FILED 8/14/2023 3:36 PM,Clerk of Judicial Records, Civil Division, Lehigh County, PA 2022-C-2786 /sIDM IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA CIVIL DIVISION CRG SERVICES MANAGEMENT LLC, NO, 2022-C-2786 Plaint CIVIL ACTION vy LOWHILL TOWNSHIP, : ASSIGNED TO: Judge Thomas M. Caffrey Defendant. ORDER AND NOW, this 14" day of August, 2023, upon consideration of Plaintiff's Motion for ry of Augu: Peremptory Judgment, filed May 17, 2023, Defendant's Response, filed June 6, 2023, and the Memoranda submitted by the Parties, following oral argument held June 13, 2023, and for the reasons sct forth in the accompanying Memorandum of Law, IT IS ORDERED that: 1. Plaintiff's Motion for Peremptory Judgment, filed May 17, 2023, is GRANTED. 2. The preliminary land development plan application submitted by Plaintiff to Lowaill Township on March 14, 2022, as revised by the plans submitted by Plaintiff to Lowhill Township on September 12, 2022, is deemed approved in accordance with § 508(3) of the Pennsylvania Municipalities Code, 53 P.S. § 10508(3), and the Board of Supervisors of Lowbill Township is directed to issue the paperwork required under state and local law for the purpose of memorializing said deemed approval. BY THE COURT: — Thomas M. Cafifey, J.FILED 8/14/2029 3:36 PM, Clerk of Judicial Records, Civil Division, Lehigh County, PA 2022-C-2786 —/sIDM IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA CIVIL DIVISION CRG SERVICES MANAGEMENT LLC, NO. 2022-C-2786 Plaintiff, : CIVILACTION v LOWHILL TOWNSHIP, : ASSIGNED TO: : Judge Thomas M. Caffrey Defendant. : MEMORANDUM OPINION Appearances: Blake C, Marles, Esquire . For Plaintiff Anthony Sherr, Esquire For Defendant CAFFREY, J. Overvie Plaintiff CRG Services Management, LLC (“CRG”) is the equitable owner of 2951 Betz Court, Orefield, Pennsylvania, a 51-acre tract of land in Lowhill Township. On March 14, 2022, ‘CRG submitted a preliminary land development plan application proposing the construction of a 299,800 square-foot warehouse on this tract of land (“LD Application”), CRG submitted an ‘updated set of plans on September 12, 2022. The Township Engineer reviewed the LD Application and issued a review letter on September 23, 2022. Ata meeting held on October 6, 2022, the Lowhill Township Board of Supervisors voted to deny the LD Application. The Board of Supervisors sent a letter to CRG, dated October 7, 2022, confirming the denial of the LD Application (“denial letter"). The denial letter states in relevant part:FILED 8/14/2023 3:36 PM,Clerk of Judicial Records, Civil Division, Lehigh County, PA 2022-C-2786 —IsIDM In reference to our Board of Supervisors meeting held on October 6, 2022 at 6:30 pm at the Fogelsville Volunteer Fire Company. ‘The Board of Supervisors voted to deny the above mentioned plan for the following reasons; (sic) Recommendations from our Planning Commission and Engineer. Lowhill Township also has no legal representation at this time, On January 11, 2023, CRG filed an Amended Complaint in Mandamus.' CRG contends that the denial letter does not comport with the mandatory requirements of § 508(2) of the Pennsylvania Municipalities Planning Code (“MPC”), 53 P.S. § 10508(2), and therefore, the LD ‘Application is entitled to a “deemed approval” pursuant to § 508(3) of the MPC, 53 P.S. § 10508(3), On January 31, 2023, Defendant Lowhill Township (“Township”) filed Preliminary Objections (in the nature of a demurret) to the Amended Complaint in Mandamus. On April 3, 2023, the Court entered an Order denying the Township's Preliminary Objections to the Amended Complaint. On May 17, 2023, CRG filed a Motion for Peremptory Judgment? On June 6, 2023, the Township filed a Response to the Motion for Peremptory Judgment. The Parties have submitted Briefs and the Court heard oral argument on June 13, 2023. This matter is now ripe for disposition, ' CRG also filed a separate land development appeal, docketed at Docket No. 2022-C-2536, The Parties, have agreed that the land development appeal should be held in abeyance pending disposition of the within ‘mandamus action. 2 “When determining whether to grant peremptory judgment, a court is guided by the standards governing summary judgment.” Dusman v, Bd, of Directors of Chambersburg Area Schl, Dist,, 113 A.3d 362, 372 (Pa, Cmwith, 2015). ‘Therefore, “peremptory judgment is appropriately entered only where there exists no genuine issue of material fact, and where the case is clear and free from doubt.” Shaler Area Schl, Dist. V. Salakas, 432 A.2d 165, 168 (Pa. 1981), Peremptory judgment “should not be granted except inthe clearest of cases where there is not the least doubt as to the absence ofa triable issue of material fact.” Aiken v Radnor Bd. of Supervisors, 476 A.2d 1383, 1388 (Pa. Cmwith, 1984). A factual issue is “material” only “Yf ts resolution could affect the outcome of the ease under the governing law.” Strine v. Commonwealth, 894 733, 738 (Pa. 2006)FILED 8/14/2023 3:36 PM,Clerk of Judicial Records, Civil Division, Lehigh County, PA 2022-C-2786 —IsIDM Discussion ‘The MPC provides in relevant part; Al applications for approval of a plat (other than those govemed by Article VIN), whether preliminary or final, shall be acted upon by the governing body or the planning agency within such time limits as may be fixed in the subdivision and land development ordinance but the governing body or the planning agency shall render its decision and communicate it (o the applicant not later than 90 days following the date of the regular meeting of the governing body ot the planning ‘agency (whichever first reviews the application) next following the date the application is filed or after a final order of court remanding an application, provided that should the said next regular meeting occur more than 30 days following the filing of the application or the final order of the court, the said 90-day period shal! bbe measured from the 30th day following the day the application has been filed. (1) The decision of the governing body or the planning agency shall ‘be in writing and shall be communicated to the applicant personally or mailed to him at his last known address not later than 15 days following the decision, (2) When the application is not approved in terms as filed the decision shall specify the defects found in the application and describe the requirements which have not been met and shall, in each case, cite to the provisions of the statute or ordinance relied ‘upon. (3) Failure of the governing body or agency to render a decision and communicate it to the applicant within the time and in the manner required herein shall be deemed an approval of the application in terms as presented unless the applicant has agreed in writing to an extension of time or change in the prescribed manner of presentation of communication of the decision, in which case, failure to meet the extended time or change in manner of presentation of ‘communication shall have like effect. 53 PS. § 10508(1), (2), and (3). “The courts of this Commonwealth have repeatedly held that the requirements of Section 508(2) of the MPC are mandatory.” Borough of Plum v. Tresvo, 606 A.2d 951, 954 (Pa. Cmwith. 1992) (citations omitted), “[TJhere” are three essential requirements that comprise the mandate in Section 508(2), to wit: The decision disapproving the application must include (1) a specification of any defect in the application; (2) @ description of the requirements in the applicable statute orFILED 8/14/2023 3:36 PM,Clerk of Judicial Records, Civil Division, Lehigh County, PA 2022-C-2786 ‘s(DM ordinance which have not been met; and (3) a citation to the stetutes or ordinances relied upon,” Kassouf v. Township of Scott, 883 A.2d 463, 470 (Pa, 2005). The “{fJeilure” of the governing body or agency to render a decision and communicate it to the applicant... in the manner required herein shall be deemed an approval of the application in terms as presented ....” 53 P.S. § 10508(3), “It is well-settled law that mandamus may be used to obtain recognition of the right to ors, $70 A.2d 147, deemed approval.” Malone v. West Marlborough Township Board of Supervi 148 (Pa. Cmwith. 1990) “The test to determine whether a Board's denial letter complies with Section 508(2) of the ‘MPC is not whether the applicant has actual knowledge of the particular defects in his plan, the requirements which have not been met in the specific sections of the ordinance relied upon, but whether the information required by the MPC is contained within the four comers of the Board's Klin ‘T'p., 582 A.2d 1156, 1160 (Pa written decision.” Dobrinoff v. Bd. of Supervisors of I Cmwith. 1990) (citation omitted), See also Bensalem Township v. Blank, $39 A.2¢ 918, 951 (Pa, Cmwith, 1988). ‘The information required by the MPC may be contained within the four comers of an external document that is incorporated by reference into the municipal body’s written decision, See e.g., Advantage Development, Ino. v, 3d. of Supervisors of Jackson Tp. 743 A.2d 1008 (Pa. Cmwith. 2000). Whether an external document has been properly incorporated by reference into the municipal body's written decision must be evaluated in accordance with the standards established by the Supreme Court in Kassouf. > Mandamus is an extraordinary common-law writ which lies to compol the official performance of a ministerial act or a mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty inthe defendant, and a lack of any other appropriate and adequate remedy. Pavonarius v City of Allentown, 629 A2d 204 (Pa, Cmwith, 1993), A wrt of mandamus also is defined as a command from a court of competent jurisdiction to an inferior entity directing performance of a particular duty which results from the official station of the entity to whom it is directed or from operation of law. Germantown Business ‘Asso. v Philadelphia, 534 A2d 553 (Ps, Cmwith. 1987). 4FILED 8/14/2023 3:36 PM,Clerk of Judicial Records, Civil Division, Lehigh County, PA 2022-C-2786 —/sIDM In Kassoug, the township engineer reviewed the developer's final subdivision plan and prepared a report. The township engincer concluded that the plan did not conform to the zoning, subdivision and land development, grading, and stormwater management ordinances, and offered comments and citations to the sections of these four ordinances with which the plan did not conform. After discussing the developer's plan at a public meeting, discussions thet included repeated references to the township engineer's report, the township commissioners voted to reject the plan. The township commissioners subsequently issued a written decision that corporated by reference prior correspondence between the developer and the township engineer, and, in addition, specified sixteen independent reasons for rejecting the developer's plan. The developer appealed, arguing that the plan was entitled to a deemed approval because the written decision did not comply with § 508(2) of the MPC. The Common Pleas Court held tbat the township commissioners had issued a written decision that complied with the statutory requirements, The Court determined that the written decision incorporated by reference prior correspondence between the developer and the township engineer, and in this correspondence the township engineer outlined the plan's nonconformity with specific sections of the zoning, subdivision and land development, stormwater management, and grading ordinances, In the alternative, the Court determined that several of the sixteen independent reasons cited by the township commissioners in the written decision for rejecting the plan refer to specific sections of the relevant ordinances with which the plan did not comply, The Commonwealth Court affirmed. ‘The Supreme Court granted allocatur to consider the merits of the developer’s appeal. ‘The Court held that an applicant is not entitled to a deemed approval of a plan merely because the municipal body’s written decision does not contain the phrase “incorporate by reference” when referring to an external document containing the ressons for the denial, or merely because theFILED 8/14/2023 3:36 PM,Clerk of Judicial Records, Civil Division, Lehigh County, PA 2022-C-2786 /s/DM incorporated document is not physically attached to the written decision. Id, at 472-73. The Court emphasized, however, that this “does not mean that any all references to supporting documentation will provide, as a substantive matter, an adequate articulation of the reasons for a denial for purposes of Section $08(2).” Td, at 472. ‘The township commissioners’ written decision did “not refer to a specific report, identifiable by title or date or subject matter,” and did not include the phrase “incorporate by reference.” In addition, the township commissioners did not attach to their written decision the specific reports or letters which they were purportedly incorporating by reference. Instead, the written decision “merely and variously refers to the township engineer’s ‘comments,’ ‘requests’ or ‘requirements,’ ... usually without any reference to the source or date of the comments.” Id. at 472, While the developer may have understood that the written decision was referring to the township engineer's report, given the repeated references to the township engineer's report during the meeting in which the township commissioners voted to reject the developer's plan, the Court nevertheless determined that the written decision’s purported incorporation of supporting documentation did not comport with the requirements of the statute, ‘The Court explained: ‘The subdivision applicant should not be left to guess at whether the township was tvuly relying upon an external document in lieu of its own Section 508 statement. Nor should the applicant be left to guess as to which of multiple documents is the one that would serve as the “incorporated” basis for the decision, If a municipal authority indeed intends for an external document to serve as the substantive explanation of the basis for its decision, it should make that point explicitly in the decision letter, and not ask the applicant, and the court system, to infer the point. Id. at 472-734 + While the Court determined that the denial letter’s incorporation of supporting documentation did not comport with the requirements of Section 508(2) of the MPC, it ultimately determined that the developer ‘was not entitled to a deemed approval of the plan, because seven of the sixteen independent reasons for rejecting the plan contained “the information required by Section 508(2), ie., citations to the township ordinances, the general requirements of the ordinances, and the deficiency in [developer's] plan relative to the ordinances.” Id. at 473.FILED 8/14/2023 3:36 PM,Clerk of Judicial Records, Civil Division, Lehigh County, PA 2022-C-2786 —/sIDM As in Kassouf, the denial letter issued by the Board of Supervisors in the case sub judice did not include the phrase “incorporate by reference,” and the Township Engincer’s “recommendations” that purportedly set forth the basis for the Board's decision to reject the LD Application were not attached to the denial letter. Moreover, the denial letter merely refers to “recommendations” from the Township Engineer; there is no reference 10 the source or date of such “recommendations.” ‘The Township argues that the denial Jetter’s reference to the “recommendations” of the ‘Township Engineer operates to incorporate by reference the Township Engineer's September 23, 2022, review letter, and the comments made by the Township Engineer is his review letter are adequate to advise CRG of the reasons why the LD Application was rejected.’ The Township posits that although the denial letter did not state specifically that the Board of Supervisors was rejecting the LD Application for the reasons set forth in the Township Engineer's September 23, 2022, review letter, CRG should have known that the Board was relying on the Township Engineer’s September 23, 2022, review letter because it was the only document issued by the ‘Township Engineer in this case. The township made the same argument in Kassouf, The township argued that, given the township commissioner's repeated references to the township engineer's report during the meeting, in which they voted to deny the developer’s plan, it should have been clear to the developer that the township commissioners intended to incorporate by reference the township engineer’s report into their written decision. ‘The Supreme Court rejected the township's argument, noting that where the municipality claims that the reasons for the denial are contained within the four comers of an extemal document purportedly incorporated by referenee into the written decision, the 5 Despite the language used in the denial letter, the Township does not argue that the Board of Supervisors rejected the LD Application on the basis of recommendations made by the Planning Commission, 7FILED 8/14/2023 3:36 PM,Clerk of Judicial Records, Civil Division, Lehigh County, PA 2022-C-2786 /s/DM ‘municipal body must perform the “very simple task” of explicitly identifying the document upon which itis relying, as opposed to expecting the applicant to infer the identity of the document from the surrounding circumstances. Jd, at 472-73. Here, the failure of the Board of Supervisors to use the words “incorporate by reference” in the denial letter, along with its fuilure to attach the Township Engineer's September 23, 2022, review letter to the denial letter, do not automatically bar the Board from rejecting the LD Application for the reasons set forth in the review letter. Nevertheless, the Board had an obligation to explicitly identify in the denial letter that it was rejecting the LD Application for the reasons stated in the Township Engineer's September 23, 2022, review letter. It failed to do so, and therefore, the Township Engineer's September 23, 2022, letter was not incorporated by reference into the denial letter, Because the denial letter itself did not specify the defects in the LD Application, the denial letter did not comport with the requirements of § 508(2) of the MPC. The ‘Tovmship’s failure to render a written decision that comports with the requirements of § 508(2) entitles CRG to a deemed approval of the LD Application. An Order consistent with this Memorandum Opinion wilt follow. BY THE COURT _——— Date: August 14, 2023 i Thomas MJCattrey, J.IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA CIVIL COURT DIVISION File No.: 2022-C-2786 Miscellaneous Mandamus CRG Services Management LLC -VS- Lowhill Township Copies of this Order were e-mailed/mailed to all counsel of record and pro se I 8/15/2023, 236 NOTICE Pursuant to Pa.R.C.P. § 236, notice is hereby given that an order, decree, or judgment in the above captioned matter has been entered. Andrea E. Naugle Clerk of Judicial Records NOTICE: All parties and counsel must maintain correct and current contact information, INCLUDING E-MAIL ADDRESSES, with the Clerk of Judicial Records Ci well as through E-File & Serve. Blake C Marles, Esq / bem@stevenslee.com 340 W Hamilton St PA 18101 Stefanie Shem, Esq A ssherr@sherrlawgroup.com Group LLP Norristown PA 19401 cvisa