            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ivy Krug,                               :
                   Appellant            :
                                        :
             v.                         :
                                        :
Board of Supervisors of East            :
Nantmeal Township, and Brandt           :   No. 637 C.D. 2018
Rempe and Emily Landis                  :   Argued: November 15, 2018



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ANNE E. COVEY, Judge (P.)
             HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                     FILED: January 8, 2019


             Ivy Krug (Objector) appeals nunc pro tunc from the December 18, 2017
order of the Court of Common Pleas of Chester County (trial court), which denied
Objector’s appeal and affirmed the February 1, 2017 decision of the Board of
Supervisors of East Nantmeal Township (Board). We affirm.
             Brandt Rempe and Emily Landis (together, Developer) are the owners
of a 1.78-acre parcel (Property) located at the corner of Coventryville Road and
Essick Road within the AP-Agricultural Preservation District in East Nantmeal
Township (Township). Trial Court Opinion (Tr. Ct. Op.) at 1. Objector is the owner
of a nearby premises located at 227 Essick Road in the Township. Reproduced
Record (R.R.) at 6a.
             Developer’s Property was, at one time, part of a 12.732-acre parcel
owned by Daniel Stoudt (Stoudt). R.R. at 48a; see Tr. Ct. Op. at 2. On September
22, 2008, Stoudt filed an application for conditional use seeking a “subdivision” of
the property into four lots and use of the lots for single-family dwellings, which is
permitted by conditional use in the AP District. Tr. Ct. Op. at 2, see R.R. at 48a, 89a
& 91a. Public hearings were held on the conditional use application, and on April
2, 2009, the Board issued its decision and order (2009 Decision) permitting the
subdivision and use of the property for 4 single-family dwellings subject to 10
enumerated conditions. R.R. at 86a-96a. Condition 7 provided, “[t]he landscaping
plan for the lots shall be satisfactory in all respects to and approved by the Board of
Supervisors.” R.R. at 94a. The 2009 Decision further stated:

             [c]ompliance with the conditions of approval shall be
             demonstrated by [Stoudt] by plans and documentation
             submitted and approved by the Township as part of the
             subdivision and land development application.        A
             determination of compliance with the conditions of this
             approval is within the sole discretion of the Board of
             Supervisors.

Board’s 2009 Decision at 7, R.R. at 92a.
             In October 2009, the Board approved the original Stoudt Subdivision
and Land Development Plan (Stoudt Subdivision), which was dated August 14,
2009. See R.R. at 136a & 142a. On November 9, 2009, Stoudt recorded with the
Chester County Recorder of Deeds a Declaration of Covenants, Restrictions and
Easements for Stoudt Subdivision (Declaration), which includes a covenant for the
continued maintenance and replacement of landscaping as depicted on the approved
plan by the lot owners. R.R. at 97a & 101a. Attached to the Declaration was a



                                           2
landscape plan for the entire approximately 13-acre tract, which included the
installation of 77 trees on the Property. Tr. Ct. Op. at 2.
               On March 29, 2016, Developer filed an Application for Review of a
Subdivision or Land Development Plan with the Township, seeking an amendment
for Lot 1 in the Stoudt Subdivision, i.e., the Property. R.R. at 124a-26a; see R.R. at
136a. Attached to the application was a landscape plan, dated March 7, 2016,
depicting a total of nine trees on the Property. Tr. Ct. Op. at 2. The plan was
reviewed by the Township Planning Commission. See R.R. at 128a-29a & 136a.
On December 12, 2016, the Planning Commission recommended that the Board
approve the plan. R.R. at 136a. A final plan, dated January 24, 2017, depicted 18
trees. See Tr. Ct. Op. at 3; R.R. at 138a & 141a. The Board approved the final plan
at a public meeting on February 1, 2017 and subsequently issued its written decision
(2017 Decision). R.R. at 142a; 2/1/17 Meeting Transcript (M.T.) at 30-33, R.R. at
202a-03a. Objector appealed to the trial court, which affirmed.
               Objector now appeals to this Court,1 arguing: (i) the Board’s 2017
Decision violates conditions 1, 3 and 8 of the 2009 Decision as well as multiple
provisions of the East Nantmeal Township Zoning Ordinance of 2011 (Zoning
Ordinance); (ii) the Board did not have subject matter jurisdiction to grant a waiver
pursuant to Section 1305.C of the Township Zoning Ordinance from landscape
requirements; and (iii) the Board’s approval of Developer’s plan violated procedural
due process requirements.


       1
          In a land use appeal where, as here, a full and complete record was made before the board
of supervisors and the trial court took no additional evidence, this Court’s scope of review is
limited to determining whether the board of supervisors committed an abuse of discretion or an
error of law. Morris v. S. Coventry Twp. Bd. of Supervisors, 836 A.2d 1015, 1018 (Pa. Cmwlth.
2003).

                                                3
             I. Whether the Board’s 2017 Decision violates
                conditions of the 2009 Decision and Zoning
                Ordinance Provisions and whether the Board can
                waive a zoning ordinance provision

             Objector first argues that the Board’s approval of Developer’s plan
violates Conditions 1, 3, and 8 of the Board’s 2009 Decision as well as multiple
zoning ordinance provisions. We disagree.

                                    a. Condition 1
             Objector argues that Condition 1 of the 2009 Decision requires that the
single-family detached dwelling proposed for Lot 1 be moved as far to the south as
possible, but that Developer’s plan shows the dwelling being moved approximately
18 feet to the north. Although the trial court did not address this argument in its
opinion, a remand on this question is not necessary. The Board’s 2017 Decision
expressly states that it “approves only a modification of the landscape plan” for the
Property and that “[n]o other modification or revision of the recorded plan is hereby
approved.” 2017 Decision ¶ 1, R.R. at 142a. Accordingly, Objector’s argument is
without merit.

                 b. Condition 3 - Landscaped Buffer Requirement
             Condition 3 of the 2009 Decision requires the applicant Stoudt to
comply with the Township Engineer’s November 26, 2008 letter. Board’s 2009
Decision at 8, R.R. at 93a. According to Objector, the letter states that the applicant
must comply with various articles of the Zoning Ordinance and lists the articles,
specifically Article III (AP Agricultural Preservation District), Article XIII (General
Design and Performance Standards), and Article XIX (Conditional Use Process).
Objector’s Brief at 15. Objector states that the letter further says that Zoning

                                          4
Ordinance Section 304.A.1 requires all conditional uses to comply with Zoning
Ordinance Article XIII. Objector contends that Article XIII includes performance
standards and alleges that Developer’s plan violates several provisions of Section
1305 of Article XIII (concerning landscaped buffer standards), specifically
identifying several subsections. See Objector’s Brief at 15-16.
             Zoning Ordinance Section 304.A.1 requires conditional uses to comply
with Article XIII, which addresses landscaped buffer requirements.          Further,
Ordinance Section 304.A.2 provides, in relevant part, that “[a] landscaped buffer in
accordance with the provisions of Section 1305 herein shall be an integral part of
any conditional use application and approval and shall be sufficient to screen the
subject use from view.” Objector argues, accordingly, that the Property must have
a landscaped buffer and that the Board’s 2017 Decision violates the Zoning
Ordinance.
             Section 1305 of the Zoning Ordinance addresses landscaped buffer
standards and provides, in relevant part:

             A. Landscaped buffers shall be required where proposed
                commercial, industrial, office, or intensive agricultural
                uses are to be located adjacent to residential zoning
                districts or existing residential uses, where proposed
                multi-family uses are to be located adjacent to existing
                single-family or two-family residences in the transfer-
                in district, and where otherwise required by this
                Ordinance.
                ...
             C. Landscaped buffer requirements may be waived by the
                Board of Supervisors upon recommendation of the
                Planning Commission if the uses or areas to be buffered
                according to Section 1305.A, above, are located greater
                than four hundred (400) feet from the adjacent
                residential uses or if the existing landscape provides a

                                            5
                   buffer that meets the intent of the standards set forth in
                   this Section.

Zoning Ordinance § 1305(A)&(C).
             As noted by the trial court, the Board interpreted subsection A as not
requiring such buffering between two identical residential uses. In its decision, the
Board stated that the landscaped buffer requirements in Section 1305.A “apply only
when a residential zoning district or residential use is adjacent to a non-residential
use, or a multi-family use is adjacent to single or two-family uses.” 2017 Decision
¶ 2, R.R. at 142a. Further, at the February 1, 2017 public meeting, immediately prior
to approving the decision now being challenged, the Township solicitor explained:


             A landscape buffer is required when you have what I call
             incompatible land uses; in other words, you are going to
             build a residence next to a commercial or a non-residential
             property. And if you read through Section 1305, that is the
             whole purpose of it. It is not to require residential
             landscaping. It’s even entitled, “Landscape Buffer
             Standards.” So it doesn’t even apply in this case. When
             the application originally went through, for whatever
             reason the Applicant [Stoudt] chose to put this amount of
             landscaping on [the Property.] It wasn’t required by the
             Ordinance. There is nothing in our Ordinances that
             requires that landscaping. And as far as Section 304.A.2,
             again, it says a landscape buffer. 304.A.2 only applies
             when we have those incompatible land uses and a buffer
             is required. It does haven’t [sic] anything to do with this
             application.


2/1/17 M.T. at 18-19.        Based upon that reasoning, the Board found that the
landscaped buffer requirements set forth in Sections 304.A.2 and 1305 did not apply
to the Property.

                                             6
              The Board’s determination is consistent with the plain language of the
Zoning Ordinance. See Section 1921 of the Statutory Construction Act of 1972, 1
Pa.C.S. § 1921 (stating, “[w]hen the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its
spirit”).   The proposed use is a single-family use; the proposed use is not a
commercial, industrial, office or intensive agriculture use adjacent to a residential
use, nor is it a multi-family use located adjacent to existing single-family residences.
              Nonetheless, Objector points out that Section 1305.A says “where
otherwise required by this Ordinance,” and contends that Section 304.A.2’s
language stating that the landscaped buffer “shall be sufficient to screen the subject
use from view” is sufficient to satisfy the “otherwise required” language and that
section does not distinguish between residential and non-residential uses. Objector’s
Brief at 26; see Objector’s Reply Brief at 9. Section 304.A.2 begins, however, by
stating, “[a] landscaped buffer in accordance with the provisions of Section 1305
herein shall be an integral part of any conditional use application . . . .” Zoning
Ordinance § 304.A.2. (emphasis added). If, as we just determined, there is no
requirement to have a landscaped buffer in the first instance, under Section 1305,
then the remaining phrase regarding buffering from view is not implicated, and the
plan need not be sufficient to screen the subject use from view.
              For the foregoing reasons, we agree with the trial court that there was
no abuse of discretion or error of law in the Board’s interpretation that Sections
304.A.2 and 1305 of the Township Zoning Ordinance do not apply to Developer’s
land development amendment application.




                                           7
                    c. Waiver from Landscaped Buffer Requirements
               Objector argues that the Board had no power to grant a waiver from the
landscaped buffer requirements pursuant to Section 1305.C because a “waiver” is
really a variance and only a zoning hearing board has authority to grant a variance
from zoning requirements. Objector further argues that, in any event, the Property
does not qualify for a waiver under Section 1305.C because Objector contends that
the Property is not beyond the minimum required distance from Objector’s property.
Objector also asserts that Section 1305.C purports to permit waiver on the condition
that “the landscape provides a buffer that meets the intent of the standards set forth
in this Section.” Objector’s Brief at 22 (quoting Zoning Ordinance § 1305.C)
(emphasis added by Objector). Objector contends that this condition is subject to
the void for vagueness doctrine because it does not set a clear and precise standard.
               The Board’s 2017 Decision did not rely on the waiver provision but,
instead, found that Section 1305, by its plain terms, did not apply. Accordingly, the
waiver provision in Section 1305.C of the Township Zoning Ordinance is not
implicated here, and we will not address Objector’s arguments related to that
provision.2
                                  d. Condition 8 - Declaration
               Objector also argues that Condition 8 of the 2009 Decision required
Stoudt to record a restrictive covenant providing for the continued maintenance and
replacement of all landscaping required by the approved plan. Objector’s Brief at

       2
         Objector also argues that the Board and Developer are bound by the 2009 Decision and
can only approve an amendment by additional conditional use procedures. Objector’s Brief at 23-
24. Objector argues that the 2017 Decision is barred by the doctrines of judicial estoppel and
estoppel by record. Id. at 23-25. Objector did not raise this issue before the trial court. See Notice
of Land Use Appeal, R.R. at 6a-15a; Objector’s Trial Court Brief, R.R. at 145a-64a. Therefore, it
is waived. See Pa.R.A.P. 302 (stating issues not raised in the lower court are waived and cannot
be raised for the first time on appeal).
                                                  8
17. Objector contends that the Board’s 2017 Decision, which purports to give the
Board’s consent to amend the recorded Declaration, is invalid because the
Declaration cannot be amended without two-thirds of the total voting power of the
owners and nothing in the record shows any such vote.
               The Board’s 2017 Decision explicitly recognizes that the lot owners in
the Stoudt subdivision must consent. The Board’s 2017 Decision states that the
Board consents to an amendment of the Declaration “if two-thirds of the owners of
Lots 1 through 4 of the Stoudt subdivision consent in writing to the amendment.”
2017 Decision ¶ 4 (emphasis added), R.R. at 142a. Further, Objector’s property is
not part of the Stoudt Subdivision. Because Objector is not a party to the Declaration
or a successor-in-interest, she cannot seek to enforce it. Cf. Koresko v. Farley, 844
A.2d 607, 616 (Pa. Cmwlth. 2004) (rejecting notion that every detail on a
subdivision plan creates a covenant that may be enforced by anyone). Accordingly,
Objector’s argument is without merit.


               II. Procedural Due Process
               Objector next contends that Section 603(c)(2) of the Pennsylvania
Municipalities Planning Code (MPC),3 53 P.S. § 10603(c)(2), (concerning
provisions for conditional uses) and Article XIX of the Township Zoning Ordinance
(concerning conditional use process) govern the conditional use process and provide
for due process procedures that must be followed, including public notice and public
hearings. Objector’s Brief at 27. Objector argues that the Board denied her
procedural due process when it purported to allow a substantial revision of
conditions previously imposed on Lot 1 at a routine meeting. Id. Objector contends


      3
          Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 – 11202.
                                               9
that there should have been a public hearing preceded by notice to affected
landowners and the public. Id. at 28-29. Objector points out that in 2009, the Board
held a public hearing and issued a decision with conditions, then eight years later
attempted to abandon those conditions based on conditions submitted a few days
before a routine meeting.4 Objector contends that the Board effectively granted a
new conditional use to Developer without any of the required procedures. Id.
Objector contends that any argument that the failure to provide notice to the public
is excused because a party was present at the meeting is without merit. Id. at 29.
               As the trial court stated, “[b]y [Objector’s] logic, the Board should have
reopened conditional use proceedings in order to approve the revised plan, with all
of the required public notices appendant thereto, and failure to do so deprived her of
procedural due process.” Tr. Ct. Op. at 8. However, “‘conditional use proceedings
involve only the proposed use of the land, and do not involve the particular details
of the design of the proposed development.’” Id. (quoting In re Thompson, 896 A.2d
659, 670 (Pa. Cmwlth. 2006)). Indeed, the Board’s 2009 Decision recognized that
the determination regarding compliance with the conditions would be made during
the subdivision and land development process and was within the sole discretion of
the Board. Board’s 2009 Decision at 7, R.R. at 92a. Further, the 2009 Decision
stated that the “landscaping plan for the lots shall be satisfactory in all respects to
and approved by the Board of Supervisors.” Board’s 2009 Decision at 9, Order ¶ 7,
R.R. at 92a. As the trial court explained, the condition for the Board’s approval
resolves and completes the conditional use process, and “the Board clearly intended
       4
          To the extent Objector attempts to argue any impropriety regarding the timing of when
the plans were submitted prior to the Board’s February 1, 2017 meeting, see Objector’s Reply
Brief at 4, Objector failed to timely raise this argument before the trial court. See Notice of Land
Use Appeal, R.R. at 6a-15a, Objector’s Trial Court Brief, R.R. at 145a-64a. Therefore, it is
waived. See Pa.R.A.P. 302 (stating issues not raised in the lower court are waived and cannot be
raised for the first time on appeal).
                                                10
for the Property’s landscaping plan to be approved at some point in the future,
outside of the conditional use proceedings.” Tr. Ct. Op. at 9. Likewise, any
amendments to such landscaping plan would be completed outside of the conditional
use proceedings. Consequently, we agree with the trial court that “[i]t therefore
follows that the municipal body need not reopen a conditional use hearing to
determine ‘particulars of development and construction’ when the use itself has
already been approved.” Tr. Ct. Op. at 8.
              Additionally, and importantly, Objector’s argument asserting a due
process violation is premised on characterizing Developer’s application as an
amendment to Stoudt’s conditional use application. Indeed, the sources of legal
authority to which Objector cites to support her position pertain to conditional use
applications or land use proceedings other than subdivision or land development
applications. See Objector’s Brief at 27-31. Developer, however, filed a land
development amendment application.            Section 508(5) of the MPC, 53 P.S. §
10508(5), governs such an application and states that a governing body or planning
agency may hold a public hearing, after notice, before acting on a subdivision or land
development. “There is no mandatory requirement that a hearing be held prior to
the approval of a land development plan.” E. Consolidation & Distribution Servs.,
Inc. v. Bd. of Comm’rs of Hampden Twp., 701 A.2d 621, 624 (Pa. Cmwlth. 1997).
In this case, the Board chose not to hold a hearing on Developer’s land development
amendment application, see R.R. at 197a, and it was not required to do so.5 See 53
P.S. § 10508(5), E. Consolidation, 701 A.2d at 624 (rejecting objectors’ argument
that they should have been permitted to present additional evidence on appeal to trial
court on grounds that record was incomplete because they had no notice of

       We note that Objector’s counsel was present and participated in the Board’s February 1,
       5

2017 meeting. See 2/1/17 M.T., R.R. at 195a-201a.
                                             11
underlying proceeding until day of meeting and so no opportunity to be heard).
Therefore, we reject Objector’s argument that the Board’s failure to hold a hearing
prior to approval of Developer’s land development application violated due process.
            Accordingly, for the foregoing reasons, we affirm.



                                      __________________________________
                                      CHRISTINE FIZZANO CANNON, Judge




                                        12
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ivy Krug,                            :
                  Appellant          :
                                     :
             v.                      :
                                     :
Board of Supervisors of East         :
Nantmeal Township, and Brandt        :   No. 637 C.D. 2018
Rempe and Emily Landis               :


                                 ORDER


             AND NOW, this 8th day of January, 2019, the December 18, 2017
order of the Court of Common Pleas of Chester County is AFFIRMED.




                                   __________________________________
                                   CHRISTINE FIZZANO CANNON, Judge
