Haring v. Newberry Twp.

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Chris Haring, Appellant v. Newberry Township

No. 731 C.D. 2023

Commonwealth Court of Pennsylvania

July 15, 2024

OPINION NOT REPORTED

Argued: May 7, 2024

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE STACY WALLACE, Judge

MEMORANDUM OPINION

MICHAEL H. WOJCIK, JUDGE

Chris Haring (Applicant) appeals from the order of the Court of Common Pleas of York County (trial court) that denied Applicant's appeal and upheld the decision of the Newberry Township (Township) Board of Supervisors (Board) to deny Applicant's preliminary subdivision and land development plan (SALDO Application) to consolidate four parcels and develop a 301,000-square foot (SF) building (Building) at the intersection of Culhane Road and Sipe Street in the Township (Property). Applicant raises two issues on appeal: whether the trial court erred when it concluded that substantial evidence supported the Board's denial of the SALDO Application, and whether the trial court erred when it concluded the Board did not act in bad faith when it denied Applicant's SALDO Application. After careful review, we affirm.

The relevant facts, which are not in dispute, and as summarized by the trial court, are as follows. Applicant is the equitable owner of four parcels at the intersection of Culhane Road and Sipe Street in the Township, totaling approximately 33 acres. The Property is in the Township's Residential/Commercial Office District (RCO District) in which certain light industrial uses are permitted by right.^[1] Trial Ct. Op. 6/19/23, at 2, 15.^[2]

On September 14, 2020, Applicant submitted its initial SALDO Application to the Township, proposing a light industrial use as defined in Section 209.2.E.1.b. of the Zoning Ordinance,^[3] and proposing to develop the Building on the Property. Reproduced Record (R.R.) at 34a-539a. Applicant did not specify, and still has not specified, the specific light industrial use he intends for the Property, explaining that he does not have a specific tenant or buyer lined up for the Property.

Appellant's Brief at 4. Applicant assured the Board and the trial court that he would only engage in light industrial uses permitted in Section 209.2.E.1.b of the Zoning Ordinance. Appellant's Brief at 4-5, Trial Ct. Op. 6/19/23 at 5. In the SALDO Application, Applicant described the proposed Building as a "301,000 SF warehouse." R.R. at 301a. Applicant included several reports with his SALDO Application, including water and sewer planning and a traffic impact study (TIS). In the sewer planning report, the project is described as follows: "The site is intended to be developed as a future warehouse and would require construction of associated infrastructure. Construction activities have not taken place at this time." Id. at 320a. In the TIS the project is described as a "warehouse building" and a "warehouse development." Id. at 377a, 379a. The TIS calculated the traffic impact for the project as follows:

The trip generation equations for the proposed warehouse [were] obtained from the Trip Generation Manual, 10th edition, an Institute of Transportation (ITE) Informational Report. The statistics in the Trip Generation Manual are empirical data based on more than 4,800 trip generation studies. The data are categorized by Land Use Codes, with total vehicular trips for a given land use estimated using independent variable and statistically generated rates or equations.

For the proposed warehouse development, Land Use Code 150 (Warehousing) from the Trip Generation Manual was used to calculate the number of vehicular trips the development will generate . . . .

R.R. at 384a. The TIS included tables to calculate "truck trips generated for the proposed warehouse development," and new trips "generated by the proposed warehouse development," along with other traffic components. Id. at 384a, 385a. A diagram of the project included the Building, in which 10,000 square feet were designated for office space, with the remaining 290,000 square feet designated for the proposed warehouse, and included 51 truck docks, 69 trailer spaces, and 279 auto parking spaces. Id. at 47a.

The Township Engineer reviewed the SALDO Application and offered comments in a letter dated September 29, 2020. R.R. at 542a-46a. Most relevant here are comments under the Zoning and Subdivision sections of the response. Under the Zoning section, the Township Engineer provided:

1. The proposed use must be clearly defined under the Area and Bulk Regulations. Based on the parking calculation it appears that the plan proposes warehousing and wholesale trade. However, the permitted use is Light Industrial in the RCO Zone (209.1E).

2. Revise parking calculation for that light industrial use. (512.6). One employee on each of the two (2) largest shifts, or (1 space) per employee and at least (1 space) per each one thousand (1,000) square feet of gross floor area, whichever is the greatest number. Are there enough ADA [Americans with Disabilities Act, 42 U.S.C. §§12101-12213] spaces being provided?

R.R. at 542a. Under the Subdivision^[4] section of the response, the Township Engineer addressed the sewage flows on the Property as follows:

1. Planning module or exemption must be approved by the Township and DEP [Pennsylvania Department of Environmental Protection] (611.01). Provide []DEP code number referencing the approved planning module (403.01.f). Planning module that was submitted states that the proposed use is warehousing. The permitted use for this zone is light industrial. Revise sewage flows based on the permitted proposed uses.

Id. at 543a. The Township Planning Commission reviewed the initial SALDO Application and provided comments in a letter dated October 15, 2020. Id. at 547a-49a. Relevant here, the Planning Commission included the following zoning comment: "Specify the type of industrial use (s.209.2.E.1). Warehousing and wholesale trade is not a permitted use in the [] RCO[] District." Id. at 548a.

On October 26, 2020, Applicant submitted a revised SALDO Application that included Applicant's response to the Township Engineer's comments. R.R. at 550a-1023a. In response to the Township Engineer's first comment in the Zoning section, Applicant responded that "[t]he Parking Requirements Table on Sheet 13 has been revised to show calculations for Light Industrial." Id. at 550a. In response to the Township Engineer's second comment in the Zoning section, Applicant responded that "[t]he parking calculation has been revised for light industrial use and additional parking spaces have been added to meet the requirement (See Sheet 13-14). Refer to revised design and Parking Requirements [t]able on Sheet 13." Id. In response to the Township Engineer's comment in the Subdivision section, Applicant stated that "[t]he planning mailer has been updated to note the use is a light industrial building, but this does not affect the proposed sewage flowrates as the same number of employees are proposed. Revised planning mailer is attached." Id. at 551a. In response to the Township Planning Commission's comment, Applicant stated that "[t]he proposed use is Light Industrial. The table on Sheet 01 and the Parking Table on Sheet 13 [have] been updated to show this use." Id. at 555a. However, the TIS submitted with the revised SALDO Application continued to describe the project as a "proposed warehouse development" and continued to use "Land Use Code 150 (Warehousing)" from the Trip Generation Manual to calculate vehicle trips. Id. at 854a, 861a, 862a, 870a.

The Township Engineer reviewed the revised SALDO Application and offered comments in a letter dated November 5, 2020. R.R. at 1024a-27a. Under the Subdivision section, the Township Engineer again responded that "[p]lanning module or exemption must be approved by the Township and DEP (611.01). Provide []DEP code number referencing the approved planning module (403.01.f). Provide sewage calculations for review to verify the proposed sewage flows. Provide reference to planning module approval [number] on the cover sheet." Id. at 1024a. Applicant responded to the Township Engineer's comments in a letter dated December 11, 2020. Id. at 1029a-32a. Applicant responded to the Subdivision comment using the same language as he did before. Id. at 1029a. During this time period, Applicant requested, and the Township agreed, to an extension of time to allow the parties to continue to discuss the project. The deadline for the Township to act on the SALDO Application was extended to April 30, 2021. Id. at 1028a, 1033a. Also, during this time period, Applicant sought to amend the Zoning Ordinance to include "warehouse" as a conditional use in the RCO District. The Township denied Applicant's amendment on January 11, 2021. Id. at 1034a-35a. At a public hearing on January 26, 2021, the Township received public comments regarding the SALDO Application, most of which were in opposition to the project. Id. at 1036a-42a.

On March 29, 2021, Applicant submitted a second revised SALDO Application, which included Applicant's request for waivers for a preliminary plan and for slope requirements. R.R. at 1043a-1326a. The Township Engineer responded to the second revised SALDO Application in a letter dated April 7, 2021. Id. at 1327a-30a. Under the Subdivision section, the Township Engineer again responded that the planning module for sewer usage must be approved by the Township and DEP and must provide a DEP code number referencing the approved planning module, and requested "additional justification" for the "sewer flows provided on the mailer." Id. at 1327a. The Township Engineer also noted that "[t]he existing [TIS] references a warehouse, and the plan is referencing an industrial use." Id. at 1329a. The Township...