IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Delchester Developers, L.P., :

Appellant :

: 

v. : No. 148 C.D. 2016

: Argued: October 17, 2016

London Grove Township :

Board of Supervisors :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY

SENIOR JUDGE COLINS FILED: May 9, 2017

Before this Court is the appeal of Delchester Developers, L.P. 

(Delchester) of the December 30, 2015 order of the Court of Common Pleas of 

Chester County (Trial Court) affirming the July 15, 2015 denial by the London 

Grove Township Board of Supervisors (BOS) of Delchester’s preliminary 

subdivision and land development plan application (Plan). Delchester has raised

four issues for review, arguing that the Trial Court erred in affirming the denial of 

the Plan issued by the BOS because: (i) the reasons for denying the Plan were 

insufficiently specific contrary to the mandate of Section 508(2) of the 

Municipalities Planning Code1(MPC), 53 P.S. § 10508(2); (ii) the BOS 

improperly incorporated reviews of the Plan by independent consultants in its 

denial of the Plan; (iii) the BOS identified a failure to secure third-party permits as 

a basis for denial rather than issuing an approval of the plan conditioned on 

 

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

Delchester obtaining the requisite third-party permits; and (iv) the BOS acted in 

bad faith by denying the Plan. For the reasons that follow, we affirm the order of 

the Trial Court.2

Section 508 of the MPC provides the procedure whereby the 

governing body or planning agency of a township shall review and act upon a 

subdivision and land development application. 53 P.S. § 10508. If the plan 

submitted by the applicant complies with all of the objective provisions of the 

applicable subdivision and land development ordinance (SALDO) as well as all 

other applicable regulations, the plan must be approved by the reviewing body. 

Herr v. Lancaster County Planning Commission, 625 A.2d 164, 169 (Pa. Cmwlth. 

1993). Subsection 2 of Section 508 requires of the reviewing body that:

When the application is not approved in terms as filed the 

decision shall specify the defects found in the application 

and describe the requirements which have not been met 

and shall, in each case, cite to the provisions of the 

statute or ordinance relied upon.

53 P.S. § 10508(2); see also Herr, 625 A.2d at 169. A decision rejecting a 

subdivision and land development plan will be voided for contravening Section 

508(2) of the MPC if it fails to cite to the specific provision of the SALDO relied 

upon or if the reasons for rejection are vague and undiscernible. Coretsky v. Board 

of Commissioners of Butler Township, 555 A.2d 72, 74 (Pa. 1989). If the decision 

 

2 Where no additional evidence has been taken by the trial court, our scope of review is limited 

to determining whether the board of supervisors committed an abuse of discretion or an error of 

law. Appeal of Richboro CD Partners, L.P., 89 A.3d 742, 746 n.1 (Pa. Cmwlth. 2014). An 

abuse of discretion is established where the findings are not supported by substantial evidence; 

substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion. Id.
3

complies with Section 508(2) of the MPC, then rejection of the plan will stand if 

even one of the reasons for denial is supported by substantial evidence. Herr, 625 

A.2d at 169.

The July 15, 2014 decision issued by the BOS contained 44 reasons 

for denial of the Plan broken down into the following categories: (i) zoning 

ordinance provisions; (ii) groundwater protection district; (iii) SALDO; (iv) sewer 

and water; (v) stormwater management; and (vi) general. Delchester argues that 

Nos. 10, 17, 18, 28, and 293are not sufficiently specific to satisfy Section 508(2) of 

 

3

The BOS’s denial reasons Nos. 10, 17, 18, 28 and 29 are as follows:

***

GROUNDWATER PROTECTION DISTRICT

***

10. Applicant failed to comply with the requirements relating to 

Historic Resource Protection in Part XVII with regard to the 

portion of the Property located in the I- Industrial District.

***

SUBDIVISION AND LAND DEVELOPMENT ORDINANCE

***

17. Applicant has failed to demonstrate compliance with Section 

612.I (formerly Section 612.A.9) relating to street system impacts.

***

18. Applicant has failed to demonstrate compliance with Section 

615.12 (formerly Section 615.L) relating to recreation lands and 

facilities, fees -in -lieu thereof and trails.

***

STORMWATER MANAGEMENT

***

28. Applicant has failed to demonstrate compliance with Section 

303.4.B.1 (formerly Section 303.02.13) relating to identification of 

limits of Cockeysville Marble areas.

***

29. Applicant has failed to demonstrate compliance with Section 

303.5.C.l.f (formerly Section 303.01.C.14) relating to the use of 

infiltration systems for sediment and erosion control with regard to 

the proposed detention/infiltration basin or the seepage beds.

(BOS Op., Nos. 10, 17, 18, 28, & 29.)
4

the MPC, and that Nos. 3, 22, 23, 31, 38, 39, 40, 41, 42, 43 and 444do not cite to 

provisions of the Township’s SALDO, also in violation of Section 508(2) of the 

 

4

The BOS’s denial reasons Nos. 3, 22, 23, 31, 38, 39, 40, 41, 42, 43 and 44 are as follows:

ZONING ORDINANCE PROVISIONS

***

3. Applicant failed to note the proposed perimeter setback should 

be identified for the access road and site improvements listed on 

Sheets 1, 2 and 4.

***

GROUNDWATER PROTECTION DISTRICT

22. Applicant has failed to demonstrate how Applicant has 

addressed outstanding comments relating to water and sewer from 

the London Grove Township Municipal Authority.

23. Applicant has failed to demonstrate how Applicant has 

addressed outstanding comments regarding the Sewage Facilities 

Planning Module from former Township Engineer URS.

STORMWATER MANAGEMEMT

***

31. Applicant has failed to demonstrate that it has permission from 

adjacent property owner London Grove North LP to connect the 

outfall pipe for the proposed drywell to an existing storm sewer 

system located on the adjacent property and has failed to 

demonstrate that this system was designed with additional capacity 

to accommodate the flow from Applicant’s development.

***

38. Applicant has failed to demonstrate that discharges from the 

proposed detention/infiltration basin into the proposed 

underground seepage bed will not hydraulically overload the 

seepage bed.

39. Applicant has failed to furnish a viable plan to demonstrate 

how the seepage bed will be protected from silt intrusion during 

construction.

GENERAL
5

MPC. 53 P.S. § 10508(2). Delchester also argues that the reasons given for denial 

in Nos. 1, 2, 7, 21, 24, 26, 32, 35, 36 and 445 were easily correctible technical 

 

40. Applicant has failed to demonstrate that it has obtained 

[Pennsylvania Department of Transportation] approval for the 

proposed entrances and turn lane on East Baltimore Pike.

41. Applicant’s [Pennsylvania Natural Diversity Inventory]

correspondence from [Pennsylvania Department of Conservation 

and Natural Resources] has expired and applicant has failed to 

provide current correspondence.

42. Applicant has failed to remove General Note 21 from Sheet 1 

of the plan as requested by the Township’s Engineer.

43. Applicant has failed to provide the Township with evidence of 

abandonment of the 10 foot right of way existing on Tax Parcel # 

59-5-89 or clarified the rights of the utility company mentioned in 

the General Notes.

44. Applicant has failed to update Note 29(26) of Sheet 1 relating 

to retaining walls over 4 feet in height as requested by the 

Township Engineer and corrected apparent typographical errors in 

the Note(s). 

(BOS Op., Nos. 3, 22, 23, 31, 38, 39, 40, 41, 42, 43 & 44.)

5

The BOS’s denial reasons Nos. 1, 2, 7, 21, 24, 26, 35, 36 and 44 are as follows:

ZONING ORDINANCE PROVISIONS

1. Applicant has failed to demonstrate via calculations that the 

floor area ratios on Sheets 1, 2 and 4 meet the maximum permitted 

by Section 27- 1103.D.

2. Applicant failed to submit revised calculations and corrected lot 

size information for Sheets 1, 2 and 4 netting out all required 

easements as required by the definition of "Lot area, net" in 

Section 27 -202.

***

GROUNDWATER PROTECTION DISTRICT

7. Applicant failed to document compliance with Section 1406.7 

(formerly Section 1305.H) which allows a maximum of fifty 
6

 

percent impervious coverage for portions of the site which fall 

within the Groundwater Protection District ("GWPD") in tabular 

form on Sheet 1 of the plans as requested by the Township 

Engineer.

***

SUBDIVISION AND LAND DEVELOPMENT ORDINANCE

***

21. Applicant has failed to demonstrate compliance with Section 

502.8.A (formerly Section 501.11.2) which requires all tree and 

bush masses and trees with a diameter greater than 6 inches to be 

shown on plans by not clearly showing the limits of the existing 

tree masses on the Existing Features Plan and in addition, since the 

date of filing of the Application, Applicant has removed a 

significant portion of the tree mass on the Property.

***

STORMWATER MANAGEMEMT

24. Applicant has failed to demonstrate compliance with 

Section 402.2.B.7 (formerly Section 302.01.B.1) by adding all 

required easements to the plan sheets and by adding notes 

explaining the purposes of the easements.

***

26. Applicant has failed to provide soil infiltration testing 

results, including field logs, required to demonstrate 

compliance with Section 303.3.C.3 (formerly Section 

303.01.C.3).

***

32. Applicant has failed to demonstrate compliance with 

Section 303.5.C.1(d) relating to required approvals for removal 

of temporary erosion and sediment control measures by failing 

to include these requirements in the Sequence of Construction.

***

35. Applicant has failed to demonstrate compliance with 

Section 407.01.B.i relating to stormwater management 

easements by failing to cover all areas requiring an easement in 

its Post Construction Stormwater Management Plan.

36. Applicant has failed to provide the requested written 

clarification to the Township relating to accessing the property 

for required inspections to demonstrate compliance with 

Section 407.06.B relating to stormwater management 

easements.
7

defects that are insufficient to serve as grounds for denial of the Plan. Delchester 

further argues that the decision issued by the BOS failed to properly incorporate 

the consultant letters that the BOS relied upon in support of its denial. 

Specifically, Delchester challenges denial reasons Nos. 11, 13, 16, 22 and 23.6 

 

GENERAL

***

44. Applicant has failed to update Note 29(26) of Sheet 1 relating 

to retaining walls over 4 feet in height as requested by the 

Township Engineer and corrected apparent typographical errors in 

the Note(s). 

(BOS Op., Nos. 1, 2, 7, 21, 24, 26, 35, 36 & 44 (emphasis added).)

6

The BOS’s denial reasons Nos. 11, 13, 16, 22 and 23 are as follows:

***

GROUNDWATER PROTECTION DISTRICT

***

11. Applicant failed to address Township professional consultant 

Taproot Native Design’s review comments relating to the buffering 

and landscaping requirements in Section 1806 (formerly Section 

1705).

***

SUBDIVISION AND LAND DEVELOPMENT ORDINANCE

13. Applicant has failed to demonstrate compliance with Section 

502.5.K (formerly Section 501.E.11) relating to delineation of any 

freshwater wetlands by providing a determination from a qualified 

wetlands biologist.

***

16. Applicant has failed to demonstrate compliance with the 

landscaping requirements set forth in Section 502.9 (formerly 

Section 501.1) and failed to address review comments from the 

Township's landscaping consultant.

***

SEWER AND WATER

22. Applicant has failed to demonstrate how Applicant has 

addressed outstanding comments relating to water and sewer from 

the London Grove Township Municipal Authority.
8

Finally, Delchester argues that the BOS impermissibly rejected its Plan based on 

Delchester’s failure to secure third-party permits when it was required to approve 

the Plan conditioned upon Delchester’s receipt of third-party permits.7 

 

23. Applicant has failed to demonstrate how Applicant has 

addressed outstanding comments regarding the Sewage Facilities 

Planning Module from former Township Engineer URS.

(BOS Op., Nos. 11, 13, 16, 22 & 23.)

7

The BOS’s denial reasons Nos. 14, 20, 22, 40 and 41 address third-party permits and are as 

follows:

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SUBDIVISION AND LAND DEVELOPMENT ORDINANCE

***

14. Applicant has failed to demonstrate compliance with Section 

502.7 (formerly Section 501.G) relating to Chester County 

Conservation District approval of erosion and sedimentation 

control plans and post-construction stormwater management plans.

***

20. Applicant has failed to demonstrate compliance with Section 

607.1.0 (formerly Section 606.A.5) by documenting how apparent 

conflicts with [Pennsylvania Department of Environmental 

Protection] regulations relating to the sewage planning module 

have been resolved.

***

SEWER AND WATER

22. Applicant has failed to demonstrate how Applicant has 

addressed outstanding comments relating to water and sewer from 

the London Grove Township Municipal Authority.

***

GENERAL

40. Applicant has failed to demonstrate that it has obtained 

PENNDOT approval for the proposed entrances and turn lane on 

East Baltimore Pike.

41. Applicant’s PNDI correspondence from PA DCNR has expired 

and applicant has failed to provide current correspondence.
9

Initially, the Township argues that even if Delchester succeeded in 

striking down each ground for denial it has challenged on appeal, Delchester has 

failed to challenge nine of the bases for denial identified in the BOS decision and, 

as a result, the denial must be affirmed. (See BOS Op., Nos. 8, 13, 15, 19, 25, 27, 

30, 33 & 34.8) In addressing Delchester’s arguments regarding failure to comply 

 

(BOS Op., Nos. 14, 20, 22, 40 & 41.)

8

The BOS’s denial reasons Nos. 8, 13, 15, 19, 25, 27, 30, 33 and 34 are as follows:

***

GROUNDWATER PROTECTION DISTRICT

***

8. Applicant failed to provide an Environmental Assessment 

Report as required by Section 27 -1409 (formerly Section 1308).

***

13. Applicant has failed to demonstrate compliance with Section 

505.5.K (formerly Section 501.E.11) relating to delineation of any 

freshwater wetlands by providing a determination from a qualified 

wetlands biologist.

***

SUBDIVISION AND LAND DEVELOPMENT ORDINANCE

***

15. Applicant failed to tag existing trees in excess of six inches in 

diameter and/or to obtain Board of Supervisors approval to remove 

existing trees on the CI lot as required by Section 502.8.B 

(formerly Section 501.H.3).

***

19. Applicant has failed to demonstrate compliance with Section 

701.6 (formerly Section 700.F) relating to protection of adjacent 

residential areas using methods such as extra parcel depth and/or a 

permanently landscaped evergreen buffer strip.

***

STORMWATER MANAGEMENT

***

25. Applicant has failed to demonstrate compliance with Section 3 

03.3.C.1 and 2 (formerly Section 303.01.C.1 and 2) by failing to 

explain why an above ground device is not feasible and by failing 

to demonstrate how the proposed underground [Best Management 

Practices] conforms to applicable Township ordinance regulations.

***
10

with Section 508(2) of the MPC, the Township contends that it engaged in 

extensive discussions with Delchester over a four-year period and that despite clear 

direction regarding the Plan’s deficiencies and how each deficiency could be 

corrected, Delchester failed to cure its plan. The Township argues that Nos. 10, 

17, 18, 28 and 29 (see note 3, supra) are sufficiently specific independent grounds 

for denial, with each reason identifying a specific portion of the SALDO or other 

applicable ordinance that the Plan does not comply with and leaving no ambiguity 

regarding the deficiency that Delchester needs to cure in order to receive approval. 

Although the Township agrees that a subset of the reasons identified in the denial 

decision do not cite to the SALDO or other applicable ordinance as the basis for 

denial, the Township contends that these issues were identified in the decision for 

completeness rather than as independent grounds for denial. Furthermore, the 

Township argues that Nos. 24, 26, 32, 35, and 36 (see note 5, supra) are each 

 

27. Applicant has failed to demonstrate compliance with Section 

303.3.C.4 (formerly Section 303.01.C.4) relating to infiltration 

facility requirements by proposing a detention facility with a depth 

in excess of the 2 foot maximum.

***

30. Applicant has failed to demonstrate compliance with Section 

303.02.C.2 which requires the bottom of infiltration BMPs to be 

12' above the water table and 6' above the bedrock.

***

33. Applicant has failed to demonstrate compliance with Section 

303.7.B.1 and 2 by proposing a detention/infiltration basin without 

establishing that other preferred methods of stormwater 

management as specified in the ordinance are not feasible.

34. Applicant has failed to demonstrate compliance with Section 

303.7.C.2(f) relating to final design of storm sewer systems by 

failing to provide the required freeboard between the [Hydraulic 

Grade Line] and rim elevations throughout the entire storm sewer 

system.

(BOS Op., Nos. 8, 13, 15, 19, 25, 27, 30, 33 & 34.)
11

substantive rather than mere technical defects and that each of these grounds 

address the failure of the Plan to comply with the Township’s Storm Water 

Management Ordinance (SWMO). The Township argues that the decision 

properly incorporated and relied upon external documents, and that Delchester was 

aware of the letters and the deficiencies described within. Finally, the Township 

argues that it included the lack of third-party permits for completeness rather than 

as independent reasons for denial. Furthermore, the Township contends that if 

Delchester’s Plan had otherwise complied with the SALDO, then the precedent 

regarding approval conditioned upon the receipt of third-party permits would 

apply; the Township contends that under the circumstances of this case, the 

precedent regarding conditioned approval is inapplicable.

In Shelbourne Square Associates, L.P. v. Board of Supervisors, 

Township of Exeter, 794 A.2d 946 (Pa. Cmwlth. 2002), this Court reviewed a 

subdivision and land development plan denial where the decision of the governing 

body contained eight reasons for denial of the plan and concluded that seven of the 

reasons given were insufficient to support a denial due to vagueness and an 

additional subset were “defects in the plan notations and labels [that] are 

correctable by fairly simple amendments to the documents.” Id. at 950. However, 

this Court affirmed the denial in Shelbourne because a single ground for denial 

rested on clear noncompliance with the township’s SALDO and the 

noncompliance was an objective, legitimate, substantive planning issue. Id. at 952. 

In Robal Associates, Inc. v. Board of Supervisors of Charlestown Township, 999 

A.2d 630 (Pa. Cmwlth. 2010), we reviewed decisional law distinguishing between 

defects which constituted objective, legitimate, substantive reasons for denial from 

those, like mere labeling issues, which could not form the basis for denial of plan 
12

approval. Robal held that “the following reasons are sufficient to support 

rejection:

[L]ot area (as opposed to lot dimensions); stormwater 

requirements and grading requirements necessary for 

stormwater management calculations; sewage or 

wastewater disposal requirements; wetlands delineations; 

highway access; steep cross-section grades at the 

intersection with a public street; and, erosion and 

sedimentation controls.

Id. at 637 (footnotes omitted).

In the instant matter, the BOS decision includes mere technical 

deficiencies that could be easily cured by amendment as Delchester argues; 

however, as Shelbourne makes clear, the presence of inadequate independent 

grounds for denial does not vitiate the legitimate substantive grounds for denial 

identified by the BOS. The decision identifies five specific areas where 

Delchester’s plan failed to comply with Township ordinances applicable to the 

Plan: (i) Zoning Ordinance; (ii) Groundwater Protection District; (iii) SALDO; (iv) 

Sewer and Water; and (v) SWMO. Within these sections, Delchester failed to 

object to two areas of noncompliance specific to the groundwater protection 

district, two issues of noncompliance with the SALDO, and five instances of 

noncompliance with the SWMO. These nine grounds are sufficient to support the 

BOS’s decision. 

Yet, even if we examined only those grounds for denial which 

Delchester has objected to for failure to comply with Section 508(2) of the MPC, it 

is clear that Delchester’s Plan does not comply with substantive and objective 

requirements of the applicable ordinances. For example, denial reason No. 26 in 
13

the BOS’s decision concludes: “[Delchester] has failed to provide soil infiltration 

testing results, including field logs, required to demonstrate compliance with 

Section 303.3.C.3 (formerly Section 303.01.C.3).”9 (BOS Op., No. 26.) 

Delchester has argued that denial reason No. 26 is a mere technical defect that is an 

insufficient basis for denial of its plan. In Schultheis v. Board of Supervisors of 

Upper Bern Township, Berks County, 727 A.2d 145 (Pa. Cmwlth. 1999), this Court 

held just the opposite, concluding that “[applicant’s] Preliminary Plan application 

did not contain soil percolation and probe tests, wetlands delineations and erosion 

and sedimentation controls. Although [applicant] contends these deficiencies were 

minor technicalities, we must agree with the [governing body] that these 

deficiencies were not minor but, rather, were substantive.” Id. at 149. Where a 

preliminary plan contains clear substantive issues of noncompliance with a 

township’s SALDO or other applicable ordinances, the governing body is within 

its discretion to deny the plan. Herr, 625 A.2d 169. 

The BOS decision contained sufficiently specific grounds for denial in 

accordance with the mandate of Section 508(2) of the MPC; because even one 

legitimate basis for denial supports the BOS’s decision to deny rather than grant 

conditional approval of the Plan, the issues of whether the BOS properly 

 

9

Section 303.3.C.3 (formerly Section 303.01.C.3) of the Township’s SWMO provides:

Soil infiltration tests shall be made to a depth of not less than three 

(3) feet below the bottom of the infiltration area or bed. These 

tests shall follow the procedures for infiltration beds established by 

the Chester County Health Department. All infiltration methods 

shall be designed to handle the ten (10) year storm. Seventy five 

(75) percent of the tested percolation rate shall be used to 

determine the storage volume required.

SWMO § 303.3.C.3 (formerly § 303.01.C.3).
14

incorporated reviews of the Plan by independent consultants10 or identified a 

failure to secure third-party permits11 as a basis for denial rather than issuing an 

 

10 Our Supreme Court held in Kassouf v. Township of Scott, 883 A.2d 463 (Pa. 2005), that 

references to supporting documentation will provide, as a substantive matter, an adequate 

articulation of grounds for denial for purposes of Section 508(2) of the MPC where it is clear 

from the decision what supporting documentation is referenced. Id. at 472. In Advantage 

Development, Inc. v. Board of Supervisors of Jackson Township, 743 A.2d 1008 (Pa. Cmwlth. 

2000), this Court held that a Board decision denying plan approval was sufficient under Section 

508(2) of the MPC where it incorporated an engineer’s report that provided specific numbered 

reasons for denial. Id. at 1013-1014. In Kassouf, our Supreme Court concluded that the denial 

decision failed to satisfy Section 508(2) of the MPC because, as distinguished from Advantage 

Development, it was unclear which external documents were being relied upon by the Board for 

its denial and

The subdivision applicant should not be left to guess at whether the 

township was truly relying upon an external document in lieu of its 

own Section 508 statement. Nor should the applicant be left to 

guess as to which of multiple documents is the one that would 

serve as the “incorporated” basis for the decision. If a municipal 

authority indeed intends for an external document to serve as the 

substantive explanation of the basis for its decision, it should make 

that point explicitly in the decision letter, and not ask the applicant, 

and the court system, to infer the point. 

Kassouf, 883 A.2d at 473. In the instant matter, the BOS decision states:

The Township’s Engineers, URS Corporation (“URS”) and 

subsequently, Ragan Engineering Associates Incorporated (“Ragan 

Engineering”), reviewed the [Plan] for compliance with the 

applicable Township zoning, land development and stormwater 

ordinance provisions and issued review letters indicating how the 

[Plan] needed to be revised to come into compliance. True and 

correct copies of the URS review letter dated August 9, 2011 and 

the Ragan Engineering review letter dated April 7, 2014 are 

attached hereto as Exhibit “A.”

(BOS Op. at 1.) Within the body of the decision, additional consultant letters are referenced but 

they are not attached to the decision as a part of Exhibit A. (See,e.g., note 6, No. 11, supra.) 

11 Where an outside agency’s approval is required, the municipality should condition final 

approval upon obtaining a permit, rather than denying preliminary approval of the land 
15

approval of the plan conditioned on Delchester obtaining the requisite third-party 

permits have no bearing on the outcome of this appeal. However, Delchester has 

also argued that the BOS acted in bad faith by denying the Plan, in part based on 

the alleged failure of the Township to provide Delchester with an opportunity to 

cure the deficiencies in its Plan prior to review by the BOS. Delchester contends 

that the Township’s bad faith was exemplified by its opposition to Delchester 

before the London Grove Township Zoning Hearing Board (ZHB) and the 

inclusion of several zoning issues for which Delchester sought relief before the 

ZHB as grounds for denial in the BOS decision prior to Delchester’s ability to 

appeal the ZHB decision.12 Delchester contends that the Township’s bad faith 

 

development application. Morris v. South Coventry Township Board of Supervisors, 836 A.2d 

1015, 1026 (Pa. Cmwlth. 2003) (governing body properly conditioned approval of final plan 

upon engineer’s approval of design of wastewater storage and disposal system); Stein v. 

Easttown Township Board of Supervisors, 532 A.2d 906, 912 (Pa. Cmwlth. 1987) (board erred in 

denying preliminary plan, rather than conditioning approval of final plan on issuance of 

Department of Environmental Resources permit); Harrisburg Fore Associates v. Board of 

Supervisors of Lower Paxton Township, 344 A.2d 277, 282 (Pa. Cmwlth. 1975) (“To us, it would 

appear to be more reasonable and consistent with the mandate of Section 508(2) to condition 

final subdivision approval upon the issuance of this [PennDot] opening permit rather than to 

abort the plan at conception.”). However, in Herr this Court made clear that “[w]hile it is true 

that a preliminary subdivision application looks toward an approval subject to conditions, there is 

nothing in the MPC or case law to suggest that conditional approval, rather than outright 

rejection, must be granted where a proposed plan fails to comply with objective, substantive 

provisions of a subdivision ordinance.” 625 A.2d at 172 (footnote omitted). Herr went on to 

distinguish situations like absence of a third-party permit and problems with the proposed plan 

that are relatively minor, which counsel in favor of conditional approval, to situations “where the 

objections concern fundamental defects in the plan, such as failure to conform to lot size 

requirements of the zoning ordinance, rejection is appropriate.” Id. 

12 Delchester specifically challenges BOS denial reasons Nos. 4, 5, 6, and 9, which are as 

follows:

ZONING ORDINANCE PROVISIONS

***
16

stems from the failure of Delchester and the Township to reach an agreement 

regarding professional consultant fees. See Section 503(1) of the MPC, 53 P.S. § 

10503(1).

The Township argues that the timeline belies Delchester’s accusation 

of bad faith; Delchester submitted its Plan in 2010 and the Township issued its first 

review letter on December 20, 2010 containing 87 comments, however, as late as 

the most recent review letter on April 7, 2014, only 38 of the original comments 

had been resolved. The Township argues that it repeatedly provided Delchester 

 

4. Section 27- 1303.1.B (formerly Section 1202.A.2) requires a 

minimum lot size of 2 acres. The portion of the development area 

located at tax parcel 59-5-89 in the I-Industrial District consists of 

0.89 acres and is therefore an existing nonconforming lot. A 

special exception is required for the use of this lot under Section 

27-2107 (formerly Section 2006) and Applicant has failed to 

obtain the required special exception from the ZHB.

5. Section 27-202, the definition of “use, accessory” requires that 

accessory uses be a subordinate use to the principal use on that 

parcel. The driveway proposed fails to meet the requirement for an 

accessory use.

6. The ZHB denied Applicant’s variance request from Section 27-

1303.2 (formerly Section 1202.13.1) to allow the construction of 

the proposed internal access drive within 10 feet of the property 

line and Applicant therefore failed to meet the setback 

requirements of Section 27-1303.2 (formerly Section 1202.13.1).

***

GROUNDWATER PROTECTION DISTRICT

***

9. The proposed underground seepage bed violates the Section 

1406.8 (formerly Section 1305.1) I limit relating to the hydraulic 

head from infiltration devices and the ZHB denied Applicant’s 

variance request relating thereto.

(BOS Op., Nos. 4, 5, 6 & 9.)
17

with letters directing Delchester to move forward and setting up deadlines for the 

submission of specific materials, and that it continued to work with Delchester on 

processing the Plan even after the Township petitioned the court to assign an 

arbitrator to resolve the professional consultant fee dispute. The Township argues 

that it appeared before the ZHB to defend its ordinances, not out of bad faith, and 

that the BOS is under no obligation to wait for an appeal of a ZHB decision to 

come to finality before issuing its decision. Moreover, the Township argues that 

Delchester had two weeks to submit a modified Plan responding to the ZHB 

decision or make an application to the Township prior to the BOS’s vote on the 

Plan.

In Raum v. Board of Supervisors of Tredyffrin Township, 370 A.2d 

777 (Pa. Cmwlth. 1976), this Court issued an opinion in support of an order 

enforcing its judgment following protracted litigation which culminated in this 

Court sustaining the validity of a township’s designation of 1,000 acres as a unified 

development area. This Court held that the course of conduct of the governing 

body and the township following this Court’s first opinion was a “prime exhibition 

of bad faith,” and, accordingly, this Court ordered the township and the governing 

body to take specific action involving the approval of the developer’s plan and to 

cease and desist from other actions intended to frustrate the developer’s ability to 

develop its land. Id. at 779, 804. In the Raum opinion, this Court concluded that 

“[a] municipality has a legal obligation to proceed in good faith in reviewing and 

processing development plans. 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.” 
18

Id. at 798. In addition, this Court held in Highway Materials, Inc. v. Board of 

Supervisors of Whitemarsh Township, 974 A.2d 539 (Pa. Cmwlth. 2009), that 

where a township refuses to advise an applicant on how to cure deficiencies in its 

plans, as well as the township’s interpretations of its ordinance, the township will 

be found to have acted in bad faith. Id. at 544-545. 

However, in Abarbanel v. Solebury Township, 572 A.2d 862 (Pa. 

Cmwlth. 1990), this Court held that where a municipality has reviewed plans for 

the development of property in good faith, has highlighted the plan’s deficiencies, 

and has given the developer an opportunity to cure those deficiencies, the 

municipality will not be found to have abused its discretion in denying an 

application based on failures of the plan to comply with township ordinances. 

Further, this Court reasoned in Abarbanel that “similar to a municipality’s duty 

under Raum, a developer has a reciprocal good faith duty to submit revised plans in 

a reasonable and timely manner, which will enable a municipality to comply with 

its duties under [Section] 508 [of the MPC] and Raum.” Id. at 864. Finally, in 

Herr, this Court concluded that there was no evidence of bad faith where the 

applicant was given two weeks to address the deficiencies in its plan and 

distinguished Raum as a basis for finding bad faith because the deficiencies in the 

plan were substantive rather than the frivolous technical details cited as a basis for 

the rejection in Raum. Herr, 625 A.2d at 172-173.

Following review of the procedural and factual history in the instant 

matter, the Trial Court concluded that the Township acted in good faith by granting 

numerous extensions for review of the Plan and twelve waivers from the SWMO 

despite the fact that during the four-year pendency of the Plan before the Township 

Delchester failed to correct issues of noncompliance with the SALDO and other 
19

applicable ordinances known to Delchester since the beginning of the process. We 

agree. The actions of the Township and the BOS in this matter are quite distinct 

from those of the governing body in Raum or in Highway Materials. The BOS 

repeatedly and clearly advised Delchester on how to cure the deficiencies in its 

Plan, both substantive and technical, as well as alerted Delchester to the 

information it needed from Delchester to proceed. The BOS provided Delchester 

with ample time within which to act. Instead, Delchester chose to continue without 

modifying its Plan and without providing information critical to demonstrating 

compliance with the applicable ordinances. Delchester’s assertion of bad faith has 

absolutely no support in the record. See Kassouf v. Township of Scott, 883 A.2d 

463, 476 (Pa. 2005).13 Moreover, contrary to the “prime exhibition of bad faith” 

evident in Raum, the record here demonstrates a prime exhibition of an applicant 

seeking to have the applicable ordinances adapted to a plan, rather than produce a 

plan in compliance with the applicable ordinances.

 

13 In Kassouf, the Court adopted the reciprocal good faith standard for action by governing 

bodies and applicants on subdivision and land use plans, concluding:

There is no existing basis in law to suggest that a developer is 

entitled to infinite opportunities to address and remedy the defects 

in a subdivision plan. While reciprocal actions taken in good faith 

are required of the parties, a reciprocal good faith standard cannot 

simply eliminate the inherent discretionary powers of a 

municipality in this area. [Applicant’s] plan raised multiple issues 

related to non-compliance with ordinances, and [applicant] was 

made aware of these defects on a number of occasions between 

July and October of 2000. That he failed to adequately address 

them all prior to the November 14, 2000 deadline does not 

establish bad faith on the part of the township in electing to act 

without granting him additional time to address the defects.

Id. at 476.
20

We also reject Delchester’s contention that the BOS acted in bad faith 

by proceeding with its decision regarding Delchester’s Plan prior to the completion 

of Delchester’s appeal of the ZHB’s denial of zoning relief. There is no 

requirement within the MPC or decisional law that the governing body of a 

township must await the outcome of an appeal by an applicant denied zoning relief 

by the zoning hearing board before issuing its decision granting or denying 

preliminary plan approval. Though not required to do so by law, the BOS 

postponed its action on the Plan to allow Delchester to seek relief from the ZHB 

because the lack of compliance with the Township’s Zoning Ordinance was fatal to 

Delchester’s Plan. Having failed to garner the necessary relief, Delchester did not 

withdraw its Plan from consideration by the BOS or attempt to modify its Plan and 

it was therefore acted upon by the BOS. Delchester’s attempt to argue that the 

consequences of its inaction are attributable to the BOS’s bad faith is without 

merit. 

The order of the Trial Court is affirmed. 

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Delchester Developers, L.P., :

Appellant :

: 

v. : No. 148 C.D. 2016

: 

London Grove Township :

Board of Supervisors :

O R D E R

AND NOW this 9

th day of May, 2017, the order of the Court of 

Common Pleas of Chester County in the above-captioned matter is AFFIRMED. 

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge