden does not obtain an entitlement to present evidence before the trial court merely because he “was denied the opportunity” before the Board. Rather, Section 1005-A of the MPC, 53 P.S. § 11005-A, provides in pertinent part:

If, upon motion, it is shown that proper consideration of the land use appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive additional evidence, may remand the case to the body, agency or officer whose decision or order has been brought up for review, or may refer the case to a referee to receive additional evidence.

(Emphasis added.)

The trial court denied Van Wingerden’s request to present additional evidence, and provided numerous reasons for its decision. First, the court noted that Van Wingerden failed to file a motion, as required by Section 11005-A of the MPC, but rather, included his request in a memorandum of law. The court commented that “[w]e believe that this fact alone serves as justification for denying the relief requested.” (Trial ct. op. at 8.) Second, while Van Wingerden proffered a description of evidence he intended to present, the trial court, again in its discretion, did not consider the evidence to be “relevant.”¹⁴ The court noted that Van Wingerden’s request was based upon legal issues, and failed to show that proper consideration of such issues required, the presentation of additional evidence. Third, the court noted that, the record essentially contained what was necessary for making a decision, including, inter alia, a transcript of the Board’s meeting of March 20, 2001, copies of the Stipulation and Agreed Order at issue, and various other detailed exhibits.¹⁵ While all of these reasons are sound, the second one, in particular, is compelling; it is not for the parties to tell the court how to interpret its own orders. That is what Van Wingerden sought to do by seeking to present additional evidence to show that the Stipulation had become an order of the court.

As his fifth argument, Van Wingerden claims that the Board’s interpretation of the Stipulation should not be enforced, but rather, deemed void under the doctrine of mutual mistake.

Van Wingerden states that he understood the stipulation to allow 21 acres of plastic covered greenhouses in addition to such other buildings as presently existed or might be approved in the future. He states further that the Boards interpretation that the limitation applied to all buildings, of which plastic covered greenhouses were one type, was wrong. However, as stated by the trial court, [t]he Stipulation contains five paragraphs, which when read together, reveal the intent of the parties in clear and unambiguous terms, (Trial ct. op. at 11) (emphasis added), which was to confirm that greenhouses were to be considered as buildings under the zoning ordinance, and subject to the Townships limitations on building coverage. We agree and find no basis for reversal on a theory of mutual mistake here. Even were there such a mistake, however, it would be one of law ie., legal interpretation, and not of fact.

In his sixth issue, Van Wingerden argues that the conditions imposed by the Board are an unconstitutional taking because they “drastically burden[]” his land, impose restrictions that exceed those in the stipulation, and deprive him of the lawful use of his property. We disagree.

The conditions imposed by the Board’s decision merely incorporate, by reference, the earlier restrictions of the stipulation that Van Wingerden himself had previously negotiated and to which he expressly agreed. The conditions do not, in any fashion, further deprive Van Wingerden of any right to use and enjoy his property. Furthermore, to determine whether a zoning ordinance constitutes a taking of private property without just compensation, the diminution in value test is frequently used, which classifies a property as taken when it is rendered valueless or no longer useful in a reasonable manner. Snyder v. Railroad Borough, 59 Pa.Cmwlth. 385, 430 A.2d 339, 345 (1981) (citing Pennsylvania Coal Company v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922)). That is not’the case here. Van Wingerdens property is no more limited or regulated after the Boards action than it was at the time Van Wingerden voluntarily and knowingly entered into the Stipulation that first created the restrictions.

Finally, we address Van Wingerden’s claim that the conditions imposed by the Board are illegal as spot zoning. Van Wingerden argues that, although his land is identical to the surrounding properties and is indistinguishable in character, the Board has de facto rezoned his land to his economic detriment by singling it out for more restrictive treatment.

Spot zoning can be defined as “[a] singling out of one lot or a small area for different treatment from that accorded to similar surrounding land indistinguishable from it in character, for the economic benefit of the owner of that lot or to his economic detriment....” Schubach v. Silver, 461 Pa. 366, 382, 336 A.2d 328, 336 (1975). The most determinative factor in an analysis of a spot zoning question is whether the parcel in question is being treated unjustifiably different from similar surrounding land, thus creating an island having no relevant differences from its neighbors. Mulac Appeal, 418 Pa. 207, 210 A.2d 275 (1965). When faced with a spot zoning challenge, a reviewing court must presume the zoning ordinance is valid and constitutional; the burden of proving otherwise is on the challenging party, who must show that the provisions are arbitrary and unreasonable, and have no relation to the public health, safety, morals, and general welfare. Schubach. See also Cleaver v. Board of Adjustment of Tredyffrin Township, 414 Pa. 367, 200 A.2d 408 (1964).

Van Wingerdens spot zoning argument has no merit primarily because spot zoning is a concept of land classification. Appeal of Kates, 38 Pa.Cmwlth. 145, 393 A.2d 499, 501 (.1978). Van Wingerden is challenging conditions placed upon his land that derive from a court-approved stipulation to which he was a party; that stipulation did not alter the zoning classification of the land or amend the zoning ordinance, and does not, therefore, spot zone the property. See id. Further, the 15 budding coverage restriction applies to any property on which an intensive agricultural use is proposed, as set forth in Section 302.2 of Ordinance prior to amendment on July 18, 1989, so there is no differential treatment involved. (See Stipulation, August 4, 1989, No. 3.)

Accordingly, pursuant to the analysis in this opinion, the order of the trial court is affirmed.

ORDER

NOW, February 20, 2004, the order of the Court of Common Pleas of Bucks County in the above-captioned matter is hereby affirmed.

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

2 . We did not find a copy of the Ordinance as amended on July 18, 1989, in the record. We believe the only version of the Ordinance provided to the Court was the Ordinance as amended in 2001. However, Van Wingerden has not raised an argument that the Ordinance as amended on July 18, 1989, applies to his property.

3 .The Stipulation and Agreed Order provided, in relevant part:

2. The subject property consists of approximately 140 contiguous acres of real estate located within Plumstead Township, consisting of Bucks County Tax Parcel Nos. 34-4-39, 34-4-38-1, 34-4-38-2, 34-4-45 and 34-4-36.

3. All present and future plastic-covered greenhouse structures located upon the subject property shall be regarded under the Zoning Ordinance of Plumstead Township as buildings and, consequently, shall be subject to the 15% building coverage restriction set forth in Section 302.2 of the Zoning Ordinance prior to amendment on July 18, 1989.

4. [Van Wingerden] and/or East Coast Growers, Inc. shall be permitted to place a maximum of 21 acres of plastic-covered greenhouse structures on the subject property, in addition to such other buildings and structures presently existing, or which may be approved by the Township in the future. This maximum of 21 acres of greenhouses specifically includes the existing 10 acres of greenhouses and the one acre of greenhouse constructed to date under the building permit which is the subject of this litigation.

5. The Township shall immediately issue [Van Wingerden] a building permit for the additional five acres of greenhouses, consistent with this Stipulation, providing that the other Township requirements are met.

(Stipulation, August 4, 1989, pp. 1-2.)

4 . The Board heard only arguments from the parties' lawyers; no evidence was presented.

5 . The conditions relevant here provide:

4. It is understood and the plans show that TMP 34-4-39 containing 19.58 acres has an existing plastic covered greenhouse of 12.041 acres. Pursuant to the [Stipulation and Agreed Order], an open lot area of 80 acres is required to support the existing 12 + acre plastic covered greenhouse.

5. The final plan must show an area of at least 80 acres which has been set aside to support the existing 12 acres of plastic covered greenhouses. 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. The 80 acre tract will be shown by heavy line or cross hatching. If additional plastic covered greenhouses have been constructed beyond the 12 acre amount shown on the preliminary plan, appropriate adjustments must be made on the final plan to provide additional open lot area to accommodate the amount of plastic greenhouse above 12 acres.

6. The final plans will not be released by the Township for recording until they bear the signature of all of the owners of the properties involved in the lot line change. In addition to the signatures of the owners, the final plan must contain a statement agreeing to the setting aside of open lot area in accordance with the stipulation, court order, and the following formula a) “acres of greenhouse to be constructed divided by .15 equals number of acres needed in support”.

(Letter to Counsel for Hines regarding preliminary approval of subdivision plan, dated April 2, 2001, (Denial Letter), p. 2.)

6 .In a land use appeal, where, as here, the trial court has taken no additional evidence, our scope of review is limited to determining whether the Board abused its discretion or committed an error of law. See Board of Commissioners of Lower Merion Township v. Haslett, 69 Pa.Cmwlth. 1, 450 A.2d 298 (1982).

7 . Alternatively, Van Wingerden asks this Court to strike condition numbers 4, 5 and 6. Because these are the only conditions Van Wingerden challenged before the trial court, we will limit our review to these conditions.

8 . See page 2.

9 . Paragraph 2 reads as follows:

These properties are subject to a stipulation and court order dated August 7, 1989. The court order of Judge William Hart Rufe approved a settlement stipulation in the case of Arie J. Vanwingerden [sic] v. Zoning Hearing Board of Plumstead Township, No. 88-0051-09-5. A copy of the stipulation and order is attached to this preliminary plan approval and is incorporated herein. The stipulation pertains to tax map Nos. 34-4-39, 34-4-38-1, 34-4-38-2, 34-4-45, and 34-4-46. Two of the tax map parcels named in the stipulation are involved in the within lot line adjustment.

10 . Paragraph" 3 of the Denial Letter, summarizing what is contained in the Stipulation, states:

The stipulation provides that all future plastic covered greenhouses constructed on the property shall be limited to a fifteen percent building coverage. Since the entire tract contains 140 acres, it was agreed that the maximum number of plastic covered greenhouses that could be permitted on the entire 140 tract was 21 acres.

11 . For example, paragraph 1 of the Denial Letter states that clarification is required with respect to the owner of parcel 34 — 4-39, because it is unclear in the application.

12 . For example, paragraph 4 of the Denial Letter explicitly states that an open lot area of 80 acres is required to support the existing 12+ acres of greenhouses; paragraph 5 requires the 80 acres set aside, pursuant to-paragraph 4, be indicated on the final plan in any of the parcels, or a combination thereof, by heavy line or cross hatching; paragraph 6 requires the final plan bear the signatures of all owners of property involved in the lot line change, and include "a statement agreeing to the setting aside of open lot area in accordance with the stipulation, court order, and the following formula ... ‘acres of greenhouses to be constructed divided by .15 equals number of acres needed in support’ "; paragraph 7 requires the final plan show compliance with the Township Engineer's various review letters, the review of the Township Planning Commission, and the review of the Bucks County Planning Commission.

13 . In Amerikohl Mining, a coal mining company brought an action against Mount Pleasant Township, seeking a declaration that its settlement agreement with the town resolving a nighttime noise nuisance applied only to its two surface mining sites in operation when the agreement was executed. The settlement agreement made no reference to any particular coal mining site. In Michener, building restrictions were placed in deeds, whereby the owner, his heirs, executors, administrators and assigns, together with the grantor, his heirs and assigns, agreed never to erect certain kinds of buildings upon the property. Both of these cases involved private restrictions, which courts have found to be immaterial in zoning cases.

14 . Van Wingerden described the evidence as follows: "If the court finds the interpretation of the Stipulation to be properly before it, Van Wingerden should be granted the opportunity to present evidence that the interpretation set forth by the Township is not what the parties intended when the Stipulation was agreed to.” (Van Wingerden's Memorandum in Support of Appeal and Motion for Leave to Present Evidence, filed October 15, 2001, p. 10.)

15 . The court also noted that these documents indicated that counsel for Hines acknowledged that the Order (settlement agreement) was binding on all 140 acres, including Van Wingerden’s property. (See N.T., March 20, 2001, pp. 7-8.)