United States: Pennsylvania Commonwealth Court Upholds Preliminary Plan Approval Where Sewer Planning Process Has Commenced But Has Not Been Completed

In the case of Lyons Borough Municipal Authority v. Township of Maxatawny, 2014 WL 3396538 (July 10, 2014), Lyons Borough Municipal Authority (LBMA) appealed the order of the Berks County Court of Common Pleas dismissing its appeal of Maxatawny Township's grant of a landowner's preliminary land development plan approval on the basis that the sewer planning for the development had not been completed. 

In December 2012, the landowner submitted a preliminary land development plan to the township proposing to construct a 192-unit apartment complex with a 7,200-square- foot community center on the subject property.  Approximately five years earlier, in March 1997, the LBMA, the township and the township's municipal authority had entered into an agreement by which the authority agreed to provide sanitary sewage collection and treatment and the township agreed to purchase a certain amount of sewage capacity from the LBMA. 

Thereafter, in March 2013, the township conditionally approved the landowner's preliminary plan, subject to 161 conditions, several of which related to obtaining the required sewage collection and treatment capacity approvals, as well as required offsite sewer easements.  Nonetheless, the LBMA appealed the township's conditional approval, alleging the township erred in approving the plan because the plan did not have sufficient sewage capacity pursuant to the prior 1997 agreement and because the township had not purchased the necessary additional capacity since the 1997 agreement to serve the proposed development.  LBMA further alleged that there was no agreement for connection to the sewer main and no easement across neighboring properties for connection to the sewage system and, therefore, the conditional approval should not have been granted. 

Landowners intervened and filed a motion to quash the appeal, along with a motion for bond, alleging LBMA's appeal was frivolous.  The township joined in landowner's motion to quash.  After two hearings, the trial court issued an order granting the motion to quash and dismissing LBMA's appeal.  LBMA then appealed the trial court's decision to the Commonwealth Court, again alleging the land development plan should not have been approved because there was not sufficient sewage capacity for the development, there was no agreement for connection to the sewer main, and no easements had been obtained across neighboring properties to connect to LBMA's sewage system. 

The Commonwealth Court aptly noted that each of the deficiencies alleged by LBMA were specifically addressed in the conditions imposed by the township in approving the landowner's plan.  Therefore, citing Morris v. South Coventry Township Bd. of Supervisors, 836 A.2d 1015, 1020 (Pa. Commw. 2003), the court noted that it is well settled that where a preliminary plan fails to comply with the substantive requirements of the township's Subdivision and Land Development Ordinance, its rejection under Section 508(2) of the Pennsylvania Municipalities Planning Code (the MPC) or its conditional approval under Section 508(4) of the MPC is within the discretion of the governing body of the township. 

As a result, the Commonwealth Court held that the township properly exercised its discretion in granting the landowner's plan conditioned on the landowner:  obtaining a will serve letter from LBMA regarding connection to its system; providing additional calculations showing proposed sewage flows for capacity analysis; and obtaining the necessary easements across neighboring properties for connection to LBMA's existing sewage system.  Citing Kohr v. Lower Windsor Township Bd. of Supervisors, 910 A.2d 152, 159 (Pa. Commw. 200), the court affirmed that there is no requirement that the sewer planning process be completed prior to the grant of preliminary plan approval, only that that the process be commenced. 

Although this was an unreported decision of the Commonwealth Court, it still has persuasive value and confirms that the Commonwealth Court continues to maintain that sewage planning is not required to be finalized at the time of preliminary plan approval and any outstanding sewage matters may be appropriately addressed as conditions to approval.  

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