PRESIDENT JUDGE LEAVITT.
Robert Dambman and 32 other residents of Whitemarsh Township (collectively, Objectors) appeal an order of the Court of Common Pleas of Montgomery County (trial court) upholding the Whitemarsh Township Board of Supervisors' approval of a preliminary and final land development plan filed by intervenor The Hill at Whitemarsh (The Hill).
The Hill operates a continuing care retirement community in Whitemarsh Township. Under its conditional preliminary land development plan approved in 2004, the retirement community was to be completed in two phases. Phase One was completed in 2007 with 86 single-family residences, 179 apartments and 80 health care units. Phase One currently houses approximately 350 senior citizen residents. Notes of Testimony (N.T.), 5/26/2016, at 3; Reproduced Record at 135a (R.R. ___). The planned Phase Two of development will expand the retirement community to include additional senior residences, a community center and an upgraded nursing care unit.
On November 12, 2015, The Hill filed a land development application titled "Amended Preliminary Final Phase 2" with the Board of Supervisors seeking final approval for Phase 2 of the retirement community. The application described a road that construction vehicles would use to access The Hill's property during construction of Phase 2. The location of this access road is the subject of Objectors' appeal.
The Hill's application stated that it had been granted a temporary construction easement by an adjoining property owner, the Whitemarsh Foundation (Foundation), whose land abuts the property where The Hill will do the Phase 2 construction. The Foundation's property is subject to a conservation easement set forth in an agreement titled "Declaration of Conservation and Open Space Easements, Covenants and Restrictions" (Declaration).
Originally, The Hill proposed to place its temporary construction access road over an existing service road on the Foundation's property. That service road lies approximately 15 feet from several of the Objectors' rear property lines. In response to Objectors' concerns, The Hill's application moved the temporary access road 35 feet further away from their property lines and closer to the interior of the Foundation's property.
On March 22, 2016, the Township Planning Commission held a meeting on The Hill's development plan. Representatives of the Foundation, The Hill, and Objectors were present at the meeting, and the minutes reflect that those in attendance discussed the location of the temporary access road. The Planning Commission determined that it lacked jurisdiction over the access road's location. Planning Commission Minutes, 3/22/2016, at 2; R.R. 131a. At the conclusion of the meeting, the Commissioners unanimously recommended that the Board of Supervisors approve The Hill's application.
On May 26, 2016, the Board of Supervisors convened a meeting to consider whether to approve Phase 2 of The Hill's project. The Hill's representatives made a presentation in support of the application and offered several exhibits. One exhibit was a letter to The Hill from the Township's Director of Planning and Zoning, who is also a zoning officer for the Township, stating that it was "a review of the Zoning Ordinance Compliance issues" for
R.R. 175a (emphasis added).
At the conclusion of The Hill's presentation, several Objectors objected to the location of the temporary construction access road. They asserted that the access road should be sited further away from Objectors' rear property lines.
At the conclusion of the meeting, the Board of Supervisors adopted a resolution approving the preliminary and final land development plan subject to numerous conditions, including compliance with the comments of the Township's Director of Planning and Zoning in his zoning ordinance compliance review letter to The Hill. R.R. 175a.
On June 24, 2016, Objectors filed a land use appeal with the trial court. They argued that the Board of Supervisors erred in approving The Hill's final plan because
In support of its order, the trial court issued an opinion that explained:
Trial Court Opinion, 1/13/2017, at 10. Despite finding Objectors' zoning challenge waived, the trial court addressed the merits of their appeal. The trial court concluded that the Township's SALDO does not require that a zoning permit be secured prior to approval of an application for land development. Accordingly, the trial court did not undertake an analysis of the Township's zoning ordinance.
On appeal,
The Hill responds that Objectors' failure to raise their zoning claim before the Board of Supervisors resulted in waiver of that issue. But even if the issue were not waived, The Hill contends that Objectors'
We begin with a review of the relevant law. The MPC treats subdivision and land development separately from zoning. Article V of the MPC grants municipalities the authority to "regulate subdivisions and land development within the municipality by enacting a subdivision and land development ordinance." Section 501 of the MPC, 53 P.S. § 10501. Article VI of the MPC governs zoning and grants a municipality's governing body the power to "enact, amend and repeal zoning ordinances...." Section 601 of the MPC, 53 P.S. § 10601.
Pursuant to its authority under the MPC, Whitemarsh Township enacted its SALDO to "regulate and control the subdivision and development of land within Whitemarsh Township[.]" SALDO § 105-2. The SALDO grants the Township's Board of Supervisors exclusive jurisdiction to approve land development applications. SALDO § 105-6. Likewise, Whitemarsh Township enacted the Zoning Ordinance to govern zoning matters. Pursuant to the MPC and the Zoning Ordinance, the Township's zoning hearing board has exclusive jurisdiction to hear and render final adjudications in "appeals from the determination of the zoning officer, including but not limited to, the granting or denying of any permit." Section 909.1 of the MPC, 53 P.S. § 10909.1;
Objectors' appeal concerns the timing of these dual tracks. Specifically, Objectors argue that zoning approval is required prior to the Board of Supervisors' approval of a final land development plan. This question is governed by the terms of a municipality's SALDO. See Rickert v. Latimore Township, 960 A.2d 912, 920 (Pa. Cmwlth. 2008) (holding that the order of land development and zoning applications is determined by the applicable subdivision and land development plan ordinance). In Borough of Jenkintown v. Board of Commissioners of Abington Township, 858 A.2d 136 (Pa. Cmwlth. 2004), for example, this Court held that the board of commissioners erred in approving a final land development plan without including a condition for zoning approval because the township's SALDO required the zoning officer to approve the plan before the governing body could approve it. By contrast, in Rickert, 960 A.2d at 920, this Court held that the board of supervisors erred in disapproving a land development plan for zoning reasons because the township's SALDO did not require an applicant to receive zoning approval before the board of supervisors granted final approval of the plan.
Here, as in Rickert, the Township's SALDO does not require that zoning approvals precede approval of the final land development plan. Section 105-12 of the SALDO outlines the general procedures for approval of subdivision and land development plans. It states, in relevant part:
Objectors appeal the Board of Supervisors' approval of The Hill's final plan because they disagree with the zoning officer's compliance review letter.
Based upon this conclusion, the parties remaining arguments, which concern the temporary access road's compliance with the Township's Zoning Ordinance, are outside the scope of this appeal.
AND NOW, this 6
Declaration 2.02(g); R.R. 13a-14a.
Impact Study at 8; R.R. 75a. Objectors argue that The Hill should use one of the alternative routes.
Resolution at 1; R.R. 165a.
ZONING ORDINANCE § 116-35.
SALDO § 105-22(B)(1)(d)[1]-[5]. Importantly, the zoning requirements for a proposed development must be identified in the final plan, as well as any previously granted variances and special exceptions. Nowhere in the SALDO is approval of the final plan contingent on the applicant first securing a zoning permit or other relief.
