       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Barbara Pennypacker, Kelly              :
Porterfield, Leona Lundy, Dana          :
McNaughton, Joseph Homan, Galen         :
McWilliams, Edwin Lash, Shannon         :
Jones, Michael Costello, Dorothy        :
Evans Aylard, Kelli Hoover, Andrew      :
McKinnon, Shannon Cover,                :
Katherine G. Watt and Smita Bharti      :
                                        :
            v.                          : No. 1327 C.D. 2016
                                        : Argued: March 6, 2017
Ferguson Township                       :
                                        :
            v.                          :
                                        :
Springton Pointe, LP,                   :
                   Appellant            :


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                    FILED: May 17, 2017


            Before this Court is the appeal brought by Springton Pointe, LP
(Developer), of the July 18, 2016 order of the Court of Common Pleas of Centre
County (Trial Court) reversing the November 17, 2015 approval by the Ferguson
Township Board of Supervisors (Board) of Developer’s final planned residential
development (PRD) plan for the construction of 268 dwelling units to be known as
the “Cottages at State College.”     In appealing to this Court, Developer has
preserved its challenge to the Trial Court’s March 16, 2016 order denying
Developer’s motion to quash the land use appeal brought by neighboring
landowners Barbara Pennypacker, Kelly Porterfield, Leona Lundy, Dana
McNaughton, Joseph Homan, Galen McWilliams, Edwin Lash, Shannon Jones,
Michael Costello, Dorothy Evans Aylard, Kelli Hoover, Andrew McKinnon,
Shannon Cover, Katherine G. Watt and Smita Bharti (collectively Objectors). For
the following reasons, we vacate the Trial Court’s July 18, 2016 order, reverse the
Trial Court’s March 16, 2016 order denying Developer’s motion to quash and
remand this matter to the Trial Court to issue an order quashing Objectors’ land
use appeal.1
               On October 1, 2014, Developer submitted a Tentative Plan to the
Board for a PRD comprised of single-family detached, single-family semi-
detached and single-family attached dwelling units. Following a March 2, 2015
vote, the Board issued a March 17, 2015 decision approving the Tentative Plan
subject to conditions that were subsequently accepted by Developer. On March 3,
2015, Developer submitted its Final Plan, which Ferguson Township (Township)
representatives reviewed and annotated with a series of comments issued between
March and October of 2015.           On November 6, 2015, Developer submitted a
Revised Final Plan (Final PRD Plan). The Final PRD Plan was voted on by the
Board on November 16, 2015, and an approval subject to conditions was issued on
November 17, 2015; the conditions were accepted by the Developer on November
27, 2015.
               The Final PRD Plan spans roughly 44 acres of land, including two
separate tax parcels zoned under the Ferguson Township Zoning Ordinance

1
  Our scope of review is limited to determining whether the Trial Court committed an abuse of
discretion or an error of law. Ligo v. Slippery Rock Township, 936 A.2d 1236, 1241 n.5 (Pa.
Cmwlth. 2007).

                                             2
(Zoning Ordinance) for multi-family residential use (R4) and an additional parcel
zoned for Rural Agricultural use (RA). The two parcels zoned R4 are 15.180 acres
(No. 24-04-76A) and 22.864 acres (No. 24-04-76) for a total of 38 acres; the parcel
zoned RA is 5.5 acres (No. 24-04-94). The Final PRD Plan was submitted with a
Subdivision and Lot Consolidation Plan that joins the 22.864 acres zoned R4 with
the 5.5 acres zoned RA into one lot but leaves in place the underlying RA zoning
for the consolidated 5.5 acres. Under the Township’s PRD Ordinance, a PRD is
not permitted in land zoned RA; the portion of the consolidated lot zoned RA
remains excluded from the PRD and will be used solely for stormwater
management for the PRD.          The stormwater management facilities primarily
include a large detention basin, an infiltration basin and a spreader.
             Objectors appealed the November 17, 2015 Final PRD Plan approval
by the Board to the Trial Court on December 15, 2015 on the grounds that the
Final PRD Plan did not comply with the Zoning Ordinance, that the Board’s
approval was an abuse of discretion and an error of law, and that the Board’s
approval violated Objectors’ rights under the Environmental Rights Amendment to
the Pennsylvania Constitution. Developer filed a motion to quash the appeal on
January 25, 2016. In its motion to quash, Developer argued that Objectors waived
their right to appeal the Final PRD Plan approval because Objectors failed to assert
in their Notice of Appeal that the Final PRD Plan deviated from the Tentative Plan
and because Objectors did not appeal from the Board’s Tentative Plan approval. In
response to Developer’s motion to quash, Objectors argued that because the
Tentative Plan included Condition XX, which required that “[t]he Final PRD Plan
shall comply with all other Township Ordinances,” failure of the Final PRD Plan
to comply with the Zoning Ordinance constituted a deviation from the Tentative
Plan, and thus the appeal was timely.
                                           3
                 On March 16, 2016, the Trial Court issued an opinion and order
denying Developer’s motion to quash. The Trial Court concluded that the appeal
was timely because the Final PRD Plan did not comply with the Zoning Ordinance
and, therefore, did not comply with Condition XX attached to the Board approval
of the Tentative Plan. Following submission of briefs, the Trial Court heard
argument on the merits of Objectors’ appeal on July 13, 2016. The Trial Court
issued a decision and order on July 18, 2016 reversing the Board. Developer
appealed the Trial Court’s order to this Court.               Before this Court, Developer
initially argues that the Trial Court erred in denying its motion to quash Objectors’
appeal. We agree.
                 Article VII of the Municipalities Planning Code2, 53 P.S. §§ 10701-
10713, provides a municipal governing body with the authority to establish
conditions and standards for the development of PRDs. Sections 701 and 702 of
the MPC, 53 P.S. §§ 10701-10702.                A PRD is “a larger, integrated planned
residential development which does not meet standards of the usual zoning
districts,” and the purpose of a PRD ordinance is to “create a method of approving
large developments which overrides traditional zoning controls and permits the
introduction of flexibility into the design of larger developments.” Kang v.
Supervisors of Township of Spring, 776 A.2d 324, 328 (Pa. Cmwlth. 2001).
                 Article VII sets forth a procedure for approval of PRDs, first
providing for the method of approval of a tentative plan in Section 707, 53 P.S. §
10707, and second providing for the method of approval of a final plan in Section
711, 53 P.S. § 10711. In addition to the two-step process set forth in Sections 707
and 711, Section 710 addresses the status of a PRD plan following tentative plan

2
    Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 – 11202.

                                                 4
approval. 53 P.S. § 10710. When read together, the three sections make clear that
the critical step in the PRD process is tentative plan approval and that a
municipality’s authority to deny final plan approval is limited to instances where
the final plan contains deviations from the tentative plan, except where those
deviations are required to comply with conditions attached to tentative plan
approval. 53 P.S. § 10710. The importance of tentative plan approval is further
underscored by Section 914.1 of the MPC3, which limits an appeal by an interested
party other than the landowner from final plan approval where no appeal from
tentative plan approval had been taken unless “the final submission substantially
deviates from the approved tentative approval.” 53 P.S. § 10914.1.
                In their Notice of Land Use Appeal, Objectors did not allege that the
Final PRD Plan deviates from the Tentative Plan. Instead, Objectors alleged that
Developer’s Final PRD Plan violates the Zoning Ordinance and the MPC by
permitting the stormwater management facilities to be located in the RA district
and that the Board usurped the function of the Ferguson Township Zoning Hearing
Board by granting a de facto variance. (Objectors’ Notice of Appeal at 9-10.)
Objectors raised their argument that approval of the Final PRD Plan should be
reversed because it deviates from the Tentative Plan for the first time in their
response to Developer’s motion to quash, stating:


                [Developer] argues that the appeal should be quashed
                because there is no allegation that the [Final PRD Plan]
                deviated from the approved [T]entative [P]lan. The
                tentative approval incorporated Conditions of Approval,
                which are a part of the record in this case. Item XX of
                the conditions requires that “[t]he Final PRD [Plan] shall
                comply with all other Township Ordinances.” Contrary
                to this condition, as set forth in the Land Use Appeal, the
3
    Added by the Act of December 21, 1988, P.L. 1329.
                                               5
                Final PRD [P]lan violates the [Zoning Ordinance] by
                allowing a use not permitted in the RA District.


(Objectors’ Brief in Opposition to Motion to Quash at 4.) Objectors contend that
the distinction between their claim as stated in their Notice of Appeal and their
claim as stated in their Brief in Opposition to Developer’s Motion to Quash is a
distinction without a difference and an attempt by Developer to raise form over
substance. We disagree and conclude that Objectors waived their right to raise the
issue of whether the Final PRD Plan substantially deviates from the Tentative Plan
by failing to raise this issue in their Notice of Appeal contrary to the express
mandate of the MPC.
                The MPC expressly mandates that no appeal from final approval of a
PRD plan is permitted where an appeal from tentative plan approval was not taken,
except where the final plan deviates from the tentative plan. Objectors did not
allege that the Final PRD Plan deviated from the Tentative Plan in their Notice of
Appeal and, as a result, they failed to state a claim for which relief can be granted.
Section 1003-A of the MPC4 provides that “[l]and use appeals shall be entered as
of course by the prothonotary or clerk upon the filing of a land use appeal notice
which concisely sets forth the grounds on which the appellant relies.” 53 P.S. §
11003-A(a). Objectors failed to concisely set forth the grounds upon which their
appeal relied because they did not claim that the Final PRD Plan deviated from the
Tentative Plan, which is the only ground for appeal available to them under the
MPC. The Courts of this Commonwealth have repeatedly held that the language in
Section 1003-A is mandatory and that an appellant’s failure to state the grounds for
appeal in the notice of appeal results in waiver. Newtown Square East, L.P. v.


4
    Added by the Act of December 21, 1988, P.L. 1329.
                                               6
Township of Newtown, 38 A.3d 1008, 1017 (Pa. Cmwlth. 2011); Therres v. Zoning
Hearing Board of Borough of Rose Valley, 947 A.2d 226, 233 (Pa. Cmwlth. 2008);
Perin v. Board of Supervisors of Washington Township, 563 A.2d 576, 578 (Pa.
Cmwlth. 1989).
            Moreover, even if we were to accept that the Notice of Appeal
sufficiently raised the issue of deviation in the Final PRD Plan from Condition XX
attached to the Board approval of the Tentative Plan, Developer’s motion to quash
would still be granted because Objectors’ claim is dependent upon an interpretation
of the Zoning Ordinance rejected by the Board when it granted Tentative Plan
approval. Consequently, Objectors lost their opportunity to challenge the Board’s
interpretation of the Zoning Ordinance when they failed to appeal the Tentative
Plan approval.
            In establishing the procedure for tentative plan approval of a PRD, the
MPC states in Section 707:


            In order to provide an expeditious method for processing
            a development plan for a planned residential
            development under the provisions adopted pursuant to
            the powers granted herein, and to avoid the delay and
            uncertainty which would arise if it were necessary to
            secure approval, by a multiplicity of local procedures, of
            a plat of subdivision as well as approval of a change in
            the zoning regulations otherwise applicable to the
            property, it is hereby declared to be in the public interest
            that all procedures with respect to the approval or
            disapproval of a development plan for a planned
            residential     development      and     the    continuing
            administration thereof shall be consistent with the
            following provisions:
            ***
            (3) All planning, zoning and subdivision matters relating
            to the platting, use and development of the planned
                                         7
               residential development and subsequent modifications of
               the regulations relating thereto, to the extent such
               modification is vested in the municipality, shall be
               determined and established by the governing body or the
               planning agency.

53 P.S. § 10707. When issuing a decision regarding the grant or denial of tentative
plan approval, the MPC further requires that the governing body “shall set forth
with particularity in what respects the development plan would or would not be in
the public interest,” including findings of fact that address, among other things,
“the extent to which the development plan departs from zoning and subdivision
regulations otherwise applicable to the subject property, including but not limited
to density, bulk and use, and the reasons why such departures are or are not
deemed to be in the public interest.” Section 709(b)(2) of the MPC, 53 P.S. §
10709(b)(2).
               In the instant matter, the Board issued a March 17, 2015 written
decision in support of its March 2, 2015 vote to approve Developer’s Tentative
Plan. The approval contained a statement of why approval of the Tentative Plan
was in the public interest despite failure of the Tentative Plan to comply with
zoning and subdivision and land use ordinances otherwise applicable, including the
following relevant finding of fact:


               Placement of stormwater management facilities in a
               5.5 acre parcel zoned RA is accessory to the primary
               residential use located in the PRD. This accessory use
               is contingent upon approval of The Cottages
               Subdivision and Lot Consolidation Plan. Balancing
               the placement of the PRD stormwater facilities in the RA
               zoned parcel against the type of stormwater facilities that
               would be required with typical multi-story R-4
               development would not result in any more favorable
               stormwater management. The stormwater facilities in the
                                           8
            RA zoning district have additional safety design
            requirements to reduce (a) basin failures, (b) require PRD
            property owner to be responsible for adjacent
            downstream property impacted by either the PRD
            stormwater facility not being properly maintained and/or
            a basin failure in the judgment of the Township Engineer.
            This exceeds the requirements under the underlying R-4
            zoning district.


(Tentative Plan approval, Findings of Fact (F.F.) ¶2(g)(6) (emphasis added); see
also Tentative Plan approval, Condition III.j, XII.a, XX.) This finding is important
for two reasons. First, the deviation noted by the Board is from the regulations
governing stormwater management in the R4 District and the finding by the Board
is that this deviation provides greater, not lesser, stormwater management controls.
Second, the Board concluded that the location of the stormwater management
facilities in the RA zoned parcel is an accessory use under the Zoning Ordinance
because the Tentative Plan contemplates approval of the accompanying
Subdivision and Lot Consolidation Plan. This conclusion is fatal to Objectors’
appeal.
            Objectors contend that under the Zoning Ordinance, land zoned RA
cannot be used as an accessory use for stormwater facilities serving a primary use
that is not permitted in the RA, and that because PRDs are not permitted in the RA
district, use of the RA parcel for stormwater facilities serving the PRD is not
permitted by the Zoning Ordinance. Objectors contend, therefore, that Developer
did not satisfy Condition XX attached to the Tentative Plan approval because
Condition XX requires that the Final PRD Plan “shall comply with all other
Township Ordinances.” (Tentative Plan approval, Condition XX.) However, in
approving the Tentative Plan, the Board interpreted the placement of stormwater
facilities on the RA zoned parcel as a permissible accessory use because the
                                         9
Tentative Plan contemplated approval of Developer’s Subdivision and Lot
Consolidation Plan merging the R4 and RA parcels. By doing so, the Board
concluded that placement of the stormwater facilities on the RA lot did not violate
the Zoning Ordinance. As a result, Condition XX does not provide a vehicle for
Objectors to challenge placement of the stormwater facilities on the land zoned RA
and Objectors lost their right to challenge the Board’s interpretation of the Zoning
Ordinance as allowing this use of the RA zoned land when they failed to challenge
the grant of Tentative Plan approval. Therefore, even if we were to construe
Objectors’ Notice of Appeal as having sufficiently raised the issue of deviation in
the Final PRD Plan from Condition XX attached to the Tentative Plan approval,
we would still be required to quash Objectors’ appeal for failing to raise their
challenge to the interpretation of the Zoning Ordinance made by the Board when
granting Tentative Plan approval.
             Accordingly, because Objectors violated the express mandate of the
MPC by failing to state in their Notice of Appeal from the Board’s Final PRD
approval how the Final PRD Plan deviated from the Tentative Plan and failed to
raise a challenge to the Board’s interpretation of the Zoning Ordinance when it
granted Tentative Plan approval by appealing the Board’s order granting Tentative
Plan approval, we vacate the Trial Court’s July 18, 2016 order, reverse the Trial
Court’s March 16, 2016 order denying Developer’s motion to quash and remand
this matter to the Trial Court to issue an order quashing Objectors’ land use appeal.



                                     __________ ___________________________
                                     JAMES GARDNER COLINS, Senior Judge




                                         10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Barbara Pennypacker, Kelly               :
Porterfield, Leona Lundy, Dana           :
McNaughton, Joseph Homan, Galen          :
McWilliams, Edwin Lash, Shannon          :
Jones, Michael Costello, Dorothy         :
Evans Aylard, Kelli Hoover, Andrew       :
McKinnon, Shannon Cover,                 :
Katherine G. Watt and Smita Bharti       :
                                         :
            v.                           : No. 1327 C.D. 2016
                                         :
Ferguson Township                        :
                                         :
            v.                           :
                                         :
Springton Pointe, LP,                    :
                   Appellant             :

                                   ORDER

            AND NOW, this 17th day of May, 2017, the July 18, 2016 order of the
Court of Common Pleas of Centre County in the above-captioned matter is
VACATED, the March 16, 2016 order of the Court of Common Pleas of Centre
County denying the motion to quash filed by Springton Pointe, L.P. is REVERSED
and this matter is REMANDED to the Court of Common Pleas of Centre County
to enter an order quashing the land use appeal filed by Barbara Pennypacker, Kelly
Porterfield, Leona Lundy, Dana McNaughton, Joseph Homan, Galen McWilliams,
Edwin Lash, Shannon Jones, Michael Costello, Dorothy Evans Aylard, Kelli
Hoover, Andrew McKinnon, Shannon Cover, Katherine G. Watt and Smita Bharti.
            Jurisdiction relinquished.


                                    __________ ___________________________
                                    JAMES GARDNER COLINS, Senior Judge
