In re Subdivision Mann v. Township of Forks

644 A.2d 281, 165 Pa. Commw. 156, 1994 Pa. Commw. LEXIS 312
CourtCommonwealth Court of Pennsylvania
DecidedJune 17, 1994
StatusPublished

This text of 644 A.2d 281 (In re Subdivision Mann v. Township of Forks) 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
In re Subdivision Mann v. Township of Forks, 644 A.2d 281, 165 Pa. Commw. 156, 1994 Pa. Commw. LEXIS 312 (Pa. Ct. App. 1994).

Opinion

NEWMAN, Judge.

Kenneth F. Mann and Patricia A. Mann (the Manns) appeal from an order of the Court of Common Pleas of Northampton County (trial court) which dismissed then-land use appeal and affirmed the decision of the Board of Supervisors of Forks Township (Supervisors) denying their application for minor subdivision approval.

The Manns are the owners of 5.209 acres of land located at 3520 North Delaware Drive in Forks Township (Township). The structure which currently exists on the property is used by the Manns as their residence and as a professional office for Mr. Mann’s engineering firm.1 The focus of this appeal is a drainage ditch which runs through the center of the Mann property.

In 1991, the Manns decided to subdivide their property into two parcels and to build a residential dwelling on the newly created lot. As such, the Manns filed an application for minor subdivision approval on April 25,1991.

Bradley C. Miller, the Township’s engineer, reviewed the application for compliance with the Township’s Subdivision and Land Development Ordinance, Ordinance No. 197 (Ordinance). Based upon his review, Miller determined that a drainage easement was required pursuant to Section 9.2(j)(2)(c) of the Ordinance.’ The community planner for the Joint Planning Commission of Lehigh-Northampton Counties similarly reviewed the application and concurred with Miller’s recommendation. The Manns objected, asserting that the drainage easement would prevent them from further subdividing and developing their land.

Thereafter, a site inspection was made by Miller, the Township’s superintendent and a representative of the Northampton County Soil Conservation District. Based upon the inspection, these parties agreed that a drainage easement was required.

On September 12, 1991, the Township’s Planning Commission unanimously voted to recommend that the Supervisors deny approval of the proposed subdivision due to the Manns’ refusal to grant a drainage easement. The Supervisors on September 26, 1991 granted the application approval on the condition that the Manns agree to the drainage easement. The Manns refused to accept the condition, and application for the subdivision was denied.

The Manns appealed to the trial court, and a de novo hearing was conducted on May 16, 1993. According to a report prepared by the Manns’ engineer, the subject ditch contains a 33-inch diameter concrete culvert, and the drainage area of the ditch consists of 31 acres (an area of 28.7 acres west of the Manns’ property, and an area of 2.3 acres on the Manns’ property). The report further explained that the runoff time of the drainage area is approximately 28.8 minutes, and the resultant peak discharge from a 25-year frequency storm would be 42.5 cubic feet per second, amounting to 340 gallons per minute.

[283]*283According to the calculations of the Township’s engineer, however, the drainage area of the ditch consists of 182 acres. The Township’s engineer further indicated that the volume of water flowing through the ditch is so great that a 39-inch reinforced concrete pipe conveys water onto the Mann property from other upstream lands to the west.

Because of the size of the drainage area and the volume of the water carried by the ditch, the trial court held that the ditch constitutes a minor stream under the Ordinance for purposes of designating a drainage easement. The trial court further held that the Supervisors properly conditioned their subdivision approval on the Manns’ granting of a drainage easement to the Township. Accordingly, the trial court entered an order on August 31, 1993, denying the Manns’ appeal and affirming the decision of the Supervisors. On October 31, 1993, thirty-one days after the entry of the trial court’s order, the Manns filed a notice of appeal with this court.2

The sole issue presented on appeal is whether the trial court erred in holding that the Manns were required to grant a drainage easement to the Township as a condition of subdivision approval.3

As a preliminary matter, we note that Section 9.2(j) of the Ordinance provides, in pertinent part, as follows:

(1) Drainage easements
(2) Drainage easements shall be a minimum width of ...
c) fifty (50') feet from the center of minor stream and one hundred (100') feet from center of major streams.

§ 9.2(j)(l) and (2)(c) (footnote added).

With respect to this section of the Ordinance, the Manns do not dispute that a municipality may condition its approval of a subdivision or land development on a landowner’s grant of a drainage easement. See Section 503 of the Pennsylvania Municipalities Planning Code, Act of July 31,1968, P.L. 805, as amended, 53 P.S. § 10503(2)(iii) (a municipality’s subdivision and land development ordinance may include provisions to ensure that adequate easements or rights of way are provided for drainage). Rather, the Manns assert that the trial court erred in its conclusion that the subject ditch constitutes a stream as defined by the Ordinance.5

The Ordinance defines “stream” as “[a] water course.” Appendix A at 17. A “water course” is defined by the Ordinance as:

[a] discernable, definable natural course or channel along which water is conveyed ultimately to streams and/or rivers at lower elevations. A watercourse may originate from a lake or underground spring(s) and be permanent in nature or it may originate from a temporary source such as runoff from rain or melting snow.

Appendix A at 21.

In support of their position that the trial court erred in holding that the ditch at issue [284]*284constitutes a stream, the Manns assert that the amount of water carried by the ditch is not “discernible.”6 Moreover, the Manns maintain that in order for a ditch to constitute a stream, “more is required than water which may or may not appear at somewhat lengthy intervals along a ditch created years ago by the placement of a culvert pipe.” Appellants’ Brief at 9. We disagree.

A reading of the plain language of the Ordinance indicates that the source of a watercourse need not be permanent, as in the case of a lake or underground spring, but may be temporary, as in the runoff from rain or melting snow. Therefore, a watercourse does not necessarily flow at'all times, and a drainage easement is nonetheless required where the course, such as the ditch at issue, occasionally carries a large volume of water.

Although the Manns’ assert that the “most credible” testimony and documentation of their experts clearly establish that the ditch does not meet the definition of a stream, the Township counters, and we agree, that even by the Manns’ own calculations, the trial court’s conclusion is supported by the evidence.

We note that in reaching its decision, the trial court expressly gave consideration to the size of the drainage area and the volume of water carried by the ditch.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Faulkner v. Board of Adjustment
624 A.2d 677 (Commonwealth Court of Pennsylvania, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
644 A.2d 281, 165 Pa. Commw. 156, 1994 Pa. Commw. LEXIS 312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-subdivision-mann-v-township-of-forks-pacommwct-1994.