IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jada View, LLC, : Appellant : : v. : : Board of Supervisors of : No. 2084 C.D. 2011 Unity Township : Argued: November 13, 2012 BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge (P.) HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: April 18, 2013 Jada View, LLC (Jada View) appeals from an order of the Court of Common Pleas of Westmoreland County (common pleas court) that affirmed the Board of Supervisors of Unity Township s (Board) denial of Jada View s site development plans for Lot No. 2 and Lot No. 6 pursuant to the Board s Resolution No. R-13-11 and reversed the Board s requirement that Marguerite Road be widened as an impermissible offsite improvement. 1 I. Board s Resolution No. R-13-11. On May 12, 2011, the Board enacted Resolution No. R-13-11 which denied Jada View s development plans for Lot No.2 and Lot No. 6: Whereas, on December 10, 2009, the Board of Supervisors of Unity Township approved the Jada View Plan No. 1 of Lots (emphasis added); and, 1 The Township did not file a cross-appeal regarding the common pleas court s denial of the requirement to widen Marguerite Road.

Whereas, the Jada View Plan No. 1 consists of six (6) parcels of land, fronting on Route 30, Fyre Farm Road and Village Drive within the Township; and, Whereas, Lot No. 6... is located at the southwest corner of the intersection of... Fyre Farm Road and... Village Drive ; and, Whereas, Lot No. 2... is located at the southwest corner of the intersection of Fyre Farm Road and Village Drive from Lot No. 6; and, Whereas, Lots Nos. 3, 4 and 5... are located between Route 30 and Fyre Farm Road having frontage along both; and, Whereas, Lot No. 1... is located at the northeast corner of the intersection of Route 30 and Village Drive and is adjacent to Lot 2 and Lot 3 in the aforesaid plan; and, Whereas, Marguerite Road is a County Road extending from the intersection of Village Drive and Route 30 and carries traffic from Village Drive across Route 30 to the south; and, Whereas, at the time the aforesaid plan was approved, all six (6) lots in the Jada View Plan No. 1 were in common ownership of Jada View, LLC; and, Whereas, at all times material hereto, all six (6) lots in the Jada View Plan No. 1 were located in the Township s Transportation Overlay Zone and subject to the requirements for street access and driveway provisions contained in Section 119.502... of the Township s Subdivision and Land Development Ordinance (hereinafter the SALDO ) (emphasis added); and, Whereas, the Developer [Jada View] originally submitted a Joint Development Plan for the aforesaid construction on Lot 2 and Lot 6 above (emphasis added); and, 2

Whereas, the Joint Development Plan called for Lot 2 to have ingress and egress points along both Village Drive and Fyre Farm Road (emphasis added); and, Whereas, the Joint Development Plan called for Lot 6 to have ingress and egress points along both Village Drive and Fyre Farm Road (emphasis added); and, Whereas, the Joint Development Plan was accompanied by a Traffic Impact Study dated June 30, 2010, prepared by the Developer [Jada View] which: (b) called for immediate improvements to Village Drive and Marguerite Roads at their intersections with Route 30 (emphasis added); (c) called for the retiming of traffic signals at such intersections (emphasis added); Whereas, such Joint Development Plan was rejected by the adoption of Resolution No. R-6-11 on January 12, 2011 for reasons associated with the Developer s [Jada View] failure to make those traffic related improvements required by Unity Township Subdivision and Land Development Ordinance and recommended by the aforesaid Traffic Impact Study (emphasis added) ; and, Whereas, the Developer [Jada View] thereafter submitted a separate Development Plan for Lot 6 which eliminated ingress and egress to Village drive for both parcels, and provided ingress and egress points from Fyre Farm Road only (emphasis added); and, Whereas, the Developer [Jada View] submitted separate Traffic Impact Studies dated April 4, 2011 along with separate Development Plans for each Lot, which contained the same trip information, but did not call for any of the road improvements recommended in the 3

original Traffic Impact Study prepared as part of the Joint Development Plan (emphasis added); and, Whereas, the Developer [Jada View] has refused to complete, or agree to complete the improvements to Village Drive and Marguerite Road at their intersection with Route 30 because it believes they are offsite improvements and cannot be mandated under the Pennsylvania Municipalities Planning Code [MPC] [2] (emphasis added); and Whereas, the Developer [Jada View] believes the Township cannot mandate ingress and egress to Lot 2 and Lot 6 from Village Drive (emphasis added) 1. That the Jada View... Plan of Development for Lot No. 2 and... for Lot No. 6 in the Jada View Plan No. 1 be and are hereby denied (emphasis added) Resolution No. R-13-11 at 1-4; Reproduced Record (R.R.) at 59a-63a. decision and alleged: II. Jada View s Petition For Review. On June 8, 2011, Jada View petitioned for review from the Board s 2 Jada View... is the record owner of those two (2) parcels of land located in Unity Township, Westmoreland County, Pennsylvania, being designated as Lot No. 2 (being 2.105 acres) and Lot No. 6 (being 2.352 acres) 3. Lot No. 2 is located at the southeast corner of the intersection of Township Road T-604 (commonly known as Fyre Farm Road ) and Village Drive. 2 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. 10101-11202. 4

4. Lot No. 6 is located at the southwest corner of the intersection of Fyre Farm Road and Westmoreland County Road C-6408 (commonly known as Village Drive ). 9. The Appellant [Jada View] has submitted an independent development plan (limited to Lot No.2) seeking approval to construct a one-story strip-type building containing a restaurant/bakery, retail space and spaces for offices and/or clinics on Lot No. 2 in the Plan. (emphasis added). 10. Appellant s [Jada View] plan for the development of Lot No. 2 includes points of ingress and egress along Fyre Farm Road and no points of ingress and egress along Village Drive. (emphasis added). 11. The Appellant [Jada View] has submitted an independent development plan (limited to Lot No. 6) seeking approval to construct a two (2) story building for offices and/or clinics on Lot No. 6 in the Plan. (emphasis added). 12. Appellant s [Jada View] plan for the development of Lot No. 6 includes points of ingress and egress along Fyre Farm Road and points of ingress and egress along Village Drive. (emphasis added). 13. The Board considers the development of Lot No. 2 and Lot No. 6 as part of a Phased Development (including all parcels shown on the recorded subdivision plan, of which Lot No. 2 and Lot No. 6 are a part) under the Township s Subdivision and Land Development Ordinance (hereafter the SALDO ). (emphasis added). 14. The Board believes the Lot 2 and Lot 6 should have points of ingress and egress along Village Drive as well as Fyre Farm Road. (emphasis added). 5

15. Appellant [Jada View] contends that the Board cannot mandate ingress and egress to Lot 2 and Lot 6 from Village Drive. 16. The Board believes that improvements to the intersections of Village Drive, Marguerite Road and Route 30 must be implemented as part of the development of Lot 2 and Lot 6. (emphasis added). 17. Appellant [Jada View] has refused to complete, or agree to complete, the improvements to Village Drive and Marguerite Road at their intersection with Route 30 because it believes such improvements are off-site improvements and cannot be mandated under the... [MPC] (emphasis added). 18. Section 503-A(b) of the MPC, Section 10503-A(b), prohibits a municipality from requiring a landowner to make offsite improvements 20. Section 502-A of the MPC defines offsite improvements as all improvements which are not onsite improvements and that serve the needs of more than one development. Id. 21. Applying the foregoing definitions to Section 503- A(b), a municipality may require as a condition of approval the construction, dedication or payment of improvements only on the applicant s property or on the property abutting the applicant s property that are necessary for the ingress and egress to the applicant s property. 22. By written Resolution No. R-13-11 (the Resolution ), the Board denied the proposed development plans for Lot No. 2 and Lot No. 6 in the Plan 23. The Resolution seeks to require improvements that are offsite in that they are not on the Landowner s 6

[Jada View] property, they are not on property abutting Landowner s [Jada View] property, they are not necessary for the ingress and egress to Appellant s [Jada View] property and none of them are required to be constructed pursuant to any Township ordinance. As such, the Resolution is prohibited by MPC Section 503- A(b) and must be overturned. (emphasis added). 24. In denying Appellant s [Jada View] development of Lot No. 2 and Lot No. 6, the Board committed the following errors of law: a. Holding that the proposed development of Lot No. 2 and Lot No. 6 is part of a Phased Development under its SALDO. (emphasis added). b. Holding that the proposed development of Lot No. 2 and Lot No. 6 does not meet the requirements of 119-502.14 of the Township s SALDO. More specifically: c. Holding that the proposed development of Lot No. 2 and Lot No. 6 requires points of ingress and egress to Village Drive. (emphasis added). d. Holding that the proposed development of Lot No. 2 and Lot No. 6 requires signalization improvements at the intersection of Village Drive, Marguerite Drive and S.R. 30. e. Holding that the proposed development of Lot No. 2 and Lot No. 6 requires consideration of overall traffic impact and needs of other neighboring parcels (Lot Numbers 1, 3, 4, and 5 in the Plan). (emphasis added). WHEREFORE, Appellant [Jada View] requests that this Honorable Court... reverse the Board of Supervisors decision and approve the proposed development of Lot No. 2 and Lot No. 6, subject to the express limitations agreed to by the Appellant [Jada View] and the Board prior to the Board s denial. 7

Petition for Review of the Decision of the Board of Supervisors of Unity Township, June 8, 2011, Paragraphs 2-4, 9-18, and 20-24 at 2-6; Certified Record C.R.) at 1. III. Common Pleas Court s Decision. On September 29, 2011, the common pleas court reversed the Board in part and affirmed the Board in part. The common pleas court concluded: The Developer [Jada View] argues that the only improvements that can be required are those improvements that either abut or are within the borders of Lot No. 2 and Lot No. 6, and that beyond that, anything else is an impermissible offsite improvement. On the other hand, the Board asserts, and we agree, that the Developer [Jada View] ignores the fact that Lot No. 2 and Lot No. 6 are part of six separate lots that were created with the filing of the subdivision plan. While Lots 2 and 6, with frontage on Village Drive and Fyre Farm Road, are subject to immediate development, the remaining Lots Nos. 1, 4, and 5 are slated for future development. The MPC gives broad powers to municipalities to enact ordinances regulating subdivisions and land developments. To address concerns about the impact on traffic as a result of commercial development, the Township created a Transportation Overlay Zone We agree with the Board s assertion that if, as the Developer [Jada View] suggests, the municipality s ability to require traffic improvements within a subdivision were limited to only the lot upon which the construction was immediately taking place, it would lead to absurd results and consequences. (Appellee s Brief at 10.) 8

Of the five separate traffic improvements listed in the Resolution, we find only one to be an offsite improvement... that is, the requirement that Marguerite Road be widened at its intersection with State Route 30 with the creation of a northbound left turning lane As such, requiring improvements to Marguerite Road would constitute an impermissible offsite improvement. 53 P.S. 10503-A(b). Accordingly, we find that the Board abused its discretion in requiring this traffic improvement as a condition to the development of Lots No. 2 and 6.... Consequently, because the TIS recommended that driveways from both Fyre Farm Road and Village Drive facilitate access to Lots Nos. 2 and 6, we find that the Board reasonably exercised its discretion in relying upon this recommendation and requiring both points of access as a condition in its Resolution. (emphasis added and in original). Opinion and Order of the Court of Common Pleas, September 29, 2011, at 2-5. IV. Issue. On appeal 3, Jada View contends: Section 503-A(B) of the Municipalities Planning Code... prohibits a municipality from requiring a landowner to make offsite improvements. Did the Board err in consolidating the Lots within the subdivision plan for the purpose of including lots that are not the subject of the land use application in order to illegally expand what constitutes on-site improvements? 3 Where the common pleas court does not hear additional evidence beyond that which was heard by the zoning hearing board, this Court s standard of review is whether the zoning hearing board committed an error of law or abused its discretion. Patullo v. Zoning Hearing Board of Township of Middleton, 701 A.2d 295 (Pa. Cmwlth. 1997). 9

Brief of Appellant Jada View, LLC (Appellant s Brief), Statement of Issues for Review at 5. Specifically, Jada View contends that [a]pplying the foregoing definitions to Section 503-A(b), a municipality may require as a condition of approval the construction, dedication or payment of improvements only on the applicants property or on the property abutting the applicant s property that are necessary for the ingress and egress to the applicant s property Appellant s Brief at 13-14. V. The MPC. Section 503-A(b) of the MPC, 53 P.S. 10503-A(b), provides: No municipality shall have the power to require as a condition for approval of a land development or subdivision application the construction, dedication or payment of any offsite improvements or capital expenditures of any nature whatsoever or impose any contribution in lieu thereof, exaction fee, or any connection, tapping or similar fee except as may be specifically authorized under this act. (emphasis added). Section 502-A of the MPC, 53 P.S. 10502-A, defines the term offsite improvements as those public capital improvements which are not onsite improvements and that serve the needs of more than one development. (emphasis added). improvements as: Further, Section 502-A of the MPC defines the term onsite [A]ll improvements constructed on the applicant s property, or the improvements constructed on the property abutting the applicant s property necessary for the ingress or egress to the applicant s property, and required to be constructed by the applicant pursuant to 10

any municipal ordinance, including, but not limited to, the municipal building code, subdivision and land development ordinance, PRD regulations and zoning ordinance. (emphasis added). VI. The Unity Township Subdivision And Land Development Ordinance (SALDO). Section 119-502.6 (Requirements for outparcels and phases development plan) of the SALDO provides: In the interest of promoting unified access and circulation systems, development sites under the same ownership or consolidated for the purposes of development and comprised of more than one building site shall not be considered separate properties in relation to the access standards of this Code. The number of connections permitted shall be the minimum number necessary to provide reasonable access to these properties, not the maximum available for the frontage. All necessary easements, agreements, and stipulations required under this subsection shall be met. This shall apply to phased development plans. [4] The owner and all lessees within 4 Section 503 of the MPC (Contents of subdivision and land development ordinance), 53 P.S. 10503, provides: The subdivision and land development ordinance may include, but not be limited to: (2) Provisions for insuring that: (ii) streets in and bordering a subdivision or land development shall be coordinated, and be of such widths and grades and in such locations as deemed necessary to accommodate prospective traffic, and facilitate fire protection; (emphasis added). (4) Provisions which take into account phased land development not intended for immediate erection of buildings where streets, curbs, gutters, street lights, fire hydrants, water and sewage facilities and other improvements may not be possible to install as a condition precedent to final approval of plats, but will be a (Footnote continued on next page ) 11

the affected area are responsible for compliance with the requirements of this code and both shall be cited for any violation. (emphasis added). VII. Discussion. Jada View originally submitted a joint development plan (JDP) for Lot No. 2 and Lot No. 6. On Lot No. 2, Jada View intended to construct a onestory, 14,767 square foot, strip-mall-type building which would house a restaurant/bakery, medical/dental offices and/or clinics, and retail stores. On Lot No. 6, Jada View intended to construct a two-story, 58,000 square foot, office building. The JDP was accompanied by a Traffic Impact Study (TIS-1) dated June 30, 2010, and prepared by Jada View s own engineers, David E. Wooster (Wooster) and Associates, Inc. In the TIS-1, Wooster concluded: Phase I Mitigation: Lincoln Highway (SR 0030) with Village Drive/Marguerite Road (County Road) * Construct a 200-foot auxiliary southbound left turn on Village Drive. (emphasis added). * Construct a 275-foot auxiliary northbound left turn lane on Marguerite Road. (emphasis added). * Modify the traffic signal to incorporate the geometric changes described above. (continued ) condition precedent to the erection of buildings on lands included in the approved plat. (emphasis added). 12

* Optimize the traffic signal timings. Full Build Mitigation: Lincoln Highway (SR0030) with Village Drive/Marguerite Road (County Road): * Construct a 325-foot auxiliary southbound right turn lane on Village Drive. Provide an overlapping southbound right turn phase concurrent with the exclusive eastbound left turn phase. (emphasis added). * Construct a 275-foot auxiliary westbound right turn lane on SR 0030. (emphasis added). * Extend the existing eastbound auxiliary left turn lane on SR 0030 to provide 450 feet of vehicular storage. The extension will require the elimination of the auxiliary westbound left turn lane at Ben Venue Drive (T-918). * Modify the traffic signal to incorporate the geometric and phasing changes described above. * Optimize the traffic signal timings. Transportation Impact Study-1, June 30, 2010, at 27; C.R. at B. Based upon Wooster s recommendation, the Board conditioned approval of Jada View s JDP with the condition that it implement road improvements in order to mitigate the traffic impact generated by the development of Lot No. 2 and Lot No. 6. Jada View declined to undertake the necessary roadway improvements. The Board denied Jada View s JDP pursuant to its January 12, 2011, Resolution No. R-6-11. 13

Jada View did not appeal the Board s Resolution No. R-6-11. Instead, Jada View submitted two separate development plans (SDP), one for Lot No. 2 and one for Lot No. 6 which, proposed the identical uses of the lots that were presented in its initial JDP. 5 Jada View also submitted a new Traffic Impact Study (TIS-2) conducted by Wooster and Associates. Wooster stated in the TIS-2: Fyre Farm Road & Site Drive * Construct a full access low-volume driveway to provide access to and from the proposed development. The driveway should consist of one ingress and one egress lane. (emphasis added). 11.0 Conclusions Analyses show that the proposed mixed-use development in Unity Township, Westmoreland County is not anticipated to have a significant impact on traffic operations at the intersection of Fyre Farm Road with Village Drive. (emphasis added). No mitigation is recommended at the study intersection. Analyses show minor increases in average delay per vehicle under Opening Year 2011 With Development Conditions when compared to the Opening Year 2011 Without Development Conditions analyses. In addition, the proposed Site Drive intersection is anticipated to operate at acceptable Levels-of-Service under Opening Year 2011 with Development Conditions. (emphasis added). 5 Jada View s position concerning the JDP was that the development of Lot No. 2 and Lot No. 6 were previously considered Phase 1 of their original two-phase development. Because Jada View submitted SDPs for the development of Lot No. 2 and Lot No. 6, it no longer considered JDP a Phased Development. Therefore, the previous recommended road improvements under TIS-1 were no longer needed. 14

Transportation Impact Study-2, April 4, 2011, at 12-13 at 12-13; C.R. at C. The Board reviewed the SDPs submitted by Jada View and determined that [t]he remaining Lots [No.] 1, [No.] 4 and [No.] 5 in the Plan are being held for development at an undetermined time in the future, and that the development plans for Lot No. 2 and Lot No. 6 represented the initial stage in the phased development of the Subdivision Plan as a whole. Board s Resolution No. R-13-11, 1. E. at 5. Therefore, the Board imposed the same traffic and road improvements recommended under Jada View s TIS-1 for the PDP to the SDPs for Lot No. 2 and Lot No. 6. Board s Resolution R-13-11, 1. F. at 5. Jada View refused to undertake the required road and traffic improvements specified in Resolution No. R-13-11 and appealed to the common pleas court. The common pleas court reviewed Resolution No. R-13-11 and summarized the roadway improvements recommended in the TIS-1 to the SDP for development of Lot No. 2 and Lot No. 6 as follows: (1) the widening of Village Drive for the creation of a southbound left turning lane [where that road intersects State Route 30]; (2) the creation of a right turning lane off State Route 30 westbound; (3) the widening of Marguerite Road at its intersection with State Route 30 and the creation of a northbound left turning lane; 6 6 Although included among the required roadway improvements imposed by Resolution No. R-13-11, the common pleas court held this requirement to constitute an impermissible offsite improvement. 15

(4) signalization improvements at the intersection of Village Drive/Marguerite Road and State Route 30; and (5) ingress and egress from both Lots No. 2 and 6 to Village Drive to alleviate the burden on Fyre Farm Road. Opinion of the Common Pleas Court at 3. The common pleas court concluded that the Board had the authority to require the traffic and road improvements to Lot No. 2 and Lot No. 6 as onsite improvements except for the traffic and road improvements to Marguerite Road which were an offsite improvement. Opinion of the Common Pleas Court at 4. VIII. Conclusion. Section 503(2)(ii) and subsection (4) of the MPC, 53 P.S. 10503(2)(ii), (4), grants a municipality the authority to regulate subdivisions and land developments within its boundaries to ensure that streets accommodate prospective traffic, and facilitate fire protection in phased land developments not intended for the immediate erections of buildings. Here, the Board considered the traffic impact for the development of Lot No. 2 and Lot No. 6 along with the future development of the remaining four lots by Jada View in its decision to impose the traffic and road improvements recommended under the TIS-1. Additionally, pursuant to SALDO, the Township had the authority to regulate the traffic impact of subdivisions and land developments in the Township s Transportation Overlay Zone (Overlay Zone). In the Overlay Zone, the Township may consider multiple sites under the sole ownership of a developer, such as Jada View, for the development of the JDP, and not, the development of the SDPs when the Board considered the necessary traffic and road improvements regardless of whether the properties are part of a phased development. See 16

Section 119-502.6 of the SALDO. The traffic and road improvements were required in order to reduce the immediate effects of a rapid and large scale traffic increase due to Jada View s planned development. Here, the evidence, as noted by the Township, indicates: Lots 2 & 6 are currently vacant land. Village Drive is a 592 feet long, 2 lane road extending from State Route 30 (a 4-lane State Highway) to a T intersection. The development of Lots 2 & 6 separately are projected by Appellant [Jada View] to result in the addition of 1,688 trips during a typical weekday (1,028 from Lot 2 + 660 from Lot 6). [7] This is the same trip generation that would result from the development of these Lots in Phase I of Jada View s joint development plan [JDP]. The additional trips generated by the separate development [SDP] of these lots would be the same as those generated by their joint development [JDP], regardless of whether they are developed through two separate plans or one joint plan, because both sites are proposed to be developed at the same time. Accordingly, the same traffic mitigation measures and improvements recommended by Jada View s traffic engineer for Phase I of the joint development plan [JDP] should also be applicable to their separate simultaneous development [SDP]. (emphasis added and footnote omitted). Brief of Appellee-The Township of Unity (Appellee Brief), Summary of Argument, Subsection D at 10. The common pleas court properly determined that it was of no consequence concerning the characterization of the development plan or plans 7 Wooster Transportation Study at R.R. 44a-46a. 17

submitted by Jada View because Lots 2 and 6... are subject to immediate development, [while] the remaining Lots Nos. 1, 4 and 5 are slated for future development. Lot No. 1 and Lot No. 2 are adjoining and abut with Village Drive. Lot No. 6 is located directly across Village Drive from Lot No. 2 and abuts Village Drive. The roadway improvements at issue are either located on Jada View s property or constructed within the public rights of way abutting [Jada View s] property and are necessary for ingress and egress to [Jada View s] Property. Appellee Brief at 9. Therefore, the traffic and roadway improvements are authorized under Section 502-A of the MPC, 53 P.S. 10502-A, as on-site improvements and under Section 119-502.6 of SALDO. Accordingly, this Court affirms. BERNARD L. McGINLEY, Judge 18

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jada View, LLC, : Appellant : : v. : : Board of Supervisors of : No. 2084 C.D. 2011 Unity Township : O R D E R AND NOW, this 18th day of April, 2013, the order of the Court of Common Pleas of Westmoreland County in the above-captioned matter is affirmed. BERNARD L. McGINLEY, Judge