           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Geerling Florist, Inc.                         :
                                               :
                      v.                       :    No. 470 C.D. 2018
                                               :    ARGUED: March 12, 2019
Board of Supervisors of                        :
Warrington Township,                           :
                             Appellant         :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION BY
SENIOR JUDGE LEADBETTER                                       FILED: February 12, 2020

              This is an appeal by the Board of Supervisors of Warrington Township
(Board or Township), Bucks County, from an order of the Court of Common Pleas
of Bucks County (trial court) in a novel and complex zoning matter. Geerling Florist,
Inc. (Landowner), which owns the property, seeks to subdivide its 46.25-acre
property formerly used as a nursery with mulching operation (Property) in the RA-
Residential Agricultural Zoning District (RA District), into forty-nine single-family
dwelling units. Under the relevant provisions then applicable to the RA District in
the Warrington Township Zoning Ordinance (Ordinance),1 Landowner could build
only fourteen single-family detached houses by right. In order to increase the number
of permitted lots for the subdivision, Landowner intended to convey transferable
development rights (TDRs) to the Township. We have explained TDRs as follows:

    1
      As noted herein, several of the Ordinance provisions in question were amended in July 2018.
See Ordinance, https://www.ecode360.com/32025905 (last visited Jan. 22, 2020). Thus, citations
to provisions that have since been modified are made to the Ordinance as it stood during the
relevant period, as it appears in the Reproduced Record (“R.R.”). (R.R. at 67-89a.)
              In transferable development rights (TDR) programs,
              landowners are compensated for loss of development
              opportunities by being given development rights that can
              be used elsewhere to exceed applicable restrictions in the
              “receiving area.” In effect, TDRs involve shifting potential
              development from one area to another, with the result that
              sensitive land is preserved.

Crystal Forest Assocs., LP v. Buckingham Twp. Supervisors, 872 A.2d 206, 211 n.8
(Pa. Cmwlth. 2005). 2

    2
      TDRs are authorized by the Pennsylvania Municipalities Planning Code (MPC), Act of July
31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 - 11202. Under Section 107 of the MPC, TDRs
are defined as follows:

              “Transferable development rights,” the attaching of development
              rights to specified lands which are desired by a municipality to be
              kept undeveloped, but permitting those rights to be transferred from
              those lands so that the development potential which they represent
              may occur on other lands where more intensive development is
              deemed to be appropriate.

53 P.S. § 10107 (relating to definitions) (emphasis added). Section 619.1(a) of the MPC, added by
the Act of December 21, 1988, P.L. 1329, provides as follows:

              To and only to the extent a local ordinance enacted in accordance
              with this article and Article VII so provides, there is hereby created,
              as a separate estate in land, the development rights therein, and the
              same are declared to be severable and separately conveyable from
              the estate in fee simple to which they are applicable.

53 P.S. § 10619.1(a) (relating to TDRs). Under Section 411 of the Ordinance (relating to transfer
of development rights), the purpose of the using TDRs is as follows:

              To promote the preservation of large tracts of land for use as open
              space, trails, scenic vistas, agriculture, nurseries, forests, wetlands,
              floodplains, riparian buffers, natural wildlife areas, environmentally
              sensitive areas, and historically significant sites; to manage
              residential and commercial growth through use of the existing
              Transfer Development Rights (TDR) Program using the criteria



                                                 2
              Under the Ordinance, the use of TDRs requires conditional use
approval from the Township.            Ordinance § 370-411.G(6)(a)[1] (“[i]n the RA
District, transferable development rights may be utilized for the development of
single-family detached dwellings when authorized by the Board of Supervisors
pursuant to a conditional use procedure”). At issue on appeal is the parties’ dispute
over the number of TDRs required to be conveyed for Landowner to be eligible for
conditional use approval for its forty-nine lot subdivision. In simple terms, in order
to calculate the required number of TDRs, the number of lots allowed by the relevant
provision of the Ordinance (the “baseline”) is subtracted from the number of
proposed lots and the difference is the number of TDRs which must be conveyed.
The parties disagree over which Ordinance provision should apply and, hence, what
the baseline for the TDR provision should be.3 Landowner—seeking to minimize

              established herein; to benefit landowners who will have accrued
              development rights for transfer or sale to other landowners in the
              Township in districts zoned Residential Agricultural (RA) . . . ; and
              to benefit the community that will enjoy the open space[.]

(Ordinance § 370-411, R.R. at 75a). During the relevant time period, Section 370-
411.G(6)(a)[2][a] of the Ordinance listed density, area, and dimensional criteria (among others)
for a residential subdivision with TDRs in RA districts. (Ordinance § 370-411.G(6)(a)[2][a], R.R.
at 78-79a).

    3
      The applicable RA District TDR development provision at Section 370-411.G(6)(a) of the
Ordinance, although setting forth requirements and limitations for such development, omitted any
way to determine a baseline for the purpose of determining how many TDRs must be transferred
to achieve the desired number of dwelling units on a property in an RA District. (See Ordinance §
370-411.G(6)(a), R.R. at 74-86a).

     Section 370-411 of the Ordinance has been amended to add subsection B, which provides as
follows:

              Base density. In order to determine the number of TDRs required to
              achieve the density permitted for residential development using



                                               3
the number of TDRs it must surrender to the nineteen already conveyed to the
Township—has argued, with the agreement of the trial court, that the baseline should
be the number of dwelling units it could have had under the Ordinance’s cluster
development use provision as it then stood, Ordinance § 370-403.2.B (cluster
development provision),4 even though the proposed development would not meet
the Ordinance requirements for a cluster development. The Board argues that the
relevant provisions did not permit the cluster development number of dwelling units
to be used as a baseline if the requirements of the cluster development provision
were not met. Instead, the Board’s suggested baseline—the number of dwelling units
Landowner could have had by right—would be fourteen, resulting in the need to




              transferable development rights under this section, a developer must
              first calculate the base density. The base density shall be calculated
              by determining the maximum density per gross buildable site area
              for single-family detached dwellings (not served by public water
              and sewer) in the underlying zoning district. The difference between
              the base density and the density permitted by the use of TDRs shall
              determine the number of TDRs that are required to be utilized to
              achieve the density proposed in the TDR subdivision.

Ordinance § 370-411.B, https://www.ecode360.com/32026408 (last visited January 22, 2020).

    4
      “Cluster development” is not a defined term in the Ordinance, but is commonly understood
as “[development] in which the housing units are closely grouped, with open spaces between
groups of dwellings.” See, e.g., In re KMRD, L.P. (Pa. Cmwlth., No. 2196 C.D. 2010, filed Jan.
4, 2012), slip op. at 2 n.2.

     Section 370-405 of the Ordinance (relating to area regulations) was amended in July 2018 to
remove the cluster development conditional use provision in question. See Ordinance § 370-405,
https://www.ecode360.com/32026371 (last visited on Jan. 22, 2020).




                                                4
convey thirty-five TDRs to reach forty-nine dwelling units on the Property.5 We
agree with the Board, and therefore reverse the decision of the trial court.
               In 2016, Landowner applied for conditional use approval to develop the
Property using TDRs. In its proposal, it calculated the number of TDRs using a
baseline of thirty lots, the number of lots allowed for a cluster development by
conditional use under its interpretation of the relevant provision. 6 After this initial
application, the Township and Landowner agreed to a two-part application and
review process for the ultimate TDR Development Plan, with a first step being
consideration of a Cluster Development Plan,7 although Landowner never intended

    5
     The development of forty-nine dwelling units is already underway. (Board’s Br. at 11 n.2.)
Nineteen TDRs have been conveyed to the Township. (Id.) Sixteen TDRs are being held in escrow
pending the outcome of this litigation. (Id.)

    6
       The number of units permitted under the cluster development provision is disputed, but that
issue is not relevant to our disposition of this case. (See supra n.10.)

    7
     It appears from the record that there were correspondence and discussions between and
among representatives for the parties that are only partially contained in the record. (See Original
Record “O.R.,” February 28, 2017 Hearing, Notes of Testimony “N.T.” at 24.)

    A November 2016 letter from the Township Engineer to the Township Manager stated that
Section 370-411 of the Ordinance required a “baseline plan” to determine the number of lots that
might be developed “by right” and by utilizing TDRs. (See Township Engineer’s Letter, R.R. at
53a.)

    The letter from the Township Engineer also stated as follows:

               We note that the subdivision layout as illustrated on the
               “Conditional Use” Plan submitted by [Landowner] was based upon
               the RA-Cluster Conditional Use Single-Family Detached Dwelling
               design provisions of Section 403.B of the [Ordinance]. Based upon
               the Area Regulations contained within the aforementioned section
               of the Ordinance, [Landowner] would be permitted to develop 30
               lots of the proposed development site at a density of 0.65 dwelling
               units per acre. However, [Landowner] would need to obtain



                                                 5
to utilize the Cluster Development Plan except as a baseline.8 After hearings, the
Board issued a decision (Board Cluster Decision, Reproduced Record “R.R.” 90-
100a), which approved the Cluster Development Plan subject to conditions. Among
those conditions was for any development utilizing the approved number of cluster
dwelling units to preserve 83% of the site as open space in perpetuity and preserve
the “maximum amount of agricultural soils on the Property” in accordance with the
requirements of the cluster development provision in the Ordinance. (Board Cluster
Decision at 10, R.R. at 99a.) After further hearings, the Board approved the TDR
Development Plan in a separate decision (Board TDR Decision, R.R. 101-112a), but
did so utilizing the “by right”9 number of dwelling units as the baseline (Board TDR

              Conditional Use approval of the Cluster Development Layout Plan
              if it is intended to utilize said plan as its Baseline Plan for the
              proposed TDR Development.

(Id.) The trial court endorsed this statement as a “common sense interpretation” of the Ordinance
in ruling in Landowner’s favor. (Geerling Florist, Inc. v. Bd. of Supervisors of Warrington Twp.
(C.P. Bucks, No. 2017-02799, filed March 5, 2018), slip op. at 11.) However, the Township
Engineer’s statement does not suggest that the cluster development, even if approved, could be
used as a baseline for a development that did not, in fact, meet the requirements for such a
development.

    8
       (See Landowner’s Br., 10 [“[The Board] was fully aware that [Landowner] was undertaking
this conditional use application [the Cluster Development Plan] solely for the purpose of
establishing the baseline for the conditional use application for the forty-nine lot subdivision
utilizing TDRs”]; see also O.R., February 28, 2017 Hearing, N.T. at 24-25, 30-31.)

    The Board dealt with the two plans as separate applications, which were adjudicated in
separate decisions, which in turn were appealed separately to the trial court, Docket Numbers
2017-02799 (what the trial court called the “30 Lot Appeal”) and 2017-03359 (the “49 Lot
Appeal”). (Trial Court Op. at 1.) The trial court consolidated the appeals at Docket Number 2017-
02799. (See id.)

    9
      Under the Ordinance, permitted uses “by right” include single-family detached houses
required, inter alia, to have lots a minimum of three acres in size. Ordinance §§ 370-402.H and



                                               6
Adjudication at 10, R.R. at 110a). The Board found that the TDR Development Plan
for forty-nine single-family homes did not meet the requirements for cluster
developments in the RA District, i.e., maintaining 83% of the Property as open
space, Ordinance § 370-405.2.B(2) (R.R. at 73a), and preserving a majority of the
prime agricultural soils, Ordinance § 370-403.B (R.R. at 69a).                      (Board TDR
Adjudication at 6, Finding of Fact “F.F.” No. 50, R.R. at 106a). Therefore, the Board
ruled that the Cluster Development Plan could not be used as the baseline.
                 Landowner appealed the Board’s decisions to the trial court, which did
not take additional evidence. The trial court issued an order which, in salient part,
found Section 370-411.G of the Ordinance ambiguous because it did not specify
how to calculate a baseline for determining the number of TDRs to be conveyed. As
a result, the trial court looked to Section 603.1 of the Pennsylvania Municipalities
Planning Code (MPC),10 and “interpreted” the Ordinance in favor of Landowner by
using the cluster development number of dwelling units11 as the baseline for
determining the number of TDRs necessary for the forty-nine-lot development.


370-405.1. It is not disputed that Landowner would be entitled by right to fourteen dwelling units
on the property.

10
     Section 603.1 of the MPC provides as follows:
                 In interpreting the language of zoning ordinances to determine the
                 extent of the restriction upon the use of the property, the language
                 shall be interpreted, where doubt exists as to the intended meaning
                 of the language written and enacted by the governing body, in favor
                 of the property owner and against any implied extension of the
                 restriction.

Added by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10603.1 (emphasis added).

       11
       Among the issues appealed to the trial court was the conclusion that relevant calculations
of the maximum density of cluster lots in the Cluster Development Plan were to be made with



                                                  7
                This appeal ensued.12 Both the Board and Landowner acknowledge
that the Ordinance was silent as to what the baseline number for the RA District
TDR provision should be. The Board argues that this was not an “ambiguity” but
an omission, and that this vacuum should be filled by utilizing the rules of statutory
construction and by its authority to impose reasonable conditions on conditional
uses. The Board relies upon Section 913.2 of the MPC,13 which provides that in
granting a conditional use, the Board may “attach reasonable conditions and
safeguards, in addition to those expressed in the ordinance, as it may deem necessary
to implement the purposes of [the MPC and] the ordinance.” The Board asserts that
the conditions attached to the Board Cluster Decision (preservation of 83% of the
property as open space and preservation of a majority of prime agricultural soils) are
reasonable—indeed, they are taken directly from Sections 370-403.B and 370-
405.2.B(2) of the Ordinance (R.R. at 69a and 73a) and that it was not the intention
of the cluster development provision of the Ordinance to be used to greatly reduce
the proportion of remaining open space by using it as a springboard to create a more
intense TDR development.

reference to the Gross Buildable Site Area (GBSA) (i.e., “[t]hat portion of the gross site area
remaining after subtracting the reserved land (RL) areas and the totally unusable land (TUL) areas.
It is the area on which density calculations are based.” Ordinance § 370-202 [relating to
definitions of terms] [emphasis added]). The GBSA is smaller than the Gross Site Area (GSA),
which Landowner wished the Board to use to calculate the number of dwelling units. Using the
GSA (i.e. “[t]he gross lot area as defined by the deed line,” id.) would have yielded thirty dwelling
units while the Board’s use of the GBSA yielded twenty-seven buildable dwelling units. The trial
court interpreted the Ordinance as using the GSA, permitting thirty lots for a cluster development.
The Board has appealed this conclusion. However, in light of our conclusion that the cluster
provision cannot be used as a baseline, we need not address this issue.

    12
       As with all questions of law, our standard of review is de novo and our scope of review is
plenary. Gorsline v. Bd. of Supervisors of Fairfield Twp., 186 A.3d 375, 385 (Pa. 2018)

    13
         Added by Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. § 10913.2(a).


                                                 8
             The Board further argues that the trial court erred in applying Section
603.1 of the MPC and by failing to apply other rules of statutory construction to
determine the intention of the drafters of the Ordinance with respect to how base
density should be calculated. The Board argues that the language of the Ordinance
is not ambiguous with respect to determining a baseline, but rather is completely
silent on the subject, making the application of Section 603.1 inappropriate. The
Board argues for the application of other rules of construction, i.e., construing an
ordinance to give effect to all of its provisions and construing an ordinance to avoid
an absurd result. We agree. This case does not involve competing interpretations of
language of a zoning ordinance as written and enacted, but application of a provision
when a necessary term is entirely omitted. Our research does not disclose any cases
where Section 603.1 of the MPC has been applied to “fill in” language when such
an absence occurs.
             However, case law has provided additional rules to be used to
determine the meaning of zoning ordinances. Although the Statutory Construction
Act of 1972, 1 Pa. C.S. §§ 1501–1991, is not expressly applicable to the construction
of local ordinances, the rules of statutory construction are applicable to statutes and
ordinances alike. See Slice of Life, LLC v. Hamilton Twp. Zoning Hearing Bd., 207
A.3d 886, 899 (Pa. 2019) (Slice of Life); Tronjacki v. Bd. of Supervisors of Solebury
Twp., 842 A.2d 503, 509 (Pa. 2004). As we have stated:

             One of the primary rules of statutory construction is that
             an ordinance must be construed, if possible, to give effect
             to all of its provisions. An interpretation of an ordinance
             which produces an absurd result is contrary to the rules of
             statutory construction.

In re Thompson, 896 A.2d 659, 669 (Pa. Cmwlth. 2006) (citations omitted).



                                          9
               Under the Ordinance as it stood during the relevant time period, cluster
development functioned to preserve open space and prime agricultural soils for
future agricultural use and, in addition to the preservation of 83% open space and
other requirements specified in Section 370-405.2.B (R.R. at 73a)14 the following
standards were required to be met:

               The plan for the open space shall be designed to insure
               that the maximum amount of land shall be retained for
               agricultural purposes. . . . A plan which does not provide
               for the agricultural use of the majority of the prime
               agricultural soils shall not be deemed to meet the
               provisions of this chapter. In addition, the
               developer/owner must demonstrate that the cluster
               development will be so located and designed that it will
               not adversely impact on prime agricultural soils on the site
               and the existing or future active agricultural uses on the
               site, neighboring properties and the district. At a
               minimum, the following location requirements shall
               apply:

                      (a) The developer/owner shall demonstrate that
                      the cluster development will be designed and
                      located so as to minimize its impact upon the design
                      of the farm fields for tilling and other active
                      agriculture uses. . . .

    14
       Section 370-403 of the Ordinance was substantially rewritten by amendment in July 2018
to remove this provision. References to Section 370-403 are to the provision as it stood during the
relevant time period. (See R.R. at 69a.)

    During the relevant time period, the Ordinance also provided that a cluster single-family
detached dwelling in the RA District may have a maximum gross density of 0.65 dwelling units
per acre, a maximum building coverage of 25%, and a maximum impervious coverage of 50%.
(Ordinance § 370-405.2.B(1), (7), (8), R.R. at 73a). Also required were a minimum site area of
10 acres, a minimum cluster area of 7,500 square feet, a minimum lot width of seventy-five feet at
the building setback line, and a front yard of a minimum of twenty-five feet, two side yards a
minimum of no less than ten feet with a composite of twenty-five feet total, and a rear yard with a
minimum of forty feet. (Ordinance § 370-405.2.B(3)-(6), R.R. at 73a).



                                                10
Ordinance, Section 403.B(1)(a) (R.R. at 69a) (emphasis added). It is beyond dispute
that Landowner’s proposed development would not have met these standards.
Simply put, using the number of lots allowed in a cluster development as the TDR
baseline for a development that is not a cluster development and does not meet the
required standards for one would be an absurd result.
             Finally, in construing the Ordinance and applying Sections 913.2 of the
MPC, we are cognizant that

             [w]hen statutory language is not explicit, courts should
             give great weight and deference to the interpretation of a
             statutory or regulatory provision by the administrative or
             adjudicatory body that is charged with the duty to execute
             and apply the provision at issue. The basis for the judicial
             deference is the knowledge and expertise that a
             [administrative or adjudicatory body] possesses to
             interpret the ordinance that it is charged with
             administering.

In re Thompson, 896 A.2d at 669 (citations omitted); see also Broussard v. Zoning
Bd. of Adjustment of City of Pittsburgh, 907 A.2d 494, 500 (Pa. 2006) (“courts
ordinarily grant deference to the zoning board’s understanding of its own ordinance
because, as a general matter, governmental agencies are entitled great weight in their
interpretation of legislation they are charged to enforce”) (internal quotation marks
omitted). Applying the deference owed to the Board, as the entity which adjudicates
conditional uses, it cannot be said that the Board erred in its application of the
Ordinance.




                                         11
            In short, given the tools provided by the rules of statutory construction,
the authority of the Board to set reasonable conditions on conditional uses, and the
deference owed to the Board as the governing body, we discern no error or abuse of
discretion in the Board’s decision. Therefore, we reverse.



                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Senior Judge




                                        12
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Geerling Florist, Inc.                   :
                                         :
                    v.                   :   No. 470 C.D. 2018
                                         :
Board of Supervisors of                  :
Warrington Township,                     :
                          Appellant      :



                                      ORDER


             AND NOW, this 12th day of February, 2020, the Order of the Court of
Common Pleas of Bucks County in the above matter is REVERSED, and it is
directed that the sixteen transferable development rights held in escrow be conveyed
to Warrington Township.



                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge
