         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Appeal of the                     :
February 12, 2018 Decision of            :
the Westtown Township Board of           :
Supervisors Denying Toll PA              : No. 1366 C.D. 2018
XVIII, L.P.’s Conditional Use            : Argued: May 6, 2019
Application for a Flexible               :
Development of Crebilly Farm             :
                                         :
Appeal of: Toll PA XVIII, L.P.           :



BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                     FILED: December 12, 2019



            Toll PA XVIII, L.P. (Toll) appeals from an order of the Court of
Common Pleas of Chester County (trial court) that affirmed a decision of the
Westtown Township Board of Supervisors (Board) denying its conditional use
application (Application) for a flexible residential development. Toll contends that
the Board erred by denying Toll’s Application where Toll met the objective criteria
under Article IX, Flexible Development Regulations (Flexible Development
Regulations), §§170-900-170-909, of “The Westtown Township Zoning Ordinance
of 1991” (Ordinance). For the reasons that follow, we affirm in part and reverse in
part.
                                          I. Background
                Toll is the equitable owner of 322 acres of land located in Westtown
Township (Township), Chester County, Pennsylvania, collectively known as
“Crebilly Farm” (Property).1 The Property is bounded by U.S. Route 202 (also
known as Wilmington Pike), PA Route 926 (also known as Street Road), West
Pleasant Grove Road and South New Street. See Reproduced Record (R.R.) at 339a
(site location map). Most of the Property is zoned Agricultural/Cluster Residential
(A/C District), and a portion is zoned R-1 Rural Suburban Residential (R-1 District)
under the Ordinance.
                In October 2016, Toll submitted its Application to the Township
proposing to develop a flexible development2 on the Property under the Flexible
Development Regulations of the Ordinance. Specifically, Toll proposed to construct
a 319-unit flexible development consisting of 2 existing homes, 200 new single-
family homes and 117 new town/carriage houses (Proposed Development). The
Proposed Development also includes the construction of internal streets, utilities,
stormwater management facilities, landscaping, screening, community recreation
facilities and other associated improvements as well as 197.15 acres of open space.


       1
        Crebilly Farm Family Associates, L.P., David M. Robinson, Laurie S. Robinson and
David G. Robinson (collectively, Crebilly Farm Family) are the legal owners of the Property.

       2
           The Ordinance defines “flexible development” as:

                An area of land, controlled by a landowner, to be developed as a
                single entity for a number of dwelling units, the development plan
                for which does not correspond in lot size, bulk or type of dwelling,
                density, lot coverage, and required open space to the regulations
                established in any one residential district created, from time to time,
                under the provisions of this chapter.

Section 170-201 of the Ordinance.
                                                  2
Along with the Application, Toll submitted a conditional use site plan (Plan), as well
as two alternate conditional use site plans, a stormwater management plan, a traffic
impact study, a fiscal impact study, a geotechnical investigation report and
sewer/water feasibility letters.
             The Township Planning Commission (Commission), following several
public meetings, recommended conditional approval of the Application. Thereafter,
the Board held several public hearings on the Application, at which the Commission,
adjacent townships, the local school district, local businesses, neighboring
homeowner associations, neighboring property owners and a special interest
association were granted party status.
             In support of its Application, Toll presented expert witnesses, who
testified on land planning, stormwater management, geology, wastewater
engineering, traffic engineering, historic resources and fiscal/community impacts, as
well as numerous exhibits.         Those opposed to the Application also presented
testimony and exhibits.
             Based on the evidence presented, the Board made 178 findings. Of
relevance here, the Board found that most of the Property is located in an area
designated for cluster residential use under the Township’s comprehensive plan and
Ordinance. Board of Supervisors’ Decision, 12/28/17, Findings of Fact (F.F.) Nos.
28, 29. The majority of the Property is farmed, though it is also used for residential
purposes and improved with single-family homes, stables, barns, springhouses,
equestrian facilities, sheds and additional accessory buildings. F.F. Nos. 30, 45. A
flexible residential development is permitted by conditional use in the A/C and R-1
Districts. F.F. No. 54.




                                           3
             Despite finding that the Proposed Development is a permitted use on
the Property and complies with numerous provisions of the Ordinance, the Board
rejected the Application on the basis that Toll failed to: (1) construct four new
separate turning lanes at the intersection of Route 926 and South New Street; (2)
provide a public “collector road” running north/south through the Property between
West Pleasant Grove Road and Route 926; (3) preserve “scenic views”; and (4)
provide a meaningful review of the Proposed Development’s site accesses by not
revising the Plan to show possible alternative site access locations.
             With regard to the turning lanes, the Board found that the Proposed
Development is anticipated to generate approximately 2,742 vehicle trips per
weekday and 210 vehicle trips during the weekday morning peak hours and 266
vehicle trips during the weekday afternoon peak hours. The Proposed Development
will cause an increase in the overall delay at the intersection of Routes 202 and 926,
which require certain improvements to mitigate traffic impacts. Independent of
Toll’s Proposed Development, the Pennsylvania Department of Transportation
(PennDOT) contemplates the completion of certain improvements at the intersection
of Routes 202 and 926. In order to mitigate the traffic impacts of the Proposed
Development, Toll will provide a southbound Route 202 right-turn lane and a second
eastbound Route 926 left-turn lane and eliminate the split-phasing operations of the
existing signal at the intersection. In the event PennDOT does not complete the
Routes 202/926 intersection improvements prior to development of the Property,
Toll agrees to complete such improvements. PennDOT, at a minimum, will require
Toll to provide left turn lanes at all four approaches to the intersection of Route
926/South New Street, as well as replace and upgrade all of the signal equipment
and mast-arms at the intersection. Longer left turn lanes at all four approaches to


                                          4
the intersection of Route 926/South New Street are required. If Toll fails to provide
or contribute toward the turn lanes, traffic generated from the Proposed
Development will not be able to be safely and efficiently managed on the existing
road network. The traffic impacts from the Proposed Development will adversely
impact the traffic conditions at the intersection of Route 926/South New Street. Toll
failed to mitigate such impacts. F.F. Nos. 136-140, 144, 147-149.
             With regard to the collector road, the Board found that Section 170-
503(C)(3) of the Ordinance requires Toll to link its road network to existing or
proposed intersections or other points of controlled and/or signalized access to
collector and/or arterial highways. Toll failed to adequately provide a collector road
from West Pleasant Grove Road to Route 926. F.F. Nos. 92-96.
             As for the scenic views, the Board found that Toll did not identify
scenic views as part of its required site analysis under Conservation Design
requirements set forth in Section 170-1617(C)(1)(c) of the Ordinance. The Board
also found that Toll did not take into account all lands visible from any adjacent
public road, measured as viewed from a height of four feet above the surface of the
road looking in any direction or angle across the Property, based on winter
conditions when existing vegetation offers the least obstruction of view as part of its
site analysis submission as required by Section 170-905(A)(1). F.F. No. 44, 59-60.
             Finally, with regard to revising the Plan to show alternative site access
locations, the Board found that Toll initially proposed the following accesses for the
Proposed Development: (a) a Route 202 right-in/right-out-only access; (b) a Route
926 full movement signalized access at a “T” intersection; (c) a West Pleasant Grove
Road access opposite Dunvegan Road; (d) a West Pleasant Grove Road access
opposite Hidden Pond Way; and (e) an emergency access from South New Street.


                                          5
As a result of review comments from PennDOT and the Township, Toll agreed to
modify the access to the Proposed Development as follows: (a) the Route 926
signalized access would be moved opposite Bridlewood Boulevard to create a four-
way intersection; and (b) the easternmost West Pleasant Grove Road Access that
was originally opposite Hidden Pond Way would be located to the west in order to
provide adequate sight distance without re-profiling West Pleasant Grove Road.
Toll was willing to eliminate the Route 202 right-in/right-out-only access.
Notwithstanding, Toll did not revise its Plan to depict the location of the relocated
access intersection or Route 926/Bridlewood Boulevard access, the easternmost
West Pleasant Grove Road access, or the Route 202 access. The Board found it
could not fully consider the merits of the location of the access points without the
benefit of a revised plan showing precisely what Toll intends to develop on the
Property. The Board further found it could not determine whether the alternate
access points comply with the Ordinance unless and until such plan is submitted and
reviewed by consultants.      Thus, the Board voted unanimously to deny the
Application. F.F. Nos. 131-135.
             From this decision, Toll filed a land use appeal with the trial court.
Without taking additional evidence, the trial court concluded that the Board properly
denied Toll’s conditional use application on at least four separate grounds and
affirmed. However, the trial court rejected the applicability of the “scenic views”
Conservation    Design    requirement    upon    finding   it   was   not   objective.
Notwithstanding, the trial court determined that Toll still failed to comply with the
Conservation Design requirement to depict “all lands visible from any adjacent
public road” and found that to be a valid basis for the Board’s decision. Toll’s appeal




                                          6
to this Court followed.3 Appellees filed briefs in support of and in opposition to
Toll’s appeal.4


                                            II. Issues
               Toll contends that the Board erred in determining that Toll failed to
satisfy four separate Ordinance requirements. First, the Board erred in determining
that Toll was required to construct improvements at the intersection of Route 926
and South New Street. Such improvements are controlled by PennDOT, not the
Board, and are located offsite. Second, the Board erred in determining that Toll was
required to construct a collector road through the Property. Third, the Board erred
by denying Toll’s Application based on its failure to depict “all lands visible from
any adjacent public road.” Board of Supervisors’ Decision at 47. The purpose of
depicting such lands is to preserve scenic views from existing streets, which the trial


       3
         Where, as here, the trial court did not take any additional evidence, our review is limited
to determining whether the local governing body committed an error of law or an abuse of
discretion. Robal Associates, Inc. v. Board of Supervisors of Charlestown Township, 999 A.2d
630, 634 (Pa. Cmwlth. 2010). An abuse of discretion occurs when findings of fact are not
supported by substantial evidence, which is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Northampton Township v. Zoning Hearing Board
Northampton Township, 969 A.2d 24, 27 n.1 (Pa. Cmwlth. 2009). “In conditional use proceedings
where the trial court has taken no additional evidence, the Board is the finder of fact, empowered
to judge the credibility of witnesses and the weight afforded to their testimony; a court may not
substitute its interpretation of the evidence for that of the Board.” In re Richboro CD Partners,
L.P., 89 A.3d 742, 754-55 (Pa. Cmwlth. 2014).

       4
          Appellees are the Township; Crebilly Farm Family; Brandywine at Thornbury
Homeowners Association; Neighbors for Crebilly, LLC; and Thornbury Homeowners
Association. The Township filed a brief in opposition. Crebilly Farm Family joins in the brief
and reply brief filed by Toll. Brandywine at Thornbury Homeowners Association joins solely in
support of Toll’s argument regarding the collector road. Neighbors for Crebilly, LLC offers two
independent alternate bases for affirming the denial of the Application. Thornbury Homeowners
Association filed a notice of non-participation.
                                                 7
court held is not an objective standard that requires compliance. Finally, Toll claims
that the Board erred in determining that Toll is required to revise its Plan to depict
alternate site access locations discussed and evaluated during the hearings on the
Application. Toll maintains that it satisfied all of the applicable objective standards
for conditional use and that no party demonstrated that Toll’s Proposed
Development would result in harm greater than that which would normally flow
from such a proposed use. Therefore, Toll asks this Court to reverse the trial court’s
order and approve its Application.

                                  III. Discussion
                             A. PennDOT Intersection
             Toll contends that the Board erred in requiring Toll to construct public
roadway improvements, i.e., turning lanes at the intersection of Route 926 and South
New Street. First, Toll argues that the turning lanes at all four approaches to the
intersection are warranted under preexisting conditions without the Proposed
Development ever being constructed.           Toll’s Proposed Development did not
generate the need for improvements at this intersection. An increase in traffic at an
already impaired intersection is not a basis to deny a conditional use application
when the proposed use generates traffic normally generated by the type of proposed
use. In order to defeat a conditional use application on this basis, there must be
conclusive evidence demonstrating a high degree of probability that the proposed
use will generate abnormal traffic patterns not normally generated by that type of
proposed use or pose a substantial threat to the health and safety of the community.
Such evidence was not presented here.
             Second, Toll asserts that the improvements the Township seeks are
offsite. Toll does not own or control the properties adjacent to the other three

                                          8
approaches. The Proposed Development will not take access from the Route
926/South New Street intersection. The closest proposed site access to the Proposed
Development is approximately 2,500 feet to the east of the intersection. See R.R. at
629a.
                 Third, Toll maintains that the intersection is signalized and under the
jurisdiction and control of PennDOT. The Board does not have the authority to
regulate or dictate what improvements, if any, are required at this intersection, which
is governed by PennDOT through the Highway Occupancy Permit application
process.
                 The Pennsylvania Municipalities Planning Code5 (MPC) provides that
a zoning ordinance may contain “provisions for conditional uses to be allowed or
denied by the governing body after recommendations by the planning agency and
hearing, pursuant to express standards and criteria set forth in the zoning ordinance.”
Section 603(c)(2) of the MPC, 53 P.S. §10603(c)(2). “A conditional use is nothing
more than a special exception which falls within the jurisdiction of the municipal
governing body rather than the zoning hearing board.” In re Thompson, 896 A.2d
659, 670 (Pa. Cmwlth. 2006).6 “An applicant for conditional use has the burden to
demonstrate compliance with the specific criteria of the ordinance.” Id.
                 Once an applicant shows compliance with the specific requirements of
an ordinance, it is presumed that the use is consistent with the promotion of health,
safety, and general welfare. Thompson, 896 A.2d at 670; In re Brickstone Realty
Corp., 789 A.2d 333, 341-42 (Pa. Cmwlth. 2001). “The burden then shifts to


        5
            Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.

        6
         Because the law regarding conditional uses and special exceptions is virtually identical,
the burden of proof standards are the same for both. Thompson, 896 A.2d at 670.
                                                 9
objectors to prove that the proposed use is not, in fact, consistent with the promotion
of health, safety, and general welfare.” Brickstone, 789 A.2d at 340. An application
must be granted unless the objectors present “sufficient evidence that the proposed
use has a detrimental effect on the public health, safety, and welfare.” Thompson,
896 A.2d at 670; Brickstone, 789 A.2d at 341-42. “[T]he degree of harm required
to justify denial of the conditional use must be greater than that which normally
flows from the proposed use.” In re Cutler Group, Inc., 880 A.2d 39, 43 (Pa.
Cmwlth. 2005).
             With regard to traffic, an anticipated increase in traffic for a proposed
use would not on its own serve to defeat a request for special exception or conditional
use. See Brickstone, 789 A.2d at 341-42; Bray v. Zoning Board of Adjustment, 410
A.2d 909 (Pa. Cmwlth. 1980). “Moreover, an increase in traffic at or near an already
dangerous intersection is not a sufficient basis for denying a special exception when
the proposed use would contribute less traffic than a ‘normal use’ of the same type.”
Brickstone, 789 A.2d at 342. Indeed, to defeat a special exception or conditional use
“on the grounds of traffic conditions, there must be a high probability that the
proposed use will generate traffic patterns not normally generated by that type of use
and that such ‘abnormal’ traffic will pose a substantial threat to the health and safety
of the community.” Id.
             Section 170-2009(D) of the Ordinance sets the standards for
conditional use approval. Of relevance here, Section 170-2009(D)(1)(h) provides:

             The burden of proof shall be upon the applicant to prove
             to the satisfaction of the Board . . . , by credible evidence,
             that the use will not result in or substantially add to a
             significant traffic hazard or significant traffic congestion.
             The peak traffic generated by the development shall be
             accommodated in a safe and efficient manner. Such

                                          10
             analysis shall consider any improvements to streets that
             the applicant is committed to complete or fund.
             Here, to show compliance with Section 170-2009(D)(1)(h) of the
Ordinance, Toll bore the burden of proving, to the satisfaction of the Board, by
credible evidence, “that the use will not result in or substantially add to a significant
traffic hazard or significant traffic congestion.” To that end, Toll presented the
testimony of Nicole R. Kline, P.E., Senior Project Manager for McMahon
Associates, who was accepted as an expert in traffic engineering. Kline testified that
the left turn lanes at all four approaches were warranted under existing conditions.
Because the traffic congestion is preexisting, Kline maintained Toll should not bear
the responsibility of making the improvements. However, the Board rejected
Kline’s testimony as not credible as it relates to the traffic impact from the Proposed
Development based on inconsistencies between her testimony and the traffic impact
study that she prepared and her reticence in response to questions regarding impacts
to the South New Street intersection. Board of Supervisors’ Decision, at 46-47.
             Instead, the Board relied upon the Township’s traffic engineering
expert, Albert P. Federico, P.E., Senior Project Manager for Kimley Horm. Federico
testified that the Proposed Development as currently designed would necessitate left
turn lanes at all four approaches to the South New Street Intersection longer than
those already warranted under existing conditions. He testified that “if [Toll did]
not provide the left turn lanes or contribute toward the turn lanes that the traffic
generated from the [Proposed] [D]evelopment [would] not be able to be safely and
efficiently managed on the existing road network as modified or upgraded by
[Toll].” R.R. at 2229a. The Board credited Federico’s testimony and found that the
traffic impacts from the Proposed Development would adversely impact the traffic



                                           11
conditions at the South New Street Intersection, creating a traffic hazard and adding
to significant traffic congestion. F.F. No. 148.
                Although the significant traffic congestion along Route 202 corridor is
preexisting, the Board credited Federico’s testimony that the Proposed Development
would substantially contribute to that congestion and pose a threat to the health and
safety of the community. F.F. No. 148. Upon review, Toll did not carry its burden
of proving that its Proposed Development would not result in or substantially add to
a significant traffic hazard or significant traffic congestion. As Toll did not satisfy
its initial burden, the burden never shifted to the objecting parties to prove that the
proposed use is contrary to the health, safety and general welfare.
                As to whether Toll was required to mitigate the traffic impacts of its
Proposed Development by constructing four turn lanes at the intersection of Route
926 and South New Street, Section 170-2009(B)(1) of the Ordinance provides that
“[i]t shall be the burden of the applicant to demonstrate compliance with the
standards for conditional use contained in this section and with any other relevant
stipulations of this chapter, and to indicate means by which potential impacts from
the proposed use will be mitigated.”
                Toll argues that the Board cannot compel such improvements because
this intersection is “offsite.”7 Toll claims that Section 503-A(b) of the MPC,8


       7
         The Board asserts that Toll waived the issue of whether the South New Street Intersection
is an offsite improvement by failing to raise this issue before the Board. Board’s Brief at 21.
However, Toll had no advance notice that the failure to make these improvements would serve as
a legal basis for the Board’s denial. Toll properly raised this issue at the first opportunity to do so
and it was addressed by the trial court. See Trial Court Op., 10/1/18, at 13. Therefore, we decline
to find waiver.

       8
           Added by the Act of December 19, 1990, P.L. 1343, as amended, 53 P.S. §10503-A(b).


                                                 12
prohibits the Township from requiring “offsite” road improvements. As to whether
the road improvements are offsite or onsite, Section 502-A of the MPC,9 defines
“onsite improvements” as: “all improvements constructed on the applicant’s
property, or the improvement constructed on the property abutting the applicant’s
property necessary for the ingress or egress to the applicant’s property.”
               According to Toll, the improvement must be on the Property or abut the
Property and be necessary for the ingress or egress for the road improvement to be
considered “onsite.” As Toll points out, only one of the four new turning lanes abuts
Toll’s Property, and they are not necessary for the ingress or egress to the Proposed
Development because other access is contemplated.
               However, as the Board points out, Toll’s reliance on the MPC is
misplaced in the context of a conditional use approval. Section 503-A of the MPC
specifically pertains to land development or subdivision approval, providing:

               No municipality shall have the power to require as a
               condition for approval of a land development or
               subdivision application the construction, dedication or
               payment of any offsite improvements or capital
               expenditures of any nature whatsoever or impose any
               contribution in lieu thereof, exaction fee, or any
               connection, tapping or similar fee except as may be
               specifically authorized under this act.

53 P.S. §10503-A (emphasis added). This provision is inapplicable in the context
of a conditional use application. See Borough of Hummelstown v. Borough of
Hummelstown Zoning Hearing Board (Pa. Cmwlth., No. 2067 C.D. 2012, filed
August 1, 2013) (holding that this provision pertains to a land development or


      9
          Added by the Act of December 19, 1990, P.L. 1343, 53 P.S. §10502-A.


                                             13
subdivision application not a request for a special exception to which appropriate
conditions can be attached).10
                 Regardless of whether the proposed accesses and improvements are
onsite or offsite, Toll persuasively argues that the Board cannot compel such
improvements because the intersection is controlled by PennDOT. Indeed, design
and improvement of the four turning lanes fall under the jurisdiction of PennDOT as
part of the Highway Occupancy Permit application process. See Sections 408 and
420 of the State Highway Law.11 As Federico testified, PennDOT would have
“jurisdictional authority over the design of the turn lanes.” R.R. at 2235a; see R.R.
at 1289a (“The proposed accesses and improvements along [Routes] 202 and
. . . 926 . . . will require PennDOT approval.”). The Township may condition
approval on Toll obtaining a Highway Occupancy Permit with PennDOT, see
Smithfield v. Kessler, 882 A.2d 17, 22 (Pa. Cmwlth. 2005); CACO Three, Inc. v.
Board of Supervisors of Huntington Township, 845 A.2d 991, 998 (Pa. Cmwlth.
2004); however, the Township cannot deny Toll’s Application on the basis that its
Plan did not depict changes to PennDOT-controlled roadways. Therefore, we
reverse on this claim.

                                      B. Collector Road
                 Next, Toll argues that the Ordinance does not require it to construct a
collector road through the middle of the Property to address existing regional traffic
congestion on Route 202. The Township’s Growth Management Plan, which serves


       10
          Section 414(a) of this Court’s Internal Operating Procedures authorizes the citation of
unreported panel decisions issued after January 15, 2008, for their persuasive value, but not as
binding precedent. 210 Pa. Code §69.414(a).

       11
            Act of June 1, 1945, P.L., 1242, as amended, 36 P.S. §§670-408, 670-420.
                                                14
as its comprehensive plan, contains general goals, including working with PennDOT
and developers to continually increase traffic safety and address congestion at
Routes 202 and 926. According to the Growth Management Plan, which is 17 years
old, if the Property is developed, a new road should be required running parallel to
Route 202. The Plan further suggested that this “road link” be constructed to
encourage persons who wish to turn westward from southbound Route 202 to take
an alternate route. Thus, the goal was to alleviate existing traffic. Toll argues that
the “road link” or “collector road” is unrelated to its Proposed Development. The
Board improperly imposed upon Toll the Growth Management Plan’s general goal
of requiring a collector road in order to alleviate existing regional traffic congestion.
Toll maintains that a conditional use applicant is not required to prove consistency
with the municipality’s comprehensive plan.12
               Toll contends that construction of a collector road is not required by the
Ordinance. According to Toll, flexible developments are governed by Flexible
Development Regulations and are not subject to the general provisions contained in
Section 170-503(C) of the Ordinance. The Flexible Development Regulations do
not require a collector road. Even assuming such requirements applied, there are no
existing collector roads on the adjacent properties to connect to and a collector road
is not needed to provide reasonable access to the Proposed Development. Thus,
Toll’s failure to provide a collector road through its Property is not a valid basis for
denial of its application. Toll contends that the Board’s attempt to address regional
existing traffic congestion on the “back” of a private property owner is tantamount
to an unlawful taking without compensation.

       12
          Contrary to the Board’s assertions, Toll did not waive this issue. See R.R. at 2591a-92a
(Toll’s proposed findings of fact submitted to the Board in support of its Application challenging
the requirement of a “collector road”).
                                               15
             “[A]n applicant seeking conditional use approval must prove
compliance with both the use-specific and general conditional use standards and
criteria explicitly set forth in the applicable zoning ordinance.” In re AMA/American
Marketing Association, Inc., 142 A.3d 923, 932 (Pa. Cmwlth. 2016). Applications
for flexible development in the Township are governed by the Flexible Development
Regulations, §§170-900-170-909 of the Ordinance.            Section 170-902 of the
Ordinance provides that the Flexible Development Regulations’ procedure may be
applied in the A/C and R-1 Districts when approved by the Board as a conditional
use.
             In addition, the conditional use design standards found in the A/C
District (Section 170-503) and the R-1 District (Section 170-603) also apply to an
application for flexible development, unless the flexible development procedures
“exceed” or “address matters not covered by” the standard design criteria in the A/C
and R-1 Districts. Sections 170-503(B) and 170-603(B) of the Ordinance. Section
170-503(A) of the Ordinance governs design standards for “all uses permitted by
right, special exception and conditional use in the A/C District.” (Emphasis added.)
Section 170-503(A)(7) of the Ordinance requires compliance with access and traffic
control as required by Sections 170-503(C) and 170-1510 of the Ordinance.
             Section 170-503(C) provides, that as a condition for approval, an
applicant must “prove to the satisfaction of the Board . . . that the proposed use or
development will provide safe and efficient vehicular . . . traffic access, circulation
and control” consistent with six requirements, including the development of
collector roads. Specifically, Section 170-503(C)(1)-(3) of the Ordinance requires
that an applicant seeking the Board’s approval of a proposed development to
establish:


                                          16
             (1) Traffic access shall be fully coordinated with adjacent
             existing and future development, including but not limited
             to providing and promoting appropriate traffic access
             to/from adjacent properties.

             (2) Traffic access to use(s) within any development site
             shall be provided by a fully developed internal network of
             local roads or private drives, paths and trails which also
             shall link any proposed use or development to existing or
             proposed intersections or other points of controlled
             and/or signalized access to collector and/or arterial
             highway(s).

             (3) Continuous collector street(s) and trail(s) shall be
             developed as part of the subject use or development to
             provide internal through connection(s) between existing
             collector and/or arterial streets and trail(s), as applicable,
             and as required by the Board . . . to provide reasonable
             access to the subject use or development. (Examples may
             include but are not limited to: a through collector street
             connecting the intersection of Skiles Boulevard and U.S.
             Route 202 with West Pleasant Grove Road and PA Route
             926); a through collector street connecting Walnut
             Hill/Shady Grove Roads to Westtown Road; and a through
             collector street connection to PA Routes 352 and 926.)
(Emphasis added.) Section 170-1510 of the Ordinance provides criteria in order to
minimize traffic congestion and hazard, control street access and encourage the
orderly development of street or highway frontage, but does not require construction
of a collector road. Section 170-201 of the Ordinance defines “collector street” as:

             A street designed and located to provide means of access
             to traffic off local streets and to provide access for through
             traffic between residential neighborhoods and districts
             within the Township to major streets and/or a street used
             for access to nonresidential properties, i.e., commercial,
             industrial, professional, etc.
             Similarly, Section 170-603(A) of the Ordinance governs design
standards for “all uses permitted by right, special exception and conditional use in

                                          17
the R-1 District.” (Emphasis added.) Section 170-603(A)(4) of the Ordinance
merely requires compliance with access and traffic control as required by Section
170-1510.
             Toll argues that the above standards do not apply to its Proposed
Development because the flexible development procedures set forth in Flexible
Development Regulations of the Ordinance solely govern flexible developments.
However, Sections 170-503(B) and 170-603(B) expressly provide that the flexible
development procedures govern only “where those standards exceed or address
matters not covered by” Sections 170-503 and 170-603, respectively. The Flexible
Development Regulations contain only one passage referring to collector roads
requiring the designation of the type of street (arterial, collector, or local depending
upon its function). Section 170-905(B)(1) of the Ordinance. Therefore, the flexible
development procedures do not exceed or address matters covered by the general
design standards. Where a design standard requirement is not specifically addressed
by the Flexible Development Regulations, the design standards of Section 170-
503(A) apply to Toll’s Application, more specifically, the access and traffic control
provisions of Section 170-503(C), because Toll is seeking a conditional use in the
A/C District. Toll’s Plan failed to provide a “continuous collector street” from West
Pleasant Grove Road to Route 926 as required by Section 170-503(C)(3) of the
Ordinance.
             Toll claims that compliance with this provision is not required or even
possible because there is no existing collector street on the adjacent property located
to the north of West Pleasant Grove Road upon which to connect. As the Board
recognized, due to site constraints, it is not likely that the collector road on the north
side of West Pleasant Grove Road could align exactly to continue straight south to


                                           18
Route 926. However, the definition of “collector street” does not require a direct
link to a collector street. Moreover, Section 170-503(C)(1) provides, with emphasis
added, that “[t]raffic access shall be fully coordinated with adjacent existing and
future development . . . .” Federico did not testify that the requirements for a
collector street could not be met in this case, and Toll did not offer any evidence to
that effect. To accept Toll’s position would inhibit the development of any collector
roads within the Township and ignore future development. The Board did not err in
concluding that a collector road will provide a reasonable internal through
connection between West Pleasant Grove Road and Route 926, running parallel to
and serving as an alternate for a small portion of Route 202.
             As for Toll’s argument that a collector road is not necessary because its
Plan proposes other means of accessing the Property, Section 170-503(C)(3) of the
Ordinance requires “reasonable access” to a development. Insofar as Toll argues
that such a requirement is the equivalent to an unlawful taking, Toll did not challenge
the substantive validity of the Ordinance or present the issue to the Board for
consideration. Consequently, Toll did not preserve this issue for review. See
Piccolella v. Lycoming County Zoning Hearing Board, 984 A.2d 1046, 1060 n.4 (Pa.
Cmwlth. 2009). Upon review, the Board did not err or abuse its discretion by
denying Toll’s conditional use application for failure to provide a collector road.

                                    C. Scenic View
             Next, Toll argues that the Board and trial court wrongfully denied its
Application on the basis that it failed to comply with the Ordinance’s Conservation
Design process by omitting visible land data. The Board denied Toll’s Application,
in part, for its failure to account for “scenic views.” As the trial court properly held,
the term “scenic view” is not an objective standard. Nevertheless, the trial court

                                           19
upheld the Board’s determination that Toll failed to depict “all lands visible from
any adjacent public road” as required under Section 170-905(A)(1)(m) of the
Ordinance. Toll contends that, because it was not required to preserve “scenic
views” from existing streets, there is no valid basis to require Toll to analyze “all
lands visible from any adjacent public road.” In addition, Toll also maintains that
Section 170-905(A)(1)(m) directly conflicts with the screening requirements under
Sections 170-905(G) and 170-1508 of the Ordinance. Further, Toll argues that the
Township’s Zoning Officer determined that the Application was complete without
requiring Toll to separately depict “all lands visible from any adjacent public road,”
see R.R. at 1740a-42a, and the Board is bound by this determination of
completeness.
             A flexible development must comply with the Conservation Design
criteria of Section 170-1617 of the Ordinance. In addition, it must comply with the
flexible design standards of Section 170-905(A) of the Ordinance. Pursuant to
Section 170-905(A)(1) of the Ordinance, an applicant seeking conditional use
approval for a flexible development must prepare a site analysis that identifies the
following 13 items, with emphasis added:

             (a) Degree of slope, in the following ranges: less than
             15%, as measured at two-foot contour intervals; 15%-25%
             and greater than 25%, as measured at five-foot contour
             intervals.

             (b) Areas subject to floodplain regulations, including
             floodway, flood-fringe, and approximated floodplain
             areas, as delineated by the Flood Insurance Study for
             Westtown Township prepared by the U.S. Department of
             Housing and Urban Development and the Federal
             Insurance Administration. [Amended 9-5-2017 by Ord.
             No. 2017-3]


                                         20
            (c) Water bodies and watercourses, both perennial and
            seasonal.

            (d) Drainage basin and subbasins.

            (e) Wetlands, as defined by this chapter.

            (f) Generalized soil types as designated in the Soil Survey
            of Chester and Delaware Counties (USDA, 1963).

            (g) Generalized geological characteristics, including rock
            formation type(s).

            (h) Existing vegetation, denoted as to type, including tree
            masses, treelines, and hedgerows; individual freestanding
            trees over six inches [diameter at breast height]; wetland
            vegetation; meadow, pasture, or cropland; orchard;
            cultivated and ornamental garden areas; etc.

            (i) Existing structures and other improvements.

            (j) Historic resources, including structures, ruins, sites,
            traces, and relationship to the bounds of any National
            Register historic district.

            (k) Existing paths and trails.

            (l) Scenic views.

            (m) All lands visible from any adjacent public road.
            Visibility shall be measured as viewed from a height of
            four feet above the surface of the road looking in any
            direction or angle across the subject property, and shall
            be based on winter conditions (whether actual or
            estimated at the time of inventory) when existing
            vegetation offers the least obstruction of view. Areas
            predominantly obscured from view may be excluded from
            inventory of visible lands subject to Township approval.

Section 170-200 of the Ordinance defines “view” as the “relative ability to see a
given object from a designated location.”

                                         21
             While “scenic views,” as the trial court determined, is wholly
subjective, identification of “all lands visible from any adjacent public road,” is not.
It is an objective measure seeking an inventory of what land is visible from the road,
not whether the view is “scenic.” Obscured views may be excluded. Section 170-
905(A)(1)(m) of the Ordinance. Identifying visible views is the counterpart to
identifying vegetation, such as treelines and hedgerows.            See Section 170-
905(A)(1)(h) of the Ordinance. Toll failed to identify any lands visible from the
adjacent public roads.
             Contrary to Toll’s assertions, the identification of all lands visible from
any adjacent public road does not conflict with the Ordinance’s screening
requirements. Section 170-905(A) of the Ordinance provides considerations for the
Board in granting a conditional use application by describing conditions that exist
prior to development. Conversely, Section 170-1508 addresses the requirement of
providing and continually maintaining a visual barrier or landscape screen post
development.
             Toll also relies on the Township’s Zoning Officer’s determination that
Toll’s resubmitted Application was “complete” without requiring Toll to separately
depict “all lands visible from any adjacent public road.” Section 170-2009(C)(1) of
the Ordinance, which governs the conditional use application review procedures,
provides:
             The application shall be reviewed by the Zoning Officer.
             If it is deficient with regard to any required components,
             procedures, or fees, the Zoning Officer shall so notify the
             applicant. This review and notification shall occur prior to
             the scheduling of a public hearing on the application. If
             such identified deficiencies are not remedied in the form
             of a resubmitted application, such deficiencies shall
             constitute grounds for denial of the application by the
             Board . . . subsequent to public hearing.

                                          22
               Relying on Nextel Partners, Inc. v. Clarks Summit Borough/Clarks
Summit Borough Council, 958 A.2d 587 (Pa. Cmwlth. 2008), Toll maintains that the
Board is bound by the Zoning Officer’s determination of completeness. In Nextel,
the ordinance required the zoning officer to “refuse to accept an incomplete
application which does not provide sufficient information to determine compliance
with this Ordinance.” Nextel, 958 A.2d at 592. The applicant failed to attach its
required site plan to its conditional use application. Notwithstanding this deficiency,
the governing body accepted the application along with a $600 application fee,
which we interpreted as acceptance of a completed form. We opined that if the
governing body believed the application was incomplete, “it had an obligation under
its [o]rdinance to refuse to accept.” Id. at 593-94. Once an application is accepted
and retained, the time limitations of the MPC govern. Id. at 594. “Further, after
application acceptance, technical requirements and interpretations may be addressed
collaboratively as ordinance compliance is assessed.” Id.
               Toll’s reliance on Nextel is misplaced. Unlike the ordinance in Nextel,
the Ordinance here does not compel the Zoning Officer to reject an incomplete
application.    Rather, the Ordinance requires the Zoning Officer to advise the
applicant of any deficiencies detected. Moreover, Nextel clearly holds that after an
application is accepted, review turns to whether the applicant complied with the
technical requirements of the ordinance. 958 A.2d at 593. Although the Zoning
Officer’s review did not reveal that the visible land data was missing, his declaration
of completeness did not excuse Toll from complying with the technical requirements
of the Ordinance or otherwise bind the Board in their determination of compliance.
See Nextel.




                                          23
                                D. Alternate Access
             Lastly, Toll maintains it was not required to revise its Plan to show
alternative accesses evaluated in response to traffic review comments. The Plan for
the Proposed Development depicts: a right-in/right-out on Route 202; one signalized
“T” intersection with Route 926 between Bridlewood Boulevard and Route 202; and
two unsignalized accesses on West Pleasant Grove Road, opposite Dunvegan Road
and Hidden Pond Way. The accesses onto Routes 202 and 926 are under the
jurisdiction and control of PennDOT; the accesses on West Pleasant Grove Road are
under the jurisdiction and control of the Township. After filing the Application,
PennDOT and the Township reviewed the accesses and made comments expressing
their preferences. As a result, Toll evaluated possible alternative access locations
should it be required to relocate site access. However, Toll maintains that it was not
required to relocate its access points and therefore it was not required to revise and
resubmit its entire Plan to depict possible alternative accesses. Toll claims that the
Board’s denial of Toll’s Application on this basis is unjustified.
             Section 170-2009(B) of the Ordinance delineates the submission and
content of conditional use applications. It requires an “accurate site plan prepared
by a qualified professional.” Section 170-2009(B)(3) of the Ordinance (emphasis
added). In addition, Section 170-2009(B)(6)(a) requires that the site plan show “the
applicant’s intentions with regard to . . . [s]ite access.” (Emphasis added).
             Toll’s Plan for the Proposed Development depicts four access points to
the surrounding roadways: (1) a right-in/right-out access on Route 202; (2) a
signalized “T” intersection with Route 926 between Bridlewood Boulevard and
Route 202; (3) an unsignalized access on West Pleasant Grove Road opposite
Dunvegan Road; and (4) an unsignalized access on West Pleasant Grove Road
opposite Hidden Pond Way. R.R. at 791a, 1288a, 2055a. Subsequent to filing the

                                          24
Application, both the Township and PennDOT expressed unofficial preferences that
the Proposed Development’s signalized Route 926 access align directly across from
Bridlewood Boulevard in neighboring Thornbury Township. R.R. at 1542a. The
Township’s traffic engineer, Federico, reviewed the Plan and issued a letter
commenting that the right-out access on Route 202 may be blocked during peak
hours and the accesses along West Pleasant Grove Road and Route 926 needed
adjustments for safety. R.R. at 1288a, 1290a. He made recommendations and
requested a transportation impact study to include, inter alia, consideration of the
intersection of South New Street and West Pleasant Grove Road, an alternative
analysis of Routes 202 and 926 without anticipated PennDOT improvements, and
post-development turn-lane analysis. R.R. at 1289a-1290a.
             In response, Toll evaluated possible alternative access locations in a
revised traffic impact study. See R.R. at 1297a-1378a. Toll concedes it did not
amend its Plan for two reasons. First, the potential alternative access locations along
Route 926 and the elimination of the Route 202 access, as discussed above, fall under
the control and jurisdiction of PennDOT, not the Township.            Second, neither
PennDOT nor the Township required Toll to revise or relocate any of its proposed
site access locations. Rather, the proposed revisions were in response to review
comments and recommendations. F.F. Nos. 133-134; R.R. at 1894a. Although Toll
was willing to make the revisions if required, see R.R. at 1894a, the Plan, as
submitted, accurately depicted Toll’s “intentions with regard to . . . [s]ite access.”
See Section 170-2009(B)(6)(a) of the Ordinance.
             Although the Board found that it could not fully consider the merits of
the alternative access points without a revised plan, F.F. No. 135, the record belies
this finding. Federico reviewed, commented on, testified to and issued review letters


                                          25
regarding the alternative access locations. See R.R. at 1292a-96a. He testified that
he reviewed all of the proposed accesses – those included on the Plan as well as the
alternate access points. R.R. at 2195a. Federico did not testify that any of the
proposed access locations will create an abnormal impact or substantial threat to the
health or safety of the community. In his last comment letter, Federico focused on
the collector road and the efficiency (not safety) of the Route 202 access and the
need for turning lanes at PennDOT controlled intersections. See R.R. at 1294a-96a.
Thus, we conclude that the Board erred by denying Toll’s Application on this basis.

                                  IV. Conclusion
             For the foregoing reasons, we reverse the trial court’s order insofar as
the Board improperly denied Toll’s Application on the basis that Toll’s Plan did not
depict changes to PennDOT-controlled roadways or depict alternate site accesses.
We affirm the order in all other respects and uphold the Board’s denial of the
Application because Toll failed to satisfy all of the requirements of the Ordinance.




                                       MICHAEL H. WOJCIK, Judge


Judge Fizzano Cannon did not participate in the decision of this case.




                                         26
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Appeal of the                      :
February 12, 2018 Decision of             :
the Westtown Township Board of            :
Supervisors Denying Toll PA               : No. 1366 C.D. 2018
XVIII, L.P.’s Conditional Use             :
Application for a Flexible                :
Development of Crebilly Farm              :
                                          :
Appeal of: Toll PA XVIII, L.P.            :



                                    ORDER


             AND NOW, this 12th day of December, 2019, the order of the Court of
Common Pleas of Chester County (trial court), dated October 1, 2018, is
REVERSED IN PART insofar as it denied Appellant Toll PA XVIII, L.P.’s
conditional use application for failure to depict changes to roadways controlled by
the Pennsylvania Department of Transportation and alternate access points on its
conditional use site plan; the trial court’s order is AFFIRMED in all other respects.




                                       __________________________________
                                       MICHAEL H. WOJCIK, Judge
