           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Links at Gettysburg Land                  :
Company, Inc.,                                :
                        Appellant             :
                                              :
                     v.                       :   No. 1008 C.D. 2019
                                              :   SUBMITTED: May 11, 2020
Board of Supervisors of Mount Joy             :
Township                                      :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                           FILED: June 25, 2020


              The Links at Gettysburg Land Company, Inc. appeals from an order of
the Court of Common Pleas of Adams County affirming the decision of the Board
of Supervisors of Mount Joy Township that denied the developer’s revised
preliminary subdivision plan for expansion of its planned golf community. For the
reasons that follow, we reverse and remand this matter to the trial court with
directions to remand to the Board for purposes of affording the developer an
opportunity to address outstanding comments on the plan.1




    1
       This case was considered seriately with related cases The Links at Gettysburg Land
Company, Inc. v. Board of Supervisors of Mount Joy Township (Pa. Cmwlth., No. 1006 C.D. 2019,
filed June 25, 2020) and The Links at Gettysburg Land Company, Inc. v. Board of Supervisors of
Mount Joy Township (Pa. Cmwlth., No. 1007 C.D. 2019, filed June 25, 2020).
                In April 2015, the Board approved conditional use applications for
expansion of the planned golf community and erection of a hotel and conference
center. Both decisions required that the developer submit plans within two years of
those decisions to prevent expiration of the approvals. It is undisputed that the Links
satisfied the two-year deadline with respect to both projects.2 Additionally, both
decisions required the Links to update its traffic study within three years of the
decisions.3
                In a decision dated May 22, 2018, the Board determined that both
conditional use approvals had expired for failure to satisfy the traffic study
conditions. (As we determined in The Links at Gettysburg Land Company, Inc. v.
Board of Supervisors of Mount Joy Township (Pa. Cmwlth., No. 1006 C.D. 2019,
filed June 25, 2020), the Board erred in rendering that determination.) Additionally,
the Board also denied both the April 2018 revised preliminary subdivision plan for
the expansion and the April 2018 revised preliminary land development plan for the
hotel and conference center. In so doing, the Board stated that it was incorporating
the May 3, 2018, review comments from the Township’s engineer and zoning
officer.


    2
        Condition No. 2 for the expansion of the planned golf community provided:
                The approval of the planned golf community expansion conditional
                use shall expire two years from the date of this Decision, subject to
                written petition setting forth sufficient reason for the Board’s grant
                of an extension of the expiration. The conditional use shall not
                expire if a subdivision plan has been submitted.
(April 27, 2015, Expansion Decision at 14; Reproduced Record “R.R.” at 29a.)
    3
       Condition No. 10 for the expansion provided: “Every three years from the date of this
Decision, the applicant shall update the traffic counts and movements data of the Traffic Study
made part of the Modified Application and within one year of the completion of the development
shall submit an updated Traffic Study to the Township.” (Id. at 15; R.R. at 30a.)


                                                  2
             Subsequently, the Links filed three separate appeals with the trial court.
Without taking additional evidence, the trial court affirmed the Board in all three
appeals. We now consider the Links’ appeal from the Board’s denial of the April
2018 revised preliminary subdivision plan for the planned golf community.
             On appeal, the Links argues that the Board breached its good faith
obligation to permit the developer to respond to outstanding comments before acting
on the plan at issue. In support, the Links cites case law standing for the proposition
that the local governing body has a duty to exercise good faith in reviewing and
processing land use applications and to provide the developer with a reasonable
opportunity to respond to objections or to make modifications where there has been
a misunderstanding or difference of opinion. 1050 Ashbourne Assocs., LLC v.
Cheltenham Twp. Bd. of Comm’rs, 167 A.3d 828, 836 (Pa. Cmwlth. 2017); Honey
Brook Estates, LLC v. Bd. of Supervisors of Honey Brook Twp., 132 A.3d 611, 621
(Pa. Cmwlth. 2016); and Monger v. Upper Leacock Twp., 132 A.3d 585, 590 (Pa.
Cmwlth. 2016).
             We conclude that the Board abused its discretion in denying the plan
without affording the Links a further opportunity to address the outstanding
comments. A partial review of the timeline is instructive. On January 15, 2018, the
Links’ traffic engineer submitted an updated traffic study. On April 16, 2018, the
Links submitted a revised preliminary subdivision plan for expansion of the planned
golf community. On May 3, 2018, the Township’s zoning officer and engineer
issued review comments that included a disclaimer on the top of the first page
stating: “These review comments are issued as a courtesy only and in preliminary
form, pending Township determination/action regarding expiration of the
Conditional Use Approval . . . .” (May 3, 2018, Comments; R.R. at 216a.) On May



                                          3
11, 2018, the developer’s traffic engineer sent a letter providing updated traffic data
notwithstanding his position that such data had remained unchanged. On May 16,
2018, developer’s counsel sent a letter rejecting the Township’s position as to the
alleged automatic expiration of the conditional use approvals, expressing an opinion
as to the proper method by which the zoning officer could have sought enforcement
of the traffic study conditions, and extending by an additional sixty days the Board’s
ninety-day deadline4 to take action on both plans in order that the developer could
address the comments. (May 16, 2018, Letter; R.R. at 252a-56a.) Nonetheless, the
Board on May 17, 2018, determined that the conditional use approvals had expired
for failure to meet the traffic study conditions and the standards identified in the
comments. The Board communicated the denial in its May 22, 2018, decision.
               Accordingly, instead of affording the developer an opportunity to
address the comments, the Board chose to rely upon the allegedly non-compliant
traffic study submission as illusory support for the expiration of the conditional use
approvals. Given the relatively compressed timetable herein at issue, the Board’s
decision not to accept the developer’s proffered extension and to rely upon the
allegedly inadequate traffic study as a basis for expiration of the conditional use
approvals was tantamount to bad faith. While it is true that a local governing body
need not provide a developer with infinite time in which to address comments, 5 the
local governing body must exercise good faith in its dealings.
               In view of the foregoing, we reverse and remand this matter to the trial
court with directions to remand to the Board for purposes of affording the developer

    4
      See Section 508 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31,
1968, P.L. 805, as amended, 53 P.S. § 10508.
    5
       See Kassouf v. Twp. of Scott, 883 A.2d 463, 476 (Pa. 2005) (“There is no existing basis in
law to suggest that a developer is entitled to infinite opportunities to address and remedy defects
in a subdivision plan.”).


                                                4
an opportunity to address outstanding comments on the April 2018 revised
preliminary subdivision plan for expansion of the planned golf community.



                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Senior Judge




                                       5
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Links at Gettysburg Land               :
Company, Inc.,                             :
                        Appellant          :
                                           :
                  v.                       :   No. 1008 C.D. 2019
                                           :
Board of Supervisors of Mount Joy          :
Township                                   :



                                    ORDER


            AND NOW, this 25th day of June, 2020, the order of the Court of
Common Pleas of Adams County is hereby REVERSED. We remand this matter to
the trial court with directions to remand to the Board of Supervisors of Mount Joy
Township in accordance with the foregoing opinion.
            Jurisdiction relinquished.




                                         _____________________________________
                                         BONNIE BRIGANCE LEADBETTER,
                                         Senior Judge
