          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

BR Associates, a Pennsylvania                 :
General Partnership,                          :
                        Appellant             :
                                              :
               v.                             :
                                              :
Board of Commissioners of the                 :    No. 775 C.D. 2015
Township of Upper St. Clair                   :    Argued: April 12, 2016
                                              :
               v.                             :
                                              :
Rodney Ardolino and Tammy                     :
Ardolino, husband and wife,                   :
and Joyce Mendenhall                          :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION
BY JUDGE SIMPSON                              FILED: May 5, 2016

               In this land use appeal, BR Associates (Objector), a general
partnership which owns a business park with approximately 36 commercial
tenants, appeals from an order of the Court of Common Pleas of Allegheny
County1 (trial court) that affirmed a decision of the Board of Commissioners
(Board) of the Township of Upper St. Clair (Township) granting amended final
approval of a planned nonresidential development on neighboring properties
owned by Rodney Ardolino and Tammy Ardolino (Ardolinos), and Joyce
Mendenhall (collectively, Applicants). For the reasons that follow, we affirm.


      1
          The Honorable Joseph M. James, Senior Judge, presided.
                                  I. Background
             In 2012, the Ardolinos sought Board approval to build a 4,995 square-
foot restaurant with off-street parking, stormwater management controls, and
landscaping on an approximately 1.61-acre parcel in the Township’s Planned
Restricted Light Industrial District. The Ardolinos’ application included a detailed
stormwater management study from a professional engineer, Kimberly Gales-Dunn
(Applicants’ Engineer), of J.R. Gales and Associates.       Applicants’ Engineer’s
study certified that the 2012 plan met the requirements of the Township’s land
development ordinances and regulations. Objector did not oppose Applicants’
Engineer’s study.


             In April 2012, the Board tentatively approved the Ardolinos’ 2012
plan.   In July 2012, the Board granted final approval conditioned on the
requirement that the Ardolinos obtain a highway occupancy permit from the
Pennsylvania Department of Transportation (PennDOT) for their proposed
driveway access on Maple Lane, a private street on Objector’s property. However,
the Ardolinos encountered problems obtaining the PennDOT permit and decided to
revise their plan.


             In June 2014, the Ardolinos and Joyce Mendenhall submitted an
application for an amended land development plan. The 2014 amended plan added
some parking spaces and changed the access to the Ardolinos’ property by creating
an easement over Applicant Mendenhall’s neighboring property onto Boyce Road.
As part of their amended plan, Applicants resubmitted Applicants’ Engineer’s
stormwater management study.



                                         2
            On June 19, 2014, the Board unanimously recommended approval of
Applicants’ amended plan. Nonetheless, the Board scheduled an August 2014
public hearing. At the hearing, Applicants placed numerous exhibits, including the
stormwater study, into the record.     Applicants also submitted a memo from
Township Engineer Ruth L. Olmer (Township Engineer) concluding that the
stormwater plan remained adequate because it did not change despite the other
changes in the amended plan. Applicants’ Engineer also testified regarding the
details of the land development plan and stormwater controls.


            Objector’s counsel appeared and indicated to the Board that
Objector’s sole concern was Applicants’ stormwater management study. Objector
presented testimony from a professional engineer, Martha Frech (Objector’s
Engineer), who claimed there were errors in Applicants’ Engineer’s calculations.
Objector’s Engineer also recommended that a flood plain analysis be completed.


            Objector also presented testimony from its property manager, Don
Falcioni (Property Manager).     He testified about flooding that occurred on
Objector’s property, Sainte Claire Plaza, in 2013 and 2014. In the July 2013 flood,
all but two of Objector’s tenants sustained flood damage. Objector incurred direct
flooding costs of nearly $500,000. In May 2014, Objector’s property sustained
another damaging flood. In both cases, the floodwaters flowed from Applicants’
neighboring properties.


            The Board ultimately continued the hearing until October 2014
because Applicants made some minor changes to the stormwater management plan



                                        3
and wanted to provide Objector with an opportunity to review the changes.
Applicants also submitted correspondence and calculations from their second
engineer, Stephen G. Sawyer (Applicants’ Second Engineer).          He addressed
various concerns raised about Applicants’ stormwater plan.


             At the October hearing, the Township’s Director of Planning and
Community Development, Scott Brilhart (Planning Director), advised the Board
that Township’s Engineer reviewed Applicants’ revisions and declared them
compliant with the Township Code and Township Stormwater Ordinance.
Applicants’ Engineer testified how the revisions to the plan would function.
Township Engineer testified that she reviewed everything and confirmed that the
revised plan complied with the Township ordinances.


             Objector again called Objector’s Engineer, who noted her concerns
from prior correspondence. Objector’s Engineer also introduced a letter claiming
that Applicants’ amended plan included a pipe running across Maple Lane on
Objector’s property. Objector also produced a deed indicating it owned Maple
Lane. Property Manager also testified that Objector did not consent to Applicants
installation of a pipe on its property.


             Objector’s counsel then summarized Objector’s position that
Applicants’ amended plan should not be approved because Applicants lacked
permission to install the pipe on Objector’s property. In response, Applicants
claimed authority under their easement rights to install the pipe. Applicants also
argued that a court, rather than the Board, was the proper forum to determine



                                          4
property rights. After consulting the Township solicitor, the Board agreed that it
was not in a position to determine title, and that the dispute over title was not a
reason to deny Applicants’ amended plan.


              Thereafter, the Board closed the hearing and voted to approve
Applicants’ amended plan.          On October 6, 2014, the Board issued a written
decision granting final approval to Applicants’ amended plan subject to certain
specified conditions.         These conditions included approval of Applicants’
stormwater management plan by the Pennsylvania Department of Environmental
Protection (DEP).


              Objector appealed to the trial court. Taking no evidence, the trial
court issued an April 2015 opinion and order affirming the Board. In its decision,
the trial court concluded that the Board did not abuse its discretion in choosing
between opposing experts. The trial court also noted that issues regarding title to
property are not appropriate for consideration by a municipal body in a land use
proceeding. Objector appeals.2


                                          II. Issues
              Objector raises three substantial evidence challenges to the Board’s
decision approving Applicants’ 2014 amended plan. More specifically, Objector

       2
           Where the trial court takes no additional evidence, appellate review in a land
development appeal is limited to determining whether the local governing body committed an
error of law or an abuse of discretion. Whitehall Manor, Inc. v. Planning Comm’n of the City of
Allentown, 79 A.3d 720 (Pa. Cmwlth. 2013). An abuse of discretion occurs when the governing
body’s findings are not supported by substantial evidence. Gerryville Materials, Inc. v. Planning
Comm’n of Lower Milford Twp., Lehigh Cnty., 74 A.3d 322 (Pa. Cmwlth. 2013).



                                               5
contends the record does not support the Board’s determinations that: (1)
Applicants’ stormwater management plan met the requirements of the Township
Code concerning control of peak stormwater discharge, flow and runoff or release;
(2) Applicants’ stormwater management plan met the requirements of the
Township     Code    concerning     post-construction   stormwater      management
maintenance and best management practice plans for the stormwater facilities
proposed under the plan; and, (3) Applicants’ stormwater management plan met
the requirements of the Township Code concerning the plan’s compliance with
state and federal floodplain management requirements.


            In addition, Objector asserts the Board, in approving the amended
plan, disregarded the fact that Applicants failed to demonstrate any legal easement,
license or right to utilize Objector’s land for part of Applicants’ stormwater
management facilities.


                                  III. Discussion
                    A. Stormwater Management Compliance
            Objector contends the Board erred in determining Applicants’
stormwater management plan met the requirements of the relevant Township
ordinances for several reasons. To that end, Objector cites Section 51.1.2.2 of the
Township Code, which states:

                   Site Plan: The application for the permit shall be
            accompanied by two (2) copies of a site plan which is a
            survey of a lot upon which is shown to scale the location
            of existing and proposed structures and structures to be
            removed or moved; existing and proposed contours;
            location and dimensions of yards; proposals for the
            disposition of sanitary waste and stormwater; indications

                                         6
            of compliance with zoning, grading, building and other
            code requirements; name of applicant and landowner;
            area location map or recorded subdivision or land
            DEVELOPMENT plan name and lot number; dates of
            preparation and revisions; locations of all existing utility
            lines and existing and proposed connections to them;
            evidence of preparation in accordance with the
            Pennsylvania Construction Code Act [Act of November
            10, 1999, P.L. 491, 35 P.S. §§ 7210.101—7210.1103].

Reproduced Record (R.R.) at 479a (emphasis by underline added).


            Objector maintains the stormwater management plan in Applicants’
2014 amended plan fails to comply with the Township Code in the following
specific ways.


                   B. Control of Peak Stormwater Discharge
                                   1. Argument
            First, Objector asserts the Township Code contains clear standards for
control of peak stormwater discharge in the event of 2, 10 and 100-year flood level
storms.   Objector maintains its unrefuted expert reports and testimony show
Applicants’ Engineer’s omissions and miscalculations in the stormwater
management system.      As a result of these omissions and miscalculations, the
system will be overwhelmed during large storm events, and the underground pipes
and above-ground pond will be filled with flooding water from the upper drainage
basin and the tailwater conditions downstream of the site. At that point, the above-
ground and underground detention facilities will be submerged and unable to
function as stormwater management controls.




                                         7
            Objector further asserts the Board never heard any specific testimony
or saw any evidence contradicting this scenario. To the contrary, Applicants’
Engineer admitted that water would back up from the pipes.            Further, the
Township’s Engineer and Planning Director simply made cursory statements that
Applicants’ 2014 amended plan met the requirements of the Township Code
without providing anything to support their sweeping conclusions.            Such
conclusory statements cannot be considered such relevant evidence as a reasonable
mind would accept as adequate to support a conclusion. See Lantos v. Zoning
Hearing Bd. of Haverford Twp., 621 A.2d 1208 (Pa. Cmwlth. 1993) (substantial
evidence defined as such relevant evidence as a reasonable mind would accept as
adequate to support a conclusion). In short, Objector argues the Board’s decision
lacked any substantial evidence showing Applicants’ stormwater management plan
actually complied with the Township Code.


            What is more, Objector contends the Board capriciously disregarded
competent evidence presented by Objector’s Engineer thereby showing the Board
abused its discretion in approving Applicants’ amended plan. Capricious disregard
of material competent evidence is an appropriate consideration for an appellate
court reviewing a land use appeal. Lamar Advantage GP Co. v. Zoning Hearing
Bd. of Adjustment of City of Pittsburgh, 997 A.2d 423 (Pa. Cmwlth. 2010). It
occurs only when the fact-finder deliberately disregards relevant, competent
evidence. Id.


            Here, Objector asserts, the Board and even the trial court, disregarded
Applicants’ Engineer’s own testimony that Applicants’ stormwater management



                                        8
system, as designed, would not contain the water anticipated to flow into it.
Therefore, Objector argues, the Board’s disregard of this testimony should have
been fatal to its decision. As such, Objector continues, the trial court erred by
similarly disregarding this testimony.


                                        2. Analysis
               In a land use appeal, the local governing body is the ultimate fact-
finder in a land use proceeding. Joseph v. N. Whitehall Twp. Bd. of Supervisors,
16 A.3d 1209 (Pa. Cmwlth. 2011).               As fact-finder, the governing body is
empowered to resolve conflicts in the testimony. Herr v. Lancaster Cnty. Planning
Comm’n, 625 A.2d 164 (Pa. Cmwlth. 1993). This Court may not substitute its
interpretation for that of the fact-finder. Pohlig Builders, LLC v. Zoning Hearing
Bd. of Schuylkill Twp., 25 A.3d 1260 (Pa. Cmwlth. 2011).


               Here, Objector argues the Board’s determination that Applicants’
stormwater management plan meets the Township Code’s requirements for control
of runoff during specified storm events is not supported by substantial evidence.
We disagree.


               First, Applicants’ stormwater management study3 included a
“Stormwater Management Certification” signed by Applicants’ Engineer,
certifying that Applicants’ stormwater management plan complies with the
Township’s stormwater management ordinances and regulations. R.R. at 24a. The


      3
          See Reproduced Record (R.R.) at 23a-102a.



                                              9
study itself contains numerous supporting calculations for stormwater runoff
control for 2-year, 10-year, 25-year and 100-year floods. R.R. at 25a-102a.


               At the August 2014 hearing, Objector’s Engineer expressed several
concerns about the ability of Applicants to manage runoff during a major storm
likes the ones which flooded the subject property in 2013 and 2014. In response to
Objector’s concerns, Applicants’ Engineer consulted with Applicants’ Second
Engineer, who recommended using an underground pipe rather than the originally
planned rain garden.


               Applicants then revised their stormwater management plan in accord
with this recommendation. Applicants’ Engineer prepared a new plan4 and again
certified that it complied with the Township’s stormwater management ordinances
and regulations. R.R. at 112a. The new study also contained numerous supporting
calculations for stormwater runoff control for 2-year, 10-year, 25-year and 100-
year floods. See R.R.at 113a-190a. With respect to the 2014 modifications,
Applicants’ Engineer testified as follows (with emphasis added):

                      Moving forward, what we had done is [Applicants’
               Second Engineer] calculated the 100-year floodway or
               the 112-acre, approximately, drainage area that goes from
               a 48-inch pipe of 872.31 in his report and letter dated
               August 21. We went back out and did additional
               surveying in this area to actually map out the floodway of
               the larger stream. What we had done then is what we had
               before. It was the rain bin in this area (indicating).



      4
          See R.R. at 111a-190a.



                                          10
                     So to put that outside of the floodway and avoid
              any maintenance issues is what we’re now proposing is
              an underground detention system that will connect into
              the 18-inch pipe on Maple Lane. That system will
              control the 2-year to 87 percent of the pre-development,
              the 10-year to 76, the 25-year to 71 percent, and the 100-
              year to 75 percent of the pre-development.

Bd. Hr’g, 10/6/14, Notes of Testimony (N.T.) at 9; R.R. at 290a.


              Further, although Applicants’ Engineer testified water will back up in
the pipe during a 100-year storm, R.R. at 292a, Applicants’ Second Engineer
opined in a memo to Applicants’ Engineer that the detention pond would not be
overtopped.     Specifically, Applicants’ Second Engineer stated (with emphasis
added):

              We redid our hydrologic and hydraulic analyses of said
              pipe for the 100-year, 24-hour storm and calculated a
              maximum, backwater elevation of 872.31 instead of
              872.42. You will still have to install an underground
              pipe in lieu of the proposed rain garden.

              You had asked me if your proposed detention pond
              would be overtopped by the backwater of the 48’’ pipe
              during the 100-year, 24-hour storm. Our answer is,
              “No”. The breastwork of the proposed, detention pond is
              878,00+/-, well above the backwater elevation of 872.29.

R.R. at 464a.


              Contrary to Objector’s contention, the record reflects that Applicants’
two engineers established that Applicants’ stormwater management plan would
contain the water anticipated to flow into it during a 2-year, 10-year, 25-year or
100-year storm. Further, the Board did not capriciously disregard Applicants’


                                         11
Engineer’s testimony that water will back up into the 48” pipe during a 100-year
storm.   Rather, Applicants’ Second Engineer explained that the backwater
elevation would remain below the breastwork of the proposed detention pond.
R.R. at 464a.      Consequently, the Board’s determination that Applicants’
stormwater management plan meets the Township Code’s requirements for control
of runoff during specified storm events, including 100-year storms, is supported by
substantial evidence.


                        C. Post Construction Maintenance
                                   1. Argument
             Objector next asserts Applicants failed to provide evidence of
adequate post-construction stormwater management maintenance and best
management practices plans for the proposed stormwater facilities. This includes
providing evidence of permission or rights to access parts of the designed facilities
to be installed on Objector’s property.


             Section 99.4.2.4.1.4 of the Township Code provides:

             The [DEP] has regulations that require municipalities to
             ensure design, implementation, and maintenance of Best
             Management Practices (BMP’s) [sic] that control runoff
             for new development and redevelopment (hereinafter
             ‘development’) after Regulated Earth Disturbance
             activities are complete. These requirements include the
             need to implement post-construction stormwater BMP[s]
             with assurance of long-term operations and maintenance
             of those BMP[s].

R.R. at 483a. Here, Objector asserts Applicants did not provide evidence of BMPs
to be implemented to control post-construction stormwater runoff.


                                          12
             In particular, Objector argues Applicants failed to provide any
evidence of a right to connect to existing stormwater management facilities on
Objector’s property. Objector raised this issue before the Board. See R.R. at 302a.
Objector asserts that as the adjoining property directly downhill from the
development site, it is also the party most impacted by this failure.


                                     2. Analysis
             Applicants argue Objector waived the post-construction maintenance
issue by failing to raise it before the Board. See In re McGlynn, 974 A.2d 525 (Pa.
Cmwlth. 2009) (objectors’ failure to raise ownership interest issue before board of
supervisors resulted in a waiver of that issue). More specifically, Applicants
assert, Objector failed to raise any claim that Applicants’ amended plan lacked a
post-construction maintenance plan.


             Although Objector did raise before the Board the issue of whether
Applicants could connect to stormwater facilities on Objector’s property without
permission, this issue is separate from the issue of whether Applicants’ amended
plan lacked a post-construction maintenance plan. As to the latter issue, Objector
fails to point to anything in the record indicating it preserved the issue of whether
Applicants’ amended plan lacked a post-construction maintenance plan.
Accordingly, Objector waived this issue. McGlynn.


             Even assuming Objector did not waive this issue, Applicants’ 2014
stormwater management study includes the following maintenance plan:

                   The proposed detention pipe and detention pond
             with their outlet control structures have been designed to

                                          13
            be as maintenance free as is practically possible. The
            trash racks on the top and openings should assure
            continued flow under adverse conditions.

                  However, with time, and especially after heavy
            storms, debris (e.g. leaves) and sediment will collect in
            the pipe and pond, and should be removed. An annual
            cleaning of the pipe and pond is recommended.

                    For the first year of operation, inspection of the
            facilities, especially the outlet control structures, should
            be made after heavy storms and at least quarterly.

                   These inspections should pay close attention to the
            collection of debris around, or obstructions to, and
            openings in the outlet control structures.

                   Depending on the findings of inspection during the
            first year, future inspections and cleanups can be tailored
            accordingly.

                  The proposed stormwater detention facilities will
            be constructed by Rodney Ardolino in accordance with
            approved final construction plans.

R.R. at 115a (emphasis added).


            In short, Applicants’ maintenance plan provides substantial evidence
of Applicants’ compliance with the Township Code’s requirement that Applicants
demonstrate that they have a suitable post-construction maintenance plan.


            Further, the Board’s approval of Applicants’ development plan was
conditioned upon subsequent DEP approval of the stormwater management plan.
Objector do not explain why the subsequent DEP review and approval would be




                                        14
inadequate to confirm compliance with DEP regulations for post-construction
stormwater BMPs with assurance of long-term operations and maintenance.


             We also note the Board properly chose not to address Objector’s
specific claim that Applicants failed to provide any evidence of a right to connect
to existing stormwater management facilities on Objector’s property. As discussed
more fully below, the issue of whether Applicants had a legal right or permission
under their Maple Lane easements to connect to the stormwater facilities on
Objector’s property is a property rights issue that must be raised in a public court
of record, not in a land use proceeding before a municipal body. Michener Appeal,
115 A.2d 367 (Pa. 1955); Gulla v. N. Strabane Twp., 676 A.2d 709 (Pa. Cmwlth.
1996).


                   D. Floodplain Management Requirements
                                    1. Argument
             Objector further contends Applicants failed to show that their 2014
amended stormwater management plan complies with state and federal floodplain
management requirements.       To that end, Objector asserts the Township Code
requires land development plans to show their designs comply with federal and
state floodplain management guidelines. See Section 64.2.1.5 of the Township
Code; R.R. at 482a.


             Objector’s Engineer testified before the Board that Applicants’
proposed restaurant, which is to be built approximately five feet from a stream at
its closest point, would be within a floodplain area because of its close proximity to



                                         15
the stream. Objector asserts the record does not show that Applicants notified
appropriate state and federal authorities in order for those entities to determine
whether the project complied with their regulations. Therefore, Objector argues,
Applicants’ 2014 amended plan does not comply with the Township’s Code.


                                    2. Analysis
            In response, Applicants argue Objector misreads Section 64.2.1.5 of
the Township Code. Applicants assert the proper reading of the Township Code
reflects that the purpose of the ordinance is to bring the Township into compliance
with federal and state floodplain requirements, not to impose federal and state
requirements on developers.       Chapter 64 of the Township Code governs
“Floodplain Management.” See Upper St. Clair Code, §§64.1-64.9. In its entirety,
Section 64.2.1 of the Township Code provides (with emphasis added):

            64.2.1. Intent – The intent of this Ordinance is to:

            64.2.1.1. Promote the general, health, welfare and safety
            of the community.

            64.2.1.2. Encourage the utilization of appropriate
            construction practices in order to prevent or minimize
            FLOOD damage in the future.

            64.2.1.3. Minimize danger to public health by protecting
            water supply and natural drainage.

            64.2.1.4. Reduce financial burdens imposed on the
            community, its governmental units, and its residents, by
            preventing excessive DEVELOPMENT in areas subject
            to flooding.

            64.2.1.5. Comply with federal and state floodplain
            management requirements.



                                         16
Upper St. Clair Code at §64.2.1.


            Applicants note the courts’ recognition that a municipality should not
deny a land development application based on failure to comply with laws or
regulations overseen by other governmental agencies. In Morris v. South Coventry
Township Board of Supervisors, 898 A.2d 1213, 1221 (Pa. Cmwlth. 2006)
(quoting Bloom v. Lower Paxton Township, 457 A.2d 166, 169 (Pa. Cmwlth.
1983)), this Court stated (with emphasis added):

            [A] municipality that grants final plan approval subject to
            the issuance of required state permits ‘reflects the fact
            that developer has satisfied the municipality’s land use
            requirements, and is in conflict only with regulations of a
            state agency,’ and that ‘any legal dispute regarding the
            issuance of the permits should involve the developer and
            the agency, not the municipality.’ More importantly, that
            provision recognizes that a final plan cannot be disproved
            due to a failure to have those permits.

            Here, the Board granted final approval to Applicants’ 2014 amended
plan subject to DEP’s review and approval of Applicants’ stormwater management
plan. In accord with Morris, any dispute over DEP’s approval of Applicants’
stormwater management plan could not serve as a basis for attacking the Board’s
final approval. Consequently, we reject Objector’s contention that the Board erred
or abused its discretion in conditionally approving Applicants’ stormwater
management plan prior to federal and state floodplain management approval.
Morris.




                                        17
                          E. Maple Lane Easement Rights
                                      1. Argument
             Objector asserts Applicants’ 2014 amended plan provides for a
portion of Applicants’ stormwater management system to be installed on or under
Maple Lane, a private street Objector owns. Objector claims Applicants failed to
demonstrate any easement or other right of access to Objector’s property to
permanently install a portion of their stormwater management facilities. However,
Objector argues, the Board completely disregarded this issue. In reviewing this
issue, the trial court reasoned:

                    [Objector] also argues that [Applicant Ardolino]
             does not have appropriate easements, licenses or
             necessary ownership interests over Maple Lane.
             However, this issue is not properly before the governing
             body.     Issues regarding title to property are not
             appropriate for consideration by a municipal body in a
             land use proceeding. The Commonwealth Court has held
             that ‘an application for a subdivision plan which
             conforms to all the technical requirements of relevant
             ordinances cannot be denied based on deed restrictions.’
             Anderson v. Board of Supervisors of Price Township,
             437 A.2d 1308, 1309-10 (Pa. Cmwlth. 1981). As the
             Court stated in Gulla v. North Strabane [Township], 676
             A.2d 709, 710-11 (Pa. Cmwlth. 1996), land use matters
             involve public rather than private interests. Conflicts
             arising from private instruments of title may not be
             resolved in land use proceedings.

Tr. Ct., Slip Op., 4/17/15, at 3-4.


             Objector asserts this case is distinguishable from Anderson and Gulla.
Objector argues the Township Code creates an affirmative obligation for a land
development applicant to demonstrate he possesses a valid easement right where


                                          18
his stormwater facilities cross land owned by another party. To that end, the
Township Code incorporates the Allegheny County Health Department’s Rules
and Regulations for Plumbing and Building Drainage (County Drainage
Regulations), which require an applicant to record an easement where its
stormwater facilities cross another’s land, and to record covenants for shared
maintenance of the easement.


            Chapter 51 of the Township Code governs “Building Construction.”
See Upper St. Clair Code, §§51.1-51.3. Sections 51.2.5.1.1 and 51.2.5.1.2 of the
Township Code provide:

            Scope: The design and installation of plumbing systems,
            including sanitary and storm drainage, sanitary facilities,
            water supplies, storm water and sewage disposal in
            buildings shall comply with the requirements of the
            Allegheny County Health Department Rules and
            Regulations, Article IX, Plumbing and Building
            Drainage.

            Administrative Authority: Administrative authority of the
            Allegheny County Health Department Rules and
            Regulations, Article IX, Plumbing and Building Drainage
            except storm water drainage systems external to
            buildings shall be defined in Definitions 300 of those
            Regulations; however, the TOWNSHIP of Upper St.
            Clair shall be the administrative authority for storm water
            drainage systems external to buildings.

R.R. at 480a (emphasis added).


Sections 51.2.7.1 and 51.2.7.2 of the Township Code provide:




                                        19
            Applicability: The provisions of this section shall govern
            CONSTRUCTION of all new structures as covered by
            this chapter.

            Storm sewer connection required: Storm water runoff
            from all roofs, driveways, foundation drains and French
            drains for any new structures shall be collected, piped
            and connected to a storm sewer system in accordance
            with the [Township Code], Chapter 99, Public and
            Private Improvements, when a system is available. The
            CONSTRUCTION and connection of said sewers shall
            be in accordance with the Allegheny County Health
            Department Rules and Regulations, Article IX, Plumbing
            and Building Drainage, Chapter 13.

R.R.at 481a (emphasis added).


            In turn, the County Drainage Regulations pertinently provide:

            AC-701.3 Public Sewers and/or Water Mains Not
            Available. Where public sewers … or water mains are
            not immediately available, it may become necessary to
            construct a private sanitary sewer, storm sewer, and/or
            water main to connect with a public utility. … Private
            sewers and or water mains shall be constructed on the
            outside of building or buildings and branched into each
            house or building separately. When private sewers or
            water mains cross another property or properties to
            connect with a public sanitary sewer, storm sewer and/or
            water main, an easement shall be recorded in the deeds of
            all affected property owners. A mutual maintenance
            agreement shall be recorded in the deeds of all such
            properties connected to a private sewer or water main
            system to affix equal responsibility in maintaining the
            private sewer(s) or water main(s). A copy of each deed
            shall be filed with the Administrative Authority.

R.R. at 486a-87a (emphasis added).




                                       20
             Objector contends this case is critically different from Anderson and
Gulla. Objector argues that the municipal bodies in those cases did not adopt
provisions expressly requiring an applicant to show documentation of a right to
cross the land of another for the purpose of connecting to stormwater facilities. In
Anderson, the Court reasoned that an application for a subdivision plan “which
conforms to all of the technical requirements of the relevant ordinances cannot be
denied based on deed restrictions.” Anderson, 437 A.2d at 1309-10 (emphasis
added). However, in Gulla the Court stated, “Nothing in the ordinance requires the
inclusion of private easements or existing private water rights on the final plan, but
most importantly the Township is not permitted to consider the private rights of
individuals before granting subdivision approval.”        Gulla, 676 A.2d at 711
(emphasis added).


             Nevertheless, Objector contends the trial court erred in determining
the Board acted within its authority in approving Applicants’ stormwater
management plan on the basis that it met the requirements of the Township Code.
In short, Objector asserts Sections 51.2.5.1.1 and 51.2.7.2 of the Township Code
require that a subdivision and land development applicant comply with the County
Drainage Regulations and provide evidence of a recorded easement demonstrating
a right to access another’s private property and a mutual maintenance agreement
for the stormwater facilities. Objector argues that absent such evidence, the trial
court could not lawfully conclude that Applicants’ stormwater management plan
complied with the Township Code. Therefore, the trial court erred in affirming the
Board’s decision.




                                         21
            In response, Applicants contend Objector failed to raise before the
Board the issue of whether they met the Township Code’s requirement of
compliance with the County Drainage Regulations’ requirement of a recorded
easement and mutual maintenance agreement indicating their right to connect to
storm sewer facilities on another’s property. Applicants argue that nowhere in
Objector’s presentation to the Board did Objector suggest that Applicants failed to
show that a recorded easement existed. Rather, Objector argued to the Board that
Applicants had no legal right to use Maple Lane for their storm sewer facilities.
Again citing McGlynn, Applicants assert that issues not raised before the
governing body in a land use matter are waived.


            Further, in the event this Court should consider Objector’s argument,
Applicants contend it has no merit. This is because Objector’s deed indicates its
property is subject to easements for water, sewer and gas lines, and for the
maintenance, operation and repair of sanitary sewers. See R.R. at 214a-15a. In
particular, Objector’s deed provides:

            UNDER AND SUBJECT to easements for maintenance,
            operation and repair of sanitary sewers as set forth in the
            Declaration of Taking by the Municipal Authority of the
            Township of Upper St. Clair filed in the Court of
            Common Pleas of Allegheny County, Pennsylvania, No.
            1952, January, 1973 and of record in the Office of the
            Recorder of Deeds in DBV 5158, page 286.

                                        ****

            TOGETHER with and subject to an easement in common
            with the Grantor and other parties for the purpose of
            ingress, egress and regress to and from Boyce Road and
            the installation, maintenance, repair and replacement of
            utility lines on, under and over the same, said easement


                                         22
            being 30 feet in width throughout, the easterly line of
            which is the easterly line of the above-described
            premises, the same being sometimes known as Maple
            Lane.

R.R. at 214a-15a (emphasis added).


            Applicants argue that although Objector may dispute the breadth of
Applicants’ rights under the easement, that dispute can only be resolved by a quiet
title or enforcement action in the courts. Michener Appeal; Gulla.


                                     2. Analysis
                                     i. Waiver
            First, we recognize that Objector preserved the issue of whether
Applicants demonstrated a right to utilize Objector’s property for their stormwater
facilities. During the Board’s October 2014 hearing, Objector’s counsel raised this
issue. See N.T., 10/6/14, at 21; R.R. at 302a-07a. After a discussion, the Board
determined Applicants submitted the “appropriate documentation” and that the
Township “felt the application was complete and able to be reviewed.” R.R. at
306a. The Board further rejected Objector’s argument that the “alleged dispute
over the title would be a reason to deny the plan.” R.R. at 306a-07a.


            Nevertheless, based on our review of the record, we agree with
Applicants’ assertion that Objector did not raise before the Board the issue of
Applicants’ amended plan’s failure to comply with Sections 51.2.5.1.1 and
51.2.7.2 of the Township Code and Section AC-701.3 of the County Drainage
Regulations by not providing evidence of a recorded easement demonstrating a



                                         23
right to access another’s private property. In particular, at no point before the
Board did Objector argue that Applicants’ plan must fail because it did not include
a recorded mutual maintenance agreement as required by the County Drainage
Regulations. Rather, Objector raised these issues for the first time on appeal.
Therefore, we conclude Objector waived the issue of Applicants’ compliance with
the recorded easement and mutual maintenance agreement requirements in the
County Drainage Regulations. McGlynn.


            Nonetheless, the record includes Objector’s deed, which provided
evidence of Applicants’ easements over Objector’s property, including a utility
easement over Maple Lane. R.R. at 213a-15a. Also, Applicants’ 2011 plan and
2014 amended plan each included post-construction maintenance plans for the
proposed stormwater facilities. R.R. at 27a, 115a.


                                    ii. Merits
            Turning to the merits, Objector disputes Applicants’ claim that
Objector’s deed grants them a property right to install private stormwater drainage
lines on Objector’s property.      Objector asserts the language “installation,
maintenance, repair and replacement of utility lines” does not encompass
stormwater drainage facilities. However, as the trial court recognized, it is well
settled that issues concerning property rights in instruments of title must be
resolved in the courts.   See Michener Appeal (any consideration of building
restrictions placed on a property by private parties has no place in proceedings
under the zoning laws for a building permit or variance); Anderson (subdivision
plan must be approved if it complies with the applicable regulations; a subdivision



                                        24
plan that conforms to all the technical requirements cannot be denied based on
deed restrictions).


             Further, in Gulla, this Court, citing Michener Appeal and Anderson,
observed:

                    The gravamen of Gullas’ complaint is that, by
             deed, they have been granted an interest in spring water
             flowing on the Lindencreek property. Gullas assert that
             this fact entitles them to notice of the subdivision
             proceedings to allow them to assert their claim before the
             Township and thus, modify the subdivision plan to locate
             and reflect those rights. However, the law in this
             Commonwealth is that enforcement of private rights has
             no application in a zoning dispute. [Michener Appeal].
             If such covenants are violated, the remedy is enforcement
             of the restrictions in a court by the persons entitled to
             enforcement, not by way of zoning proceedings. County
             of Fayette v. Cossell, [430 A.2d 1226 (Pa. Cmwlth.
             1981)]. Courts, in trying zoning cases, ordinarily exclude
             evidence of private restrictions and, in trying a private
             restriction case, will exclude evidence of zoning on
             grounds of immateriality. Zoning laws are enacted under
             the police power and interest of public health, safety and
             welfare; there is no concern whatever with building or
             use restrictions contained in instruments of title and
             which are created merely by private contracts. [Michener
             Appeal].

                    Lindencreek demonstrated to the trial court its
             right to subdivide the real estate. An application for a
             subdivision plan which conforms to all the technical
             requirements of relevant ordinances cannot be denied on
             deed restrictions. [Anderson]. Thus, we hold the trial
             court correctly found that the Gullas did not have
             standing to appeal the subdivision approval process.




                                        25
Gulla, 676 A.2d at 710-11 (emphasis added). What is more, although nothing in
the ordinance in Gulla required the inclusion of private easements, we recognized
that “most importantly, the Township is not permitted to consider the private rights
of individuals before granting subdivision approval.” Gulla, 676 A.2d at 711
(emphasis added).


             Further, in Borough of Braddock v. Allegheny County Planning
Department, 687 A.2d 407 (Pa. Cmwlth. 1996), we noted that neither the county
planning department, a local administrative body, nor the trial court on appeal,
would be the appropriate forum for addressing complex title questions involving
competing ownership claims to an abandoned railroad line. Id. Rather, those
issues should be resolved in a quiet title action. Id.


             Following Braddock, we again recognized that a zoning board is an
inappropriate vehicle to deal with issues of title which are properly resolved in a
quiet title action. Kaufman v. Borough of Whitehall Zoning Hearing Bd., 711
A.2d 539 (Pa. Cmwlth. 1998). In Kaufman, the landowners sought a building
permit to erect a fence across the rear yards of their neighboring properties.
However, the 1939 plans for that development included a street between the
landowners’ property known as Threnhauser Drive. Although the Borough never
accepted or developed Threnhauser Drive, residents of the Borough used that
proposed street as a pedestrian walkway. Ultimately, the landowners obtained title
to Threnhauser Drive in a 1986 quiet title action and sought a building permit to
erect a fence to prevent the property from being used as a walkway.




                                          26
             The Borough’s code officer, however, denied the permit because of a
possible prescriptive easement for the pedestrian walkway. On appeal, the zoning
board affirmed the denial, noting the possibility of such an easement. In particular,
the board recognized that both the landowners and easement users had apparently
legitimate claims and thus it would be inappropriate for the board, acting in an
official capacity, to favor one claim over the other.
             On appeal, the trial court reversed on the basis that the quiet title
action awarded landowners exclusive title to the property, thereby extinguishing
any easement. Although the quiet title order did not specifically deny the existence
of a pedestrian easement, it neither granted nor recognized such an easement.


             The Borough appealed. In affirming the trial court, we reasoned:

             Although the Zoning Board did not have the authority to
             determine whether a prescriptive easement existed, the
             Zoning Board did in fact arbitrate a private dispute over
             real estate. In Pennsylvania, it is well established that
             zoning laws have no application to the resolution of
             disputes between private parties over real estate interests.
             [Cossell]. This Court has also recognized that the
             enforcement of private rights has no application in a
             zoning dispute. [Gulla].

                                        ****

             [Once] the prerequisite conditions required by a zoning
             ordinance have been fulfilled, the issuance of a building
             permit is ‘merely ministerial.’ Vagnoni v. Brady, [218
             A.2d 235, 237 (Pa. 1966)]. Here, [the landowners]
             presented surveys of their properties, a deed, the trial
             court’s order of 1986, and a construction drawing of the
             proposed fence with dimensions. Such documents surely
             provided sufficient information for the code enforcement
             officer or Zoning Board to decide whether the building
             permit requirements were met in this case. The only

                                          27
            action left to be taken at that point was to issue [the
            landowners] a permit to erect their fence.

Kaufman, 711 A.2d at 541-42 (emphasis added).


            Likewise here, the record contains Objector’s deed, which indicates
that Applicants’ Maple Lane easement permits the installation and maintenance of
utility lines. R.R. at 213a-15a. Whether this encompasses the installation and
maintenance of stormwater facilities is an issue that must be decided by the courts,
not by a local government body in a land use proceeding. Michener Appeal;
Kaufman; Braddock; Gulla; Anderson.


            Notably, the parties in the present case indicated at oral argument
before this Court that they are currently pursuing a legal determination of
Applicants’ easement rights in a separate quiet title action in the trial court.
Therefore, we are optimistic that these issues will be timely resolved in the
appropriate forum.


                                 IV. Conclusion
            Nevertheless, we discern no error or abuse of discretion by the Board
in determining that the stormwater management plan in Applicants’ 2014 amended
plan complies with the Township Code’s subdivision and land development
requirements. As discussed above, the Board’s determinations are supported by
substantial evidence.


            In addition, we find no error in the Board’s determination that, as a
municipal administrative body in a land use proceeding, it lacked the authority to

                                        28
resolve the legal issues of whether Applicants possess the appropriate property
rights to install and maintain stormwater facilities on Maple Lane. Michener
Appeal; Kaufman; Braddock; Gulla; Anderson. Therefore, we affirm the trial
court’s order.




                                    ROBERT SIMPSON, Judge




                                      29
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

BR Associates, a Pennsylvania          :
General Partnership,                   :
                        Appellant      :
                                       :
            v.                         :
                                       :
Board of Commissioners of the          :   No. 775 C.D. 2015
Township of Upper St. Clair            :
                                       :
            v.                         :
                                       :
Rodney Ardolino and Tammy              :
Ardolino, husband and wife,            :
and Joyce Mendenhall                   :


                                    ORDER

            AND NOW, this 5th day of May, 2016, for the reasons stated in the
foregoing opinion, the order of the Court of Common Pleas of Allegheny County is
AFFIRMED.



                                     ROBERT SIMPSON, Judge
