         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brandywine Village Associates        :
and L&R Partnership,                 :
                 Appellants          :
                                     :
            v.                       : No. 164 C.D. 2017
                                     : Argued: December 7, 2017
East Brandywine Township             :
Board of Supervisors                 :
and Carlino East Brandywine, L.P.    :


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                    FILED: January 5, 2018


            In this confusing case, Brandywine Village Associates (BVA) and
L&R Partnership (L&R) (collectively, Objectors) appeal the order of the Court of
Common Pleas of Chester County (trial court) involving a decision by the Board of
Supervisors (Board) of East Brandywine Township (Township) denying a
preliminary plan filed by Carlino East Brandywine, L.P. (Developer) for the
construction of a mixed-use development on a 10-acre parcel that it owns in the
Township.
                                                  I.
                                                 A.
               The Developer is the equitable owner of an undeveloped tract of land
located at 1279 Horseshoe Pike in East Brandywine Township, Chester County,
Pennsylvania, containing approximately 10.118 acres (Property). The Property
was originally part of a 21-acre parcel. BVA owns the remaining 11 acres, which
contain a shopping center adjacent to the east side of the Property.


               Prior to the Developer’s acquisition of the Property, BVA had certain
rights to use the 10-acre parcel under a Cross Easement Agreement entered into
with the Developer’s predecessor-in-title. Because the entire 21 acres did not have
access to any public sewer, the Cross Easement Agreement provided that BVA
would build, at its expense, a sewer plant for the use of both parties on the 10-acre
parcel. The Cross Easement Agreement also granted BVA an easement to the 10-
acre parcel for stormwater management as well as an access easement to use the
10-acre parcel as a main entrance to BVA’s shopping center.1 L&R, the general
partner of BVA, is the owner of an undeveloped parcel of land adjacent to the
north side of the Property.


       1
         Under the Cross Easement Agreement, the predecessor-in-interest granted BVA a sewer
system easement to install an on-site septic sewer system, including a drainage area and reserve
drainage area. It also provided an access easement to allow construction of a roadway through
the Property to BVA property. The Cross Easement Agreement specified that the access drive
could be modified, but that it must not “interfere with the flow of traffic . . . or with surface water
drainage.” (Reproduced Record (R.R.) at 47a.) The Cross Easement Agreement further
provided a highway improvement easement, dedicating land within the ultimate right-of-way
along Route 322 to public use, and a stormwater basin and drainage easement, which included a
reserve effluent disposal area.




                                                  2
            Since 2011, the Developer has submitted land-development plans to
build a 51,525 square foot supermarket with a 9,250 square foot expansion area, a
4,600 square foot attached retail building, and a pad site for a 4,088 square foot
bank on the Property.       From the beginning, the Township insisted that the
Developer provide and pay for the construction of a road (Connector Road)
connecting the Property with Horseshoe Pike (Route 322) on which it fronts and
North Guthriesville Road.


            Because the Connector Road was to cross over L&R’s adjoining
property, in 2014, the Township and the Developer entered into a Memorandum of
Understanding (MOU). Under this MOU, the Developer, in lieu of paying a
significant portion of the Township’s transportation impact fee of $1,795,000, was
obligated to design, permit and construct at its expense the Connector Road and
dedicate it to the Township. The MOU also provided that the Township would
condemn necessary portions of L&R’s adjoining property as well as BVA’s
easements on the Property granted under the Cross Easement Agreement.


                                        B.
            While the Developer has submitted a few different versions of land
development plans pertaining to the Property, the plan subject to this appeal is the
plan filed December 9, 2014 (2014 Plan). The Developer argues that even though
the Connector Road will eventually be dedicated to the Township as a public road,
it is currently a driveway and the Developer identified it as such in the 2014 Plan.
The 2014 Plan also included the area under the “driveway” as part of the
Developer’s land area. The 2014 Plan did not identify the previously condemned



                                         3
BVA easements on the Property.               In January 2015, the Board conditionally
approved the 2014 Plan. Objectors appealed to the trial court and the Developer
intervened.


                                               C.
                Among other things, Objectors alleged that the 2014 Plan contained
many defects, including the following:

              It did not comply with the Township’s Zoning Ordinance
               (Zoning Ordinance) requirement of a minimum 10-acre
               area to build a mixed-use development in a Mixed Use
               (MU) zoning district.2

              It did not comply with Section 399-46.C of the Zoning
               Ordinance, requiring that “[n]o building shall be situated
               less than 85 feet from the front lot line” because the bank
               building, as designed on the 2014 Plan, is set back 50 feet
               from the Connector Road. (R.R. at 593a.) Developer
               argued that Connector Road was merely a private
               driveway until such time as it is dedicated to the
               Township, and therefore, the 85-foot setback requirement
               is inapplicable.

              Even though the Property was going to be connected to
               the public sewer system, the 2014 Plan violated Section
               399-47.K3 of the Zoning Ordinance, providing that
       2
         Section 399-46.A of the Zoning Ordinance provides that “[a] minimum gross tract area
of 10 acres shall be required for any use or combination of uses permitted in the MU District.”
(R.R. at 593a.)

       3
           Section 399-47.K of the Zoning Ordinance provides:

                Sewage facilities and water supply. The applicant’s proposals for
                sewage facilities and for water supply (both quality and quantity)
                in relation to the proposed uses shall be in compliance with the
                requirements of §§ 350-47 and 350-48, respectively, of Chapter
(Footnote continued on next page…)

                                                4
                  sewage facilities must be in compliance with the
                  Township’s Land Development Ordinance (SALDO),
                  Sections 350-47.B(2)4 & 350-48.5 BVA argued that this
                  provision was incorporated into the Zoning Ordinance
                  and could not be waived.

              It did not comply with Section 399-81.E6 of the Zoning
               Ordinance because Developer failed to provide safe and


(continued…)

                  350, Subdivision and Land Development. Any approval of an
                  application for development within the MU District shall be
                  contingent upon the requisite approvals and certifications from the
                  Chester County Health Department and/or the Pennsylvania
                  Department of Environmental Protection.

(R.R. at 594a.)

       4
           Section 350-47.B(2) of the SALDO provides in pertinent part:

                  All subdivisions and land developments shall be self-sustaining
                  relative to the storage and disposal of treated sewage effluent. The
                  applicant shall provide sufficient storage and land area on or off
                  the subdivision or land development site to store and dispose of all
                  treated sewage effluent which is generated by the uses on the site
                  by means of conventional underground seepage beds or drip
                  irrigation.

(R.R. at 616a.)

       5
           Section 350-48 of the SALDO pertains to water supply.

       6
         Section 399.81.E of the Zoning Ordinance provides that to minimize traffic congestion
and encourage “orderly development of street highway frontage,” an applicant is responsible for
providing:

                  [S]afe and efficient ingress and egress to and from public streets,
                  without undue congestion or interference with normal traffic flow
                  within the Township. The developer shall be responsible for the
                  design, construction, and costs of any necessary traffic control
(Footnote continued on next page…)

                                                   5
                efficient ingress and egress from Route 322 over the
                combined Connector Road to BVA’s shopping center.

              It did not comply with Section 399-47.N7 of the Zoning
               Ordinance, regarding stormwater management.


                Objectors then filed a motion for an additional evidentiary hearing,
which the trial court granted, remanding the matter to the Board to take additional
evidence. The Board conducted five hearings during which Objectors presented
additional evidence in opposition to the 2014 Plan. In September 2015, because


(continued…)

                devices and/or highway modifications required by the Township
                and/or the Pennsylvania Department of Transportation.

(R.R. at 598a-599a.)

       7
           Section 399-47.N of the Zoning Ordinance provides:

                The tract of land to be developed shall be in one ownership, or
                shall be the subject of an application filed jointly by the owners of
                the entire tract, and shall be under unified control. If ownership of
                the entire tract is held by more than one person or entity, the
                application shall identify and be filed on behalf of the said owners.
                Approval of the plan shall be conditioned upon agreement by the
                applicant or applicants that the tract shall be developed under
                single direction in accordance with the approved plan. If
                ownership of the tract changes subsequent to approval of the plan,
                no site preparation or construction by such new owner or owners
                shall be permitted unless and until such owner or owners shall
                review the terms and obligations of the approved plan and agree in
                writing to be bound thereby with respect to development of the
                tract.

(R.R. at 594a-595a.)




                                                 6
the parties disagreed as to the parameters of the Board’s obligation following the
conclusion of the hearings, the trial court issued an order requiring the Board to
consider all evidence presented on remand and to make a decision based upon the
entire record.


              In a decision dated October 1, 2015, the Board reversed its prior
decision granting conditional approval of the 2014 Plan. It did so because it found
that the 2014 Plan was deficient in that it violated certain ordinance provisions
dealing with street design, stormwater management and treatment of sewage
effluent. The Board did not revisit other issues that Objectors raised regarding the
defects in the plan.8


                                              D.
              The Developer appealed the Board’s revised decision for the 2014
Plan to the trial court. However, the parties agreed by stipulation that because
Objectors had already appealed the Board’s original order granting the 2014 Plan,
they could raise all issues in the pending appeal. The stipulation provided:

              Because the October 1, 2015 decision is part of
              [Objectors’] Appeal, all parties have the right to brief and
              argue all issues of concern to them in [Objectors’]
              Appeal, including any raised by the October 1, 2015
              decision and therefore there is no need for any party to
              separately file an appeal from the October 1, 2015


       8
         While the remand hearings were taking place, prior to the Board’s revised decision, in
June 2015, the Developer filed a Final Land Development Plan, which it believed addressed
objections to the 2014 Plan.




                                              7
             decision or intervene or further participate in any other
             appeal.


(R.R. at 137a-138a.) Pursuant to the stipulation, the Developer would withdraw its
appeal. By order, the trial court adopted the stipulation as its own.


                                          E.
             On October 22, 2015, the Developer filed a new Preliminary/Final
Land Development Plan (2015 Plan), which again included a Connector Road
through the Developer’s property and addressed the issues in the Board’s revised
opinion of October 1, 2015. The Board conditionally approved the 2015 Plan.
Objectors appealed the Board’s approval. However, the appeal of the 2015 Plan is
not the subject of the current appeal. The trial court considered at oral argument
whether the issues raised in that appeal, the appeal of the Board’s initial approval
of the 2014 Plan, were rendered moot by the Board’s approval of the 2015 Plan.
All parties urged the trial court to decide the case as a means of facilitating a
resolution of recurrent issues common to both appeals, and the trial court agreed.


                                          F.
             Regarding the issues raised in this appeal, the trial court found as
follows:

            Setback requirement: As to Objectors’ contention that
             Developer’s proposed bank building must be set back 85
             feet from both Route 322 and the proposed Connector




                                          8
               Road,9 the trial court found that the development tract is
               a single lot within the meaning of the Zoning Ordinance
               fronting on Route 322. It found that meant the proposed
               bank building is not required to be set back 85 feet from
               the Connector Road, only Route 322.

            Minimum Lot Area: Objectors contended that the 2014
             Plan violated Section 399-46.A of the Zoning Ordinance,
             requiring that a development in a MU zoning district
             must have a minimum lot area of 10 acres because the
             area of the easements previously granted to BVA under
             the terms of the Cross Easement Agreement must be
             netted out from the gross tract area of 10.189 acres,
             leaving only a net lot area of 9.189 acres. The trial court
             rejected that argument because the Township’s taking of
             BVA’s easements on the Property did not take
             Developer’s underlying fee simple so that the land could
             be counted as complying with the land area requirement.

            Traffic: Objectors also contended that the proposed
             Connector Road is of inadequate width to provide for
             safe and efficient ingress and egress for delivery trucks to
             enter and exit both the development and BVA’s center,
             arguing that tractor trailers attempting to make required
             turning movements from Route 322 onto the Connector
             Road will be required to encroach on opposing travel
             lanes and raised concrete medians. Adopting the opinion
             of the Township engineer, the trial court found that

       9
           Section 399-46.C of the Zoning Ordinance provides: “Minimum front yard. No
building shall be situated less than 85 feet from the front lot line.” (R.R. at 593a.) Pertinent
terms are defined in Section 399-9 of the Zoning Ordinance. The term “lot” is pertinently
defined as a “parcel of land, undivided by any street or dedicated future street right-of-way.”
(R.R. at 576a.) The front yard is defined as “[a] yard extending the full width of the lot, along
the front lot line and extending in depth from the front lot line to the nearest point of a structure
on the lot. . . .” (R.R. at 591a.) The Zoning Ordinance defines the term, “lot line” as “[a]
property boundary line of any lot held in single and separate ownership. . . .” (R.R. at 577a.) A
front lot line is defined as “[a] lot line abutting any street and coinciding with any street line.”
(R.R. at 577a.) The term “street line” is defined by the Zoning Ordinance in pertinent part as
“[t]he dividing line between a lot and the outside boundary or right-of-way of a public street,
road, or highway legally open or officially platted. . . .” (R.R. at 586a.)




                                                 9
              Objectors did not prove the proposed access is either
              unsafe or inefficient and that the Board did not commit
              error in declining to deny the plan based upon that
              violation.

              However, the trial court agreed with the Township that
              the plan was deficient in that it constricted the turning
              movements for tractor-trailers accessing the supermarket
              loading dock located at the rear of the Property.
              Ultimately, it went on to find that this issue could be
              rectified by adjusting the guardrails or an increase in the
              loading zone area.

            Stormwater Management: The trial court affirmed the
             Board’s finding that the 2014 Plan violated Section 399-
             47.N of the Zoning Ordinance, requiring that stormwater
             facilities must be located on a tract of land under one
             ownership, because permanent stormwater facilities are
             shown as being outside the development tract owned by
             either Developer or the Township. The 2015 Plan
             depicted those facilities as located on L&R’s land. It
             noted though that the 2015 Plan has been subsequently
             revised to locate those facilities within the area
             condemned by the Township for the Connector Road.

            Sewage Effluent: The trial court agreed with the Board
             that the 2015 Plan was deficient because it failed to
             provide the required effluent disposal area either on the
             development tract or elsewhere. However, it found that
             this was easily correctable because the new center will be
             connected to the public sewer system because the Board
             is empowered to grant a waiver from this SALDO
             regulation pursuant to Section 503(8) of the Pennsylvania
             Municipalities Planning Code (MPC)10 upon meeting the
             standard for waiver.

      10
          Section 503(8) of the Pennsylvania Municipalities Planning Code, Act of July 31,
1968, P.L. 805, as amended, 53 P.S. § 10503(8). This section provides:

              Provisions for administering waivers or modifications to the
              minimum standards of the ordinance in accordance with section §
              512.1 when the literal compliance with mandatory provisions is
(Footnote continued on next page…)

                                            10
              However, the trial court disagreed with Objectors’
              argument that because Section 399-47.K of the Zoning
              Ordinance incorporates the SALDO provision, the MPC
              traditional zoning variance hardship standards apply
              rather than the waiver requirement within the MPC. The
              trial court found that argument meritless because the
              Zoning Ordinance merely references the necessity of a
              developer’s compliance with the SALDO provision, but
              does not incorporate it into the Zoning Ordinance.


The trial court then issued the following order:

              AND NOW, January 6 , 2017, upon consideration of
              [BVA and L&R[’s]] . . . Appeal of the Conditional
              Approval of [Developer’s] Preliminary Subdivision and
              Land Development Plan, Granted on January 21, 2015 by
              the [Board], the legal memorandums filed by able
              counsel, and following oral argument, it is ORDERED
              and DIRECTED that the said Appeal is Granted only in
              Part, but is otherwise Denied, consistently with and as
              specified in the findings, discussion and determinations
              made and detailed in the accompanying Opinion of the
              Court, which we incorporate in this Order.


(Record (R.) at No. 34, Opinion & Order by Ronald C. Nagle, SJ on 1-6-17.)




(continued…)

              shown to be the satisfaction of the governing body or planning
              agency, where applicable, to be unreasonable, to cause undue
              hardship, or when an alternative standard can be demonstrated to
              provide equal or better results.

53 P.S. § 10503(8).




                                            11
              Objectors then filed this appeal, arguing that the trial court erred in
finding that: (1) the Developer did not violate the front-yard setback requirement
in the Zoning Ordinance; (2) SALDO’s requirement to set aside land for sewage
effluent is not a zoning regulation by incorporation; and (3) the Developer met its
burden to establish that its 2014 Plan provided safe and efficient ingress and
egress.11


                                             II.
              Initially, we must address the Township’s request that this appeal be
quashed because Objectors lack standing to bring this appeal. The Township
argues that even though the trial court found against Objectors on most issues, and
even though it did not specifically say so, the trial court effectively affirmed the
Board’s denial of the Developer’s 2014 Plan because it found that certain aspects
of the 2014 Plan were deficient. Accordingly, the Township contends:

              The real goal of both [Developer] and [Objectors], or
              course, is not to obtain a decision by this Court on the
              plan now before it; [Developer] has abandoned that plan,
              filed a new plan, and that plan is presently before the
              Court of Common Pleas. Instead, both developers hope
              that this Court will issue an advisory opinion giving
              direction to the Court of Common Pleas and the Board of
              Supervisors on the current land use plan, which is not yet
              before this Court. That this Court may not do.



       11
          In a land use appeal, where a full and complete record was made and the trial court
took no additional evidence, our scope of review is limited to determining whether the board
committed an error of law or an abuse of discretion. In re Brandywine Realty Trust, 857 A.2d
714 (Pa. Cmwlth. 2004).




                                             12
(Township’s Response to Developer’s Application for Leave to File Sur-Reply at
6) (emphasis in original) (citing Commonwealth, Office of Governor v. Donahue,
98 A.3d 1223, 1229 (Pa. 2014)). The Developer does not join in the request.


             If Objectors have, in fact, prevailed, the law is clear that only a party
who is “aggrieved” by a decision has standing to appeal that decision. Pa. R.A.P.
501; ACS Enterprises, Inc. v. Norristown Borough Zoning Hearing Board, 659
A.2d 651, 653 (Pa. Cmwlth. 1995). A party is aggrieved when he or she is
adversely, directly, immediately and substantially affected by a judgment, decree
or order. Id. Thus, a party who has prevailed in the proceeding below is not an
aggrieved party and, consequently, has no standing to appeal to this Court. Id. It
is settled that a prevailing party that disagrees with the legal reasoning of an order
or a court or agency or may have had a particular issue against it but is not
adversely affected, lacks standing to appeal that order. Maple Street A.M.E. Zion
Church v. City of Williamsport, 7 A.3d 319 (Pa. Cmwlth. 2010).


             We agree that Objectors were the prevailing parties below. Because
of deficiencies found in the 2014 Plan, the Board did not approve it, meaning that
the Developer has no right to develop the Property. Nonetheless, Objectors argue
that they are aggrieved by the trial court’s determinations because, in any future
appeals, Objectors will be estopped from raising the issues the trial court decided
against them. However, collateral estoppel will not apply to those determinations
because those purportedly adverse determinations against Objectors, as the
prevailing party, were not “essential” to the judgment below.         See Callowhill
Center Associates, LLC v. Zoning Board of Adjustment, 2 A.3d 802, 809 (Pa.



                                         13
Cmwlth. 2010). In any event, the possibility of future litigation is not enough to
establish a sufficient injury for the purpose of standing. Empire Coal Min. &
Development, Inc. v. Department of Environmental Resources, 623 A.2d 897, 900
(Pa. Cmwlth. 1993).


               Although Objectors disagree with the trial court’s dismissal of many
of their arguments, they were still the prevailing party in the decision below. What
the parties sought before and seek from us is an advisory opinion. Accordingly,
Objectors lack standing to appeal the trial court’s January 6, 2017 order and
decision to affirm the Board’s denial of the Developer’s 2014 Plan and, therefore,
the appeal is quashed.12


                                              ___________________________________
                                              DAN PELLEGRINI, Senior Judge

       12
           The Board also contends that the issue may be moot because Developer submitted the
2015 Plan since the inception of this appeal. The mootness doctrine requires that there is an
actual case or controversy at all stages of review. Pilchesky v. Lackawanna County, 88 A.3d
954, 964 (Pa. 2014). An issue may become moot during the pendency of an appeal due to an
intervening change in facts of the case. In re Cain, 590 A.2d 291, 292 (Pa. 1991). An issue is
moot if in ruling upon the issue, the court cannot enter an order that has any legal force or effect.
Chruby v. Department of Corrections, 4 A.3d 764, 770-71 (Pa. Cmwlth. 2010). However, even
if an issue is technically moot, a court may still choose to hear the issue if any one of three
exceptions apply: (1) the issue is a question of great public importance, (2) the issue is capable
of repetition and apt to elude appellate review, or (3) a party to the controversy will suffer some
detriment due to the decision of the trial court to dismiss on mootness. Id. at 771.

        The trial court recognized a potential issue with mootness because the Developer had
submitted another plan and that same plan was also the subject of an appeal. However, all
parties urged the trial court to decide the case on the merits to resolve the ongoing dispute
between the parties and reduce the number of future appeals. Because we do not know for
certain what is in this new plan or what issues have been raised by the parties, we cannot
determine whether the issue is moot or not.



                                                14
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brandywine Village Associates       :
and L&R Partnership,                :
                 Appellants         :
                                    :
            v.                      : No. 164 C.D. 2017
                                    :
East Brandywine Township            :
Board of Supervisors                :
and Carlino East Brandywine, L.P.   :




                                    ORDER


            AND NOW, this 5th day of January, 2018, Appellants Brandywine
Village Associates and L&R Partnership’s appeal from the January 6, 2017 order of
the Court of Common Pleas of Chester County in the above-captioned matter is
quashed.



                                    ___________________________________
                                    DAN PELLEGRINI, Senior Judge
