         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Hillandale Gettysburg, LP               :
                                        :
            v.                          :
                                        :
Board of Supervisors of                 :
Codorus Township,                       :   No. 1398 C.D. 2016
                  Appellant             :   Argued: March 7, 2017


BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                           FILED: June 13, 2017


            The Board of Supervisors of Codorus Township (Township) appeals
from a July 20, 2016 order of the Court of Common Pleas of York County (trial
court), which reversed its denial of a land development plan filed by Hillandale
Gettysburg, LP (Appellee). Upon review, we vacate and remand.
            Appellee is the owner of real property in Codorus Township upon
which it operates a Concentrated Animal Feeding Operation (CAFO). On June 19,
2015, Appellee filed a land development plan (Plan) with the Township for the
purpose of constructing and operating a poultry processing facility as part of the
existing CAFO. The plan was developed by TeamAg, Inc. (TeamAg). Appellee
received letters from three entities, the York County Planning Commission, the
York County Conservation District, and the Township Engineer, dated July 13,
2015, July 10, 2015, and July 27, 2015, respectively, all of which advised Appellee
of deficiencies in its plan.
             At an August 6, 2015 Township meeting, three ordinances were
adopted which affected future development of CAFOs.          Neither TeamAg nor
Appellee attended this meeting. On August 31, 2015, TeamAg and Appellee
requested a 120-day extension on consideration of the Plan.        At a Township
meeting on September 9, 2015, the Township denied both the extension request
and the Plan. TeamAg and Appellee were not present at this meeting and were
unaware of the denials. By letter dated September 10, 2015, Appellee responded
to the July 27, 2015 letter from the Township engineer and addressed the
deficiencies of the Plan. TeamAg received no response to the September 10, 2015
letter, but was notified by Appellant in a letter dated September 16, 2015 that the
extension request and the Plan were denied at the September 9, 2015 Township
meeting. A more detailed explanation of the bases for the denials was set forth in a
September 23, 2015 letter sent to TeamAg and Appellee.
             Appellee appealed to the trial court, arguing the Township acted in
bad faith by not granting the request for extension. In its complaint, Appellee
alleged the ordinances passed at the August 6, 2015 Township meeting were
directed at and hostile to CAFOs and, by denying the extension request and the
Plan, the Township ensured any future Plan submissions by Appellee would be
subject to the new ordinances.
             The trial court, taking no additional evidence, granted the appeal by
means of interlocutory order and remanded the matter to the Township to review
Appellee’s Plan under the ordinances in effect at the time the Plan was filed, to
discuss matters involving technical requirements and ordinance interpretation, and


                                         2
to provide Appellee a reasonable opportunity to respond to objections or modify
plans where there had been a misunderstanding or difference of opinion. The trial
court specifically found the Township acted in bad faith when it denied Appellee’s
first and only request for extension, thereby denying Appellee the opportunity to
respond to objections. This appeal followed.1

              Appellant raises the following issues on appeal:

              1. Whether the trial court’s interlocutory order
                 remanding the matter is immediately appealable?
              2. Whether the trial court abused its discretion and/or
                 erred as a matter of law in reversing and remanding
                 the matter and finding Appellant acted in bad faith in
                 denying Appellee’s plan?
(Appellant’s Brief at 4.)

              The trial court granted Friends of York County Family Farms
(Intervenor) the right to intervene. Intervenor adopts the arguments made by
Appellant and adds that a finding of bad faith on the part of an administrative
agency which has denied an extension request would send a chill throughout state
and local agencies.

                                      DISCUSSION

              The preliminary issue which must be decided is whether the
interlocutory order of the trial court is immediately appealable.


       1
         Our review in a land use appeal where the trial court heard no additional evidence is
limited in scope to a determination of whether the local agency abused its discretion or
committed an error of law. Kassouf v. Township of Scott, 883 A.2d 463, 469 (Pa. 2005).

                                              3
              The Township argues that if the matter were simply remanded to the
Board of Supervisors, the trial court’s finding that the Township acted in bad faith
would escape appellate review. The Township relies on Schultheis v. Board of
Supervisors of Upper Bern Township, Berks County, 727 A.2d 145 (Pa. Cmwlth.
1999). The relevant facts of Schultheis are as follows: Schultheis filed with the
township a sketch plan for subdivision of its property. Upon review, the county
planning commission determined the plan did not conform to the county
comprehensive plan.        Schultheis thereafter filed a preliminary plan with the
township. The county planning commission found this plan also failed to conform
to the county comprehensive plan and it failed to address many deficiencies
identified in the sketch plan.        The township denied the plan and Schultheis
appealed to the trial court.        The trial court granted Schultheis’ appeal and
remanded the case to give the developer an opportunity to correct the alleged
deficiencies. Following an appeal, this Court concluded that, while the order at
issue was interlocutory, the preliminary plan would escape appellate review and
the matter was immediately appealable under Pa.R.A.P. 311(f)(2). 2 Otherwise,
once Schultheis was provided an opportunity to revise his plan and present it to the
township, the only issues then appealable would be those related to the revised
plan and not the defective preliminary plan.
              Appellee argues Schultheis is distinguishable because in Schultheis
the trial court allowed the developer to revise its plan prior to consideration by the
township, which essentially decided the merits of the case before it was remanded

       2
         An appeal may be taken as of right from an order of a common pleas court or
government unit remanding a matter to an administrative agency or hearing officer that decides
an issue that would ultimately evade appellate review if an immediate appeal is not allowed.
Pa.R.A.P. 311(f)(2).

                                              4
to the township. We cannot agree. The ultimate decision in Schultheis turned on
whether an issue would evade appellate review if the order were not deemed
immediately appealable.
               It is clear in the case sub judice, that, upon remand, the Township will
review the deficiencies in Appellee’s Plan and determine whether they are
amenable to correction. But the issue of whether the Township acted in bad faith
will be forever settled by the decision of the trial court. We therefore conclude that
the order of the trial court is immediately appealable under Rule 311(f)(2) and we
may proceed with reviewing the Township’s second argument.3
               The Township next argues the trial court abused its discretion in
reversing and remanding the matter to the Township and finding the Township
acted in bad faith when it denied Appellee’s Plan. In support of its argument, the
Township cites to Kassouf v. Township of Scott, 883 A.2d 463 (Pa. 2005) and
Abarbanel v. Solebury Township, 572 A.2d 862 (Pa. Cmwlth. 1990), two cases in
which the townships involved were found to have acted in good faith.
               The underlying facts in Kassouf and Abarbanel, however, render
those matters easily distinguished from the case sub judice. Extension requests
submitted by the developers were granted in both cases.                     In Abarbanel, the
township granted the developer an extension request; however, the developer
subsequently failed to file a revised plan. In Kassouf, the developer submitted
multiple revisions to his plan and was given ample opportunity to correct any

       3
         Intervenor argues that, should the lower court’s remand order stand and escape appellate
review, “it would put a chill on other administrative agencies.” (Intervenor’s Brief at 7.) While
Intervenor sets forth a number of burdens to which agencies would be subjected should the
finding of bad faith survive, it does not expand upon the claim that bad faith would send a “chill”
throughout state and local agencies. Because we have concluded the trial court’s order is
immediately appealable, we will not address Intervenor’s argument further.

                                                5
defects prior to the township’s deadline. He simply was unable to adequately
address those defects. Presently, Appellee was denied its first and only extension
request and provided no opportunity to file a revised plan.

              A municipality has a legal obligation to proceed in good
              faith in reviewing and processing development plans.
              The duty of good faith includes discussing matters
              involving technical requirements or ordinance
              interpretation with an applicant, and providing an
              applicant a reasonable opportunity to respond to
              objections or to modify plans where there has been a
              misunderstanding or difference of opinion.

Raum v. Board of Supervisors of Tredyffrin Township, 370 A.2d 777,
798 (Pa. Cmwlth. 1976).

              The trial court based its finding of bad faith on two points.4 Likening
the facts in the present matter to those in Highway Materials, Inc. v. Board of
Supervisors of Whitemarsh Township, 974 A.2d 539 (Pa. Cmwlth. 2009), the trial
court found the Township acted in bad faith where it denied Appellee’s first and
only request for extension, thereby denying Appellee the opportunity to respond to
objections. (Trial Court Opinion (T.C.O.) at 7.)             The trial court also found the
Township’s departure from past practices, wherein it would provide Appellee
specific notice of the date and time of the Township meeting at which Appellee’s
plan was to be considered, as indicative of bad faith on the part of the Township.
Id. at 8.


       4
          In its brief, Appellee cites the ordinances approved by the Township at the August 6,
2015 meeting as indicative of the Township’s bad faith in disapproving the Plan. The trial court
explicitly declined to assume the ordinances were a motivating factor in the Township’s denial of
the Plan. Because we conclude the trial court’s opinion must be vacated and the case remanded
for development of a record, we will not address this issue herein.

                                               6
            We disagree with the trial court that the record as it stands reflects bad
faith on the part of the Township. The record, or lack thereof, likewise prevents us
from concluding the Township acted in good faith. The Township conducted no
hearings and the trial court took no additional evidence. Appellee filed its Plan in
June 2015. (R.R. at 3a.) In July 2015, Appellee received three letters indicating
those areas in which the Plan was deemed deficient. (R.R. at 3a-5a, 25a-32a.) On
August 31, 2015, Appellee requested an extension of time for consideration of its
plan. (R.R. at 6a.) On September 9, 2015, the Township denied the extension
request and Appellee’s Plan. (R.R. at 12a.) In a letter dated September 10, 2015,
Appellee mailed the Township revised plans, unaware the Plan had already been
disapproved. (R.R. at 7a.)
             Both parties argue past practices should factor into a bad faith
inquiry. Appellee avers the Township has, in the past, provided notification when
a plan would be considered at a forthcoming meeting. This assertion is supported
by a letter dated July 13, 2015 from the Township’s counsel to TeamAg, indicating
the Township intended to take action on a different project of Appellee’s at the
next meeting scheduled for August 6, 2015. (R.R. at 48a-49a.) The Township
response to this argument is that Township meetings are publicly advertised.
(Township’s Brief at 18.) Further, the Township asserts Appellee has a history of
not responding to the Township when apprised other plans were scheduled for
consideration at Township meetings. Id. at 17. Neither TeamAg nor Appellee
appeared at the August 6, 2015 Township meeting for which notice had been
provided. Id. Beyond the July 13, 2015 letter and averments made in the briefs of
the parties, there is nothing in the record to evidence the past practices between
Appellee and the Township.


                                         7
             We agree with the Township that Highway Materials is instructive.
Highway Materials likewise concerned a question of bad faith on the part of the
township in denying a developer’s application and preliminary plans. The trial
court appointed a referee for purposes of developing a supplemental record. This
Court concluded such an act was not an abuse of discretion because the trial court
“could not rule on whether the Board had engaged in bad faith without comparing
the treatment of Highway to the treatment of other developers who had submitted
applications to the Board.” Highway Materials, 974 A.2d at 544. Instantly, in the
absence of a record, it is not possible to determine the past practices of the parties
and, specifically, whether the Township’s failure to act in concert with same
evidences bad faith.
             For these reasons, we vacate and remand to the trial court for further
development of the record to determine whether past practices of the parties
indicates bad faith on the part of the Township.




                                          ___________________________
                                          JOSEPH M. COSGROVE, Judge




                                          8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Hillandale Gettysburg, LP            :
                                     :
            v.                       :
                                     :
Board of Supervisors of              :
Codorus Township,                    :   No. 1398 C.D. 2016
                  Appellant          :



                                ORDER


            AND NOW, this 13th day of June, 2017, the order of the Court of
Common Pleas of York County dated July 20, 2016 is VACATED and the matter
is REMANDED for proceedings consistent with this opinion.     Jurisdiction is
relinquished.




                                  ___________________________
                                  JOSEPH M. COSGROVE, Judge
