          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Valley Forge Chapter of Trout             :
Unlimited,                                :
                        Petitioner        :
                                          :
            v.                            :   No. 161 M.D. 2016
                                          :   Argued: October 17, 2016
Township of Tredyffrin and                :
Pennsylvania Turnpike Commission,         :
                        Respondents       :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                          FILED: December 20, 2016



      Before this Court in our original jurisdiction are the Preliminary Objections
(POs) of the Township of Tredyffrin (Township) and the Pennsylvania Turnpike
Commission (PTC) (together, Respondents) to the Petition for Review filed by the
Valley Forge Chapter of Trout Unlimited (Petitioner). The Petition for Review
seeks a declaration that the settlement agreement (Agreement) between
Respondents associated with the reconstruction of a portion of the Pennsylvania
Turnpike (Turnpike) running through the Township is null and void. For the
reasons that follow, we sustain the Respondents’ POs in part and overrule in part.
       I.    BACKGROUND
       Petitioner is “an organization . . . devoted to[, inter alia,] restoring,
protecting and preserving the Valley Creek Watershed and the Trout Creek
Watershed since 1976, having spent money and time on projects to further these
goals.” (Petition for Review ¶ 8.) It has members who use the creeks within the
“Township and downstream for fishing, recreation[,] and aesthetic enjoyment and
will be harmed by the effects of pollution from uncontrolled stormwater runoff . .
.” (Id. ¶ 9.) Petitioner also has one member who owns land in the Township and
that land will allegedly be harmed by the effects of the challenged action. (Id. ¶
10.)
       The Petition for Review alleges as follows. PTC plans to reconstruct a 6.4
mile portion of the Turnpike that runs through the Township. (Id. ¶ 13.) The
reconstruction will widen the Turnpike from four lanes to six, and includes an
expansion of the median and shoulders, and the replacement of various bridges,
arch culverts, crossing pipes, noise barriers, and retaining walls. (Id. ¶¶ 14-15.)
The reconstruction would also involve construction of “[stormwater] facilities and
conveyance systems.” (Id. ¶ 15.) Portions of the reconstruction area lie in the
Valley Creek Watershed and Trout Creek Watershed. (Id. ¶ 19.) The Valley
Creek Watershed is an “Exceptional Value Watershed” as defined by the
Department of Environmental Protection’s (DEP) regulations, 25 Pa. Code §
93.4(b), and Trout Creek Watershed is an “impaired waterway.” (Id. ¶¶ 19, 21.)
       A disagreement arose between Respondents. PTC acknowledged that, under
its design plan for the reconstruction project, it could not comply with all of
Township’s stormwater standards. (Petition for Review, Ex. 1. (Agreement) at 2.)
PTC asserted that its statutory mandate “is preeminent over the [Township’s



                                        2
ordinances] as a matter of law” and PTC need not comply with the ordinances. (Id.
at 3.) The Township disagreed and “asserted that, as a matter of law, [Township’s
stormwater ordinances] are preeminent over the PTC Statutory Mandate.” (Id.) In
order to avoid extensive litigation, Respondents entered into the Agreement on
January 19, 2016. (Id.) The relevant paragraphs of the Agreement provide as
follows:

      WHEREAS, completion of the Total Reconstruction Project pursuant
      to [PTC’s reconstruction plan] will allow the [PTC] to implement
      stormwater management controls throughout the Project Area to
      manage stormwater within the Valley Creek Watershed and the Trout
      Creek Watershed, respectively, where no such controls currently exist
      and, therefore, the Total Reconstruction Project will provide a net
      benefit for stormwater management controls within the Valley Creek
      Watershed and the Trout Creek Watershed, respectively; and

      WHEREAS, completion of the Total Reconstruction Project pursuant
      to the [PTC’s reconstruction plan] will not cause environmental
      impacts any different from those which would result in each of the
      Valley Creek Watershed and the Trout Creek Watershed in the
      absence of the aforementioned conflict between the [PTC]’s ability to
      comply with the PTC Statutory Mandate and the [PTC]’s ability to
      meet the Township Standards;

      ...

      NOW, THEREFORE, for and in consideration of the mutual promises
      set forth in this Agreement, and intending to be legally bound hereby,
      and in the public interest, which each of the [PTC] and the Township
      are desirous of advancing, the [PTC] and the Township agree as
      follows:

      3. Acknowledgement of Preeminence of PTC Statutory Mandate and
      [PTC design plan]. Except as expressly set forth in this Agreement to
      the contrary, for all intents and purposes arising out of in any manner
      or form related to the Total Reconstruction Project, the PTC Statutory
      Mandate and the [PTC]’s design and construction of the Total
      Reconstruction Project substantially as depicted and described on the
      [PTC design plan] does, and shall be construed to, have preeminence

                                        3
over the Township Standards as to all areas of conflict between the
[PTC design plan] and the Township Standards . . .

6. Environmental Protection.      [PTC] and the Township each
acknowledges and confirms its respective obligations with regard to
the impact of the Total Reconstruction Project upon the natural
environment. In furtherance of that obligation, each of the [PTC] and
the Township acknowledges the current and existing absence of
facilities within the Project Area to adequately capture, treat and
release stormwater from the Turnpike and the fact that the Total
Reconstruction Project includes facilities to control the volume, rate
and quality of such stormwater. In that regard, and notwithstanding
the conflict between the [PTC design plan] and the Township
Standards (including the Township’s Flood Hazard Zoning District),
each of the [PTC] and the Township acknowledges that the nature
and scope of environmental protection to be implemented pursuant to
the Total Reconstruction Project will be equal or greater than the
nature and scope of environmental protection which would be
implemented in the absence of such conflict.

7. Flood Elevation. [PTC] hereby represents and warrants to the
Township that neither the Total Reconstruction Project nor any
activities to be completed by [PTC] pursuant to the [PTC design plan],
will cause any increase in the elevation of the 100 year flood within
the Floodway (as that term is defined as of the date of this Agreement
in the Township Zoning Ordinance), and hereby represents and
warrants that there will be no adverse impacts on the Floodplain (as
that term is defined as of the date of this Agreement in the Township
Zoning Ordinance), downstream or upstream, that result from the
Total Reconstruction Project

...

10. Full and Final Resolution; Intention to Prevent Litigation; No
Admission. This Agreement is intended to be, and shall be construed
as, a full and final resolution of any and all matters whatsoever arising
directly or indirectly out of, related in any manner or form whatsoever
to, or connected in any way with, the conflict between the [PTC’s
design plan] and the Township Standards (including the Township’s
Flood Hazard Zoning District) and/or the preeminence of the PTC
Statutory Mandate and the [PTC]’s design and construction of the
Total Reconstruction Project as depicted and described on the [PTC
design plan] over the Township Standards (including the Township’s

                                   4
       Flood Hazard Zoning District). This Agreement is a compromise of
       disputed claims and nothing set forth in this Agreement is, or shall be
       construed as, an admission of liability or any act of wrongdoing by the
       [PTC] or the Township or either of them, each of them stating
       affirmatively its respective (and their collective) intent merely to
       avoid litigation.

(Id. at 2-5 (emphasis added).)
       Petitioner objects to the Agreement and alleges that “[t]he PTC’s
reconstruction and new alteration of land, without stormwater controls required by
Township ordinances will cause harm to the Valley Creek Watershed and the Trout
Creek Watershed.” (Petition for Review ¶ 30.) Petitioner contends that while
Respondents assert that the Agreement will lead to stormwater and flood hazard
controls greater than those currently in effect, an increase of controls over the
baseline is not an excuse for violating Township’s environmental ordinances. (Id.
¶¶ 28-29.) Petitioner further contends that “[t]he Agreement deprives [Petitioner]
of the right to appeal a decision by the Township or its zoning or planning
commission that would be appealable . . . through the judicial procedures available
for decision by townships on land development.” (Id. ¶ 31.)
       The Petition for Review alleges nine counts. Count 1 alleges that Township,
through entering into the Agreement, violated Section 11(a) of the Storm Water
Management Act (SWMA)1 and such constitutes a public nuisance under Section

       1
           Act of October 4, 1978, P.L. 864, 32 P.S. § 680.11(a). Section 11(a) provides:

      After adoption and approval of a watershed storm water plan in accordance with
      this act, the location, design and construction within the watershed of storm water
      management systems, obstructions, flood control projects, subdivisions and major
      land developments, highways and transportation facilities, facilities for the
      provision of public utility services and facilities owned or financed in whole or in
      part by funds from the Commonwealth shall be conducted in a manner consistent
      with the watershed storm water plan.
(Footnote continued on next page…)


                                                 5
15(a) of SWMA.2 (Petition for Review ¶¶ 34-43.) Count 2 alleges that by entering
into the Agreement, PTC violated Section 13 of SWMA,3 and that such violation is
also a public nuisance under Section 15(a) of SWMA. (Id. ¶¶ 45-52.) Counts 3
and 4 allege that by entering into the Agreement, Township and PTC, respectively,
violated their obligations under Article I, Section 27 of the Pennsylvania
Constitution, Pa. Const. art. I, § 27, commonly referred to as the Environmental
Rights Amendment (ERA). (Id. ¶¶ 54-63.) Counts 5 and 6 allege that, by entering
into the Agreement, Township and PTC, respectively, abused their discretion and
acted in an arbitrary and capricious manner by acting outside their respective
authorities, and acted in bad faith. (Id. ¶¶ 65-77.) In support of these claims,
Petitioner asserts that Section 507 of the Pennsylvania Municipalities Planning
Code (MPC)4 prohibits any land development in violation of local ordinance, and
_____________________________
(continued…)

Id.
       2
         32 P.S. § 680.15(a). This section provides that “[a]ny activity conducted in violation of
the provisions of this act or of any watershed storm water plan, regulations or ordinances adopted
hereunder, is hereby declared a public nuisance.” Id.
       3
         32 P.S. § 680.13. Section 13 provides:

       Any landowner and any person engaged in the alteration or development of land
       which may affect storm water runoff characteristics shall implement such
       measures consistent with the provisions of the applicable watershed storm water
       plan as are reasonably necessary to prevent injury to health, safety or other
       property. Such measures shall include such actions as are required:
              (1) to assure that the maximum rate of storm water runoff is no greater
              after development than prior to development activities; or
              (2) to manage the quantity, velocity and direction of resulting storm water
              runoff in a manner which otherwise adequately protects health and
              property from possible injury.

Id.
       4
        Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10507. Section 507 provides:
(Footnote continued on next page…)


                                                6
that Township has no authority to act outside the bounds of the MPC and PTC and
is obliged to comply with local ordinances. (Id. ¶¶ 68-71, 76-77.) Count 7 alleges
that by entering into the Agreement, Township bypassed the normal zoning and
land development process and deprived Petitioner of its due process rights to
notice and opportunity to be heard. (Id. ¶¶ 79-82.) Finally, Counts 8 and 9 allege
that by agreeing to exempt PTC from Township’s stormwater ordinances,
Respondents have deprived Petitioner of equal protection of the law in violation of
Article I, Section 26 of the Pennsylvania Constitution, Pa. Const. art. I, § 26. (Id.
¶¶ 84-87, 89-92.)
      Respondents object to the Petition for Review through numerous POs.
Township’s first three POs allege issues of justiciability: the first alleges that
Petitioner lacks standing (Township POs ¶¶ 4-10); the second alleges that the
claims are not ripe (Id. ¶¶ 11-18); and the third alleges that declaratory relief
should not be granted when the harm is speculative (Id. ¶¶ 19-25). Township’s
fourth PO is in the nature of a demurrer to all counts, and alleges that, as a matter
of law, Petitioner “cannot establish how a Settlement Agreement can violate the
Constitution and/or can be said to harm the environment or create a nuisance.” (Id.
¶¶ 26-31.) Fifth, Township objects by alleging that this Court lacks jurisdiction
_____________________________
(continued…)

      Where a subdivision and land development ordinance has been enacted by a
      municipality under the authority of this article no subdivision or land
      development of any lot, tract or parcel of land shall be made, no street, sanitary
      sewer, storm sewer, water main or other improvements in connection therewith
      shall be laid out, constructed, opened or dedicated for public use or travel, or for
      the common use of occupants of buildings abutting thereon, except in accordance
      with the provisions of such ordinance.

Id.



                                               7
and that venue is not proper. (Id. ¶¶ 32-41.) In its sixth PO, Township objects to
Count I of the Petition for Review on the basis that a violation of a stormwater
ordinance does not raise a claim under SWMA. (Id. ¶¶ 42-46.) Township’s
seventh, eighth, ninth, and tenth POs demur to Petitioner’s claims that Township
violated the ERA, acted in an arbitrary and capricious manner, violated due
process, and violated the Equal Protection Clause of the Pennsylvania Constitution,
respectively, by alleging that Petitioner fails to state the material facts required to
state a cause of action. (Id. ¶¶ 47-80.)
      For its part, PTC’s POs to many of the Counts asserted against it essentially
mirror the Township’s POs. The PTC’s unique POs are as follows. PTC objects to
all Counts on the basis of a lack of sufficiently specific allegations. (PTC POs ¶¶
45-48.) PTC alleges that the Petition for Review puts forth conclusions without
particular averments with regard to the harm Petitioner suffered or a connection
between Respondents’ conduct and harm to Valley Creek or Trout Creek. (Id.)
PTC further objects to all Counts by alleging that the Petition for Review was not
sent to PTC “in person or by certified mail” as required by Rule 1514(c) of the
Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1514(c). (Id. ¶¶ 49-53.)
With regard to Petitioner’s allegations regarding the SWMA in Count 2 of the
Petition for Review, PTC alleges that Petitioner cannot allege harm to the
waterways when the Agreement actually reduces runoff, and second that PTC is
immune to any nuisance claim. (Id. ¶¶ 54-66.) With regard to the Petitioner’s
allegations in Count 4 of the Petition for Review concerning the ERA, PTC alleges
that it and Township considered their obligations under the ERA and attempted to
avoid any harm to the environment or public natural resources. (Id. ¶¶ 73-79.) In
addition to asserting a demurrer to Petitioner’s allegations of arbitrary and



                                           8
capricious conduct, abuse of discretion, and bad faith in Count 6 that mirrors
Township’s demurrer, (id. ¶¶ 86-88), PTC also objects to Count 6 pursuant to Rule
1028(a)(2) of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No.
1028(a)(2), by alleging that the Petition for Review includes scandalous or
impertinent matter, (Id. ¶¶ 89-95).
      The case was originally assigned to a single judge in July, 2016. After
argument via telephone on July 6, 2016, this Court disposed of some of the POs in
an opinion dated July 15, 2016. Therein, this Court noted that Petitioner conceded
its Counts 8 and 9 (equal protection) at the July 6, 2014 argument, and sustained
Respondents’ POs to those Counts. This Court also overruled PTC’s PO alleging
that the Petition for Review should be dismissed because it was not sent to PTC “in
person or by certified mail” as required by Rule 1514(c) of the Pennsylvania Rules
of Appellate Procedure, Pa. R.A.P. 1514(c). (PTC’s POs ¶¶ 49-53.) Petitioner
attached an exhibit to its Answer to PTC’s POs showing that the pleading was
indeed sent by certified mail, return receipt requested, and was signed for on
February 29, 2016. (Answer to PTC’s POs, Ex. 1.) Further, this Court overruled
Respondent’s POs alleging that this Court lacks jurisdiction and that venue is
improper. (PTC POs ¶¶ 19-33; Township’s POs ¶¶ 32-41.) The remaining POs
were assigned to this panel for argument and disposition.


      II.    DISCUSSION
      Our review of preliminary objections in our original jurisdiction is limited to
the pleadings. Pa. State Lodge, Fraternal Order of Police v. Dep’t of Conservation
& Nat. Res., 909 A.2d 413, 415 (Pa. Cmwlth. 2006). We must accept as true all
well-pleaded averments set forth in the Petition for Review, and all inferences



                                         9
reasonably deduced therefrom.        Id. at 415-16.     We will sustain preliminary
objections only if it is clear that the law will not permit the requested relief and any
“doubt must be resolved in favor of overruling the preliminary objections.” Id. at
416. In testing Petitioner’s numerous claims against Respondents’ numerous POs,
we find it helpful to separate the Petition for Review into those Counts that allege
that the Agreement is invalid due to its effect on the environment, and those
Counts that allege that the Agreement is invalid due to infirmities in the process by
which it was executed.


   A. Injury to the Environment
      In Counts 1 and 2 of the Petition for Review, Petitioner alleges that “[t]he
Agreement allows the PTC to violate the requirements of some of the Township’s
stormwater ordinances, in violation of . . . SWMA.” (Petition for Review ¶¶ 38,
48.) Counts 3 and 4 allege that Respondents have violated the ERA “by agreeing
to waive the requirements of [the Township’s] stormwater ordinances whose
purpose is to protect the environmental resources of the [T]ownship.” (Id. ¶¶ 57,
62.) Petitioner does not allege that Respondents have violated the stormwater
ordinances or harmed the environment as of yet. Petitioner only alleges that,
should the Agreement stand and the parties receive all other permits, the
construction approved by the Township and carried out by the PTC will be
inconsistent with the provisions of the Township’s stormwater management
ordinances and harm the environment.


      1. Standing and Ripeness




                                          10
      Respondents allege that Petitioner lacks standing to assert the claims and
that the claims are not ripe for judicial resolution because the execution of the
Agreement does not, by itself, result in any harm to the environment or increase
stormwater runoff. In response, Petitioner argues that because the Agreement is a
contract that went into effect upon signing, judicial action is appropriate.
According to Petitioner, the Agreement is the final action by the Township and the
PTC is free to begin construction at any time once it obtains approval from DEP in
the form of a National Pollutant Discharge Elimination System (NPDES) permit.
      “A declaratory judgment must not be employed to determine rights in
anticipation of events which may never occur or for consideration of moot cases or
as a medium for the rendition of an advisory opinion which may prove to be purely
academic.” Gulnac by Gulnac v. S. Butler Cnty. Sch. Dist., 587 A.2d 699, 701
(Pa. 1991). In other words, declaratory relief will only be granted if the litigation
involves a controversy that is both imminent and inevitable and where the
declaration sought will help end the controversy between the parties. Pa. Indep.
Oil & Gas Ass’n v. Dep’t of Envtl. Prot., 135 A.3d 1118, 1128 (Pa. Cmwlth.
2015). To that end, we apply, inter alia, the justiciability doctrines of standing and
ripeness. Id.
      A person is sufficiently aggrieved under Pennsylvania’s prudential standing
requirement “if he can establish that he has a substantial, direct[,] and immediate
interest in the outcome of the litigation.” Fumo v. City of Phila., 972 A.2d 487,
496 (Pa. 2009). “A party has a substantial interest in the outcome of litigation if
his interest surpasses that of all citizens in procuring obedience to the law.” Id.
(quotation omitted). While the harm alleged must be substantial, it need not be
pecuniary in nature. See Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 346



                                         11
A.2d 269, 281 n.20 (Pa. 1975) (quoting Sierra Club v. Morton, 405 U.S. 727, 734
(1972) (“Aesthetic and environmental well-being, like economic well-being, are
important ingredients of the quality of life in our society, and the fact that
particular environmental interests are shared by the many rather than the few does
not make them less deserving of legal protection through the judicial process.”)).
An interest is direct if there is a causal connection between the matter complained
of and the harm alleged. Fumo, 972 A.2d at 496 (quotation omitted). An interest
is immediate when the “causal connection is not remote or speculative.” Id.
Associations have standing to assert any rights they may have as well as the rights
of any member even in the absence of injury to itself. Nat’l Solid Wastes Mgmt.
Ass’n v. Casey, 580 A.2d 893, 899 (Pa. Cmwlth. 1990).
      The justiciability doctrine of ripeness is similar to standing, “especially
where the contentions regarding lack of justiciability are focused on arguments that
the interest asserted by the petitioner is speculative, not concrete, or would require
the court to offer an advisory opinion.” Robinson Twp., Washington Cnty. v.
Commonwealth, 83 A.3d 901, 917 (Pa. 2013). Ripeness is distinct from standing
insofar as “ripeness also reflects the separate concern that relevant facts are not
sufficiently developed to permit judicial resolution of the dispute.”        Id.   “In
deciding whether the doctrine of ripeness bars consideration of a declaratory
judgment action, we consider ‘whether the issues are adequately developed for
judicial review and what hardship the parties will suffer if review is delayed.’” Pa.
Indep. Oil & Gas Ass’n, 135 A.3d at 1127-28 (quoting Rouse & Assoc.-Ship Rd.
Land Ltd. P’ship v. Pa. Envtl. Quality Bd., 642 A.2d 642, 645 (Pa. 1994))
(emphasis omitted).




                                         12
      We agree with Respondents that Petitioner’s claims under the SWMA are
not adequately developed, and therefore, not ripe for review. The SWMA was
designed to “[e]ncourage planning and management of storm water runoff in each
watershed which is consistent with sound water and land use practices.” Section
3(1) of the SWMA, 32 P.S. § 680.3(1).          The focus of the SWMA is the
development and adoption of watershed management plans by counties. In order
to encourage effective stormwater management, the SWMA imposes duties on
both municipalities and land developers. Section 11(a) of the SWMA addresses
the duties of municipalities and provides:

      After adoption and approval of a watershed storm water plan in
      accordance with this act, the location, design and construction within
      the watershed of storm water management systems, obstructions,
      flood control projects, subdivisions and major land developments,
      highways and transportation facilities, facilities for the provision of
      public utility services and facilities owned or financed in whole or in
      part by funds from the Commonwealth shall be conducted in a
      manner consistent with the watershed storm water plan.

32 P.S. § 680.11(a) (emphasis added). By enacting Section 11(a) the General
Assembly linked municipal land development decisions made pursuant to the MPC
with stormwater management plans enacted pursuant to the SWMA. Section 13 of
the SWMA places certain obligations on landowners and persons engaged in the
alteration or development of land. Section 13 provides:

      Any landowner and any person engaged in the alteration or
      development of land which may affect storm water runoff
      characteristics shall implement such measures consistent with the
      provisions of the applicable watershed storm water plan as are
      reasonably necessary to prevent injury to health, safety or other
      property. Such measures shall include such actions as are required:



                                         13
            (1) to assure that the maximum rate of storm water runoff is no
            greater after development than prior to development activities;
            or
            (2) to manage the quantity, velocity and direction of resulting
            storm water runoff in a manner which otherwise adequately
            protects health and property from possible injury.

32 P.S. § 680.13 (emphasis added). In order to enforce these provisions, the
General Assembly declared that “[a]ny activity conducted in violation of the
provisions of [the SWMA] or of any watershed storm water plan, regulations or
ordinances adopted [t]hereunder, is . . . a public nuisance.” Section 15(a) of the
SWMA, 32 P.S. § 680.15(a). The General Assembly further established a cause of
action in Section 15(b) of SWMA, whereby it authorizes aggrieved persons to
bring a civil action to “restrain, prevent or abate violation of [SWMA] or of any
watershed storm water plan, regulations or ordinances adopted [t]hereunder.” 32
P.S. § 680.15(b).
      An action asserting a violation of Section 11(a) of SWMA must allege that
the location, design, and construction of, inter alia, major development projects
was, or will be, conducted in a manner that is inconsistent with an approved
watershed stormwater plan, regulations, or ordinances adopted thereunder. 32 P.S.
§ 680.11(a). An action asserting a violation of Section 13 must allege that a person
engaged in the alteration or development of land did not, or will not, implement
“measures consistent with the provisions of the applicable watershed storm water
plan as are reasonably necessary to prevent injury to health, safety or other
property.” 32 P.S. § 680.13. For both causes of action, the petitioner must allege,
and ultimately show, that activities contrary to the applicable plan or ordinances
have been, or will be, conducted (Section 11(a)) or implemented (Section 13).




                                        14
       In the case at bar, nothing has been conducted or implemented as of yet and
Petitioner acknowledges that the “PTC must go through a process involving
several agencies before it may begin construction.” (Petitioner’s Br. at 6 n.2.) In
fact, since the Petition for Review was filed, Petitioner has appealed to the
Environmental Hearing Board (EHB) a recent decision by DEP to grant the PTC a
NPDES permit.5 Thus, this Court does not know what the final design of the
reconstruction project will be with regard to stormwater runoff. Until the issues
are further developed, this Court cannot effectively consider whether the SWMA
or any ordinance adopted thereunder has been, or will be, violated. Accordingly
we shall grant Respondents’ POs alleging that Counts 1 and 2 of the Petition for
Review are not ripe.
       We also conclude that Petitioner’s claims under the ERA also are not ripe.
The ERA provides:

       The people have a right to clean air, pure water, and to the
       preservation of the natural, scenic, historic and esthetic values of the
       environment.     Pennsylvania’s public natural resources are the
       common property of all the people, including generations yet to come.
       As trustee of these resources, the Commonwealth shall conserve and
       maintain them for the benefit of all the people.


Pa. Const. art. I, § 27. This Court determines whether a cause of action under the
ERA has been alleged, in part, by applying the threefold test established in Payne


       5
         On November 4, 2016, Respondents jointly filed an Application for Leave to File Post-
Argument Communication in the Form of a Letter pursuant to Rule 2501(a) of the Pennsylvania
Rules of Appellate Procedure, Pa. R.A.P. 2501(a), and attached a letter from Counsel and
Petitioner’s Notice of Appeal to the EHB. We grant the Application and will direct the Chief
Clerk to docket the Letter and Notice of Appeal to the EHB.



                                             15
v. Kassab, 312 A.2d 86, 94 (Pa. Cmwlth. 1973). The Payne test requires this Court
to assess the following questions:

       (1) Was there compliance with all applicable statutes and regulations
       relevant to the protection of the Commonwealth’s public natural
       resources? (2) Does the record demonstrate a reasonable effort to
       reduce the environmental incursion to a minimum? (3) Does the
       environmental harm which will result from the challenged decision or
       action so clearly outweigh the benefits to be derived therefrom that to
       proceed further would be an abuse of discretion?

Id.
       In order to apply the Payne test here, Petitioner must allege facts on the
environmental harm that will result from the construction. While Petitioner has
generally alleged that the construction will have deleterious effects on the Valley
Creek and Trout Creek watersheds, we cannot know if the harm will outweigh the
benefits of the challenged decisions until the final design of the reconstruction
project is known. Because we cannot determine the harm prior to knowing the
environmental measures DEP or the EHB will ultimately require, Petitioner’s ERA
claims are not adequately developed for our review, and we sustain Respondents’
POs alleging that Counts 3 and 4 of the Petition for Review are not ripe.6
       As Counts 1-4 may become ripe at some point in the future, we will dismiss
these Counts without prejudice.



       6
         Even if Counts 3 and 4 of the Petition for Review asserting claims under the ERA were
ripe, we would have granted Respondents’ demurrer to Petitioner’s ERA claims in Counts 3 and
4 of the Petition for Review. Petitioner does not adequately allege that Respondents did not put
forward a “reasonable effort to reduce the environmental incursion to a minimum.” Payne, 312
A.2d at 94. Nor does Petitioner allege that the environmental harm outweighs the benefit of the
challenged action. Id.



                                              16
   B. Infirmities in the Process
       Counts 5 and 6 of the Petition for Review allege that by entering into the
Agreement, Respondents abused their discretion, acted in an arbitrary and
capricious manner, and in bad faith. Count 7 of the Petition for Review is based on
facts similar to those alleged in Counts 5 and 6, and alleges that the Township
deprived Petitioner of its due process rights.


       1. Standing and Ripeness
       Contrary to those Counts alleging harm to the environment, discussed supra,
Petitioner’s claims asserted in Counts 5-7 of the Petition for Review are ripe and
Petitioner has standing to bring such claims. With regard to standing, Petitioner
has adequately alleged a substantial, direct, and immediate interest in the outcome
of the litigation. Fumo, 972 A.2d at 496. By alleging that Petitioner’s objective
since 1976 is to preserve Valley Creek and Trout Creek, Petitioner alleges a
substantial interest in the outcome of the challenged action that surpasses that of all
citizens.   By alleging that the Agreement will diminish Petitioner’s ability to
protect Valley Creek and Trout Creek from harm, Petitioner alleges a direct
interest.   And because Counts 5-7 of the Petition for Review do not allege
environmental harm, but instead challenge the authority of PTC and Township to
enter into the Agreement and the resultant deprivation of rights, Petitioner has
asserted an interest that is immediate.        The Agreement is the final action of
Township and Petitioner no longer has the ability to intervene in the Township’s
decision-making process. Because no issues are left to develop, we conclude that
the claims asserted in Counts 5-7 of the Petition for Review are ripe for judicial




                                          17
resolution. Accordingly, we overrule Respondents’ POs alleging that Counts 5-7
of the Petition for Review are not justiciable due to lack of standing and ripeness.


       2. Demurrers to Counts 5-6 (Arbitrary and Capricious Action)
       In Counts 5 and 6 of the Petition for Review, Petitioner asserts that all land
development in the Township, including reconstruction of the Turnpike, must be
approved through the administrative process detailed in the MPC and that the
Agreement illegally bypasses these established processes. (Petition for Review ¶¶
68-72.) Petitioner also alleges that the Township has no authority under the MPC
or its Home Rule Charter to exempt a specific party from complying with its
stormwater ordinances and the PTC has no authority to not comply with the
ordinances. (Id. ¶¶ 65, 71, 76.) Petitioner alleges that by bypassing the established
process, Respondents have “acted in an arbitrary and capricious manner, abused its
discretion[,] and acted not in accordance with law,” and that such “constitutes bad
faith.” (Id. ¶¶ 73, 77.) Respondents demur to these allegations by alleging that the
claims are both factually and legally insufficient.            Respondents point to the
elements of arbitrary conduct, abuse of discretion, and bad faith and argue that
Petitioner has not alleged that the Agreement is the result of such conduct.
       Respondents are correct that the titles of Counts 5 and 6 are unclear and
Petitioner’s use of the terms “abuse of discretion,” “arbitrary and capricious,” and
“bad faith” do not effectively describe the claims asserted.7 Looking through the

       7
         Although these terms do not effectively describe the cause of action, we do not find
them to be scandalous or impertinent. “To be scandalous and impertinent, the allegations must
be immaterial and inappropriate to the proof of the cause of action.” Common Cause/Pa. v.
Com., 710 A.2d 108, 115 (Pa. Cmwlth. 1998), aff’d, 757 A.2d 367 (Pa. 2000). Further, we note
that “the right of a court to strike impertinent matter should be sparingly exercised and only
when a party can affirmatively show prejudice.” Dep’t of Envtl. Res. v. Hartford Acc. & Indem.
(Footnote continued on next page…)


                                             18
titles of Counts 5 and 6 to the substantive allegations, it is clear that Petitioner is
alleging that Respondents lack the authority to enter into the Agreement; i.e., that
Respondents acted ultra vires. “An organization performs an ultra vires act if it
performs the act without any authority to do so on a particular subject or if it has
authority to do so but exercises it irregularly.” Chichester Sch. Dist. v. Chichester
Educ. Ass’n, 750 A.2d 400, 403 (Pa. Cmwlth. 2000) (internal quotation marks
omitted).
       Although it is true that, in Pennsylvania, “[t]here is a strong judicial policy
in favor of parties voluntarily settling lawsuits,” Rothman v. Fillette, 469 A.2d 543,
546 (Pa. 1983), the government parties entering the agreement must be endowed
with the authority to enter into the agreement. Township is a “creature of the state
and possesses only such powers of government as are expressly granted to it and as
are necessary to carry the same into effect,” Appeal of Gagliardi, 163 A.2d 418,
419 (Pa. 1960). Similarly, PTC is an independent agency of the Commonwealth
and, like all creations by the General Assembly, is limited and guided by statutory
standards. Grimaud v. Pa. Ins. Dep’t, 995 A.2d 391, 405 (Pa. Cmwlth. 2010). As
such, we must look to statutory authority to determine whether Respondents acted
ultra vires.
       The MPC prohibits any land development or improvement on roads without
compliance with the appropriate subdivision and land development ordinance
(SALDO). Section 507 of the MPC provides:

_____________________________
(continued…)
Co., 396 A.2d 885, 888 (Pa. Cmwlth. 1979). The terms “arbitrary,” “abuse of discretion,” and
“bad faith” are legal terms with a specific meaning. Petitioner’s use of these terms was an
attempt to provide a legal description to the substance of the allegation. As such, we overrule the
PTC PO pursuant to Rule 1028(a)(2), Pa. R.C.P. No. 1028(a)(2).



                                                19
       Where a [SALDO] has been enacted by a municipality under the
       authority of this article no subdivision or land development of any lot,
       tract or parcel of land shall be made, no street, sanitary sewer, storm
       sewer, water main or other improvements in connection therewith
       shall be laid out, constructed, opened or dedicated for public use or
       travel, or for the common use of occupants of buildings abutting
       thereon, except in accordance with the provisions of such ordinance.

53 P.S. § 10507. Pursuant to the Township’s SALDO, any land development plan
must first be reviewed and approved by the Planning Commission through a
process that includes the submission of preliminary and final plans, and the holding
of public meetings. Sections 181-20 – 181-26 of the Township’s SALDO.8 The
MPC provides the Township with the authority to modify requirements of the
SALDO if, due to the peculiar constraints of the land, the requirements would
cause unnecessary hardship, and such modification is also authorized in the
SALDO itself. Section 512.1(a) of the MPC,9 53 P.S. § 10512.1(a); see Ruf v.
Buckingham Twp., 765 A.2d 1166 (Pa. Cmwlth. 2001) (holding that the township
should have granted a modification of the SALDO to a petitioner because the
unique topography of a property rendered literal enforcement of stormwater
control requirements upon a new development unreasonable and would cause

       8
          Petitioners did not attach the Township’s SALDO to the Petition for Review. We take
judicial notice of the SALDO as found on the Township’s website. 42 Pa. C.S. § 6107(a).
        9
          Added by Section 40 of the Act of December 21, 1988, P.L. 1329. Section 502.1(a)
provides:

       (a) The governing body or the planning agency, if authorized to approve
       applications within the subdivision and land development ordinance, may grant a
       modification of the requirements of one or more provisions if the literal
       enforcement will exact undue hardship because of peculiar conditions pertaining
       to the land in question, provided that such modification will not be contrary to the
       public interest and that the purpose and intent of the ordinance is observed.

53 P.S. § 10512.1(a).



                                               20
undue hardship).          However, any modification must occur through a specific
process articulated in the MPC and SALDO. 53 P.S. §§ 10512.1(b)-(d).10 The
Township’s SALDO provides this authority to the Board of Supervisors. (Section
181-65 of the Township’s SALDO.) The decision of the Board of Supervisors to
modify the requirements of the SALDO may be appealed to the appropriate court
of common pleas as a land use appeal in accordance with Section 1002–A of the
MPC,11 53 P.S. § 11002-A. Residents Against Matrix v. Lower Makefield Twp.,
802 A.2d 712, 714 (Pa. Cmwlth. 2002).
       Accepting all material allegations as true, we conclude that Petitioner
sufficiently alleges that by entering the Agreement, Respondents acted ultra vires
and deprived Petitioner of its right under Section 507 of the MPC to challenge the
modification of stormwater ordinances through the process outlined by the MPC
and the Township’s SALDO. Because it is not free from doubt that Respondents
were empowered to enter the Agreement, we overrule Respondents’ demurrers to
Counts 5 and 6 of the Petition for Review.



       10
            The process is detailed in subsections (b)-(d) of Section 512.1 of the MPC as follows:

       (b) All requests for a modification shall be in writing and shall accompany and be
       a part of the application for development. The request shall state in full the
       grounds and facts of unreasonableness or hardship on which the request is based,
       the provision or provisions of the ordinance involved and the minimum
       modification necessary.
       (c) If approval power is reserved by the governing body, the request for
       modification may be referred to the planning agency for advisory comments.
       (d) The governing body or the planning agency, as the case may be, shall keep a
       written record of all action on all requests for modifications.

53 P.S. § 10512.1(b)-(d).
    11
       Added by Section 101 of the Act of December 21, 1988, as amended.



                                                 21
      3. Demurrer to Count 7 (Due Process)
      Similar to the allegations in Counts 5 and 6, Petitioner alleges in Count 7
that by entering into the Agreement, the Township violated its rights to due
process. (Petition for Review ¶ 82.) Petitioner alleges that but for the Agreement
it would have the right to appeal variances or deviation from the Township’s
stormwater management ordinances through a legal process. The Agreement,
according to Petitioner, removes those procedural rights and denies it notice and
the opportunity to be heard. The Township demurs to Count 7 by alleging that
Petitioner has not identified with any specificity how the Township deprived
Petitioner of its due process rights.
      Due process protects the right to life, liberty, or property.         Pa. Game
Comm’n v. Marich, 666 A.2d 253, 256 (Pa. 1995). “[C]ourts examine procedural
due process questions in two steps: the first asks whether there is a life, liberty, or
property interest that the state has interfered with; and the second examines
whether the procedures attendant to that deprivation were constitutionally
sufficient.” Com. v. Turner, 80 A.3d 754, 764 (Pa. 2013). Here, Petitioner alleges
that it has been denied the right to object to any deviation from the ordinances to
an administrative body. Petitioner has not alleged with any specificity any right to
due process that has been abridged by Respondents.            The right to object to
government decisions, absent a property interest in the decision, is not protected by
due process. We, therefore, sustain the Township’s demurrer to Count 7.


      III.   CONCLUSION
      In conclusion, we sustain Respondents’ POs alleging that Counts 1, 2, 3, and
4 of the Petition for Review are not ripe, and that Count 7 of the Petition for



                                          22
Review is legally insufficient. We dismiss Counts 1, 2, 3, 4, and 7 of the Petition
for Review, and dismiss as moot all other POs to such Counts. We overrule all
POs to Counts 5 and 6 of the Petition for Review.



                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge




                                        23
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Valley Forge Chapter of Trout            :
Unlimited,                               :
                        Petitioner       :
                                         :
            v.                           :   No. 161 M.D. 2016
                                         :
Township of Tredyffrin and               :
Pennsylvania Turnpike Commission,        :
                        Respondents      :


                                     ORDER


      NOW, December 20, 2016, the Preliminary Objections of the Township of
Tredyffrin (Township) and the Pennsylvania Turnpike Commission (PTC)
(together, Respondents) to Valley Forge Chapter of Trout Unlimited’s (Petitioner)
Petition for Review in the above-captioned matter are OVERRULED, in part, and
SUSTAINED, in part, as follows:


   (1) Respondents’ Preliminary Objection alleging that the matters asserted in the
      Petition for Review are not ripe is SUSTAINED as to Counts 1, 2, 3, and 4
      of the Petition for Review and OVERRULED as to Counts 5, 6, and 7;
   (2) Counts 1, 2, 3, and 4 of the Petition for Review are DISMISSED without
      prejudice;
   (3) Respondents’ remaining Preliminary Objections to Counts 1, 2, 3, and 4 of
      the Petition for Review are DISMISSED as moot;
  (4) Respondents’ Preliminary Objections alleging that Petitioner lacks standing
     to assert the claims in Counts 5, 6, and 7 of the Petition for Review are
     OVERRULED;
  (5) Respondents’ demurrers to Counts 5 and 6 of the Petition for Review are
     OVERRULED;
  (6) PTC’s Preliminary Objection pursuant to Rule 1028(a)(2) of the
     Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 1028(a)(2), to Count
     6 of the Petition for Review, alleging that the Petition for Review includes
     scandalous or impertinent matter, is OVERRULED.
  (7) Township’s demurrer to Count 7 of the Petition for Review is
     SUSTAINED;
  (8) Count 7 of the Petition for Review is DISMISSED with prejudice.


     Respondents’ Application for Leave to File Post-Argument Communication
in the Form of a Letter is GRANTED. The Chief Clerk is directed to docket the
Letter in Nature of Post-Argument Communication.




                                    _____________________________________
                                    RENÉE COHN JUBELIRER, Judge
