Shelbourne Sq. v. Exeter Tp. Sup'rs

794 A.2d 946
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 20, 2002
StatusPublished

This text of 794 A.2d 946 (Shelbourne Sq. v. Exeter Tp. Sup'rs) 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
Shelbourne Sq. v. Exeter Tp. Sup'rs, 794 A.2d 946 (Pa. Ct. App. 2002).

Opinion

794 A.2d 946 (2002)

SHELBOURNE SQUARE ASSOCIATES, L.P., Appellant,
v.
BOARD OF SUPERVISORS OF TOWNSHIP OF EXETER, BERKS COUNTY, Pennsylvania.

Commonwealth Court of Pennsylvania.

Submitted on Briefs March 2, 2001.
Decided February 20, 2002.
Reargument Denied April 25, 2002.

*947 Allen R. Shollenberger, Wyomissing, for appellant.

Andrew J. Bellwoar, Exton, for appellee.

Before McGINLEY, Judge, LEADBETTER, Judge, and JIULIANTE, Senior Judge.

OPINION BY Judge LEADBETTER.

Shelbourne Square Associates, L.P. (Shelbourne), a real estate development partnership, appeals from the order of the *948 Court of Common Pleas of Berks County that sustained the decision by the Exeter Township Board of Supervisors to deny Shelbourne's application for a commercial subdivision and development.

Shelbourne owns a 45.65-acre tract of land in Exeter Township, Berks County, located along State Route 422, a busy arterial highway. The tract is zoned commercial and partially developed for a strip shopping center. The present appeal stems from Shelbourne's application to subdivide from the total tract a 6.32-acre lot with frontage along Route 422. Desiring direct access to Route 422 from the proposed lot, Shelbourne submitted with its subdivision application a Highway Occupancy Permit granted by the Department of Transportation (DOT) for construction of a high volume driveway[1] onto Route 422. Shelbourne obtained the permit from DOT prior to submitting the present subdivision application in hope of alleviating the Township's previously announced opposition to direct access from the lot onto Route 422. The Township had made clear its position on this issue when, in February of 1999, it denied subdivision approval for a plan filed in June of 1997, proposing a similar lot at the same location.[2] Shelbourne did not appeal this denial. Rather, after obtaining the DOT permit, it submitted the present application to create a similar lot, which met with the same Township opposition to the proposed Route 422 access. The Township Supervisors, based on the opinion of their engineering consultant and their personal knowledge of the site, are convinced that direct access to Route 422 will present an unwarranted safety hazard. Their belief is based on the number of existing access points and the distance between them along the relevant section of the highway.

On November 22, 1999, at a regular meeting, the Supervisors reviewed with Shelbourne the plan deficiencies, Shelbourne's requests for waivers from selected provisions of the Subdivision and Land Development Ordinance (SLDO), and identified issues that could be deferred until the time of land development. Relevant to the proposed Route 422 access, the minutes of the Supervisors' meeting state:

Item #6 and 7 (Rt. 422 access), the Board told the developer and his representatives that they were not interested in having another access onto Rt. 422 and requested that the existing access to the shopping center be used. The developer indicated that he needed the Rt. 422 access in order to develop the site. PennDOT has issued a Highway Occupancy Permit for the access; however, the Board stated that several years ago PennDOT asked the Township to restrict access onto Rt. 422. They felt this is going to create additional traffic hazards on an already dangerous highway. Mr. Cuppels asked the Township Engineer if Great Valley looked at the traffic patterns with additional access. The Engineer was not certain and will check into it. The Developer is willing to work *949 with the Board on coming up with a solution to this issue.

Minutes of the Exeter Township Board of Supervisors meeting November 22, 1999.

On December 21, 1999, based on the vote at its regular meeting on December 20th, the Township's Board of Supervisors issued its written denial of Shelbourne's subdivision application, stating its reasons as required by Section 508 of the Municipalities Planning Code.[3] The Board of Supervisors found that Shelbourne had not provided an Environmental Site Assessment specific to the proposed lot and containing all of the information required under Sections 609 and 633 of the Zoning Ordinance. The Supervisors further found that Shelbourne had not complied with the SLDO, as follows: submission of a combined "preliminary/final plan" in violation of Section 3.02, which requires separate submission and review of a preliminary and a final plan; failure to describe the property by reference to monuments and metal markers as required under Section 4.234; failure to list the size and material for construction of sanitary sewers and storm sewers as required by Section 4.2447; failure to provide ingress and egress via the internal road system of the existing shopping center as required by the Supervisors under Section 5.24; failure to submit a letter from the local water utility documenting adequate service as required under Section 5.74; and, submission of a traffic study pursuant to Section 5.900 that the Township's traffic consultant opined had "some deficiencies."

Shelbourne appealed to common pleas, arguing therein that it was entitled to subdivision approval because (1) the denial letter did not state reasons sufficient to justify denial of the plan, and (2) DOT's permit established a right to directly access Route 422. Shelbourne also contended that the Supervisors demonstrated bad faith when they proceeded to decide the application despite Shelbourne's "last minute" fax granting an extension of the time for decision imposed under Section 508 of the MPC.[4] The fax was delivered in the Township office at 5:38 p.m. on December 20th, just hours before the Supervisors' evening meeting. Without taking additional evidence and after hearing argument, common pleas concluded that the Township reviewed the plan in good faith and the denial letter fully complied with Section 508 of the MPC by stating with sufficient specificity the ordinance requirements with which the plan failed to comply. Common pleas affirmed the Supervisor's decision. Shelbourne filed the present appeal.

In Herr v. Lancaster County Planning Commission, 155 Pa.Cmwlth. 379, 625 A.2d 164 (1993), we summarized the law generally governing the review of a subdivision application as follows:

*950 Where a subdivision plan complies with all objective provisions of the applicable subdivision ordinance as well as all other applicable regulations the plan must be approved. The rejection of a plan may stand, however, if validly supported by even one of several objections. Where a plan is not approved as filed, the decision denying approval must specify the defects found in the plan and cite to the specific provisions of the ordinance which are relied upon.

Id. at 168-69 (citations omitted). After review,[5] we conclude that the majority of the grounds cited by the Township for its denial of the plan are insufficient. However, because the objection to direct Route 422 access is a valid reason to reject the subdivision, we affirm.

The denial letter specifies the sections of the zoning and subdivision ordinances that the plan does not satisfy. However, of the eight reasons listed as a basis for denial, seven do not justify denial of the plan.

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Related

Hardee's Food Systems, Inc. v. Department of Transportation
434 A.2d 1209 (Supreme Court of Pennsylvania, 1981)
Herr v. Lancaster County Planning Commission
625 A.2d 164 (Commonwealth Court of Pennsylvania, 1993)
Degroot v. Board of Supervisors
629 A.2d 318 (Commonwealth Court of Pennsylvania, 1993)
Ice v. Cross Roads Borough
694 A.2d 401 (Commonwealth Court of Pennsylvania, 1997)
Shelbourne Square Associates, L.P. v. Board of Supervisors
794 A.2d 946 (Commonwealth Court of Pennsylvania, 2002)
Raum v. Board of Supervisors
370 A.2d 777 (Commonwealth Court of Pennsylvania, 1977)
Stein v. Easttown Township Board of Supervisors
532 A.2d 906 (Commonwealth Court of Pennsylvania, 1987)

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Bluebook (online)
794 A.2d 946, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shelbourne-sq-v-exeter-tp-suprs-pacommwct-2002.