           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brandywine Village Associates and     :
L&R Partnership,                      :
                 Appellants           :
                                      :
            v.                        : No. 1149 C.D. 2017
                                      : Argued: March 8, 2018
East Brandywine Township Board        :
of Supervisors and Carlino            :
East Brandywine, L.P.                 :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                             FILED: April 19, 2018


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


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




       1
         Under the Cross Easement Agreement, the predecessor-in-interest granted BVA a sewer
system easement to install an on-site septic sewer system, including a drainage area and reserve
drainage area. It also provided an access easement to allow construction of a roadway through the
Property to BVA property. The Cross Easement Agreement specified that the access drive could be
modified, but that it must not “interfere with the flow of traffic . . . or with surface water drainage.”
(Reproduced Record (R.R.) at 205a.) The Cross Easement Agreement further provided a highway
improvement easement, dedicating land within the ultimate right-of-way along Route 322 to public
use, and a stormwater basin and drainage easement, which included a reserve effluent disposal area.



                                                   2
                                          II.
             Throughout this dispute, Developer has submitted numerous versions of
land development plans pertaining to the Property, all of which have been opposed by
Objectors. Although this matter was before us previously, we quashed that appeal
because what we were being asked to provide was an advisory opinion. Further
complicating this is that the parties do not clearly state the issues presented to this
Court on appeal. All of this is to say, be prepared (once again) for the procedural
slog that follows.


                                          A.
             Since 2010, Developer has submitted land development plans to build a
51,525 square-foot supermarket with a 9,250 square-foot expansion area, a 4,600
square-foot attached retail building, and a pad site for a 4,088 squar-foot bank on the
Property. From the beginning, the Township insisted that Developer provide and pay
for the construction of a road (Connector Road) connecting the Property with
Horseshoe Pike (Route 322) on which it fronts and North Guthriesville Road.


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


                                          3
                                               B.
              Although Developer has submitted several different versions of land
development plans pertaining to the Property, there are two particular preliminary
plans that have been subject to much litigation. The first of those plans was filed on
December 9, 2014 (2014 Plan).             Therein, Developer treated and identified the
Connector Road as a “driveway,” notwithstanding that it would eventually be
dedicated to the Township as a public road. The 2014 Plan also included the area
under the “driveway” as part of Developer’s land area. The 2014 Plan did not
identify the previously condemned BVA easements on the Property.


              In January 2015, the Board conditionally approved the 2014 Plan
(Original 2015 Decision). Objectors appealed that decision on February 20, 2015
(2015 Appeal) and Developer intervened.


                                               C.
              Before the trial court, Objectors alleged, inter alia, that the 2014 Plan
contained numerous defects, including the following:

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

                  It did not comply with Section 399-46.C of the
              Zoning Ordinance, requiring that “[n]o building shall be

       2
          Section 399-46.A of the Zoning Ordinance provides that “[a] minimum gross tract area of
10 acres shall be required for any use or combination of uses permitted in the MU District.” (R.R.
at 136a.)



                                                4
                  situated less than 85 feet from the front lot line” because the
                  bank building, as designed on the 2014 Plan, is set back 50
                  feet from the Connector Road. (R.R. at 136a.) Developer
                  argued that the Connector Road was merely a private
                  driveway until such time as it is dedicated to the Township,
                  and therefore, the 85-foot setback requirement is
                  inapplicable.

                         Even though the Property was going to be connected
                  to the public sewer system, the 2014 Plan violated Section
                  399-47.K3 of the Zoning Ordinance, providing that sewage
                  facilities must be in compliance with the Township’s
                  Subdivision and Land Development Ordinance (SALDO),
                  Sections 350-47.B(2)4 & 350-48.5 BVA argued that this


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

                  Sewage facilities and water supply. The applicant’s proposals for
                  sewage facilities and for water supply (both quality and quantity) in
                  relation to the proposed uses shall be in compliance with the
                  requirements of §§ 350-47 and 350-48, respectively, of Chapter 350,
                  Subdivision and Land Development. Any approval of an application
                  for development within the MU District shall be contingent upon the
                  requisite approvals and certifications from the Chester County Health
                  Department and/or the Pennsylvania Department of Environmental
                  Protection.

(R.R. at 137a.)

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

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

(R.R. at 616a.)

       5
           Section 350-48 of the SALDO pertains to water supply. (R.R. at 160a.)


                                                     5
                provision was incorporated into the Zoning Ordinance and
                could not be waived.

                     It did not comply with Section 399-81.E6 of the
                Zoning Ordinance because Developer failed to provide safe
                and efficient ingress and egress from Route 322 over the
                combined Connector Road to BVA’s shopping center.

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

       6
        Section 399-81.E of the Zoning Ordinance provides that to minimize traffic congestion and
encourage “orderly development of street highway frontage,” an applicant is responsible for
providing:

                [S]afe and efficient ingress and egress to and from public streets,
                without undue congestion or interference with normal traffic flow
                within the Township. The developer shall be responsible for the
                design, construction, and costs of any necessary traffic control devices
                and/or highway modifications required by the Township and/or the
                Pennsylvania Department of Transportation.

(R.R. at 141a-42a.)

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

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

(R.R. at 137a-38a.)



                                                   6
             Objectors then filed a motion for an additional evidentiary hearing,
which the trial court granted, remanding the matter to the Board to take additional
evidence. The Board conducted five hearings during which Objectors presented
additional evidence in opposition to the 2014 Plan. In September 2015, because the
parties disagreed as to the parameters of the Board’s obligation following the
conclusion of the hearings, the trial court issued an order requiring the Board to
consider all evidence presented on remand and to make a decision based upon the
entire record.


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


                                            D.
             Developer appealed the Revised 2015 Decision to the trial court.
However, pursuant to a stipulation of the parties approved by the trial court,
Developer withdrew that appeal and the parties agreed that they could raise all issues
related thereto in the still-pending appeal of the Original 2015 Decision.


             On October 22, 2015, Developer filed a new Preliminary/Final Land
Development Plan (2015 Plan), which was substantially similar to its previous plans
and, once again, included a Connector Road through Developer’s property and


                                            7
addressed the issues raised in the Revised 2015 Decision. The 2015 Plan was last
revised on December 9, 2015.


             The Board conditionally approved the 2015 Plan on April 20, 2016
(2016 Approval), subject to Developer providing an updated Traffic Impact Study for
the proposed development and complying with any recommendations of the
Township traffic engineer. As pertinent, the Board also granted a requested waiver of
§ 350-47.B.2 of SALDO (sewage effluent requirements) and Section 350-40.N.2 of
SALDO (radius requirements for non-residential driveways).            The Board also
determined that Developer “shall comply with the provision of § 350-36 [of SALDO]
(Acceleration, deceleration and turning lanes) or request a waiver of the same from
the Board.” (R.R. at 17a.)


             Objectors appealed, raising almost identical issues to those raised against
the 2014 Plan. And, once again, the trial court sent the matter back to the Board,
which then conducted three evidentiary hearings where Objectors presented
substantially similar testimony.


             The 2015 Plan that was conditionally approved by the Board in the 2016
Approval is, ultimately, the subject of the instant appeal.


                                           III.
             While resolution of Objectors’ appeal of the 2016 Approval was still
pending, on January 6, 2017, the trial court issued an Opinion and Order granting, in
part, Objectors’ appeal of the Original 2015 Decision. Notwithstanding, the trial


                                            8
court rejected numerous arguments offered by Objectors and made the following
pertinent findings:

                     Setback requirement: As to Objectors’ contention
               that Developer’s proposed bank building must be set back
               85 feet from both Route 322 and the proposed Connector
               Road,8 the trial court found that the development tract is a
               single lot within the meaning of the Zoning Ordinance
               fronting on Route 322. It found that meant the proposed
               bank building is not required to be set back 85 feet from the
               Connector Road, only Route 322.

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

       8
           Section 300-17 of the Township’s Land Use Ordinance, provides: “Building Setback Line.
An established line within a property defining the minimum required distance between any principal
building and the adjacent right-of-way line of the street on which it fronts, to provide the front yard
specified by Chapter 399.” Available at: https://ecode360.com/31873664 (last visited March 16,
2018). Section 399-46.C of the Zoning Ordinance provides: “Minimum front yard. No building
shall be situated less than 85 feet from the front lot line.” (R.R. at 136a.) Pertinent terms are
defined in Section 399-9 of the Zoning Ordinance. The term “lot” is pertinently defined as a
“parcel of land, undivided by any street or dedicated future street right-of-way.” (R.R. at 119a.)
The front yard is defined as “[a] yard extending the full width of the lot, along the front lot line and
extending in depth from the front lot line to the nearest point of a structure on the lot. . . .” (R.R. at
134a.) The Zoning Ordinance defines the term, “lot line” as “[a] property boundary line of any lot
held in single and separate ownership. . . .” (R.R. at 120a.) A front lot line is defined as “[a] lot
line abutting any street and coinciding with any street line.” (R.R. at 120a.) The term “street line”
is defined by the Zoning Ordinance, in pertinent part, as “[t]he dividing line between a lot and the
outside boundary or right-of-way of a public street, road, or highway legally open or officially
platted. . . .” (R.R. at 129a.)



                                                    9
underlying fee simple so that the land could be counted as
complying with the land area requirement.

      Traffic: Objectors also contended that the proposed
Connector Road is of inadequate width to provide for safe
and efficient ingress and egress for delivery trucks to enter
and exit both the development and BVA’s center, arguing
that tractor trailers attempting to make required turning
movements from Route 322 onto the Connector Road will
be required to encroach on opposing travel lanes and raised
concrete medians. Adopting the opinion of the Township
engineer, the trial court found that Objectors did not prove
the proposed access is either unsafe or inefficient and that
the Board did not commit error in declining to deny the plan
based upon that alleged violation.

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

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

     Sewage Effluent: The trial court agreed with the
Board that the 2015 Plan was deficient because it failed to
provide the required effluent disposal area either on the
development tract or elsewhere. However, it found that this
was easily correctable because the new center will be
connected to the public sewer system because the Board is
empowered to grant a waiver from this SALDO regulation
                             10
              pursuant to Section 503(8) of the Pennsylvania
              Municipalities Planning Code (MPC)9 upon meeting the
              standard for waiver.

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


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


              However, because Objectors were the prevailing party below, the
Township requested for the appeal to be quashed because Objectors lacked standing
to bring the appeal. In response, Objectors argued that they were aggrieved by the

       9
         Section 503(8) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968,
P.L. 805, as amended, 53 P.S. § 10503(8), provides:

              Provisions for administering waivers or modifications to the
              minimum standards of the ordinance in accordance with section §
              512.1 when the literal compliance with mandatory provisions is
              shown to the satisfaction of the governing body or planning agency,
              where applicable, to be unreasonable, to cause undue hardship, or
              when an alternative standard can be demonstrated to provide equal or
              better results.



                                              11
trial court’s determinations because in any future appeals, Objectors will be estopped
from raising issues the trial court decided against them.


             Ultimately, we agreed with the Township and quashed Objectors’ appeal
for lack of standing. Rejecting Objectors’ concern, we further explained, “collateral
estoppel will not apply to those determinations because those purportedly adverse
determinations against Objectors, as the prevailing party, were not ‘essential’ to the
judgment below.” Brandywine Village Associates v. East Brandywine Township
Board of Supervisors (Pa. Cmwlth., No. 164 C.D. 2017, filed January 5, 2018) (citing
Callowhill Center Associates, LLC v. Zoning Board of Adjustment, 2 A.3d 802, 809
(Pa. Cmwlth. 2010)) (emphasis added) (“Brandywine I”).


                                          IV.
             Prior to our disposition of Brandywine I, the trial court issued an order
dated July 18, 2017 (2017 Decision) denying Objectors’ appeal of the 2016 Approval.
And, of course, that decision, which is the subject of this appeal, construed the
Original 2015 Decision as denying Objectors’ appeal of the 2015 Approval, finding
that any issue also raised by Objectors in the Original 2015 Decision were barred by
the doctrine of collateral estoppel.


             Notwithstanding, the trial court went on to resolve various issues on
appeal. For instance, for the first time, Objectors challenged the Board’s granting a
waiver of: (1) Section 350-40.N.2 of SALDO, which requires that non-residential
driveways have a minimum radius of 30 feet; and (2) Section 350-36, which pertains
to deceleration lanes. Objectors also reasserted their challenge to the waiver of a


                                           12
sewage effluent provision, contending that because Section 399-47.K of the Zoning
Ordinance incorporates SALDO provision, the MPC’s traditional zoning variance
hardship standards apply rather than the waiver requirement within the MPC.


               The trial court rejected each of Objectors’ challenges. As pertinent, it
found that waiver of Section 350-40.N.2 (radius requirements for non-residential
driveways) was proper because the credible testimony offered by both traffic experts
established that “literal enforcement of the radius requirement . . . would require
shifting the Connector Road to the West, thereby reducing the separation of traffic
signals on Route 322 . . . . [and] would not improve Brandywine Center’s access,
which is fixed by the existing travel isles within that development.” (Trial Court
Opinion dated July 18, 2015 at 25-26.) The trial court rejected Objectors’ contention
that waiver of Section 350-47.B.2 of SALDO (pertaining to sewage effluent) was not
permitted because it was incorporated under the Zoning Ordinance. The trial court
also found their challenge to the purported waiver of Section 350-36.B.3 (pertaining
to deceleration lanes) meritless because the Connector Road was not, in fact, a
deceleration lane. This appeal followed.10


                                                 V.
               Although neither party acknowledges our disposition of Brandywine I,
upon review, it is obvious that the trial court erred when concluding that the Original


       10
           In a land use appeal where a full and complete record was made and the trial court took no
additional evidence, our scope of review is limited to determining whether the board committed an
error of law or an abuse of discretion. In re Brandywine Realty Trust, 857 A.2d 714 (Pa. Cmwlth.
2004).



                                                 13
2015 Decision denied Objectors’ appeal and that all issues identical to those raised in
the previous decision were barred under the doctrine of collateral estoppel.
Notwithstanding, because the Board serves as factfinder and the trial court took no
additional evidence below, we still reach each of Objectors’ challenges against
conditional preliminary approval of the 2015 Plan.


                                          A.
            It is beyond well settled that a preliminary plan must be approved if it
meets all specific, objective requirements under a subdivision and land development
ordinance. Herr v. Lancaster County Planning Commission, 625 A.2d 164 (Pa.
Cmwlth. 1993). The preliminary plan is essentially conditional in nature in that after
its approval, the developer must still fulfill all the requirements to obtain final
approval. Graham v. Zoning Hearing Board of Upper Allen Township, 514 A.2d 236
(Pa. Cmwlth. 1986). Consequently, even where the preliminary plan fails to comply
with the objective, substantive requirements, the governing body may in its discretion
either reject the plan outright or grant conditional approval. Schultheis v. Board of
Supervisors of Upper Bern Township, 727 A.2d 145 (Pa. Cmwlth. 1999). Further, the
preliminary plan containing minor defects correctable by amendment must be
approved subject to a condition that necessary corrections be made. Shelbourne
Square Association v. Board of Supervisors of Township of Exeter, 794 A.2d 946 (Pa.
Cmwlth. 2002). Once a preliminary application has been approved, the applicant is
entitled to final approval in accordance with the approved preliminary plan.




                                          14
              Section 503(8) of the MPC, 53 P.S. § 10503(8), expressly authorizes a
municipality to enact provisions for administering waivers or modifications of literal
compliance with the provisions of its SALDO. It provides:

              The subdivision and land development ordinance may
              include, but need not be limited to: . . . (8) Provisions for
              administering waivers or modifications to the minimum
              standards of the ordinance in accordance with section 512.1,
              when the literal compliance with mandatory provisions is
              shown to the satisfaction of the governing body or planning
              agency, where applicable, to be unreasonable, to cause
              undue hardship, or when an alternative standard can be
              demonstrated to provide equal or better results.


Id. Moreover, Section 512.1 of the MPC11 vests discretion with the Township to
grant or deny waivers.

              (a) The governing body or the planning agency, if
              authorized to approve applications within the subdivision
              and land development ordinance, may grant a modification
              of the requirements of one or more provisions if the literal
              enforcement will exact undue hardship because of peculiar
              conditions pertaining to the land in question, provided that
              such modification will not be contrary to the public interest
              and that the purpose and intent of the ordinance is observed.

              (b) All requests for a modification shall be in writing and
              shall accompany and be a part of the application for
              development. The request shall state in full the grounds and
              facts of unreasonableness or hardship on which the request
              is based, the provision or provisions of the ordinance
              involved and the minimum modification necessary.

       11
          Act of July 31, 1968, P.L. 805, as amended, added by Section 40 of the Act of December
21, 1988, P.L. 1329, 53 P.S. § 10512.1.



                                              15
              Section 350-62 of SALDO, entitled “Relief from unnecessary hardship,”
sets the Board’s authority to grant a waiver.

              A. In any case in which an applicant demonstrates to the
              satisfaction of the Board that strict application of any
              provisions of this chapter would be unreasonable and would
              cause unnecessary hardship as applied to the proposed
              subdivision or land development, the Board may grant a
              modification of such provision so as to grant relief from the
              unnecessary hardship. Any such modification granted shall
              be the least modification necessary to grant relief from the
              unnecessary hardship and shall be applied so that
              substantial justice may be done and the public interest
              secured; provided, however, that such modification shall
              not be granted if it would have the effect of nullifying the
              intent and purpose of this chapter.

              B. In granting modifications, the Board may impose such
              conditions as will, in its judgment, secure substantially the
              objectives of the standards and requirements so modified.[12]


                                              B.
              Objectors contend that the trial court erred in finding that the proposed
bank building is not required to have an 85-foot setback from the Connector Road.
Section 399-46.C of the Zoning Ordinance provides a setback of 85 feet for all
buildings from the front lot line. Section 399-9 of the Zoning Ordinance defines a
“front lot line” as:

              The lot line abutting any street and coinciding with any
              street line. In the case of a corner lot, each of the two (or

       12
           Although not provided in the Reproduced Record, SALDO Section 350-62 is available at:
https://ecode360.com/11881470 (last visited March 16, 2018).



                                              16
              more) street-abutting lot lines shall be considered a front lot
              line. In the case of an interior lot, the front lot line shall be
              the line most parallel and closest to the street line at the end
              of the access strip; all other lines shall be side or rear lot
              lines.


(R.R. at 120a) (emphasis added).            Furthermore, “street” is defined in Zoning
Ordinance § 399-9 as:

              A right-of-way intended for general public use to provide
              means of approach for vehicles and pedestrians. The word
              “street” includes the words “road,” “highway,”
              “thoroughfare,” and “way.”


(R.R. at 129a.) “Street line” is defined in Zoning Ordinance § 399-9 as:

              The dividing line between a lot and the outside boundary or
              right-of-way line of a public street, road, or highway legally
              open or officially platted, or between a lot and a privately
              owned street, road, or way over which the owners or tenants
              of two or more lots, each held in single and separate
              ownership, have the right of way. (Id.)


              Central to this dispute is Developer’s insistence that the Connector Road
is actually a “driveway.”13 If it is found that the Connector Road is a “street,” then
the setback requirement stated above will become applicable.




       13
           Section 300-17 of the Township’s Land Use Ordinance defines a “Driveway” as “A
private means of vehicular access from a public or private street to a single lot.” Available at:
https://ecode360.com/31873664 (last visited March 16, 2018).



                                               17
            We disagree with Developer that the Connector Road is a “driveway”
because that position is inconsistent with the purpose of the underlying taking, the
2015 Plan, and the MOU between the Township and Developer. The 2015 Plan
specifically provides in a note that the purported driveway “will be ultimately used as
a public road.” (R.R. at 181a.) This note is consistent with the MOU that Developer
entered into with the Township, which provides:

            In order to support existing volumes of traffic and traffic
            projected to be generated by new growth and development
            in the Township, the Township has an interest in creating a
            new public road connecting Horseshoe Pike to North
            Guthriesville Road (“Connector Road”).

            The Connector Road would traverse the eastern side of the
            Carlino Property and extend northward through [L&R’s
            property].

                                        ***

            The Connector Road is intended as a public road for use
            by the general public and is not necessary for the
            development of [Developer’s] Property. The Township
            has made an independent judgment that the Connector Road
            is in the public interest and for a public purpose.

            The Township has informed Developer that the Township
            would like the Connector Road constructed by Developer in
            connection with development of the Project.

                                        ***

            In the event the Project receives final land development
            approval and all necessary permits, Developer will, at its
            sole expense, design, permit and construct the Connector
            Road in conjunction with the Project, in accordance with
            Township and Pennsylvania Department of Transportation
            requirements, and when completed, dedicate the Connector
            Road, the associated right-of-way and all related facilities

                                          18
               and improvements to the Township, at no cost to the
               Township and prior to the issuance of the first certificate of
               occupancy for a building on the [Developer’s] Property.


(R.R. at 83a-85a) (emphasis added).


               In a separate action, Objectors raised preliminary objections before the
trial court challenging, inter alia, the Township’s taking for the construction of the
Connector Road. The trial court denied those preliminary objections, concluding, in
pertinent part, that the taking was for a public purpose and that the condemnation is
intended to be used to construct a public road or street. (See Carlino’s Brief at
Appendix “A,” Trial Court Decision filed September 8, 2017 at 28) (citing Section
204(b)(9) of the Eminent Domain Code, 26 Pa.C.S. § 204(b)(9)).


               Because the Connector Road is obviously a “right-of-way intended for
general public use,” Zoning Ordinance § 399-9, the Board erred when determining
that it is a “driveway” that does not require an 85-foot setback.14

       14
          As previously mentioned, in Brandywine I, a different trial judge determined that the
proposed bank building is not required to be set back 85 feet from the Connector Road, only Route
322. As that trial judge reasoned, the bank building’s development tract was a single lot and not a
“corner lot” because “the proposed driveway does not create a subdivision of the Carlino
development tract.” (Trial Court Opinion dated January 6, 2017 at 10-11.) In the decision now
before us on appeal, the trial court did not revisit this issue, summarily deeming any further
discussion collaterally estopped. Developer also does not raise the issue on appeal.

        In any event, in light of our determination that the Connector Road is a “street,” it is clear
that the bank building’s 85-foot setback must be measured from the Connector Road. Section 399-
46.C of the Zoning Ordinance provides: “Minimum front yard. No building shall be situated less
than 85 feet from the front lot line.” (R.R. at 136a) (emphasis added). A front lot line is defined as
“[a] lot line abutting any street and coinciding with any street line.” (Section 399-9 of the
Zoning Ordinance, R.R. at 105a-135a.) A “street line” is defined as “[t]he dividing line between a
(Footnote continued on next page…)
                                                 19
                                                   C.
               Objectors next contend that the 2015 Plan contains multiple violations of
Zoning Ordinance Section 399-81.E, which provides that to minimize traffic
congestion and encourage “orderly development of street highway frontage,” an
applicant is responsible for providing:

               [S]afe and efficient ingress and egress to and from public
               streets, without undue congestion or interference with
               normal traffic flow within the Township. The developer
               shall be responsible for the design, construction, and costs
               of any necessary traffic control devices and/or highway
               modifications required by the Township and/or the
               Pennsylvania Department of Transportation.


(R.R. at 141a-42a.) Objectors argue that they produced two professional engineers
who testified that the narrow layout and location of the Connector Road created
turning radii that prevent standard-size delivery trucks from making any normal
turning movements into BVA’s property without either: (1) crossing into left-turn
lanes to make right-hand turns or (2) encroaching into and blocking opposing traffic
lanes on the Connector Road.


(continued…)

lot and the outside boundary or right-of-way of a public street, road, or highway legally open or
officially platted. . . .” (Id.) (emphasis added). Significantly, a corner lot is “[a] lot at the junction
of and abutting two or more intersecting streets . . . Each yard abutting a street shall be
considered a front yard.” (Id.) (emphasis added).

        Having determined that both Route 322 and the Connector Road are public “streets” that
intersect with the bank building, that development tract is obviously a corner lot and must have an
85-foot setback from the front lot line abutting the Connector Road.



                                                   20
             However, both the Township engineer and the Township traffic engineer
determined that the street design in the 2015 Plan provided safe and efficient ingress
and egress. Moreover, contrary to Objectors’ assertions, the trial court “found no
instance in which [the Township traffic engineer] concluded the road intersections
were deficient or unsafe. In fact he specifically testified that the Connector Road
intersections were not unsafe, and that there were no safety issues.” (Trial Court
Opinion dated July 18, 2017 at 29-30.) He also disagreed with each of BVA’s
expert’s opinions and testified to the contrary. (Id. at 31.)


             What we have is a difference of opinion between competing testimonies
of experts and the factfinder found the Township experts to be more credible.
Obviously, the weight of such testimony and evidence and the acceptance of
conflicting testimony is within the Board’s sole authority. Regardless, as the trial
court correctly noted, “the Board took the path of caution, ordering [Developer] ‘to
provide an updated Traffic Impact Study for the proposed development’, thus
mooting this issue.” (Id. at 32.)


                                            D.
             Acknowledging that the trial court agreed with the Board that
Developer’s plan was deficient because it failed to provide the required effluent
disposal area either on the development tract or elsewhere, Objectors also challenge
the trial court’s finding that while Developer has not satisfied the sewage effluent
provision in SALDO, it can be waived under Section 503(8) of the MPC, 53 P.S.
§10503(8), upon meeting the standard for waiver created by Section 512.1 of the




                                            21
MPC, 53 P.S. §10512.1. However, as the trial court cogently explained, this assertion
is meritless.

                [Developer] proposes to provide public sanitary sewage
                service to its proposed development, and has obtained
                approval from both the Township and its Sewage Authority
                to do so, thereby leading the Board to conclude that an
                effluent storage area is not required in this instance.
                Sewage effluent is the end by-product of the treatment of
                raw sewage. We addressed the need for a waiver from this
                Section in our January 6, 2017 Opinion. [Objectors] had
                also previously argued that [Developer] needed a variance
                from Section 399-47.K of the Zoning Ordinance because
                the latter Section incorporates the Section 350-47.B(2)
                SALDO provisions, thereby rendering them subject to
                traditional zoning variance hardship standards. It pressed
                the argument that in its future plans [Developer] would be
                precluded from seeking a waiver of 350-47.B(2). We found
                [Objectors’] argument to be meritless. Section 350-47.K
                merely references the necessity of the developer’s
                compliance with the cited sections of the SALDO, but
                does not by incorporation make them zoning
                regulations.     We have previously found that [the
                Pennsylvania Department of Environmental Protection]
                approved the Township’s expansion of its public sewage
                system to include both the Watters’ Parcel and [BVA’s]
                Property, including the facilities needed to convey and treat
                raw sewage from those development parcels and dispose of
                the treated effluent on other land. Accordingly, we now
                conclude that the Board is empowered to grant a waiver
                from this SALDO regulation pursuant to [MPC] Section
                503(8), 53 P.S. § 10503(8) upon its determination that
                [Developer] complies with the standard for waiver created
                by [MPC] Sections 512.1, 53 P.S. § 10512.1.


(Trial Court’s Opinion dated July 18, 2015 at 26-28) (emphasis added).




                                             22
                Simply, Section 399-47.K of the Zoning Ordinance merely references
that “the applicant’s proposals for sewage facilities and for water supply (both quality
and quantity) in relation to the proposed uses shall be in compliance with the
requirements of §§ 350-47 and 350-48 [of SALDO]” but does not mention or
otherwise state that a party is precluded from seeking waiver of those SALDO
provisions. (R.R. at 137a.) Accordingly, we agree with the trial court and reject
Objectors’ second contention.


                                                 E.
                Objectors also contend that the trial court erred when approving “a
waiver to reduce turn radii on the Connector [R]oad which directly increase the
already unsafe turn issues detailed by the testimony.” (Objectors’ Brief at 54.) Here,
the 2015 Plan proposes to install a Connector Road, which Objectors will be required
to use in order to have access to State Route 322 because BVA’s access easements
were condemned by the Township. The 2015 Plan shows that the Connector Road
has a 25-foot radius at the signalized intersection with Route 322.


                Significantly, Section 350-40 of SALDO pertains to “Driveways,” and
Section 350-40.N.2 provides, in relevant part, that “In order to provide for safe and
convenient ingress and egress, private driveway entrances shall be rounded as
follows: . . . (2) For non-residential driveways, a minimum radius of 30 feet shall
be provided. Greater radii may be required where truck traffic is to occur.”15



      15
           Available at: https://ecode360.com/11881082 (last visited March 16, 2018).



                                                 23
              Obviously, having already decided that the Connector Road is not a
driveway but instead a public road, this issue is moot. The radii requirement set forth
in Section 350-40.N.2 does not apply because the Connector Road is a “street” and
not a driveway.


                                                F.
              Finally, Objectors contend, without citing any authority, that it was an
abuse of discretion for the Board to grant conditional preliminary approval
notwithstanding its determination that Developer “shall comply with the provision of
§350-36 (Acceleration, deceleration and turning lanes) or request a waiver of the
same from the Board.” (R.R. at 39a.) They do not, however, dispute the trial court’s
finding that Section 350-36.B.3 was actually inapplicable because the Connector
Road was not a deceleration lane. This contention is wholly meritless. It is beyond
settled that a preliminary plan containing minor defects can be approved subject to
the condition that those defects are corrected. The Board, in granting the 2015 Plan,
simply was doing so under the condition that Developer comply with Section 350-36
or otherwise obtain a waiver of that requirement.                In doing so, the Board was
obviously not asserting an argument on Developer’s behalf or abusing its discretion,
but instead alerting Developer on how to resolve certain deficiencies.16


              Accordingly, while we agree with the Board’s disposition of all other
issues on appeal, we reverse the trial court’s order affirming the Board’s decision

       16
           In any event, Objectors’ contention is moot. Because the trial court’s unchallenged
determination is that the requirements set forth in Section 350-36.B.3 are inapplicable, even if the
Board did improperly grant a waiver, that waiver could not even apply to the Connector Road
because it was found not to be a deceleration lane.


                                                24
granting conditional preliminary approval of the 2015 Plan because the Connector
Road is a public road and the 2015 Plan does not provide the required 85-foot setback
from its front lot line to the building it proposes to construct.



                                         _______________________________
                                         DAN PELLEGRINI, Senior Judge




                                            25
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brandywine Village Associates and     :
L&R Partnership,                      :
                 Appellants           :
                                      :
               v.                     : No. 1149 C.D. 2017
                                      :
East Brandywine Township Board        :
of Supervisors and Carlino            :
East Brandywine, L.P.                 :




                                     ORDER


               AND NOW, this 19th day of April, 2018, it is hereby ordered that the
order of the Court of Common Pleas of Chester County in the above-captioned matter
is reversed.



                                      _______________________________
                                      DAN PELLEGRINI, Senior Judge
