Gouwens v. Ind. Twp. Bd. of Supervisors

Matthew Gouwens, Emily Gouwens, Hiller Hardie, Sharon Hardie,Kyle Rusche, and Meghan Rusche, Appellants v. Indiana Township Board of Supervisors and Fox Chapel Estates, L.P.

No. 544 C.D. 2020

No. 992 C.D. 2020

No. 993 C.D. 2020

No. 994 C.D. 2020

COMMONWEALTH COURT OF PENNSYLVANIA

Argued: May 10, 2021

July 8, 2021

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE FIZZANO CANNON

Matthew Gouwens, Emily Gouwens, Hiller Hardie, Sharon Hardie, Kyle Rusche and Meghan Rusche (Objectors), who are residents of Indiana Township (Township), appeal from the May 22, 2020, Order of the Court of Common Pleas of Allegheny County (trial court) affirming the decision of the Township Board of Supervisors (Board) to grant tentative approval of the application filed by Fox Chapel Estates, L.P. (Developer) for a Planned Residential Development. Upon review, we reverse.

I. Factual & Procedural Background

This matter returns after our previous decision, which remanded with directions that the Board issue a revised decision. Gouwens v. Indiana Twp. Bd. of Supervisors (Pa. Cmwlth., No. 1377 C.D. 2018, filed June 25, 2019), 2019 WL 2587772 (Gouwens I) (unreported); Reproduced Record (R.R.) at 674a-91a. The relevant facts are set forth at length in our previous opinion and are summarized as follows.

In November 2016, Developer filed an application to develop a Planned Residential Development (PRD)¹ in the Township, to be known as Fox Chapel Estates (the PRD or the Plan). Gouwens I, slip op. at 2; R.R. at 675a. The PRD would consist of 91 townhouses built in 3 different designs. R.R. at 181a. The Board has concisely described these as follows:

[R]oughly 50% of the homes will be the "Griffin" model which involves first floor living and will be marketed primarily to empty nesters. The "Schubert" design represents approximately 25% of the units and will be 2-3 bedroom traditional townhouses with the bedrooms located on the third level. The "Rosecliff" model represents approximately 25% of the proposed units and has a first floor living area and an upstairs master bedroom and will be marketed to active empty nesters.

Board Decision II, 9/10/19; R.R. at 696a.

The Plan set aside 60% of the total property acreage as common open space, which exceeded the 20% minimum required by the Township Zoning Ordinance #368, Allegheny County, Pa. (2011) (Zoning Ordinance).² R.R. at 187a & 206a; Zoning Ordinance § 409(G) (Common Open Space). However, Developer's witness, Steven Victor (Victor), acknowledged in hearing testimony that significant portions of the open space were dedicated to stormwater management purposes. Id. at 207a-08a. In addition, although the Zoning Ordinance's definition of "common open space" requires that it be "designed and intended for the use or enjoyment" of residents, Victor conceded that much of the proposed common open space in the PRD is steeply sloped and, while visible from the townhouses, is unusable "passive open space." Id. at 208a-09a; Zoning Ordinance § 201 (Definitions). Objectors' expert witness, Andrew Schwartz (Schwartz), opined that if the unusable land within the designated common open space was deducted, the actual amount of land within the Zoning Ordinance's definition of "common open space" would be well below the Zoning Ordinance's 20% requirement. Id. at 231a.

At a subsequent hearing, John Bench (Bench), a representative for Developer, responded that Developer had amended the Plan to include nature trails, gazebos, benches, and picnic areas throughout the property. R.R. at 502a. Objectors opposed the admission of any documentation in that regard. Id. at 510a. The Board recognized that the revised proposal was not part of the Plan submitted to be votedon and accepted Bench's revised proposal "as informational only."³ Board Decision II at 2; R.R. at 694a.

In addition, the Plan's proposed cul-de-sac was 2,370 feet in total length, or 1,700 feet from its intersection with the first road inside the PRD, which greatly exceeded the 800-foot limit set by the Township. R.R. at 194a & 202a. Schwartz explained that an overly long cul-de-sac could create a safety hazard due to increased response time for fire and emergency vehicles if they miss an address and must drive extra distances to be able to turn around and return.⁴ Id. at 226a.

In January 2018, the Board tentatively approved the Plan in a 3-2 vote and issued its initial written decision. Board Decision I, 1/17/18; R.R. at 621a-27a. Objectors appealed to the trial court, which took no new evidence but considered briefs and oral argument by the parties. The trial court then issued its initial opinion and order on September 18, 2018, affirming the Board's tentative approval. Trial Ct. Decision I, 9/18/18; R.R. at 669a-73a. Objectors then appealed to this Court.

In Gouwens I, we concluded that the Board's initial January 2018 decision did not comply with Section 709(b) of the Pennsylvania Municipalities Planning Code (MPC),⁵ which requires board decisions granting or denying approval of a PRD to explain how the plan responds or fails to respond to specific enumerated criteria in order to provide sufficient findings of fact to enable effective appellate review. Gouwens I, slip op. at 6; R.R. at 680a (citing 53 P.S. § 10709(b)). Wepointed out that the Board's initial decision failed to explain how the Plan, with its three styles of townhouse designs, met the Zoning Ordinance's requirement of variety in the "type, design and arrangement of housing units." As such, "this Court cannot ascertain whether the Plan actually meets the requirement or whether the Board simply failed to adequately explain the basis for its decision[.]" Gouwens I, slip op. at 7-11; R.R. at 680a-84a. The Board also failed to explain the basis of its finding that the Plan met all of the enumerated and mandatory criteria for a PRD set forth in Section 401(F) of the Zoning Ordinance. Gouwens I, slip op. at 12-16; R.R. at 685a-89a. We therefore remanded to the trial court with instructions to remand the matter to the Board with directions to issue a new decision with appropriately rendered findings of fact and reasons for the grant of tentative approval of the Plan. Gouwens I, slip op. at 17; R.R. at 690a.

On remand, without taking additional evidence, the Board issued a revised decision in support of its grant of tentative approval of the Plan. Board Decision II; R.R. at 693a-704a.⁶ Objectors appealed to the trial court, which also took no new evidence and again affirmed the Board. Trial Ct. Decision II; R.R. at 754a-59a. Objectors again appeal to this Court.

II. Parties' Arguments

Objectors first argue that this Court's decision in Gouwens I is dispositive on the point that the Plan must include a variety in the "type, design and arrangement" of housing units, which they aver the Plan fails to do since it calls foronly townhouses, albeit three different designs. Objectors' Br. at 21-25. Objectors assert that because the Plan still fails to comply with Section 400 of the Zoning Ordinance, the Board's grant of tentative approval must be reversed. Id. at 24. Objectors also argue that the Board's revised decision still fails to support its determinations as to Section 401(F)'s required factors for PRD approval; therefore, reversal is warranted. Id. at 25-55.

Developer responds that this Court's discussion in Gouwens I concerning the housing variety aspect of the Plan did not constitute a substantive legal holding, but was dictum used as an example of defects in the Board's original decision that were to be cured on remand. Developer's Br. at 12-15. Developer further argues that the Board's revised decision includes sufficient factual findings, explanations, and reasoning to constitute substantial evidence of record in support of the Board's tentative approval of the Plan. Id. at 15-60.

In a separate brief, the Board offers a general defense of its revised decision, but focuses specifically on its assertion that the purpose of the Zoning Ordinance's variety requirement is to promote a variety of housing within the township as a whole rather than within any individual PRD. Board's Br. at 2-4.

III. Analysis⁷

Article IV of the Township's Zoning Ordinance, which governs PRDs, is modeled on Article VII of the MPC. This Court has described PRDs as follows:

PRDs offer an alternative to traditional, cookie-cutter zoning. A PRD is a larger, integrated planned residential development which does not meet standards of the usual zoning districts and offers municipalities flexibility. It is this type of flexibility which the PRD provisions of the [MPC] ... are designed to offer the municipality. The idea behind PRD zoning is to create a method of approving large developments which overrides traditional zoning controls and permits the introduction of flexibility into the design of larger developments.

Kang v. Supervisors of Twp. of Spring, 776 A.2d 324, 328 (Pa. Cmwlth. 2001) (citations & quotation marks omitted). Section 702 of the MPC grants each municipality the authority to enact individualized PRD ordinances in order to "[s]et forth the standards, conditions and regulations for a planned residential development consistent with the provisions of this article." 53 P.S. § 10702.

Given the unique nature of a PRD and its character as a departure from traditional zoning requirements, a zoning board must ensure, prior to granting tentative approval, that the planned PRD does, in fact, meet the specific requirements in the locality's zoning ordinance. Gouwens I, slip op. at 9-10; R.R. at 682a-83a (citing 53 P.S. § 10702). This is because a PRD "overrides traditional zoning controls" and, upon tentative approval, effectively amends the zoning map. Gouwens I, slip op. at 10; R.R. at 683a (quoting Kang & Section 710 of the MPC, 53 P.S. § 10710(a)).

A. Section 400: Variety in "Type, Design and Arrangement of...