IN THE COMMONWEALTH COURT OF PENNSYLVANIA

No. 1661 CD. 2009

JEROME JOSEPH and NORTH WHITEHALL FOR SUSTAINABLE DEVELOPMENT,

Appellants

vs.

NORTH WHITEHALL TOWNSHIP BOARD OF SUPERVISORS and NORTf-I V{I-IITEHALL TOWNSHIP,

Appellee/Intervenor

vs.

WAL-MART STORES EAST, L.P.,

Intervenor

BRIEF FOR APPELLANTS

Appeal from the Order of the Court of Common Pleas of Lehigh COlU1ty, Pennsylvania, entered on July 23,2009 at Docket No. 2008-C-4780

JEFFREY R DIMMICH, ESQUIRE l.D.#18511

THOMAS I-I. DINKELACKER, ESQUIRE LD. #34932

DAVID C. NAJARIAN, ESQUIRE LD. #86606

Attorneys for Appellants

DIMMICH & DINKELACKER, P .C. 2970 Corporate Court, Suite 1 Orefield, P A 18069

610-398-1800

TABLE OF CONTENTS

Table of Citations .

111

Statement of Jurisdiction .

I

Order in Question .

2

Scope and Standard of Review .

3

Statement of the Questions Involved ..

4

Statement of the Case .

5

Summary of Argument .

12

Argument:

1. The Township's Subdivision and Land Development Ordinance (SALDO) does require a Traffic Impact Analysis and Traffic Impact Requirements as set forth in Sec. 5.03Q and Appendix E, respectively, for the proposed subdivision, and, more specifically,

a Major Traffic Impact Study Review during the preliminary

planning phase of the subject subdivision plan .

14

2. The subdivision plan must be rejected where the plan relies upon a prior de-facto lot line consolidation and a separate subdivision, which were not subject to the planning and review process, as

required under SALDO .

21

3. The plan must be rejected where it provides a Planned Commercial Development (PCD) on split-zoned land, where some land is partially located in an Agricultural-Residential (AR) Zone where

a PCD is not a permitted use ..

29

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4. Conditional approval is improper where the plan does not identify the details, location and method of proposed sewer and/or public water, where the details of such utilities remain undefined, undetermined and/or are inconsistent with the Township's current

Act 537 Plan .

35

Conclusion ..

38

Appendices:

"A" - Decision of the Board of Supervisors of North Whitehall Township contained in Minutes dated September 3,2008

"B" - Order and Opinion of the Court of Common Pleas of Lehigh County dated July 22, 2009

ii

TABLE OF CITATIONS

Cases:

City 0/ Pittsburgh v. Com., 468 Pa. 174, 182,360 A.2d 607, 612 (1976) .

Dept. a/General Service v. Board a/Supervisors a/Cumberland Township,

795 A.2d 440 (Cmwlth, Ct., 2002) .

Dept. a/General Services v. Ogontz Area Neighbors Assoc., 505 Pa.

614,483 A.2d 448 (1984) ..

Dept. a/Transportation v. DiMascio, 512 Pa. 625, 518 A.2d 258 (1986) .

Grigis v. Bd. 0/ Physical Therapy, 859 A2d 852 (Pa. Cmwlth., 2004) .

Hazleton Area School District v. Zoning Hearing Board 0/ Hazle Township,

566 Pa. 180, 778 A.2d 1205 (2001) .

Herr v. Lancaster County Planning Com 'n., 155 Pa, Cmwlth. 379, 625

A.2d 164 (1993) ..

Kee v. Pa. Turnpike Comm., 743 A.2d 546 (Pa. Cmwlth., 1999) .

Kmonk-Sullivan v. State Farm lviut. Ins. Co., 567 Pa. 524, 525, 788

A. 2d 955, 962 (2001) .

Olon v. Pa. Dept. of Corrections, 534 Pa. 90,626 A.2d 533 (1993) .

Pacurariu, et al. v. Pa. Game Commission, 744 A.2d 389 (pa. Cmwlth., 2000) ....

Patricca v. Zoning Board a/Adjustment, 527 Pa. 267, 590 A.2d 744 (1991) .........

Springfield Township v. Halderman, 840 A.2d 529 (Pa, Cmwlth., 2004) .

Vlassic Farms, Inc. v. Pa. Labor Relations Bd., 734 A.2d 487,491

cPa. Cmwlth., 1999), aff'd. 565 Pa. 555, 777 A.2d 90 (2001) ..

iii

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25

25,26

25,26

19

25

33

25

19

25

25

18

22

19

Statutes:

1 Pa. C.S.A. §1903(a) .

1 Pa. C.S.A. §1921(b) ..

42 Pa. C.S.A. §762 .

36 P .S. §670-420 .

53 P.S. §10107 ..

53 P.S. § 10501 .

53 P.S. §11002-A "'" .

53 P.S. §11003-A .

53 P.S. §65502 .

53 P.S. §65762 ..

53 P.S. §66506 ..

67 Pa. Code 441.8 .

Page

18

18

1

19 12,17,21 27

34

34

27 13,25,26 25,26 12,19,20

Other:

Pa.R.A.P. 341 1,3

Pa.R.A.P. 902 1

iv

STATEMENT OF JURISDICTION

This Honorable Court has appellate jurisdiction pursuant to 42 Pa. C. S. A. Section 762 (Appeals from courts of common pleas) and Pa. R. A. P. 902 (Manner of taking appeal) and 341 (Final orders).

1

ORDER IN QUESTION

AND NOW This 22nd day of July, 2009, upon consideration of Jerome Joseph and North Whitehall for Sustainable Development's appeal of the North Whitehall Township Board of Supervisors' conditional approval ofWal-Mart Stores East, L.P!s preliminary subdivision plan, the briefs of all parties, argument thereon, and for the reasons set forth in the accompanying Opinion set out below, IT IS ORDERED that said appeal is DENIED.

BY THE COURT:

lsi Carol K. McGinley, J.

2

SCOPE AND STANDARD OF REVIEW

This is an appeal from an order entered on July 23,2009 by the Court of Common Pleas of Lehigh County. The order is final within the meaning ofPa. R. A. P. 341.

The scope of review in the within land use appeal is limited to determining whether the Board committed an error of law, or whether the Board's findings are supported by substantial evidence.

The standard of review is whether the Board abused its discretion, committed an error of law or whether constitutional rights were violated.

3

STATE:MENT OF THE QUESTIONS INVOLVED

1. Whether the Township's Subdivision and Land Development Ordinance

(SALDO) requires a Traffic Impact Analysis and Traffic Impact Requirements as set forth in Sec. 5.03Q and Appendix E, respectively, for the proposed subdivision, and more specifically a Major Traffic Impact Study Review during the preliminary planning phase of the subject subdivision plan.

Suggested Answer: Yes.

2. Whether the subdivision plan must be rejected where the plan relies upon a prior

de-facto lot line consolidation and a separate subdivision, which were not subject to the planning and review process, as required under SALDO.

Suggested Answer: Yes.

3. Whether the plan must be rejected where it provides a Planned Commercial

Development (PCD) on split-zoned land, where some land is partially located in an AgriculturalResidential (AR) Zone where a PCD is not a permitted use.

Suggested Answer: Yes.

4. Whether conditional approval is improper where the plan does not identify the

details, location and method of proposed sewer and/or public water, where the details of such utilities remain undefined, undetermined and/or are inconsistent with the Township's current Act 537 Plan.

Suggested Answer: Yes.

4

STATEMENT OF THE CASE

This is an appeal by North Whitehall for Sustainable Development (hereinafter, "NWSD"), an unincorporated association, and Jerome Joseph, a member ofNWSD, of an Order entered July 23, 200S, which denied NWSD's appeal of the North Whitehall Township Board of Supervisors' (hereinafter, the "Board") conditional approval of a preliminary subdivision plan submitted by Wal-Mart Stores East, L.P. (hereinafter, "Wal-Mart"), an intervenor herein. (R.6a).

The Board granted conditional approval verbally during the September 3, 200S regular meeting of the Board. (R.13a-14a). The conditional approval was more formally prescribed in draft meeting minutes mailed to the ApplicanVIntervenor, Wal-Mart, on an unspecified or undetermined date. (R.13a-14a).

On October 2, 200S, NWSD filed their Appeal to the lower court. (R.6a). On October 31, 200S, Wal-Mart filed its Notice ofIntervention. (R.20a). On October 31,2008, North Whitehall Township (hereinafter, the "Township" or "NWT") filed a Praecipe to Intervene. (R.24a). On October 31,2008, the Board and the Township, as Defendant (sic) and Intervenor, collectively filed an answer or response to NWSD's Notice of Appeal. (R.2Sa).

Following argument and briefs by the parties, the Trial Court entered its Order and denied the appeal. (R.243a). The Order is the subject of the within appeal.

Pursuant to the Pennsylvania Municipalities Planning Code (MPC), the Subdivision and Land Development Ordinance of North Whitehall Township (SALDO) and the Zoning Ordinance of North Whitehall Township (ZO), applicant, Wal-Mart submitted the subdivision plan (the 2007 Plan) at issue. (R.756a). Said Plan relates to a proposed WaI-Mart Super Store and shopping center to be located on a tract of land near the intersection of Levans Road and State Route 309 (the Property) within the Township. (R.756a)

5

SALDO provides, in part, that "no subdivision ... or any lot, parcel or parcel of land

shall be made, and no street, sanitary sewer, storm sewer or water main ... or other

improvements in connection therewith shall be constructed, initiated or dedicated for public use .

.. except in conformance with this Ordinance." (R.S52a). The Ordinance further precludes

subdivision of any lot absent the approval and recording of a final plan. (R.554a). The Ordinance

provides penalties for violation of the same. (R.554a).

SALDO further requires, in part, that all information in a preliminary plan shall be

legibly and accurately presented. (R.S91a). The applicable Zoning District must be shown on the

Plan. (R.S96a). SALDO specifically incorporates all requirements of the Township's "most

recent Zoning Ordinance". (R.596a).

SALDO mandates that all preliminary plans include a Traffic Impact Study (TIS).

(R.60Sa). The requirement is mandated under Sec. 5.03 which provides that "all of the following

information and materials listed in this section are required parts of preliminary plans for any

land development and any subdivision." (R.590a). Section 5.03Q incorporates TIS under

Appendix E which provides as follows:

All subdivision and land development projects shall be evaluated to determine the impact oftrajJic which they generate on the Township's overall highway system. This requirement shall apply to all new subdivisions or land developments proposed and to any expansion of an existing land development. The level of traffic impact shall be determined based on the estimated Trip Ends generated by the proposed uses in the subdivision or land development ...

(R.692a).

A Major Traffic Impact Study shall be preparedfor evelY Major Traffic Impact Project unless the Supervisors determine that a study is not required. In lieu of the study, the Supervisors shall request a monetary contribution to the township Traffic Impact Study Account. The amount of the contribution will be determined by the Supervisors and will approximate the cost of the study, had it been required ...

(R.692a).

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The Major Impact Traffic Study shall be reviewed by the Supervisors, Planning Commission and the Township Engineer in connection with the preliminary Stage of the subdivision and land development review process

... The Supervisors shall not approve any proposed major or minor subdivision, land development or expansion of land development ifit determines that any traffic problem to be created by the proposed subdivision, land development or expansion thereof cannot be adequately alleviated by the developer.

(R.695a).

Despite the clear mandate of SALDO, no traffic study was submitted or reviewed with

the subject Plan. (R.493a).

The Plan is premised upon a conditional use provided as an option within the PC District

(i.e., Planned Commercial District, hereinafter "PCD"). (R. 727a). In simple terms, certain

commercial development may be permitted as an option, pursuant to a grant of conditional use

within an area zoned as PCD. (R.727a). Absent the grant of conditional use, a variety of

residential uses shall be permitted to the same extent as they may be permitted in the VR

(Village Residential) District. (R.727a, 751a).

The ZO provides that certain commercial uses are permitted in a PCD as a conditional

use.

. .. in addition, to offer a variety of non-residential development with carefully planned and coordinated traffic circulation as an option of the applicant if the applicant proves that the road system will be able to efficiently and safely support the development and that there will be suitable access to reach an arterial street. If the applicant is not able to comply with the traffic access and other requirements as provided in Section 308, the applicant shall still have opportunities for a reasonable variety of residential uses of his/her land under the VR District.

(R.727a) (emphasis in the original).

The ZO incorporates a map entitled "North Whitehall Zoning Map" as the Official

Zoning Map of North Whitehall Township. (R.755a). Such map sets forth the boundaries of each

defined zoning district, not limited to the Pf'D, (R.755a).

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Changes to the boundaries of the Official Zoning Map shall only be made in conformity with the amendment procedures specified in the Pennsylvania Municipalities Planning Code. (R.728a). All changes should be noted by date with a brief description of the nature of the change, either on the map or within an appendix to the ZOo (R.728a).

"Where a district boundary is not fixed by dimensions and where it approximately follows lot lines, such boundary shall be construed to follow such lot lines unless specifically shown otherwise." (R.728a). "The location of a district boundary on unsubdivided land or where a district boundary divides a lot shall be determined by the use of the scale appearing on the Maps." (R.728a).

The AR District (Agricultural Residential) provides, in part: "for development only at a low intensity in areas where public water and sewer service are less likely to be able to be efficiently provided; to encourage the preservation of farmland by directing growth to occur at higher densities in areas where central utilities can be efficiently provided; and to seek to minimize conflicts between agricultural and residential areas." (R.726a). In such district, a planned commercial option is not permitted. (R. 729a-734a) (tables).

The subject parcel lies both in the PC and AR Districts. (R.483a-484a). In other words, the 40+ acre parcel is split by an AR and PCD zoning boundary. The recordable portion of the Plan depicts no such zoning boundary within the parcel and contemplates use of the entire 40+ acre parcel as a PCD. (R.485a-486a). The plan is thus both inaccurate under SALDO at 503, and at odds with the Township's Official Zoning Map. A PCl) is not permitted within the AR Zoning District. (R. 729a-734a) (tables).

The plan was thus approved on the condition that the "Developer ... correct the Zoning data on the cover sheet and all recording sheets of the Plan to reflect the labeling of the AR

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District." (R.l5a). NWSD contends that the process of delineating a split-zoned boundary is a question of fact that requires public input. The delineation is not subject to review, debate or challenge where the review process was usurped by the Board's conditional approval.

The Property was the subject of a prior subdivision plan (the 2005 Plan) which the Board approved on October 19, 2005. (R.772a). The 2005 Plan was recorded on 3/26/06 at Lehigh County Doc. LD. 7331602. (R.772a).

However, the 2007 plan depicts existing features that do not exist in the recorded 2005 Plan. See, (R. 772a, R. 756a-760a). These new features concern a new or relocated road, Old Packhouse Road, (thereby creating 3 new lots) and the consolidation oflots between a vacated road, Grist Mill Road. (R, 756a-760a). These initial lot configurations are at issue since there is no recorded [mal plan which signifies their approval under the MPC and SALDO. See, (R.252a, R.772a).

The relocation of Old Packhouse Road resulted in the defacto creation of three lots with Tax Identification Nos. 546849477289 (3.687 acres), 546829922719 (9.065 acres) and 546838342969 (40.991 acres). (R.252a). See also, (R.104a) (recording ofaconveyance from Western Lehigh Valley Corp. (WLVC) to the Pennsylvania Department of Transportation (Penn DOT)). At the time of the conveyance, Wal-Mart held equitable title to the subject property, presumably including the property conveyed by WL VC to PennDOT, as it became equitable title owner on August 18,2005, long before the conveyance at issue. (R.90a). Wal-Mart now attempts to circumvent SALDO by reference to a PennDOT Highway map. (R.194a).

NWSD's contentions here are three fold. First, Wal-Mart's reliance upon the Eminent Domain Code is disingenuous in that there was no condemnation and no Declaration of Taking; second, assuming that a deed in lieu of condemnation invoked any protection under the Code,

9

such protection from local regulation is not afforded to PennDOT; and third, Wal-Mart, as then equitable title owner, should not be able to misdirect responsibility to obtain approval as required under SALDO to PennDOT where Wal-Mart was equitable title owner at the time of the conveyance to PennDOT.

With regard to the vacation of Grist Mill Road, by agreement, WL VC, then legal title owner, and North Whitehall Township vacated the portion of Grist Mill Road within the subject property. (R. 120a). The vacation was formalized by agreement dated September 20, 2006. (R.120a). Thereafter, the tracts on either side of Grist Mill road were consolidated and the subject acre parcel was created. (R. 188a).

NWSD contends quite simply that vacation of Grist Mill Road did not remove the preexisting boundary line between parcels. NWSD further contends that the 2005 Plan could not effect consolidation where the boundary along the yet to be vacated Grist Mill Road was not designated as "to be removed." Accordingly, Wal-Mart should be compelled to file a SALDO plan for the consolidation of the two tracts.

As to public or central sewage service, SALDO requires, in part, the name of the provider permitted under the Sewage Facilities Plan adopted by the Township and detailed construction plan drawings of proposed facilities and appurtenances. CR. 599a). Likewise, centralized sewage disposal system designs, plans and construction shall be compatible with the sewage feasibility studies and plans of the Township. (R. 708a).

The proposed project contemplates either the expansion of an existing sewage treatment plant to be acquired by the Lehigh County Authority (LCA) or the construction of a new sewage treatment plant, also to be operated by LCA. (R. 176a). As a precondition, the Pennsylvania

10

Department of Environmental Engineering must approve the Township's pending Sewage Facilities Act 537 plan revision. (R. 176a).

In the interim, the Plan contemplates various interim solutions, such as the use of sewage holding tanks with effluent being trucked to the nearest available sewage treatment facility. (R.l77a). To wit, Wal-Mart committed to install sewage holding tanks to handle not more than 8,000 gallons per day (gpd) from the development. LCA will empty and transport the contents thereof for treatment. (R.177a-180a).

However, the location and details of any such holding tanks have not been determined. (R. 318a-319a, 509a). In fact, whether such holding tanks are to be located onsite has not been determined. (R. 509a). So too, a determination as to the location and details of any required sewage pumping station has not been made. (R. 509a). Mr. Bud Newton, of Newton Engineering testified, "LCA has not completed their design or hasn't proceeded with the design of their facility yet." (R 509a). Holding tanks might be located on site. (R 509a).

Likewise, as to public water, the Plan shall set forth: (1) detailed construction plan drawings of proposed facilities and appurtenances; (2) distances that water lines will have to be extended; and any other appurtenances. (R.709a). A water service letter dated August 16,2007 from the Lehigh County Authority states that the developer, Wal-Mart, will have to install onsite water storage and booster pumping facilities to meet the fire flow requirements of the proposed complex. (R183a).

NWSD contends that where Wal-Mart has not determined how, or even whether, such central sewer and water service may be provided, and cannot further opine as to which components mayor may not be on site, any findings as to the feasibility thereof are unsupported. Conditional approval is thus improper and the plan must be rejected.

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SUMMARY OF ARGUMENT

1. The Court's holding that SALDO does not require a Traffic Impact Study with the

submission of a commercial subdivision is clearly erroneous. SALDO concisely states that "all of the following information and materials listed in this section are required parts of preliminary plans for any land development and any subdivision." SALDO at 5.03. (R.590a) (emphasis added). SALDO makes no allowance so as to excuse the requirement for a traffic study with a commercial subdivision.

The actual or intended uses in a commercial subdivision must be examined. For example, the uses relate to State Highway Occupancy, which defines categories of access based on anticipated traffic volume. See, 67 Pa. Code 441.8. See also, SALDO at Section 5.03Q8. Any interpretation that uses cannot be examined in a commercial subdivision is contrary to the plain language. Quite frankly, an interpretation which redefines a subdivision into something other than land development so as to avoid an examination of use is also contrary to the MPC. See, 53 P.S. §10107.

The within subdivision is more than a blank allocation of land. New roads, a signalized light and related appurtenances are proposed in this subdivision so as to support its anticipated use as a Wal-Mart Supercenter. There can be no finding that the uses are not known.

2. A subdivision plan should be filed ahead or contemporaneously with the within

Plan so as to encompass review of the defacto subdivision and lot consolidation which occurred ahead of the proposed Plan. SALDO precludes the subdivision of any lot absent the approval and recording of a final plan. Any reliance on the Eminent Domain Code so as to excuse SALDO review of the defacto subdivision is erroneous where there was no condemnation. Condemnation starts "only by the filing in court of a declaration of taking". Yet, no notice of taking was filed.

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As a matter of first impression, the Lower Court held that the magic words "deed in lieu" excuses the requirements of SALDO. Assuming that a deed in lieu invokes the Code, protection from local regulation is not afforded to Penn DOT. See, Act of July 13, 1987, No. 1987-60, 1987 53 P.S. §65762. Finally, Wal-Mart, should not be able to misdirect responsibility for SALDO approval where Wal-Mart was the equitable title owner of the subject property at the time of the conveyance to PennDOT.

3. A condition of approval which requires Wal-Mart to correct the zoning data on

the Plan is an abuse of discretion where the correct data is unknown at the time of the approval. The condition permits the applicant to avoid scrutiny over substantive portions of the Ordinance. A condition is improper where the condition is void of any factual determination, which can only be determined later by the applicant. The condition circumvents the planning process. The MPC provides no mechanism is challenge an alleged fulfillment of a condition of approval.

4. The plan contemplates use of public sewer, the method, manner and location of

which has not been determined. Further unknown is whether the contemplated method will be consistent with the Township's Act 537 Plan, as a pending revision has not been approved by the Pennsylvania Department of Environmental Protection. Quite simply, Wal-Mart, has yet to determine exactly how central sewer service is to be provided. The same is true for public water.

Much like the foregoing failure to determine the zoning boundaries within the split-zoned parcel, the Plan relies upon half-baked concepts for sewer and water. The surrounding details cannot be ascertained. Yet, the Board conditioned approval upon meeting SALDO. The condition is nothing more than a "will comply" which again usurps public review.

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ARGUMENT

1. The Preliminary Plan must be rejected because Wal-Mart failed to provide a

Traffic Impact Study as clearly required under SALDO. No plain reading of SALDO can

excuse the necessity of a Traffic Study during the preliminary planning phase for the

commercial subdivision at issue herein.

Section 5.03, the preliminary plan requirements under SALDO, states that all of the

following information and materials listed in this section are required parts of preliminary plans

for any land development and any subdivision. SALDO at 5.03. (R.590a). Thereafter, Section

5.03Q lists any preliminary plan to include "Traffic Impact Analysis and Report" CR. 605a).

Section 5.03Q then incorporates Appendix E. CR. 692a).

In her decision, Judge McGinley ignored the dictates of Section 5.03 which sets forth the

material components of any preliminary plan. In so doing, Judge McGinley relied upon an

incomplete reading of SALDO and instead focused on an undefined word in the appendix, i.e.

projects.

E.01 begins as follows:

All subdivision and land development projects shall be evaluated to determine the impact of traffic which they generate on the Township's overall highway system. This requirement shall apply to all new subdivisions or land developments proposed and to any expansion of an existing land development. The level of traffic impact shall be determined based on the estimated Trip Ends generated by the proposed uses in the subdivision or land development

SALDO at E.01. (R. 692a).

E.02 requires that:

Any proposed subdivision which has an estimated ADT in excess offive hundred (one singlefamily residence = 10 ADT) and all land developments and expansions of land developments regardless of estimated ADT shall be consider to have a Major Traffic Impact, and shall be treated hereafter as a

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At/ajar Traffic Impact Project. A Major Impact Trafjic study shall be preparedfor every Major Traffic Impact Project, unless the Supervisors determine that a study is not required In lieu of the study, the Supervisors shall request a monetary contribution to the township Traffic Impact Study Account. The amount of the contribution will be determined by the Supervisors and will approximate the cost of the study, had it been required.

Id. at E.02. (R. 692a).

By Judge McGinley's reasoning, the foregoing would not apply to any commercial

subdivision. Stating that commercial uses are not lrnown at the time the lots are configured,

McGinley discounts the mandate which requires a TIS for "any proposed subdivision ...

[considered] to have a Major Traffic Impact." E.02 does not distinguish between subdivision

and land development as it pertains to traffic. Nor does E.02 distinguish between a residential or

commercial subdivision as they pertain to traffic, albeit that E.06 defines 10 ADTs as equivalent

to one single family residence.

Moreover, E.06 prescribes:

The Major Impact Traffic Study shall be reviewed by the Supervisors, Planning Commission and the Township Engineer in connection with the preliminary stage of the subdivision and land development review process ... The Supervisors shall not approve any proposed major or minor subdivision, land development or expansion of land development if it determines that any trafjic problem to be created by the proposed subdivision, land development or expansion thereof cannot be adequately alleviated by the developer.

SALDO at E.06. (R. 695a).

Again SALDO notes the conjunctive, preliminary stage of the subdivision and land

development review process but goes on to bar approval of either absent a determination vis-a-

vis traffic problems. SALDO provides no relief for commercial subdivisions, regardless of uses.

Noteworthy, Judge McGinley did not find any applicable section in SALDO which

differentiates review of a commercial subdivision from that of a residential subdivision as each

deals with traffic. The exact words in SALDO do not exist. Judge McGinley opined rather that

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the Board reasoned a distinction to exist. "The Board reasoned that for a commercial property, the traffic study occurs during the land development phase of the project when the use of the development is known and the traffic impact can be calculated." (Appendix B) (R. 249a).

SALDO does, however, differentiate or separate out all other uses from certain residential uses. (R.601a). SALDO 5.011 (hereinafter, "Section J") sets additional criteria for uses other than residential single family detached or twin dwellings. (R.601a). Such uses would encompass the commercial use at issue. Section J defmes which uses are to be treated differently but does not define a different treatment for traffic with the commercial use at issue. Yet, Wal-Mart contends a different treatment for traffic not specified for their intended commercial use.

Consider the absence of Section 1. The differentiated requirements therein would be void.

So here, Wal-Mart cannot "reason" different treatment to exist for its commercial use where such treatment is not specified under the Ordinance. Had the drafters intended to differentiate the requirements of a traffic study for a commercial subdivision as apart from residential, they would have designated different treatment, as was done with nonresidential uses for parking, lighting, outdoor storage and exterior decor under Section 1. (R. 601a).

NWSD concedes that the Board has deference in interpreting its ordinances and might interpret the undefined term, project. However, the Board may not interpret its ordinance in a way contrary to the plain terms under the Ordinance. Consider the following analogy.

Undisputed is SALDO's requirement for a Traffic Impact Study for a residential development. (R. 223a) . To wit, Wal-Mart states, "the only instance where a subdivision creates a use and requires a traffic review as part of the subdivision process is in the instance of a residential subdivision which is not subject to land development approval." (R. 223a).

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Following Judge McGinley's logic, the Board could thus "reason" an interpretation under SALDO which excuses the requirement for a traffic study applicable to vacation homes. Vacation homes are vacant in excess of 6 months and have no associated actual "use" for the greater part of a year. Average Daily Trips or ADT will be less than that envisioned under SALDO E.02 for a single family home. A reasonable conclusion could excuse the requirement of a traffic study for vacation homes. Unfortunately, such an interpretation would run afoul of the plain text of the Ordinance. As plainly stated, the Ordinance requires traffic review "for any land development and any subdivision".

Moreover, the artificial distinction between land development and subdivisions or between categories of subdivisions under SALDO is plainly contrary to the Pennsylvania Municipalities Planning Code. The MPC defines Land Development to include "the division or allocation ofland or space, whether initially or cumulatively, between or among two or more existing or prospective occupants by means of, or for the purpose of streets, common areas, leaseholds, condominiums, building groups or other features." 53 P.S. §10107. A division or allocation ofland is exactly the situation here, i.e., a subdivision, whether residential or commercial.

The MPC specifically defines land development so as to include any subdivision of land.

Id. A virtually identical definition is found in NWrS SALDO, which incorporates the definition under the MPC, as lawfully amended. SALDO at 2.02 (R.565a-566a). Of course, an amendment which runs contrary to the MPC could not be lawful, hence the quandary at issue here.

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Wal-Mart conceded that no traffic study or TIS was submitted with its proposed new

subdivision. (R. 493a). When asked directly on point, Mr. Newton, on behalf ofWal-Mart

answered:

Question:

... Let me just ask you a vely simple question. Have you done a traffic impact study, one within the last year?

Newton:

Yes.

Question:

Has it been submitted?

Newton:

No, it has not.

Question:

... You will agree this is tonight, a subdivision, will you not?

Newton:

This is a subdivision, yes.

Id.

In fact, Wal-Mart, conceded that the subject Plan would impart a Major Impact

situation as defined in Appendix E. (R. 497a). Likewise, Wal-Mart made no monetary

contribution, such that the absence of a TIS might be excused under SALDO. (R. 498a).

In interpreting provisions of a municipal ordinance, undefined terms must be given their

plain, ordinary meaning. See, 1 Pa. C.S. Sec. 1903(a). See also, Patricca v. Zoning Board of

Adjustment, 527 Pa 267,590 A.2d 744 (1991) (stating that the provisions of the Statutory

Construction Act should be followed in construing local ordinances). "Words and phrases shall

be construed according to rules of grammar and according to their common and approved usage;

.... " 1 Pa.C.S.A. Sec. 1903(a).

"When the words of a statute are clear and free from ambiguity, the letter of it is not to be

disregarded under the pretext of pursuing its spirit." 1 Pa.C.S.A. Sec. 1921(b). Here, SALDO

provides expressly:

18

The Major Impact Traffic Study shall be reviewed by the Supervisors, Planning Commission and the Township Engineer in connection with the preliminary stage of the subdivision and land development review process ... The Supervisors shall not approve any proposed major or minor subdivision, land development or expansion of land development if it determines that any traffic problem to be created by the proposed subdivision, land development or expansion thereof cannot be adequately alleviated by the developer. "

(R. 695a) (emphasis added).

Although one must "listen attentively to what a statute says ... One must also listen

attentively to what it does not say." Kmonk-Sullivan v. State Farm Mut. Ins. Co., 567 Pa. 514,

525, 788 A.2d 955, 962 (2001). Here the Ordinance makes no exception for commercial

subdivision. The Board has no power to insert words, such as, commercial subdivision, where

the legislative body has failed to supply it. See, Vlassic Farms, Inc. v. Pa. Labor Relations Bd,

734 A.2d 487,491 (Pa. Cmwlth., 1999), aff'd, 565 Pa 555, 777 A.2d 90 (2001). See also, Grigis

v. Bd. of Physical Therapy, 859 A.2d 852, (Pa. Cmwlth., 2004) (stating we may not insert a word

the legislature failed to supply in a statute).

SALDO does not speak to commercial uses being set apart from residential uses so as to

excuse the review of traffic criteria. An interpretation to the contrary under the guise that

commercial uses are not known until land development runs afowl of SALDO in sections not at

issue.

Consider State highway occupancy which is required under SALDO. Section 5.03Q8.

requires that "access to State Highway (sic) shall be authorized by a Highway Occupancy Law

(36 P.S. §670-420, as amended) before driveway access to a State Highway is permitted.

The Pennsylvania Code defines categories of occupancy based on uses. See, e.g., 67 Pa.

Code 441.8, (defining categories of access to State Highways: low volume, medium volume, and

high volume). By illustration, the Code defines a high volume driveway as one which exceeds

19

1500 vehicles per day and often contemplates signalization. 67 Pa. Code 441.8. The codified example includes a shopping center. So too, the present subdivision contemplates a shopping center and signalized traffic light. Clearly, uses are known and anticipated! The precept that uses are not known or anticipated here is fictional. Wal-Mart's argument must fail.

20

2. Approval is improper where the plan and property in question were premised upon

a prior subdivision and consolidation, which were themselves not subject to the planning process as required under the MPC and SALDO. Where Wal-Mart was the equitable title

.. owner of the property at the time in question, Wal-Mart should be compelled to file the requisite plan for its defacto subdivision and consolidation before preceding with the within plan.

At issue herein is the status or legality of an underlying subdivision or "lots" created by the relocation of Old Packhouse Road and a defacto "lot" arguably created by the vacation of Grist Mill Road. Although distinct, both issues implicate the same provisions ofthe MPC and SALDO.

The word "lot" is defined in the Pennsylvania Municipalities Code as "a designated parcel, tract or area ofland established by a plat or otherwise as permitted by law and to be used, developed or built upon as a unit," 53 P.S. §10107. The word 'lot' is further defined in SALDO as "a contiguous separate parcel of land that is recorded or that will be recorded after Township final subdivision approval in the office of the County Recorder of Deeds. A parcel under common ownership shall be considered to be one tract but two lots." SALDO at 2.02. (R.566a). (emphasis added).

SALDO provides that "no subdivision ... or any lot, parcel or parcel ofland shall be made, and no street, sanitary sewer, storm sewer or water main ... or other improvements in connection therewith shall be constructed, initiated or dedicated for public use. .. except in conformance with this Ordinance." The Ordinance further precludes the subdivision of any lot absent the approval and recording of a final plan. SALDO at 103B (R.552a).

21

A Lot line adjustment involves the relocation or deletion of lot lines such that no new lots and no additional streets will be created, no new land development will be proposed and the newly configured lot will not create any non-conformities with the Township's ZOo SALDO at 2.02. (R. 567a). As with any subdivision, lot line adjustment, including lot consolidation, requires Board review and approval. See, SALDO at 7.02. (R.619a).

The 2005 Plan purported to create the subject 40 acre parcel as an amalgamation oflots lA, 2A and the former Lot 3, then separated by Grist Mill Road, which had not yet been vacated. CR. 772a). Although Grist Mill Road was marked as "to be vacated", the boundary dividing lots 1A and 2A remained. This division was clearly indicated in the 2005 Plan.

The vacation of Grist Mill Road occurred by agreement dated September 20, 2006, nearly one year after final approval of the 2005 Plan. CR. 120a). A deed of consolidation was recorded in the Lehigh County Office of the Recorder of Deeds by WL VC on October 18, 2006 at Doc. l.D. # 7374874. (R. 188a). Thereafter, the boundary dividing lots 1A and 2A were removed. County property tax records were amended to reflect one approximately 40.6125 acre parcel under Lehigh County PIN 546849119262. See, (R. 100a). However, no plan reflecting the actual consolidation was ever recorded as none exists.

Halderman is illustrative. See, Springfield Township v. Halderman, 840 A.2d. 529 (Pa.

Cmwlth.,2004). In Halderman, the Haldermans, by a single deed, acquired real property consisting of two tracts of land (Tract 3 and Tract 4), each having its own distinct legal description. Id., at 529. Thereafter, without seeking subdivision approval from the Township, the Haldermans deeded Tract 3 and Tract 4 to themselves via two separate deeds. Id. The Township argued that Tracts 3 & 4 merged, and thus, the reconveyance to the Haldermans by two separate

22

deeds constituted an illegal subdivision. The Court held that two lots of land that were historically separate did not merge into one lot when landowners acquired them in one deed.

Likewise here, there is no subdivision plan reflecting final approval for the consolidation oflots lA and 2A as depicted in the 2005 Plan but thereafter consolidated. Contrary to that asserted by the Trial Court, there is no visible indication evident on the 2005 plan which can purport to remove the lot line between lots lA and 2A. See, (R.772a).

In a twist of words almost acknowledging the foregoing, Judge McGinley wrote of the 2005 plan, "the vacation of Grist Mill Road would obviously result in the removal of any barrier to the consolidation of the lot lA and lot 2A" but did not herself find that the lots were, in fact, consolidated. See, (Appendix B) (R. 252a). Erstwhile, a future consolidation may have been envisioned, none was effected. Accordingly, the subject subdivision must be denied until a consolidation plan upon which the current plan is based is likewise reviewed and approved. SALDO mandates this.

By deed dated November 21, 2006, WLVC conveyed, in fee simple, portions of Lot 1, the former 81 + acre contiguous parcel as depicted in the 2005 Plan, to the Commonwealth of Pennsylvania. Thereby, WL VC created three distinct lots identified as PIN Nos. 546849477289 (3.687 acres), 546829922719 (9.065 acres) and 546838342969 (40.991 acres). Again, no subdivision plan approval is on record.

The vacation agreement vacated only that portion of Grist Mill Road within the subject property. The agreement states that WL VC, as "owner of an area designated as Relocated Old Packhouse Road, ... agreed to convey to the Township (or to the Department of Transportation if so directed by the Township) to enable the existing Old Packhouse Road to be relocated to the

23

area designated on such Minor [2005] Subdivision Plan." 1 The exact area to for the Relocated

Old Packhouse Road was set forth in a highway map filed and revised by the Pennsylvania

Department of Transportation (PennDOT) and referenced in the conveyance from WL VC to

PennDOT at Doc LD. 743031. The deed from WL VC to PennDOT dated November 21, 2006

and recorded at Doc. LD. 7430031 states that the conveyance was in lieu of condemnation.

While loathe to hold the Department of Transportation with the responsibility to comply

with local land use ordinances, the lower court equated the amicable surrender ofland to a

condemnation. Plainly there was no condemnation.

Condemnation starts "only by the filing in court of a declaration of taking with the

security required." Clearly, no notice of taking was filed. PennDOT did not condemn the

property for the relocation of Old Packhouse Road, a Township Road.

Old Packhouse Road was relocated by the vacation agreement between North Whitehall

Township and WLVC, presumptively with approval from Wal-Mart, as then equitable owner.

The agreement states that Grist Mill Road is "narrow at spots making it difficult for vehicles to

pass" and will serve no useful purpose upon the relocation of Old Packhouse Road. (R.121a,

127a).

PennDOT was not a party to the agreement between WLVC/Wal-Mart and NWT. To say

that the conveyance to PennDOT was "in lieu" of the Department's taking where WLVC

obligation to convey the property to the Department occurred in an agreement wherein PennDOT

was not a party simply defies logic. Quite simply, there is no evidence that PennDOT would

have proceeded with condemnation absent the amicable surrender of land. A state highway plan

I The 2005 Plan further depicted generally a proposed indefinite area for "Relocated" Old Packhouse Road. Its exact location, by metes and bounds, etc., was not indicated except to be located generally within a portion of the contiguous 81 acre parcel or Lot 1.

24

merely indicates authorization to condemn property for a highway. The filing of any PennDOT

highway map is merely general public notice that the subject land might be condemned.

Assuming, arguendo, that a condemnation took place, courts have held Commonwealth

agencies subject to municipal land use regulations. See, e.g., Dept. of General Services v. Ogontz

Area Neighbors Assoc., 505 Pa. 614,483 A.2d 448 (1984) (finding the Department of Public

Welfare's exercise of statutory authority to acquire property for use as facility for mentally

handicapped was subject to city's zoning scheme); Dept. of General Service v. Board of

Supervisors of Cumberland TO\Vl1ship, 795 A.2d 440 (Pa. Cmwlth., 2002) (upholding the

Township's denial of a preliminary land development plan under the pending ordinance

doctrine); Kee v. Pa. Turnpike Comm., 743 A.2d 546 (Pa. Cmwlth., 1999) (holding via

summary judgment that expansion of a turnpike service plaza was subject to the requirements of

township's zoning and land use ordinances); Hazleton Area School District v. Zoning Hearing

Board of Hazle Township, 566 Pa. 180, 778 A.2d 1205 (2001) (holding that school district's

statutory authority to rent its recreational fields for baseball games had to be exercised

consistently with local zoning regulations); But See, Dept. of Transportation v. DiMascio, 512

Pa. 625,518 A.2d 258 (1986) (upholding preemption under Section 702 of the Pennsylvania 2nd Class Township Coder'; DIan v. Pa. Dept. of Corrections, 534 Pa. 90,626 A.2d 533 (1993)

(finding legislative intent to override local zoning ordinances for a property's use as a

correctional facility); Pacurariu, et al. v. Pa. Game Commission, 744 A.2d 389 (Pa. Cmwlth.,

2000) (upholding preemption under Sec. 721 of the Pa. Game and Wildlife Code).

Whether a state agency might be subject to the regulations of a local municipality

requires an examination of the legislative intent, the purpose for which agency and municipal

2 The relevant section of the 2nd Class Township Code under which this ruling was based was repealed by Act of July 13, 1987, No. 1987-60, 1987 53 P.S. § 65762). See also, 53 P.S. 66506.

25

powers were created, and the facts of the individual case to determine which statutory power must prevail. See, Ogontz, 505 Pa, 614, 625,483 A.2d 448, 454. "When there is an apparent conflict in the use of land use powers we must look to the intent of the Legislature to determine which exercise of authority is to prevaiL" ld., citing City of Pittsburgh v. Com. , 468 Pa, 174, 182,360 A.2d 607,612 (1976).

A grant of the powers of eminent domain does not invariably indicate legislative intent that the state agency may act without regard for local zoning regulations. Ogontz, 505 Pa. at 626, 483 A.2d at 454. To the contrary, the Pennsylvania Supreme Court expressly overruled the proposition that the grant of eminent domain powers to a state agency may be taken as an indication of legislative intent that the state agency may override local zoning regulations. Jd.

PennDOT is subject to municipal regulation. The statutory basis under Section 702 of the Pennsylvania 2nd Class Township Code supporting preemption in DiMascio was repealed. (Act of July 13, 1987, No. 1987-60,198753 P.S. §65762). The corporate powers ascribed to Supervisors in Townships of the Second Class include the "promulgation and adoption of any ordinances, bylaws, rules and regulations not inconsistent with or restrained by the Constitution and laws of this Commonwealth necessary for the proper management, care and control of the township and its finances and the maintenance of peace, good government, health and welfare of the township and its citizens, trade, commerce and manufacturers." 53 P.S. §66506.

WL VC conveyed a portion of its property to PennDOT and thereby created an illegal subdivision. At the time of conveyance, Wal-Mart was the equitable owner of the subject tract through which the road was laid out. Presumptively, Wal-Mart has some complicity, or at least consented, in the laying out of Old Packhouse Road through its parcel. Nonetheless, the lower

26

Court's holding permits Wal-Mart to avoid the application of SALDO by placing sole

responsibility for compliance therewith upon the innocent grantee.

As to land use planning, the MPC enables "a governing body of each municipality to

regulate subdivisions and land development within the municipality by enacting a subdivision

and land development ordinance. The ordinance shall require that all subdivision and land

development plats of land situated within the municipality shall be submitted for approval to the

governing body" 53 P.S. §10501.

The de facto subdivision created by the relocated Old Packhouse Road is an integral

component of the within subdivision and without which the Wal-Mart Supercenter could not be

built. The ZO provides that "no lot in the PC District intended to be developed under the optional

regulations of the C District, shall have any vehicle access or egress directly from or to the lot

from or to a major arterial street, except at a location served by an existing traffic signal." ZO at

308.E.2.3 It is the planned signalized light at the intersection of Route 309 and the relocated Old

Packhouse Road by which this subdivision is presented.

By virtue of their oath, Supervisors have a duty to perform the duties oftheir office with

fidelity. 53 P.S. §65502. Thus, enforcement of the provisions of SAL DO is mandatory and the

failure to do so constitutes an abuse of discretion.

Modifications and exceptions to SALDO may not be granted absent "proof of an

unnecessary hardship ... presented to the planning commission by the developer and all requests

for modification shall be in writing, accompany and be part of the application for plan approval. .

. . The request for an exception shall be reviewed at a public meeting of the Supervisors, which

shall make findings of fact consistent with the goals of the Comprehensive Plan and the intent of

3 The ZO does permit, under certain circumstances, a clearly defined right-hand tum only entrance or exit onto a major arterial street. ZO at 30S.E.2.a.

27

this Ordinance." SALDO at 1.07. No such request or finding is ofrecord herein. Accordingly the Plan should be denied.

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3. The condition of preliminary approval which requires the identification of lands

outside the permissible zoning district is improper because the MPC provides no

mechanism to challenge the fulflllment of the condition and the condition itself is not

ministerial or within the jurisdiction of an outside agency.

The subject parcel lies both in the PCD and AR Districts. In other words, the 40+ acre

parcel is split by the Agricultural Rural and Planned Commercial zoning districts. A portion of

the subject parcel lies in the PCD District while the remainder resides in the AR District. Yet,

Planned Commercial uses are not permitted in the AR District. ZO at 306.B.

At the time of conditional approval, that portion of subject land which resided in the AR

District had not been determined. The recordable portion of the Plan depicts no such zoning

boundary within the parcel and contemplates use of the entire parcel as a PCD. The plan is thus

both inaccurate under SALDO at 503, and at odds with the Township's Official Zoning Map.

Question:

Newton:

Question:

Newton:

Question:

Newton:

Question:

Newton:

Do you know approximately the size of that area?

It is slightly above an acre.

Doesn't it show 294.16 by 259.88?

Yes, it does.

And my calculations, tell me if I am wrong, that comes to 74,446 square feet or approximately 1.755 acres?

An acre is approximately 220 by 220. That is above one acre.

So you really don't have the exact dimensions for the Board tonight?

The metes and bounds of that are outside part of the lot is not part of the plan.

29

Question:

You don't have the exact size/or the board? ... YOli showed the metes and bounds on one side; there is no dimensions on the other two sides, are there?

Newton:

It is not all there.

Question:

That portion a/the tract, what is it zoned?

Newton:

It is zoned AR.

(R.479a-481a)

Nonetheless, the Board granted approval, in part, on the condition that "Developer ...

correct the Zoning data on the cover sheet and all recording sheets of the Plan to reflect the

labeling of the AR district." In so doing, the Board circumvented the review process as it pertains

to the determination of the area subject to the provisions of the AR district, and the impact of the

included AR district in relation to the other relevant aspects of the plan. The Board simply

concluded that the relabeling had no substantive effect, a conclusion also not supported by

substantial evidence. The defect is fatal to Plan approval.

NWSD recognizes that conditional approval is often appropriate in subdivision and land

development matters. However, each matter is fact specific. In the SALDO, the exact zoning

boundaries and tract sizes are required for subdivision. This is important as it affects numerous

items in the land development such as lot size, buffers, impermeable area, uses, and a variety of

other matters.

Normally, a condition of approval is based upon objective or predetermined criteria, such

as adding a descriptive note to the plan or correcting a mistake on the plan. Other conditions may

require the applicant to obtain a permit or approval from a third party agency such as DEP or

PennDOT, a process outside of the Board's jurisdiction.

30

Third party agency approvals have their own procedures for objections, hearings, and a

manner to contest the same. Whereas here, there is no method or manner under the MPC to

contest the municipality's determination that the condition of plan approval was been complied

with.

As to the zoning district boundary, the ZO provides as follows:

Thefollowing rules shall apply where uncertainty exists as to boundaries of any district as shown on the Zoning Map.

A. District boundary lines are intended to follow or be parallel to

the center line of street rights of way, streams and railroads, and lot lines as they existed on a recorded deed or plan of record in the County Recorder of Deeds' office at the time of adoption of this ordinance, unless such district boundary lines are fixed by dimensions as shown all the Official Zoning Map.

B. Where a district boundary is not fixed by dimensions and

where it approximately follows lot lines, such boundary shall be construed to follow such lot lines unless specifically shown otherwise.

C. The location of a district boundary on un-subdivided land or

where a district boundary divides a lot shall be determined by the use of the scale appearing on the maps unless the same is indicated by dimensions.

ZO at Sec. 304.A-C

The application of the scale appearing on the Official Map is an engineering detail, a

technique requiring proper application subject to public scrutiny. Proper application is also not

void of legal interpretation. For example, where a zoning boundary roughly followed a road

since vacated, does the district boundary lie in the center, far or near edge of the vacated road?

The proper designation of a zoning boundary, and, in particular, a boundary which is not set

forth by dimension and which does not follow any pre-existing lot line, is not a clerical task.

Turning then to the facts in the case at bar, the determination of the ARJPC zoning line

dividing the tract ofland is a complex calculation under the ZOo See, ZO at Section 304. To

conditionally approve the plan by letting the developer determine the location of the line (which

31

affects uses and therefore zoning tract sizes) removes the same completely from public scrutiny and review. Further, the Township's approval of the meeting of the condition cannot be challenged

The condition herein, that the "Developer ... correct the Zoning data on the cover sheet and all recording sheets of the Plan to reflect the labeling of the AR district" undercuts the obligation of the Zoning Officer to interpret the boundary and render a determination, by which a party might object to the determination. The condition thus permits the applicant to avoid scrutiny over substantive portions of the Ordinance.

So as to comply with due process and allow objectors the right to challenge or participate in the determination of the location of the zoning boundary, the condition should have been worded like a third party agency approval. By way of illustration, the plan could have been conditioned upon Applicant defining the zoning boundaries on the plan subject to the Zoning Officer's formal approvaL The Zoning Officer's determination could thus be appealed under the MPC to the Zoning Hearing Board. The objector's right to contest the determination would be preserved. In contrast here, the applicant was simply required to submit "corrected zoning data" on the recordable sheets.

As can be seen from the above, a critical element of the subdivision plan has been left to the developer to determine, the Township to solely determine if the condition is complied with, and no right of the objectors to contest the same.

Erstwhile "there is nothing in the MPC or case law to suggest that conditional approval, rather than outright rejection, must be granted where a proposed plan fails to comply with objective, substantive provisions of a subdivision ordinance, ... where the objections concern

32

fundamental defects in the plan ... rejection is appropriate." Herr v. Lancaster County Planning Com'n., 155 Pa. Cmwlth. 379, 625 A.2d 164 (1993).

It is submitted that where a condition of approval requires something more than merely an administrative action, due process requires a means to contest the same. In a split-zoned tract, the zoning boundary is not defined by metes and bounds. The Zoning Ordinance has its own formula to try to calculate its exact location through the tract. This is the underlying basis for the objection to such a condition. The zoning boundary running through the tract is not merely an objective, administrative act but a subjective calculation. This condition requires calculations, judgments and application of the procedures set forth in the ZOo Accordingly, it is not a black or white issue but one subject to dispute. To use conditions in such a way is unfair, improper and violates due process as there is no means to contest the same.

In other words, how can you make something a condition when the subject of the condition is not known at the time the condition is made? Taken to its extreme, the Board could simply subject a blank plan to a conditional approval in accord with all terms and conditions of its SALDO. Such a result is absurd.

Whereas the Court in Herr held that "where a preliminary subdivision plan fails to comply with the substantive requirements of the subdivision ordinance, its rejection or conditional approval is within the discretion of the governing body." Herr, Pa Cmwlth at 395, A.2d at 172. The present approval is juxtaposed from that provided in Herr.

Herr concerned lot sizes which were found to be at odds with the township's zoning ordinance. The present case, however, deals not with a fixed fact, but rather the absence of any factual determination vis-a-vis a zoning boundary. The condition that the boundary be designated

33

thus amounts to a promise to comply with the ordinance, whatever the dictates might be. In

essence, the condition circumvents the planning process.

By way of analogy, consider a preliminary plan which purports to create a square

landlocked tract within a larger parcel, and in such a manner which clearly contravenes SALDO.

Consider also an approval by which the preliminary plan is approved subject to the condition that

the preliminary plan meets all the conditions of SALDO. The MPC does not explicitly provide

for the public challenge to an asserted fulfillment of a condition of approval. Rather, the MPC

provides for public challenge to the condition itself. See, 53. P.S. 11003-A.

Here, the Board conditioned the plan on nothing more than a "will comply". In so doing,

the Board usurped the process by which compliance is subject to public review, leaving an

appeal of the condition under the MPC as an objector's only recourse."

This condition is not one subject to the jurisdiction of outside agency or one which

pertains to a mere minor defect. Rather, this condition requires multifaceted determinations

including, but not limited to, that dimension of the area ofland within the AR district, principal

uses within the appropriate zoning district and minimum lot area with respect to the principal

use. The Ordinance places the responsibility for such determination upon the Zoning Officer and

the Board. Because the condition fails to recognize the substantive ill-effect which may arise

from an improper designation of the zoning boundary, the condition demonstrates the Board's

abuse of discretion. Further, because the MPC recognizes no mechanism for the public to

challenge the fulfillment of the condition which purports to address the major defect, the

condition must fail5.

4 The MPC provides an appeal period of30 days from entry ofa decision 53 P.S. 11002-A (emphasis added).

5 The notice and appeal provisions of the MPC are intended to protect affected landowners and aggrieved persons. See, e.g. 53 P.S. 11 003-A (pertaining to review of decisions rendered).

34

4. The Plan must be rejected where the Plan does not provide the details, location and

method of proposed onsite public sewer as required under SALDO and where such proposed sewer is both undetermined inconsistent with the Township's current Act 537 Plan.

If public or central sewage services are proposed, SALDO requires "detailed construction plan drawings of proposed facilities and appurtenances, proposed lot lines and any proposed easements or rights of way needed for the utilities." SALDO at 503.H. (R. 599a). Likewise, centralized sewage disposal system designs, plans and construction shall be compatible with the sewage feasibility studies and plans of the Township. SALDO at Appendix H.O 1. (R. 708a).

Judge McGinley noted no dispute. "Such substantive provisions have not been met." (Appendix B) (R. 257a). To wit, the Board granted conditional approval. Again, objectors are left with a "will comply", a condition through which there is no process for review and challenge, i.e., a process which usurps the MPC. At issue are the quite serious components of public sewage and public water.

As to public sewer, the proposed plan contemplates either the expansion of an existing sewage treatment plant to be acquired by the Lehigh County Authority (LCA) or the construction of a new sewage treatment plant, also to be operated by LCA. (R. 176a). However, LCA service is contingent upon all of the following:

1. Pennsylvania Department a/Environmental Engineering (PaDEP) approval a/the Township's Act 537 plan revision;

2. DEP issuance a/permits/or the construction of the new Jordan Creek sewer plant;

35

3. Execution of an acceptable sewer service agreement between Wal-Mart

and the Authority; and

4. Non-termination of the 26 June 2006 acquisition agreement between

KidsPeace and the Authority.

CR. 176a).

In the interim, the Plan contemplates using sewage holding tanks with contents trucked to

the nearest available treatment facility. To wit, Wal-Mart committed to install sewage holding

tanks to handle not more than 8,000 gallons per day (gpd) from the development. CR. 176a,

179a).

The proposed holding tanks and other interim facilities may be onsite but their location

has not been determined. When asked about holding tanks, Mr. Newton responded as follows:

Question:

Newton:

Question:

Newton:

Question:

Newton:

Question:

Newton:

Question:

Newton:

Might the holding tanks be onsite?

If that is what is decided

So you don't know yet?

No, 1 don't know yet.

(R. S09a).

And when the holding tank gets full, what happens?

It's pumped and hauled to the Lehigh County Authority treatment plant in Fogelsville.

So its hauled by truck from the site to a disposal facility?

Yes, that's what the LCA proposed.

And the plans that we've marked - - and you're welcome to come up and take a look at them, 0-2, do these depict the holdings tanks?

No, they do not.

36

Question:

In fact, these plans don't depict any plans for a sewage treatment plant other than a line that basically goes nowhere?

Newton:

They have the conveyance lines.

CR·319a).

Quite simply, the applicant, Wal-Mart, has yet to determine exactly how central sewer

service is to be provided. Absent a detailed showing of how sewer service is to be provided, as

required by SALDO, any finding with respect to conformance with SALDO is unsupported. For

these reasons, the Plan must be rejected.

Without belaboring the argument, a similar situation surrounds proffered public water

service. LeA's service requires "the developer ... to install on-site water storage and booster

pumping facilities to meet the fire flow requirements of the proposed complex." (R. 179a).

SALDO requires detailed construction plan drawings of proposed facilities and

appurtenances and conformance with the official plans of the Township. These are absent,

without which there can be no findings so as to support conditional approval. Although required

in the preliminary phase of a subdivision, the required detail is absent pending "land

development". Rejection is thus necessary.

37

CONCLUSION

For the foregoing reasons, the within Appeal should be GRANTED.

Respectfully submitted,

DIMMICH & DINKELACKER, P .C.

38

NORTH WHITEHALL TOWNSHIP BOARD OF SUPERVISORS NORTH WHITEHALL TOWNSHIP MUNICIPAL BUILDING SEPTEMBER 3, 2008

Chairman Ronald E. Stahley called the meeting to order at 7:00 PM followed by the Pledge of Allegiance to the flag and roll calf. In attendance were Supervisors Ronald E. Stahley, Terry P. Stoudt, Ronald J. Heintzelman, Attorney Lisa Young, Steve Gitch and Secretary/Treasurer Brenda Norder.

APPROVAL OF PREVIOUS MINUTES

Upon motion by Terry P. Stoudt, seconded by Ronald J. Hei ntzelman, the minutes of the following meeting were approved as presented: 1. August zo" Board of Supervisors Minutes. Roll call:

Terry P. Stoudt - yes; Ronald E. Stahley - yes; Ronald J. Heintzelman - yes. There were no public comments on this item.

ANNOUNCEMENTS

1. The annual Senior Activity Day will be held Septem ber 11th at the Schnecksville Fire

Company Pavilion.

2. The Township will be accepting bids for various fuels until 8:45 AM September 1th•

3. The Township Offices will be closed Monday, October'l S'" for the Columbus Day Holiday.

4. Townsh1p trick or treat night will be held on Friday, October 31th from 6-8 PM, with a rain date of Saturday, Novem ber 1 from 6:00 to 8:00 PM.

5. An estimate of the municipal obligation to the North Whitehall Township Retirement Plan will be submitted at a later date. An estimate will be established after the third quarter is complete and the check from the State Pension Aid is received.

6. The Township received an lOP grant check for 1,088,495.00. KidsPeace had made application with lOP Infrastructure Development Program back in 2002 for the NW1/309 project with the Industrial Development Corp of LC. The original grant amount was for 1,250,000.00, $161,505.00 had been received prior.

Supervisor Stahley reported on EPA activities in the Township.

COMMENTS FROM THE AUDIENCE:

Kathy Bryan, 3126 Woodlea Rd., Orefield] asked the Board what would the Township do for future building sites within the arsenic area.

Barbara Deane] 4638 Cortland Dr., Orefield, asked ifWal-Mart property was tested.

Michael Burns, 4922 Shawnee Blvd., Schnecksville, inquired about the Sand Spring Road traffic issue.

Charles Knauss, 3525 Apple Road, Orefield, had follow-up questions about the Sand Spr ing Road intersection.

Wade Haubert, 3730 Apple Rd., Orefield, asked for clarification on the map grid of the arsenic testing area.

Sue Fegley, 5123 Timber Ln., Schnecksville, had follow-up questions about the S and Spring Road intersection.

Janet Dyszel, 5138 Timber Ln., Schnecksville, asked who prioritizes the Rt. 309 projects.

Leo Stanus, 4842 Orchard Rd., Schnecksville, inquired as to where he should deposit his testing authorization letter.

APPENDIX" A"

NORTH WHITEHALL TOWNSHIP BOARD OF SUPERVISORS SEPTEMBER 3, 2008

PAGE 2

TREASURER'S REPORT

Upon motion by Terry P. Stoudt, seconded by Ronald J. Heintzelman, the Treasurer's report was approved as presented and the Treasurer was authorized to disburse checks # 1348-1393. Roll call: Terry P. Stoudt - yes; Ronald E. Stahley - yes; Ronald J. Heintzelman - yes. There were no public comments on this item.

OLD BUSINESS:

REVISED ROUTE 309 TRAFFIC SIGNAL PLANS

Upon motion by Terry P. Stoudt, seconded by Ronald J. Heintzelman, the Board authorized the Chairman to sign revised NW1/Rt 309 traffic signal plans, which will incorporate current ADA requirements. Roll call: Terry P. Stoudt - yes; Ronald E. Stahley - yes; Ronald J. Heintzelm an - yes. There were no public com ments on this item.

NEW BUSINESS:

BAUSCH MINOR SUBDIVISION FINAL

Bernard Telatovich and Richard Bausch presented the Bausch Subdivision Plan to the Board. Upon motion by Terry P. Stoudt, seconded by Ronald J. Heintzelman, the Plan was approved as a Final subject to the following conditions:

1. The Developer shall comply with all of the recommendations contained in the letter from the General Planning Engineer dated August 26, 2008 ..

2. Developer shall comply with all of the recommendations contained in the letter from the Sewage Enforcement Officer dated August 27,2008.

3. The Developer shall comply with all of the recommendations contained in the letter from the Zoning Officer dated August 26, 2008.

4. The Developer shall comply with all of the recommendations contained in the letter from the Traffic Engineer dated July 3, 2008 an d September 2, 2008.

5. The Developer shall comply with all of the recommendations of the Planning Commission Meeting of July 22, 2008.

6. The Developer shall comply with all of the provisions contained in the Planning

Administrator's checklist letter dated August 21 , 2008.

7. The Developer shall contribute $ 200.00 to the Traffic Impact Fund

8. The Developer shall contribute $ 2,500.00 to the Recreation Fund.

9. The Developer shall include the language from the Plan note 4 in the Deed for Lot 2.

Roll call: Terry P. Stoudt - yes; Ronald E. Stahley - yes; Ronald J. Heintzel man - yes. There were no public com ments on this item.

SUNFLOWER APARTMENTS

SKETCH

The Developer, Jeff Johnson, had requested to be taken off the agenda and be placed on the October Workshop agenda.

WAL-MART SUBDIVISION PLAN

PRELIMINARY

Atty. Joseph Bubba and Bud Newton appeared before the Board to answer any follow-up questions that they may have as a result of the August 20,2008 presentation of the Pr eliminary Plan of Wal-Mart Subdivision.

NORTH WHITEHALL TOWNSHIP BOARD OF SUPERVISORS SEPTEMBER 3, 2008

PAGE 3

Waf-Mart continued

Attys. Jeff Dim mich and David Najarian, representing NWS D, asked questions of the Wal- Mart representatives and the Board about, but not lim ited to the following: status of reviews mentioned in the May 7,2008 minutes, regarding the lot to be subdivided, the zoning class ification of part of the tract as AR, reviewed SALDO requirements for traffic studies and sewage disposal is sues and en umerated items that had been placed in evi dence during the Conditional Us e Hearing to confirm that they were on the record.

Comments:

Sue Fegley, 5123 Timber Ln., Schnecksville, asked for clarification on the subdivis ion process.

Wade Haubert, 3730 Apple Rd., Orefield, inquired about traffic impact fees.

Phil Pash, 3625 East View Dr., Orefield, commented on the sewer issue.

Peter Girling, 4657 Scheidys Rd., Coplay, questioned the need for 2 stores in close proximity. Tom Christman, 5118 Shawnee Blvd., Schnecksville, commented on duplication of businesses in the area.

Molly Riley-Cygan, 4235 Route 309, Schnecksville, noted that Wal-mart indicated at the last meeting that they would repeat their presentation which did not happen and asked about Scott Bieber's letter.

Lynn Serfass, 5522 Roberts Rd., Schnecksville, commented on the negative aspects of the Whitehall store.

Chuck Braymar, 3532 Apple Road, Orefield, questioned why the Zoning Officer gave a favorable review and when there was a zoning discrepancy with the AR labeling.

Nina Weiss, 5795 Harvest Pl., Schnecksville, inquired about the 537 Plan proposal. Paul Valtos, 4751 Orchard Rd., Schnecksville, provided the Board with crime statistics.

Janet Dyszel, 5138 Timber Ln., Schnecksville, commented about the importance of the traffic study.

Andy Harakal, 5134 Ancinetta Dr., Schnecksville, implored the Board to reconsider all the facts and delay taking action.

Ron Roth, 5353 Route 309, Schnecksvi lie, warned the opposition members that some of their remarks are discriminatory.

Charles Knauss, 3525 Apple Road, Orefield, noted that the turn out was due to adequate notice and than ked Wal-Mart for the time extension.

Upon motion by Terry P. Stoudt, seconded by Ronald J. Heintzelman, the Plan was approved subject to the foil owing conditions:

1. Developer shall comply with all of the recommendations contained in the letter from the General Planning Engineer dated August 18, 2008.

2. Developer shall com ply with all of the recom mendations contained in the letter from the Sewage Enforcement Officer dated August 14, 2008.

3. Developer shall comply with all of the recommendations contained in the letter from the Zoning Officer dated August 18, 2008.

4. The Developer shall comply with all of the recommendations contained in the letter from the Traffic Engineer dated August 19, 2008.

5. Developer shall com ply with all of the recom mendations of the Planning Com mission Meeting of April 22, 2008.

NORTH WHITEHALL TOWNSHIP BOARD OF SUPERVISORS SEPTEMBER 3, 2008

PAGE 4

Wal-Mart continued

6. The Developer shall comply with all of the provisions contained in the Planning Administrator's checklist letter dated August 7, 200B.

7. The Developer shall correct the Zoning data on the cover sheet and all recording sheets of the Plan to reflect the labeling of the AR portion.

B. The Developer shall submit all traffic impact information for each lot under the Subdivision with the Land Development Plan.

9. The Developer shall provide sanitary sewage treatment as proposed through LeA in accordance with the provider letter previously received.

Roll call: Terry P. Stoudt - yes; Ronald E. Stahley - yes; Ronald J. Heintzelman - yes.

PARADISE ESTATES

REDUCTION OF IMPROVEMENTS ESCROW

Developer Bruce Laub submitted a request for a reduction in his Improvements Escrow Account for Paradise Estates. Upon motion by Ronald E. Stahley, seconded by Terry P. Stoudt, the Board tabled the request until a field inspection could be com pleted. Roll call: Terry P. Stoudt - yes; Ronald E. Stahley - yes; Ronald J. Heintzelm an - yes. There were no public comments on this item.

GATEWAY NORTH RELEASE OF IMPROVEMENTS ESCROW

Upon motion by Terry P. Stoudt, seconded by Ronald J. Heintzelman, the Board accepted the written recommendation of the General Planning Engineer Stephen Gitch, dated September 1, 2008, and a uthorized the release of the rem aining escrow balance in the 1m provements Escrow Account for Gateway North. All outstanding punch-list items have been completed. Roll call: Terry P. Stoudt - yes; Ronald E. Stahley - yes; Ronald J. Heintzelman - yes. There were no public comments on this item.

REQUEST FOR EXONERATION OF DELINQUENT STREET LIGHT TAXES

GH Harris, collector of delinquent street light taxes, has requested exoneration from the collection of the following delinquent street light tax:

Jennifer & Stephen Devore 2714 Levans Rd 2007 $35.00

Upon motion by Terry P. Stoudt, seconded by Ronald J. Heintzelman, the Board granted the request of the GH Harris and exonerated them from the collection of the deli nquent street light tax. Roll call: Terry P. Stoudt - yes; Ronald E. Stahley - yes; Ronald J. Heintzel man - yes. There were no public comments on this item.

REFUND OF TAXES

Upon motion by Terry P. Stoudt, seconded by Ronald J. Heintzelman, the Board approved the request from the Lehigh County Assess ment Office and authorized the Treasurer to refund Township taxes based on a revised assessment for 3B32 Mauch Chunk Road for the following years:

200B $7.B6 total

Roll call: Terry P. Stoudt - yes; Ronald E. Stahley - yes; Ronald J. Heintzelman - yes. There were no public comments on this item.

NORTH WHITEHALL TOWNSHIP BOARD OF SUPERVISORS SEPTEMBER 3, 2008

PAGES

REQUEST FOR EXONERATION FROM COLLECTION OF DELINQUENT R. E. TAXES

Upon motion by Ronald J. Heintzelman, seconded by Terry P. Stoudt, the Board granted the request of the Lehigh County Tax Claim Bureau and exonerated them from the collection of the delinquent real estate taxes for the following property:

4220 Panther Ct 2005/2006 & 2007

Roll call: Terry P. Stoudt - yes; Ronald E. Stahley - yes; Ronald J. Heintzel man - yes. There were no public comments on this item.

AUTHORIZATION TO DISTRIBUTE BUDGETED ALLOCATIONS EMS & SR. CLUBS

Upon motion by Terry P. Stoudt, seconded by Ronald J. Heintzelm an, the Treasurer is authorized to distribute the budgeted allocations to the Service Organizations contingent on the Secretary receiving all required documents and the Senior Citizens. Rolf call: Terry P. Stoudt - yes; Ronald E. Stahley - yes; Ronald J. Heintzelman - yes. There were no public comments on this item.

AUTHORIZED CHAIRMAN TO SIGN RELEASE AGREEMENTS FOR LIENS

Upon motion by Terry P. Stoudt, seconded by Ronald J. Heintzelman, the Chairman is authorized to execute release agreements for liens on Portland Street and Limestone Street properties. Roll call: Terry P. Stoudt - yes; Ronald E. Stahley - yes; Ronald J. Heintzelman - yes. There were no public comments on this item.

Supervisor Stahley announced that the proposed overlay of Route 309 has been can celled due to the price of blacktop.

Richard Getz, 3333 Mauch Chunk Road, Coplay, inquir ed if the Township received a letter from PADOT regarding the procedures to create an Ordinance against 'j ake brakes'.

COMMUNICA TfONS Pesticide Registry Waste News

ADJOURNM ENT

Meeting adjourned at 9:40 PM.

Respectfully submitted,

Brenda Norder, Secretary

v.

NORTH WHITEHALL TOWNSHIP BOARD OF SUPERVISORS,

/~ r-....

IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENN"~YLYP)1f/D) \\

CNIL DIVISION \::::.:::> ~ u if

JEROME JOSEPH and NORTH VilHITEHALL )

FOR SUSTAINABLE DEVELOPMENT, )

Appellants )

) ) ) ) ) ) ) ) )

Case No.: 2008"C-4780

Appellee

vs.

NORTH "WHITEHALL TOWNSHIP and WAL~MART STORES EAST, L.P.,

Intervenors

ORDER

p.(

AND NOW THIS ) '?- day of July. 2009, upon consideration of J era me

Joseph and North Whitehall for Sustainable Development's appeal of the North.

"Whitehall Township Board of Supervisors' conditional approval ofWal-Mart Stores

East, L.P. 's preliminary subdivision plan, the briefs of all parties, argument thereon, and

for the reasons set forth in the accompanying Opinion set out below, IT IS ORDERED

that said appeal is DENIED.

APPENDIX "B"

IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA CIVIL DIVISION

vs,

NORTH VilHITEHALL TOVVNSIDP and W AL-MART STORES EAST, L.P.,

) ) ) )

v. ) NORTH WHITEHALL TOWNSHIP BOARD OF ) SUPERV1S0RS, ) ) ) ) ) )

JERO:ME JOSEPH and NORTH WHITEHALL FOR SUSTAlNABLE DEVELOPMENT, Appellants

Case No.: 2008-C-4780

Appellee

Intervenors

***************************************************

APPEARANCES:

David C. Najarian, Esquire For Appellants

Lisa A Young, Esquire For Appellee

Erich J. Schock, Esquire

For Intervenor Wal-Mart Stores East, L.P.

Lisa A. Young, Esquire

For Intervenor North Whitehall Township

***************************************************

OPINION

CAROL K. McGINLEY, J.

This is an appeal filed by Joseph Jerome and North Whitehall for Sustainable

Development (Objectors) from the preliminary subdivision approval granted by the North

Joseph v. NO/tit Whitehall et al Case No.: 200B-C-47BO

"Whitehall Township Board of Supervisors (Board) on September 3,2008, to Wal-Mart Stores

East, L.P. (Owner) to subdivide a certain forty-acre tract of1and into five lots.

The issues in this land use appeal are: whether a traffic impact study is required for the

preliminary subdivision approval; whether the approved preliminary subdivision plan is

premised on unlawful subdivision and/or consolidation; whether failing to properly identify the

zoning districts on the proposed preliminary subdivision plan required rejection of a preliminary

subdivision; whether the preliminary subdivision plan requirements for sewer and water were

met; and whether the Township's intervention was proper.

The property is located on the west side of Route 309 in North Whitehall Township, Lehigh County (Subject Property). I The Subject Property is currently a vacant undeveloped lot

and is zoned and located part in the Planned Commercial Option District (PC District) and part in

the AgriculturaI- Rural Residential District CAR District). Owner took title to the Subject

Property in December 2006, and initiated a series of applications relating to the Subj ect Property, including the application for preliminary subdivision.i

Following the preliminary subdivision application, a series of public meetings were

conducted by the Township Planning Commission and the Board to review the plans and review

public comments. At the conclusion of the September 3,2008 Board meeting, the Board voted

[ Identified by Lehigh County as PIN 546849] 19262.

1 In addition to the subdivision application, Owner also applied for the following:

(1) Land Development: A land development application seeking authorization to develop the Subject Property as a Wal-Mart Supercenter is pending before the Township.

(2) Use: a conditional use application seeking to Use the Subject Property as a Planned Commercial Development was granted by the Board and is the subject of a separately docketed appeal found at 2008-G4510.

2

Joseph 1'. North Tl1litelwll et a/ Case No.: 2008-C-47BO

to authorize preliminary subdivision of the Subject Property. Objectors filed a timely appeal

against the Board; Owner and the Township intervened.

Owner became an equitable owner of the Subject Property pursuant to a purchase

agreement dated August 18,2005 with Western Lehigh Valley Corp. (\VL VC).

Contemporaneously, WL ve, as legal title owner, filed a commercial subdivision plan, which the

Board approved October 19,2005 (2005 PIan). The 2005 Plan was recorded on March 26, 2006

at Lehigh County Doc. Id., 7331602.

The 2005 Plan purported to create a new Lot 3, i.e. the Subject Property, by combining

three lots, however, the lot remained divided by a property line located at the midline of Grist

Mi1l Road. The plan listed Grist Mill Road as "to be vacated" and on September 20, 2006,

WL ve and Township vacated that portion of Grist Mill Road within the Subject Property.

Although the Toad was vacated, the property line was not removed and no formal consolidation

proceedings were held with respect to the Subject Property.

The 2005 Plan also included an area which was to be conveyed to the Township to

facilitate the relocation of Old Packhouse Road to an area generally designated and approved on

the 2005 Subdivision Plan. The exact location, by metes and bounds. was not indicated. By

deed dated November21, 2006, WLVC conveyed, in fee simple, portions of Lot I (indicated on

the 2005 Plan) to the Commonwealth of Pennsylvania (Lehigh County Register of Deeds at Doc.

Id. 7430031). The conveyance created three distinct lots separated by the now formally

designated «relocated" Old Packhouse Road, however. no recorded subdivision plan is on file

relating to the three lots.

3

Joseph v. North Whitehall et al Case No.: 2008·C-4780

In a land use appeal, where this court does not take additional evidence, its scope of

review is limited to determining whether the local governing body committed an error of law or

an abuse of discretion. In re Thompson, 896 A.2d 659 (pa. Cornrow. 2006).

I. Traffic Impact Study

The Objectors assert that the Board erred in approving the preliminary subdivision plan

absent a traffic impact study. Owner responds that a traffic impact study is not required during

the subdivision phase when reviewing a commercial subdivision project.

A close review of the TOWILShip's Subdivision and Land Development Ordinance (SALDO)

is necessary in order to determine whether a traffic impact study is required for preliminary

subdivision plan approval. SALDO Appendix E has several applicable sections. It provides, in

part:

E.Ol TRAFFIC llVIPACT REQUillEMENTS. All subdivision and land development projects shall be evaluated to determine the impact of traffic which they generate on the Township's overall highway system. This requirement shall apply to all new subdivision or land developments proposed and to any expansion of an existing land development which is proposed after the effective date of this Ordinance. The level of traffic impact shall be determined based on the estimated "Trip Ends" generated by the proposed uses in the subdivision or land development. "Trip Ends" shall be defined as the estimated total number of motor vehicle trips entering and leaving a specific land use or uses located in subdivision or land development per day. These "Trip Ends" will be determined based on the estimated "Trip Generation Rates" for various types ofland uses set forth in the latest edition of the publication entitled "Trip Generation, An Informational Report", published by the Institute of Transportation Engineers.

E.02 DETERlVIINATION OF MAJORfMINOR TRAFFIC IMPACT.

A. Major Traffic Impact. Any proposed subdivision which has an estimated ADT in excess of five hundred (one single family residence = 10 ADT)

4

Joseph v. North Whitehall et al Case No.: 200B-C-4780

and all land developments and expansions of land developments, regardless of estimated ADT, shall be considered to have a "Major Traffic Impact", and shall be treated hereafter as a "Major Traffic Impact Project". A Major Traffic Impact study (Section E.05) shall be prepared for every Major Traffic Impact Project, unless the Supervisors determine that a study is not required. In lieu of the study, the Supervisors shall request a monetary contribution to the Township Traffic Impact Study Account. The amount of the contribution will be determined by the Supervisors and will approximate the cost of the study, had it been required.

B. Minor Traffic Impact. Any proposed subdivision which has an estimated ADT of five hundred or less shall be considered to have a ''Minor Traffic Impact": in which event the owner/developer of the proposed subdivision shall contribute $200.00 per lot to the Township Traffic Impact Study Account. The Supervisors shan have the discretion to require a Minor Traffic Impact project to comply with the requirements of a Major Traffic Impact project, in lieu of the said contribution, if the Supervisors determine that traffic generation in the vicinity of the proposed subdivision warrants such a study.

In examining the SALDO language we apply the rules of statutory construction, which

are applicable to statutes and ordinances. In Re: Appeal a/Thompson, 896 A.2d 659 (Pa

Commw.2006): Like statutes.the primary objective of interpreting ordinances is to determine

the intent of the legislative body that enacted the ordinance. Walck v. Lower Towamensing DVp.,

942 A.2d 200 (pa. Commw. 2008). Statutory construction presumes that the legislative body

does not intend a result that is absurd, impossible of execution or unreasonable. 1 Pa.C.S. §

1922(1); Upper Southampton T.vp. v. Upper Southampton Twp. ZHB, 594 Pa. 58,934 A.2d 1162

(2007). In applying the rules of statutory construction, the letter of the ordinance is not to be

disregarded under the pretext of pursuing its spirit, when words are clear and free from all

ambiguity. Thompson, supra. In addition, a board of supervisors is entitled to considerable

5

Joseph v. North Whitehall et at Case No.: 2008"C-4780

deference in interpreting its ordinances. Caln Nether Co" L.P. v. Bd. of Sup 'rs, Thornbury Twp.,

840 A.2d 484 (Fa. Commw. 2004).

The Board determined that a traffic impact study was not required for the commercial

subdi vision. During argument, the Board reasoned that for a commercial property, the traffic

impact study occurs during the l,and development phase of the project when the use of the development is known and the traffic impact can be calculated.

In reading SALDO Appendix B as a whole, we find that the Board did not err in its

interpretation of this Ordinance. A commercial development requires governmental approval of

both a subdivision and land development plan as part of the same project. It is during the land

development phase of the project that the proposed uses of the property are examined. In

contrast, a residential project is not subject to land development approval; the residential

. subdivision creates the use (residential homes) and therefore requires traffic review as part of the

subdivision process.

This interpretation is consistent with the actual language set forth in SALDO Appendix E. SALDO specifically states, ~11 subdivision and land developmenyrojects shall be evaluated to determine the impact of traffic which they generate on the Township's overall highway system. This requirement shall apply to all new subdivisioGand developments proposed ... " SALDO Appendix E.Ol (emphasis added throughout paragraph). This language mandates traffic evaluation Qnat separate subdivision and land development plans. The next sentence requires the traffic evaluation for either new subdivisions or land

developments, not both.

6

Joseph v. NO/til Whitehall et al Case No.: 2008-C-4780

In addition, the Board's ruling is consistent with the language that provides that the "level

of traffic impact shall be determined based on the estimated "Trip Ends" generated by the

proposed uses in the subdivision or land development." A commercial subdivision plan does not

provide for proposed uses; the proposed uses only come into play during the land development

phase of a commercial development Accordingly, it is logical for the level oftraf.fic :impact to

be determined during the phase of the project in which the proposed uses are expressed, i.e.

during the land development phase. In contrast, the use is definitive for a residential subdivision

plan (as one dwelling unit is placed on each of the lots proposed for the subdivision).· Therefore,

trip ends can be determined based on the number of residential units during the subdivision

phase.

We have applied the rules of statutory construction to the language of SALDO and :find

that the words expressed in Appendix § E.O] are clear and unambiguous. We further find that

the language is consistent with the Board's conclusion that the traffic impact study is deferred to

the land development phase of a commercial land development project and is not required during

the subdi vis! on phase of sucb proj ect.

ll. Legality of Subject Property

The Objectors claim that approval of the plan is improper "where the plan and property in

question were premised upon a prior subdivision and consolidation, which were themselves not

subject to the planning process as required under the Ml'C and SALDO." The Objectors go on

to argue that the relocation of Old Packhouse Road and vacation of Grist Mill Road created lots

which varied from the lots in the approved 2005 Subdivision Plan, and that the creators of the lots were therefore required to receive SALDO approval prior to the creation of the lots.

7

Joseph v. North Whitehall et a/ Case No.: 2008-C-4780

Owner argues that the 2005 Subdivision Plan approved these actions, and that there was

no appeal from that 2005 approval, They further argue that the Eminent Domain Code does not

require the condemnor, in this case PennDOT, to comply with local land development

ordinances.

The facts surrounding this disagreement are as follows: In the 2005 Subdivision Plan, which was approved by the Board on October 19, 2005, and recorded on March 26, 20063, Grist

Mill Road as drawn bisected lots 1A and 2A. TIle 2005 Plan bore a notation stating Grist Mill

Road was "to be vacated".

Old Packhouse Road ran generally along the western boundary of the land to be

developed. However, the 2005 Plan bore a non-engineered and generally descriptive language

showing the relocation of Old Pac1chouse Road to the center of the property to be developed.

The Vacation Agreement to vacate Grist Mill Road states that WL VC as "owner of an area

designated as Relocated Old Packhouse Road, ... agreed to convey to the Township (or to the

Department of Transportation if so directed by the Township) to enable the existing Old

Packhouse Road to be relocated to the area designated on such Minor [2005] Subdivision Plan."

The Vacation Agreement is dated September 20,2006.

After the Vacation Agreement, a deed of consolidation was recorded in the Lehigh County Office of the Recorder of Deeds by VfL VC on October 18,2006.4 The specific

relocation of the road was the subject of the final PennDOTplan entitled ·'SR 309-NWI Right of

Way" which has not been directly challenged for failing to comply with any ordinances,

including MCP and SALDO.

J Lehigh County Doc. Id. 7331602. {Lehigh County Doc. Id, 7374874.

8

Joseph v. NO/til Whitehall et al Case No.: 200B-C-4780

Grist Mill Road:

With regard to the Grist Mill Road vacation, Objectors argue that when the road was in

fact vacated, that the lot line remained. Objectors further argue that the attempt to correct this by

the deed of consolidation required prior SALDO approval. They argue that this is a lot line

adjustment as defined by SALDO and therefore requires approval. Objectors cite Springfield

Twp. v. Halderman, 840 A.2d 528 (Pa, Commw, 2004) as authority, which is a decision based on the principles of merger by operation of law.

As is clearly evident on the 2005 Subdivision Plan, the vacation of Grist Mill Road would

obviously result in the removal of any barrier to the consolidation of the lot IA and lot 2A. The

enactment of this by way of consolidation deed was so clearly and evidently envisioned by the

notation that to require additional SALDO approval would be nonsensical.

Old Paclchouse Road:

The Old Packhouse Road relocation grant to PennDOT resulted in the road being

relocated primarily from the western boundary ofthe tract to bisect the tract. This resulted in the

de facto creation of three lots identified with Tax Identification Nos. as 546849477289

(approximate size 3.687 acres), 546829922719 (approximately 9.065 acres) and

546838342969(approximately 40.991 acres). Objectors say this should have received prior

subdivision approvaL

Owner says that the conveyance from WL VC to PennDOT of the portion of its holdings

necessary for the relocation of Old Packhouse Road was approved by the 2005 Plan and

referenced in the Vacation Agreement. PermDOT Deed dated November 21, 2008, designates

9

Joseph v. North Whitehall et at Case No.: 2008-C-4780

that the conveyance was "in lieu of condemnation" and that it was authorized by a plan recorded

by PennDOT in the Office of the Recorder of Deeds of Lehigh County.

Objectors' argument focuses on whether PennDOT should have received prior approval

for the subdivision. PennDOT is not a party herein, nor is it the owner of the remnant lots which

are the subject of this appeal. Therefore, the cases cited by Objectors are not useful, for they

pertain to PennDOT's use of its own land for development purposes.

The issue is whether the landowner. who is left with remnant lots due to the laying out of

a highway, is required to seek subdivision approval before permitting PennDOT to acquire the

land amicably. We find no persuasive authority for the Objectors' proposition that actions

relating to the establislunent of roads require any additional permitting process, despite any

consequential effect of a change in roadway upon the designation of land boundaries.

Although it does not directly address the issue of remnant parcels resulting from the

laying out of highways, Valley Twp, v. City a/Coatesville, 894 A2d 885 (pa. Commw. 2006). is

instructive. The case holds unequivocally that "nothing in the Eminent Domain Code requires a

filing for subdivision approval either before or after a condemnation."

Commonwealth v. Ogontz, 5050 Pa. 614, 483 A.2d 448 (1984), which has been raised by

Objectors, does nat provide useful guidance. Ogontz holds that the Commonwealth is required to

comply with local land use ordinances in its use of its property. We question whether Ogontz

would apply to the laying out of highways, and we will not be the first court to hold such. More

aptly, though, the issue before us is not whether PennDOT has the obligation to comply with

SALDO in laying out the highway. but whether the landowner is obliged to comply with

SALDO when he amicably surrenders land for the use of a state highway. We conclude not.

10

Joseph v. North Whitehall et al Case No.: 2008-C-4780

Related to this issue, Objectors assert that the preliminary subdivision plan should not

have been approved because the Board failed to follow its own motion as it related to the

aforementioned consolidation and subdivision issues. The Board's May 7, 2008, minutes state,

"[rjegarding the issue of reviewing the reports submitted by [Objectors], Supervisor Stahley

entered a motion to authorize the Solicitor to submit a written request to the Applicant's Solicitor

asking the [Owner] to consider reimbursement to the Township for review by Township

consultants. H Objectors assert that the Board erred by not attempting further research on the

Issue.

We find tills issue without merit as it was within the Board's discretion to determine any

research needed or not needed on any issue before it

ill. Correcting Zoning Data as a Conditional Approval

Objectors contend that the Board erred in granting the approval of the preliminary

subdivision plan on the condition that the "[Owner] ... correct the Zoning data on the cover sheet

and all recording sheets of the plan to reflect the labeling of the AR district." Board of

Supervisors Minutes) September 3,2008 at 4. Ownerresponds that it was within the Board's

discretion to have the error corrected as a condition to the approval.

The Subject Property is zoned and located part in the PC District and part in the AR

District. The preliminary subdivision plan incorrectly labeled the entire property within the PC

District. Pursuant to SALDO § 5.03, the subdivision plans are to depict the relevant zoning

boundaries.

"Where a preliminary subdivision plan fails to comply with the substantive requirements

of the subdivision ordinance, its rejection or conditional approval is within the discretion of the

11

Joseph v. NOIih Whitehall et al Case No.: 2008-C-4780

governing body." Herr v. Lancaster County Planning Com 'n, 625 A.2d 164 (pa. Commw.

1993). Here, Owners concede that the preliminary subdivision plans do not depict the relevant

zoning boundaries in that the portion of the property in the AR District was not properly labeled.

The preliminary subdivision plan failed to comply with SALDO § 5.03) and accordingly, it was

within tile discretion of the Board whether to reject the preliminary subdivision plan or approve

the plan with the conditions necessary to fix the error. The Board chose to grant approval, an

option within their discretion and there was, therefore, not an error oflaw or an abuse of

discretion.

IV. Sewer and Water

The Objectors contend that the preliminary subdivision plan must be rejected because it

does not provide the details, location and method of proposed onsite public sewer or water.

Owner responds that any and all required information relating to proposed sewer facilities was

included on the plan or was included as a condition ofpreliminary subdivision approval.

SAlliO § 5.03 requires the following information pertaining to sewage and water:

3. If public or central sewage service is proposed:

a. name of provider permitted under Sewage Facilities Plan and adopted by Township.

b. existing and proposed contour lines on same sheet as utility layout

c. location, size, type and grade of mains and laterals, with locations corresponding to stationing on the profile.

d. locations of manholes, with invert elevation of flow line and grade at top of each manhole.

e, detailed construction plan and drawings of proposed facilities and appurtenances.

f. proposed lot lines and any proposed easements or rights-of-way needed for the utilities.

g. location of all other existing facilities and public utilities in the vicinity of sanitary sewer lines.

12

Joseph v. North Whitehall et al Case No.: 2008-C-4780

4. If public or central water service is proposed:

a. location and size of existing and proposed waterlines.

b. existing and proposed fire hydrant locations.

c. detailed construction plan drawings of proposed facilities and appurtenances.

d. distance that water lines will have to be extended.

e. any other appurtenances.

Owner proposes public sewer and water service for the Property. The Board approved

the preliminary subdivision plan including the proposed sewage service with the condition that

the Owner shall provide sanitary sewage treatment as proposed through LeA in accordance with

the provider letter previously received. The LeA letter authorized service to the Owner based on

the following contingencies:

1. Pennsylvania Department of Environmental Protection (DEP) approval of the Township' s Act 537 Plan revisions; and

2. DEP issuance of permits for construction of the new Jordan Creek sewer treatment plant; and

3. Execution of an acceptable sewer service agreement between Wal-Mart and the Authority; and

4. Non-termination of the 26 June 2006 acquisition agreement between IGdsPeace and the Authority.

LCA letter dated August 16,2007.

Similarly, tile water service offered by LCArequires "the [Owner]. .. to install on-site

water storage and booster pumping facilities to meet the fire flow requirements of the proposed

complex. '" The LeA also approved service contingent upon:

1. Authority approval of the water distribution system plans and/or service connection plans.

2. Payment of all capital recovery and meter fees.

3. As applicable, the execution of a LeA Construction Permit or a Developer) s Water System Agreement and the adherence to the tenus and conditions specified therein.

LeA letter dated August 16, 2007.

13

Joseph 1'. North Whitehall et al Case No.: 2008-C-4780

As set forth inlvlcGrath Construction, Inc. v. Upper Saucon Twp., 952 A2d 718, 725-26

(Pa Commw. 2008):

A preliminary plan must be approved if it meets all specific, objective requirements under a subdivision and land development ordinance. A preliminary plan containing minor defects correctable by amending the preliminary plan must be approved subject to a condition that the minor defects are corrected. However, where the preliminary plan fails to comply with the objective, substantive requirements, the governing body may in its discretion either reject the plan outright or grant conditional approval .. _ This Court has stated that "where an outside agency's approval is required for some aspect of development, the governing body should condition final approval upon obtaining the necessary permit rather than denying."

(citations omitted). In this case, regarding sewage, Objectors assert that the requirements of

SALDO for detailed construction plan drawings of proposed facilities and appurtenances and

demonstrated conformance with the sewage feasibility Act 537 plans have not been met.

Regarding water; Objectors assert that the detailed construction plan drawings of proposed

facilities and appurtenances and conformance with the official plans of the Township have not

been met.

It is not disputed that such substantive provisions have not been met, however, such

failure to comply does not warrant denial of the plan, instead it is within the discretion of the

Board whether to reject the plan outright or grant conditional approval. The Board opted to grant

conditional approval of the plan, a decision well within its authority. Accordingly, the Board did

not commit an error of law or abuse its discretion.

14

Josepli v. North Whitehall et al Case No.: 2008-C-4780

v. The Township's Intervention

The Objectors argue that the Township's intervention in the appeal, as well as its

involvement in the development process, disqualifies the Board from rendering further findings

regarding the Subject Property.

The appellee in this matter is North Whitehall Township Board of Supervisors, the body

responsible for the land use decisions which are the subject of this appeal. In a timely fashion,

following the filing of the appeal, North Whitehall Township filed notice of intervention as of

right pursuant to WC, 53 P.S. § 11 004-A. Objectors claim that the Township could nat

intervene pursuant to the lvlPC because the Board is the governing body of the Township.

Objectors seem to suggest that the Board, which is the governing body of North

'Whitehall Township, and North Whitehall Township are the same identity. Owner appears to

concur with this posture. Township presents a distinction which, in all honesty, we have

difficulty following.

We need not attempt to untangle this issue. The proper relief for an improper

intervention, if indeed it was improper, is to ask the court to strike the intervention of the party,

which should have been done promptly after the intervention which Objectors claim was

improper. This the Objectors did not do, neither then, nor now. The relief sought by the

Obj ectors, the divestiture of powers of the Township/Board for further action on this proposed

land use, is extraordinary, and unsupported in law.

15

Joseph v. North Whitehall et al Case No.: 2008-C-4780

After careful review of the issues raised on appeal, we find that the Board did not commit

an error oflaw or abuse its discretion in conditionally approving Owner's preliminary

subdivision plan. Accordingly, Objectors' appeal is denied,

Dated:

BY THE COURT:

c__.~£$

CAROL K. McGINLEY, J.

16

CERTIFICATION OF SERVICE

I hereby certify that I am this day serving two (2) true and correct copies each of the Brieffor Appellants and Reproduced Record upon the person(s) and in the manner described below.

Service by regular first class mail. postage prepaid, addressed as follows:

Lisa A. Young, Esquire 4442 Route 309, Suite A Schnecksville, P A 18078

(Counsel for AppelleelIntervenor)

610-799-9500

Erich 1. Schock, Esquire 610-797-9000

Fitzpatrick Lentz & Bubba, P.C.

4001 Schoolhouse Lane

P.O. Box 219

Center Valley, PA 18034-0219

(Counsel for Intervenor, Wal-Mart Stores East, L.P.)

DIMMICH & DINKELACKER, P.c.

Y

.1 11 THOMAS H. DINKELACKER, ESQUIRE

J.D. No. 34932

DAVID C. NAJARIAN, ESQUIRE J.D. No. 86606

Attorneys for Appellants

2970 Corporate Court, Suite 1 Orefield, P A 18069 610-398-1800

Dated: December 7, 2009