          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

1050 Ashbourne Associates, LLC,        :
                Appellant              :
                                       :
             v.                        :   No. 1713 C.D. 2016
                                       :   Argued: May 1, 2017
Cheltenham Township Board of           :
Commissioners                          :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                                   FILED: August 1, 2017

             1050 Ashbourne Associates, LLC (Developer) appeals an order of the
Court of Common Pleas of Montgomery County (trial court) that affirmed the
decision of the Cheltenham Township Board of Commissioners to disapprove
Developer’s plan for an age-restricted development in Cheltenham Township. The
trial court rejected the Commissioners’ theory that Developer’s plan was required
to comply with the zoning requirements for the Township’s Preservation Overlay
District. It held, rather, that Developer’s development was governed exclusively
by the zoning requirements of the Age-Restricted Overlay District. However, the
trial court affirmed the Commissioners’ disapproval of Developer’s plan because it
proposed buildings that exceeded the height requirements for new construction in
the Age-Restricted Overlay District. Developer asserts that the trial court erred
because the height requirements in question were enacted after it filed its request
for a special exception. Developer also contends that the Board of Commissioners
acted in bad faith. We affirm in part and reverse in part.
                                         Background
               Developer owns a 7.32-acre parcel in Cheltenham Township,
Montgomery County, located in the R-4 Residential Zoning District and the Age-
Restricted Overlay District.1          Developer seeks to construct three apartment
buildings, each four stories high, tailored for residents 55 and older. Two of the
buildings are proposed to have 24 units each, and the third building is proposed to
have 31 units. The Zoning Code authorizes age-restricted housing developments
by special exception. On January 14, 2013, after multiple hearings, the Zoning
Hearing Board (Zoning Board) granted Developer’s request for a special
exception. The Township appealed the Zoning Board’s decision to the trial court,
and on September 15, 2014, it affirmed the Zoning Board.
               Thereafter, on December 18, 2014, the Township notified Developer
that its project was required to comply with the provisions of the Preservation
Overlay District.2 R.R. 11a. Developer responded that the provisions of the Age-
Restricted Overlay District had precedence over any other conflicting Zoning Code
provisions, such as those in the Preservation Overlay District.
               On June 16, 2015, Developer submitted a sketch plan to the
Township, as required by Section 260-35 of the Township’s Subdivision and Land

1
   “The purpose of this district is to provide accommodation for age-restricted housing
developments by establishing regulations to permit development by special exception, tailored to
the needs of residents 55 years of age and older … and to require protection and preservation of
historic resources in the development of land for age-restricted housing ....” THE CHELTENHAM
ZONING ORDINANCE OF 1929 AS AMENDED DECEMBER 15, 1964 (ZONING CODE), §295-240;
Reproduced Record at 240a (R.R. ___).
2
  The purpose of the Preservation Overlay District is, in part, to protect historic sites and open
space areas, as well as to preserve floodplains, wetlands, streams, valleys, woodlands and other
natural and scenic features. ZONING CODE §295-186, available at http://ecode360.com/6449532
(last visited June 30, 2017).


                                                2
Development Ordinance (SALDO) for a development of eight dwelling units or
more. CHELTENHAM TOWNSHIP SUBDIVISION CODE                    OF   1974 (SALDO) §260-35.
On July 2, 2015, Robert Habgood, on behalf of the Township, responded to
Developer’s sketch plan as follows:

                The project has been designed in accordance with the Township
                of Cheltenham Zoning & Age-Restricted Overlay Ordinances,
                along with a special exception and variances that were granted
                by the Zoning Hearing Board under Appeal #3437.

                Your Subdivision and Land Development plans appear[] to be
                complete and in order at this time. However, this does not
                waive the Township’s right to require additional relief through
                Zoning Variances as part of any additional review and
                comments for this application.

R.R. 67a (emphasis added). Habgood’s letter further advised that the Township
had forwarded Developer’s sketch plan to the Township Engineer, the Township
Shade Tree Commission, the Township Planning Commission, the Township
Public Works Committee, and the Township’s Board of Commissioners.
                The Board of Commissioners held several hearings on Developer’s
sketch plan that were attended by Developer. When the Commissioners requested
Developer to give them additional time to review the plan, Developer denied the
request. At a public hearing on September 16, 2015, the Commissioners voted to
disapprove Developer’s sketch plan. On September 22, 2015, the Commissioners
issued a written resolution to explain their disapproval.             First, each proposed
building would contain more than eight dwelling units in excess of the eight-unit
maximum for buildings in the Preservation Overlay District.3                 Second, each


3
    Section 295-189.E of the Township’s Zoning Code states:
(Footnote continued on the next page . . .)
                                                3
proposed building would be four stories and 47 feet high, which exceeded the
maximum height allowed in the Age-Restricted Overlay District under the 2012
amendments to the Zoning Code.4
             Developer appealed to the trial court, and it affirmed the Board of
Commissioners’ decision.          In its opinion, the trial court rejected the
Commissioners’ holding that Developer had to comply with the requirements of
the Preservation Overlay District. However, the trial court held that the sketch
plan did have to comply with the 2012 height restrictions for buildings in the Age-
Restricted Overlay District, even though those restrictions were enacted after
Developer submitted its special exception application to the Zoning Board.5 The
trial court explained that Developer was not exempt from the 2012 amendments
because it did not file its sketch plan within six months of receiving its special
exception. On this basis, the trial court upheld the Board of Commissioners’




(continued . . .)
        E. Building length or depth. The greatest dimension in length or depth of a new
        structure shall not exceed 160 feet. No more than eight units shall be allowed in a
        new structure. Existing buildings shall be considered nonconforming.
ZONING CODE §295-189.E, available at http://ecode360.com/6449532 (last visited June 30,
2017).
4
  Section 295-243.F.(1) of the Zoning Code states:
        F. Maximum building height.
                (1) Except as provided in Subsection F(2), the maximum
                building height shall be 45 feet, not to exceed three stories.
                Notwithstanding any other terms in this article, Subsection F(2)
                shall not apply to tracts of 10 acres or less.
ZONING CODE §295-243.F.(1); R.R. 244a.
5
  When Developer submitted its special exception, eight-story buildings up to 96 feet were
permitted in the Age-Restricted Overlay District.


                                            4
disapproval of Developer’s sketch plan. Finally, the trial court concluded that the
Commissioners did not act in bad faith by disapproving the sketch plan.
               On appeal,6 Developer argues that the trial court erred in holding that
the 2012 amendments to the Age-Restricted Overlay District requirements apply to
its project. Developer argues that its rights under the special exception granted by
the Zoning Board had vested and could not be nullified in the land development
review process. Developer argues that the Board of Commissioners acted in bad
faith in its review of the sketch plan and, further, that the trial court abused its
discretion by not remanding this matter to the Commissioners to allow for the
filing of an amended sketch plan.
                              Preservation Overlay District7
               The Preservation Overlay District limits the number of dwelling units
per building to eight, unlike the Age-Restricted Overlay District, which does not
impose any such limit. Developer contends that this conflict makes the Age-
Restricted Overlay District the only law applicable to its project.                          The
Commissioners contend that the Age-Restricted Overlay District’s silence on the
number of units allowed in a single building does not create a conflict; rather, it


6
  In a land use appeal, where the trial court does not take any additional evidence, our scope of
review is limited to determining whether the governing body has committed an error of law or an
abuse of discretion. Ruf v. Buckingham Township, 765 A.2d 1166, 1168 n.2 (Pa. Cmwlth. 2001).
Where an appeal presents issues of law, including issues of statutory interpretation, this Court’s
scope of review is plenary and our standard of review is de novo. Kassouf v. Township of Scott,
883 A.2d 463, 469 (Pa. 2005).
7
  The Commissioners did not cross-appeal the trial court’s holding that the Preservation Overlay
District requirements are not applicable to Developer’s project. Both parties have briefed the
issue; the Commissioners contend that the trial court erred. If the Commissioners’ argument
were accepted by this Court, this would provide an alternative ground to affirm the trial court.
Lest there be any doubt, the Court will address this issue.


                                                5
left a vacuum, which has been filled by the Preservation Overlay District
standards. Further, the Commissioners argue that Developer should have sought a
variance or a clarification from the Township Zoning Officer before filing its
sketch plan.8
                The provisions of the Age-Restricted Overlay District are paramount
to other provisions of the Zoning Ordinance. Section 295-241.D of the Zoning
Code states, in relevant part, as follows:

                All development under the Age-Restricted Overlay District
                shall comply with the provisions of this article[, Article
                XXXIII: Age-Restricted Overlay District]. If a conflict exists
                between the requirements of this article and another provision
                of the Cheltenham Township Zoning Ordinance, the
                requirements of this article shall apply.

ZONING CODE §295-241.D; R.R. 240a (emphasis added).               The Preservation
Overlay District limits the number of units per building. Although the Age-
Restricted Overlay District imposes a number of limits on buildings, it does not
impose one on the number of units per building. The trial court held that this
constituted a conflict and, consequently, the provisions of the Age-Restricted
Overlay District prevailed. The trial court dismissed the Township’s contention
that Developer had to comply with the Preservation Overlay District as “specious,
at best.” Trial Court Op., 12/5/2016, at 4.


8
 The Township’s SALDO states, in relevant part:
       Any subdivision or land development plan must meet the requirements of Chapter
       295, Zoning, unless variances or special exceptions have been granted by the
       Zoning Hearing Board.
SALDO §260-31; R.R. 277a. Article XXIV of the Zoning Code sets forth the Preservation
Overlay District requirements.


                                             6
             We agree with the trial court’s logic. Had the Township chosen to set,
for example, a ten-unit maximum for a new building in the Age-Restricted Overlay
District, it would be obvious that the ten-unit maximum governed.          That the
Township placed no limit on the number of units allowed in a single building in the
Age-Restricted Overlay District means only that the conflict is greater. Stated
otherwise, the so-called “silence” in the Zoning Code actually authorized as many
units in a single building in the Age-Restricted Overlay District as are structurally
feasible and tailored to the needs of residents over 55 years of age. Under Section
295-241.D of the Zoning Code, this authorization prevails over the conflicting
provision for the Preservation Overlay District. The Board of Commissioners
erred in otherwise holding.
                         Age-Restricted Overlay District
             The 2012 amendments to the Township’s Age-Restricted Overlay
District revised the height requirement for new buildings. Developer argues that
these requirements did not apply to its project because it submitted its special
exception application to the Zoning Board before the amendments were enacted.
The Commissioners respond that that Developer failed to preserve this issue by not
raising it below. In any case, the Commissioners agree with the trial court’s
conclusion that Developer was required to file its sketch plan within six months of
the trial court’s affirmance of the Zoning Board’s grant of a special exception in
order to be exempt from the 2012 Zoning Code amendments. Developer did not
comply with this timeline.
             We begin with the Commissioners’ waiver argument. Developer’s
appeal to the trial court stated that the Zoning Board’s grant of a special exception
exempted its project from the 2012 height amendments to the Age-Restricted


                                         7
Overlay District.      Supplemental Reproduced Record at 4b, 7b (S.R.R. __).
Likewise, Developer argued in its trial court brief that the Municipalities Planning
Code (MPC)9 made the 2012 amendments to the Zoning Code inapplicable to its
sketch plan.     S.R.R. 29b.      On appeal to this Court, Developer bolsters this
argument with citation to the Township’s Zoning Code. On appeal, a party may
identify additional legal authority to support the claims it raised before a lower
court. See Allegheny County v. Commonwealth, 490 A.2d 402, 413 n.9 (Pa. 1985)
(holding that where a party has “merely identified additional legal authority in
support of its claims,” the claim, or issue, is not waived).                 We reject the
Township’s waiver argument.
               Turning to the merits of Developer’s appeal, we begin with a review
of the relevant law.      Section 917 of the MPC,10 53 P.S. §10917, insulates a

9
  Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
10
   Section 917 was added by the Act of June 23, 2000, P.L. 495, as amended, 53 P.S. §10917. It
states as follows:
        When an application for either a special exception or a conditional use has been
        filed with either the zoning hearing board or governing body, as relevant, and the
        subject matter of such application would ultimately constitute either a land
        development as defined in section 107[, 53 P.S. §10107,] or a subdivision as
        defined in section 107, no change or amendment of the zoning, subdivision or
        other governing ordinance or plans shall affect the decision on such application
        adversely to the applicant, and the applicant shall be entitled to a decision in
        accordance with the provisions of the governing ordinances or plans as they stood
        at the time the application was duly filed. Provided, further, should such an
        application be approved by either the zoning hearing board or governing body, as
        relevant, applicant shall be entitled to proceed with the submission of either land
        development or subdivision plans within a period of six months or longer as may
        be approved by either the zoning hearing board or the governing body following
        the date of such approval in accordance with the provisions of the governing
        ordinances or plans as they stood at the time the application was duly filed before
        either the zoning hearing board or governing body, as relevant. If either a land
        development or subdivision plan is so filed within said period, such plan shall be
(Footnote continued on the next page . . .)
                                              8
landowner from having to comply with zoning ordinance amendments enacted
after the landowner has submitted a special exception application. Upon the grant
of a special exception, the applicant may then proceed with a subdivision or
development plan under the terms of the “governing” ordinance that existed when
the applicant submitted its special exception application to the zoning hearing
board. Id. The applicant is “entitled” to file its subdivision or development plan
“within a period of six months or longer as may be approved” by the governing
authority “in accordance with the provisions of the governing ordinances.” Id.
(emphasis added).
              Here, Developer applied for a special exception for its age-restricted
apartment building project on May 30, 2012. In July of 2012, the Township
amended the height requirements for buildings in the Age-Restricted Overlay
District. Notwithstanding these amendments, the Zoning Board granted Developer
a special exception on January 14, 2013, and its decision was affirmed by the trial
court on September 15, 2014. Developer filed its sketch plan nine months later, on
June 16, 2015. The trial court held that under Section 917 of the MPC, Developer
filed its sketch plan three months too late and, thus, lost its exemption from the
2012 height requirements. In short, the trial court nullified Developer’s special
exception.
              Under Section 917 of the MPC a landowner is not “entitled” to file a
development plan until it receives any necessary special exceptions. Section 917


(continued . . .)
        subject to the provisions of section 508(1) through (4)[, 53 P.S. §10508,] and
        specifically to the time limitations of section 508(4) which shall commence as of
        the date of filing such land development or subdivision plan.
53 P.S. §10917 (emphasis added).


                                               9
states that the landowner is entitled to file a plan “within a period of six months or
longer” of the approval of the special exception as may be provided in the
“governing ordinances.” 53 P.S. §10917. Here, the Township’s Zoning Code
provides that a special exception expires if the applicant does not obtain a building
permit within two years. Section 295-211 states:

             Unless otherwise specified by the Board, a special exception,
             variance or reasonable accommodation shall expire if the
             applicant fails either to obtain a building permit or commence
             the use specified in the Zoning Hearing Board’s decision of the
             appeal within two years from the date of authorization thereof[.]

ZONING CODE §295-211; R.R. 210a (emphasis added).
             Developer contends that Section 295-211 of the Zoning Code
provides the “longer period” referenced in Section 917 of the MPC. Section 295-
211 established that a special exception cannot expire for two years “unless
otherwise specified by the Board.” ZONING CODE §295-211; R.R. 210a. Because
the Zoning Board did not “otherwise” specify, Developer had two years after
receipt of its special exception, or, here, two years after the trial court affirmed the
grant of the special exception, to finalize its approved project. During that period,
the Board of Commissioners was required to review its sketch plan under the
Zoning Code in effect at the time the application for the special exception was
filed. 53 P.S. §10917. The Commissioners respond that Section 917 of the MPC
is controlling and cannot be trumped by Section 295-211 of the Zoning Code.
             The Commissioners read Section 917 of the MPC as establishing an
adamantine statute of limitations for submitting a development plan after receipt of
a special exception. Section 917 is far more flexible. Section 917 states that the
landowner granted a special exception “shall be entitled to proceed with the

                                          10
submission of either land development or subdivision plans within a period of six
months or longer as may be approved by either the zoning hearing board or the
governing body....” 53 P.S. §10917 (emphasis added). In short, the grant of a
special exception triggers the right to file a development plan, and a municipality
must give the landowner at least six months to file its plan. Section 917 expresses
an entitlement and not a bright line statute of limitations. More to the point,
Section 917 of the MPC also authorizes the municipality to establish a “longer”
period than six months “in accordance with the provisions of the governing
ordinance[].” Id. Here, the Township did establish a “longer” period by enacting
Section 295-211 of the Zoning Code, which gives a landowner two years from the
date the special exception was granted to implement its special exception,
including the completion of the planning requirements. Section 295-211 of the
Zoning Code is not “trumped” by Section 917 of the MPC; rather, Section 295-211
implements the authorization provided in Section 917 of the MPC.
               Here, the Commissioners denied Developer’s sketch plan solely
because it did not comply with the 2012 amendments to the Zoning Code setting
the new height restrictions on buildings in the Age-Restricted Overlay District.11
The Commissioners erred.             The 2012 amendments were not applicable to
Developer’s sketch plan because they were enacted after Developer applied for its
special exception, which the Zoning Board granted on January 14, 2013, and which
was affirmed by the trial court on September 15, 2014. Under Section 295-211 of
the Zoning Code, Developer was exempt from the 2012 amendments for two years,

11
   It bears noting that the Township referred Developer’s sketch plan to a number of parties, such
as the Township’s Shade Tree Commission and the Township Engineer. Apparently, these
referrals yielded no problems from a planning perspective. Indeed, the Township’s first reaction
to Developer’s sketch plan was that it was “complete and in order.” R.R. 67a.


                                               11
and it filed its sketch plan within that timeline. The Board of Commissioners
nullified Developer’s special exception by disapproving the sketch plan before the
passage of two years, in violation of Section 295-211 of the Zoning Code. We
conclude that the Commissioners erred in doing so, and the trial court erred in
affirming that aspect of the Commissioners’ decision.12
                                          Bad Faith
              Developer contends that the Board of Commissioners acted in bad
faith because its stated reasons for disapproving the sketch plan had not been raised
during the proceedings on Developer’s request for a special exception. Likewise,
the Township did not raise the issue of the height of Developer’s proposed
buildings in any of its discussions with Developer on the sketch plan. As a result,
Developer never had an opportunity to address the height of its proposed buildings
before its sketch plan was disapproved.
              The Commissioners respond that “the entire design of the
Development was predicated on exceeding the number of dwelling units permitted
in each of the buildings under the Preservation Overlay District (8) and exceeding
the height requirement.” Commissioners’ Brief at 34. They further note that there



12
   Developer asserts that the trial court should have ordered a remand to allow Developer to
amend its sketch plan to adjust the height of its proposed building. See Section 1006-A of the
MPC, added by the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §11006-A (“In a
land use appeal, the court shall have the power to … set aside or modify any action, decision, or
order of the governing body….”); see also Raum v. Board of Supervisors of Tredyffrin Township,
370 A.2d 777, 798 (Pa. Cmwlth. 1976) (Court recognized that a municipality’s duty of good
faith includes “providing an applicant a reasonable opportunity to respond to objections or to
modify plans where there has been a misunderstanding or difference of opinion.”). We need not
address Developer’s contention because we conclude that the 2012 amendments did not apply to
Developer’s sketch plan.


                                               12
would have been time for discussions with Developer, but Developer denied the
Commissioners’ request for additional time.
              We begin with a review of the law on a municipality’s obligation to
exercise its review authority in good faith. The relevant cases are Raum, 370 A.2d
777; Highway Materials, Inc. v. Board of Supervisors of Whitemarsh Township,
974 A.2d 539 (Pa. Cmwlth. 2009); and Honey Brook Estates, LLC v. Board of
Supervisors of Honey Brook Township, 132 A.3d 611, 621 (Pa. Cmwlth. 2016).
We consider these cases seriatim.
              In Raum, 370 A.2d 777, the landowner filed a subdivision plan that
was followed by 78 days of silence from the township. Two days before the
township was scheduled to act on a proposed rezoning of the landowner’s property,
the planning commission disapproved the subdivision plan for the stated reasons
that it contained “more information than required” and because three of the 19 lots
were bisected by roads. Id. at 802. The landowner filed a modified plan within the
two remaining days, but the township refused to consider the modification. This
Court explained that a municipality reviewing a land development plan is bound by
a duty that

              includes discussing matters involving technical requirements or
              ordinance interpretation with an applicant, and providing an
              applicant a reasonable opportunity to respond to objections or
              to modify plans where there has been a misunderstanding or
              difference of opinion.

Id. at 798. By waiting until the last possible moment to raise objections and then
claiming there was insufficient time to consider the modified plan, the township
acted in bad faith. Accordingly, this Court ordered the plan to be approved.



                                         13
             In Highway Materials, 974 A.2d 539, the landowner sought to
develop its property in an industrial district and to that end filed a preliminary plan.
At the time, the township was considering a zoning ordinance amendment to
rezone the landowner’s property from industrial to residential.         The township
engineer requested more information on the sewer design, and the landowner
responded with a revised preliminary plan that included two sewer proposals. The
planning commission rejected the preliminary plan, and the trial court reversed.
When the landowner asked the township for input, the township responded that it
was not going to help the developer “on a controversial development.” Id. at 544.
Then, when the landowner sought direction on the sewer system, the township did
not respond. On these facts, the trial court held that the township “did not proceed
in good faith.” Id. at 545. This Court affirmed the trial court.
             Most recently, in Honey Brook Estates, 132 A.3d 611, the township
rejected the developer’s preliminary plan as incomplete, without giving the
developer the opportunity to confer with the township. After an appeal, the trial
court concluded that the developer did not prove bad faith. This Court reversed,
explaining that the duty of good faith includes

             discussing matters involving technical requirements or
             ordinance interpretation with an applicant, and providing an
             applicant a reasonable opportunity to respond to objections or
             to modify plans where there has been a misunderstanding or
             difference of opinion.

Id. at 620 (citing Raum, 370 A.2d at 798) (emphasis added). Instead, the township
declined to confer with the developer on its plan as had been its long standing
practice; the township advised the developer that its plan would not be sent to the
planning commission but then did so without informing the developer; and, in the

                                          14
meantime, the township gave additional materials to the planning commission to
ensure a denial of the amended preliminary plan. The township’s conduct was
held to constitute bad faith.
             Here, the evidence shows that the Township’s representatives and
Developer conferred on the plan for several months, albeit about the Preservation
Overlay District requirements. When Developer submitted its sketch plan, it was
forwarded to various Township committees for review. When Developer denied
Commissioners’ request for additional time to review the plan, they had to act to
avoid a deemed approval of the sketch plan.
             The facts of this case do not approach those of Raum, Highway
Materials or Honey Brook. We agree with the trial court that Developer did not
demonstrate bad faith.
                                    Conclusion
             In sum, we affirm the trial court’s holding that the Preservation
Overlay District requirements did not apply to Developer’s sketch plan and that the
Board of Commissioners did not act in bad faith. We reverse the trial court’s
holding that Developer’s sketch plan was required to comply with the height
requirements established in the 2012 amendments to the Zoning Code for new
buildings in the Age-Restricted Overlay District. We remand this matter to the
trial court for further remand to the Board of Commissioners to consider
Developer’s sketch plan under the Age-Restricted District Overlay provisions in
effect at the time Developer applied for the special exception.

                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge




                                         15
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

1050 Ashbourne Associates, LLC,          :
                Appellant                :
                                         :
            v.                           :   No. 1713 C.D. 2016
                                         :
Cheltenham Township Board of             :
Commissioners                            :


                                   ORDER

            AND NOW, this 1st day of August, 2017, the order of the Court of
Common Pleas of Montgomery County dated September 22, 2016, in the above-
captioned matter is AFFIRMED in part and REVERSED in part, and the matter is
REMANDED to the trial court for further remand to the Cheltenham Township
Board of Commissioners for further proceedings consistent with the foregoing
opinion.
            Jurisdiction relinquished.

                                  ______________________________________
                                  MARY HANNAH LEAVITT, President Judge
