IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chris Haring, :

:

Appellant :

:

v. : No. 731 C.D. 2023

: Argued: May 7, 2024

Newberry Township :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: July 15, 2024

Chris Haring (Applicant) appeals from the order of the Court of 

Common Pleas of York County (trial court) that denied Applicant’s appeal and 

upheld the decision of the Newberry Township (Township) Board of Supervisors 

(Board) to deny Applicant’s preliminary subdivision and land development plan 

(SALDO Application) to consolidate four parcels and develop a 301,000-square foot

(SF) building (Building) at the intersection of Culhane Road and Sipe Street in the 

Township (Property). Applicant raises two issues on appeal: whether the trial court 

erred when it concluded that substantial evidence supported the Board’s denial of 

the SALDO Application, and whether the trial court erred when it concluded the 
2

Board did not act in bad faith when it denied Applicant’s SALDO Application. After 

careful review, we affirm. 

The relevant facts, which are not in dispute, and as summarized by the 

trial court, are as follows. Applicant is the equitable owner of four parcels at the 

intersection of Culhane Road and Sipe Street in the Township, totaling 

approximately 33 acres. The Property is in the Township’s Residential/Commercial 

Office District (RCO District) in which certain light industrial uses are permitted by 

right.1 Trial Ct. Op. 6/19/23, at 2, 15.2 

On September 14, 2020, Applicant submitted its initial SALDO 

Application to the Township, proposing a light industrial use as defined in Section 

209.2.E.1.b. of the Zoning Ordinance,3 and proposing to develop the Building on the 

1 Newberry Township, Pa., Zoning Ordinance of 2006, as amended (Zoning Ordinance). 

See Reproduced Record (R.R.) at 2069a-71a. 

2 The trial court’s August 18, 2023 opinion is attached to Applicant’s brief. In its opinion, 

the trial court reaffirmed its order and memorandum opinion filed on June 19, 2023. Unless 

indicated otherwise, the pages cited refer to the trial court’s June 19, 2023 memorandum opinion, 

totaling 25 pages, attached to, and made part of the trial court’s August 18, 2023 opinion.

3 Section 209.2.E.1.b. of the Zoning Ordinance states: 

1. Permitted by Right

* * * *

b. Light industrial uses including manufacturing, assembling, 

converting, finishing, processing, packaging, storage, wholesaling 

and repair (where applicable) of the following: 

1) Agricultural, food and kindred products but excluding: 

a) Breweries and distilleries.

b) Pickling processes.

c) Rendering or slaughtering operations.

(Footnote continued on next page...)
3

Property. Reproduced Record (R.R.) at 34a-539a. Applicant did not specify, and 

still has not specified, the specific light industrial use he intends for the Property, 

explaining that he does not have a specific tenant or buyer lined up for the Property. 

d) Sugar refineries.

2) Furniture & Fixtures.

3) Printing, publishing and allied industries.

4) Pharmaceuticals, toiletries, medicinal, drug and biologic 

products.

5) Professional, scientific and controlling instruments and 

equipment.

6) Photographic & optical goods.

7) Fabricated metal products and metal working.

8) Woodworking, cabinets and handicraft products.

9) Electronic and small parts assembly and repair, including small 

household appliances.

10) Machinery and Equipment.

11) Plastics molding.

12) Tool and die.

13) Sales, storage and/or wholesaling of the following: 

a) Nursery and garden materials and stock.

b) Contractor supplies.

c) Home Improvement.

d) Plumbing, heating, air conditioning, electrical and other 

structural components of buildings.

14) Waste Handling Facilities.

R.R. at 2146a-47a. 
4

Appellant’s Brief at 4. Applicant assured the Board and the trial court that he would 

only engage in light industrial uses permitted in Section 209.2.E.1.b of the Zoning 

Ordinance. Appellant’s Brief at 4-5, Trial Ct. Op. 6/19/23 at 5. In the SALDO 

Application, Applicant described the proposed Building as a “301,000 SF 

warehouse.” R.R. at 301a. Applicant included several reports with his SALDO 

Application, including water and sewer planning and a traffic impact study (TIS). 

In the sewer planning report, the project is described as follows: “The site is 

intended to be developed as a future warehouse and would require construction of 

associated infrastructure. Construction activities have not taken place at this time.” 

Id. at 320a. In the TIS the project is described as a “warehouse building” and a 

“warehouse development.” Id. at 377a, 379a. The TIS calculated the traffic impact 

for the project as follows: 

The trip generation equations for the proposed warehouse 

[were] obtained from the Trip Generation Manual, 10th

edition, an Institute of Transportation (ITE) Informational 

Report. The statistics in the Trip Generation Manual are 

empirical data based on more than 4,800 trip generation 

studies. The data are categorized by Land Use Codes, with 

total vehicular trips for a given land use estimated using 

independent variable and statistically generated rates or 

equations. 

For the proposed warehouse development, Land Use Code 

150 (Warehousing) from the Trip Generation Manual was 

used to calculate the number of vehicular trips the 

development will generate . . . . 

R.R. at 384a. The TIS included tables to calculate “truck trips generated for the 

proposed warehouse development,” and new trips “generated by the proposed 

warehouse development,” along with other traffic components. Id. at 384a, 385a. A 

diagram of the project included the Building, in which 10,000 square feet were 
5

designated for office space, with the remaining 290,000 square feet designated for 

the proposed warehouse, and included 51 truck docks, 69 trailer spaces, and 279 auto 

parking spaces. Id. at 47a. 

The Township Engineer reviewed the SALDO Application and offered 

comments in a letter dated September 29, 2020. R.R. at 542a-46a. Most relevant 

here are comments under the Zoning and Subdivision sections of the response. 

Under the Zoning section, the Township Engineer provided: 

1. The proposed use must be clearly defined under the 

Area and Bulk Regulations. Based on the parking 

calculation it appears that the plan proposes warehousing 

and wholesale trade. However, the permitted use is Light 

Industrial in the RCO Zone (209.1E). 

2. Revise parking calculation for that light industrial use. 

(512.6). One employee on each of the two (2) largest 

shifts, or (1 space) per employee and at least (1 space) per 

each one thousand (1,000) square feet of gross floor area, 

whichever is the greatest number. Are there enough ADA

[Americans with Disabilities Act, 42 U.S.C. §§12101-

12213] spaces being provided?

R.R. at 542a. Under the Subdivision4section of the response, the Township 

Engineer addressed the sewage flows on the Property as follows: 

1. Planning module or exemption must be approved by the 

Township and DEP [Pennsylvania Department of 

Environmental Protection] (611.01). Provide []DEP code 

4 Newberry Township, Pa., Subdivision and Land Development Ordinance of 2006

(SALDO Ordinance). See R.R. at 1855a-2068a. Section 611.01 of the SALDO Ordinance 

provides that a “Sewer Facilities Plan Revision (Planning Module for Land Development)[,] or 

Supplement, is required, approval from the PA DEP [Pennsylvania Department of Environmental 

Protection] shall be required prior to condition of Final Plan Approval.” R.R. at 1968a. Section 

403.01.f of the SALDO Ordinance requires that “[f]inal Studies and Reports in accordance with 

Section 402 and 403.01.4 of [the SALDO] Ordinance” be submitted with the SALDO Application. 

R.R. at 1922a-23a. 
6

number referencing the approved planning module 

(403.01.f). Planning module that was submitted states that 

the proposed use is warehousing. The permitted use for 

this zone is light industrial. Revise sewage flows based on 

the permitted proposed uses.

Id. at 543a. The Township Planning Commission reviewed the initial SALDO 

Application and provided comments in a letter dated October 15, 2020. Id. at 547a49a. Relevant here, the Planning Commission included the following zoning 

comment: “Specify the type of industrial use (s.209.2.E.1). Warehousing and 

wholesale trade is not a permitted use in the [] RCO[] District.” Id. at 548a. 

On October 26, 2020, Applicant submitted a revised SALDO 

Application that included Applicant’s response to the Township Engineer’s 

comments. R.R. at 550a-1023a. In response to the Township Engineer’s first 

comment in the Zoning section, Applicant responded that “[t]he Parking 

Requirements Table on Sheet 13 has been revised to show calculations for Light 

Industrial.” Id. at 550a. In response to the Township Engineer’s second comment 

in the Zoning section, Applicant responded that “[t]he parking calculation has been 

revised for light industrial use and additional parking spaces have been added to 

meet the requirement (See Sheet 13-14). Refer to revised design and Parking 

Requirements [t]able on Sheet 13.” Id. In response to the Township Engineer’s 

comment in the Subdivision section, Applicant stated that “[t]he planning mailer has 

been updated to note the use is a light industrial building, but this does not affect the 

proposed sewage flowrates as the same number of employees are proposed. Revised 

planning mailer is attached.” Id. at 551a. In response to the Township Planning 

Commission’s comment, Applicant stated that “[t]he proposed use is Light 

Industrial. The table on Sheet 01 and the Parking Table on Sheet 13 [have] been 

updated to show this use.” Id. at 555a. However, the TIS submitted with the revised 
7

SALDO Application continued to describe the project as a “proposed warehouse 

development” and continued to use “Land Use Code 150 (Warehousing)” from the 

Trip Generation Manual to calculate vehicle trips. Id. at 854a, 861a, 862a, 870a. 

The Township Engineer reviewed the revised SALDO Application and 

offered comments in a letter dated November 5, 2020. R.R. at 1024a-27a. Under 

the Subdivision section, the Township Engineer again responded that “[p]lanning 

module or exemption must be approved by the Township and DEP (611.01). 

Provide []DEP code number referencing the approved planning module (403.01.f). 

Provide sewage calculations for review to verify the proposed sewage flows. 

Provide reference to planning module approval [number] on the cover sheet.” Id. at 

1024a. Applicant responded to the Township Engineer’s comments in a letter dated 

December 11, 2020. Id. at 1029a-32a. Applicant responded to the Subdivision 

comment using the same language as he did before. Id. at 1029a. During this time 

period, Applicant requested, and the Township agreed, to an extension of time to 

allow the parties to continue to discuss the project. The deadline for the Township 

to act on the SALDO Application was extended to April 30, 2021. Id. at 1028a, 

1033a. Also, during this time period, Applicant sought to amend the Zoning 

Ordinance to include “warehouse” as a conditional use in the RCO District. The 

Township denied Applicant’s amendment on January 11, 2021. Id. at 1034a-35a. 

At a public hearing on January 26, 2021, the Township received public comments 

regarding the SALDO Application, most of which were in opposition to the project. 

Id. at 1036a-42a. 

On March 29, 2021, Applicant submitted a second revised SALDO 

Application, which included Applicant’s request for waivers for a preliminary plan 

and for slope requirements. R.R. at 1043a-1326a. The Township Engineer 
8

responded to the second revised SALDO Application in a letter dated April 7, 2021. 

Id. at 1327a-30a. Under the Subdivision section, the Township Engineer again 

responded that the planning module for sewer usage must be approved by the 

Township and DEP and must provide a DEP code number referencing the approved 

planning module, and requested “additional justification” for the “sewer flows 

provided on the mailer.” Id. at 1327a. The Township Engineer also noted that “[t]he 

existing [TIS] references a warehouse, and the plan is referencing an industrial use.” 

Id. at 1329a. The Township Planning Commission considered the second revised 

SALDO Application and declined to approve it, and both of the two waivers sought 

by Applicant. Id. at 1334a-35a. 

On April 23, 2021, Applicant submitted a third revised SALDO 

Application, including responses to the Township’s earlier comments. R.R. at 

1344a-1630a. In a letter of the same date, Applicant’s counsel withdrew Applicant’s 

request to waive approval for a preliminary/final plan and elected to proceed through 

preliminary plan approval. R.R. at 1337a-42a. Applicant also requested that the 

Township grant a slope waiver, and schedule a public hearing to consider the third 

revised SALDO Application, and offered the Township an extension until June 23, 

2021, to act on the plan.5 Id. Applicant provided the following response to the 

Township Engineer’s comment in the Subdivision section regarding the sewer 

planning module. 

5

See Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, 

as amended, 53 P.S. §§10101-11202. Section 508(3) of the MPC, 53 P.S. §10508(3), provides, in 

relevant part, that the Board must render its decision on the SALDO Application “not later than 

90 days” after its regular meeting following the date that the application was filed. Id. If the next 

regular meeting occurs more than 30 days following the filing, the “90-day period shall be 

measured from the 30th day following the day the application has been filed.” Id. If the board 

fails to render a timely decision, the application shall be “deemed an approval” unless the applicant 

has agreed in writing to an extension. Id. 
9

The []DEP code number will be provided on Sheet 01 once 

obtained. The sewage calculations use 5 gallons per day

[(GPD)], the proposed light industrial use more closely 

reflects the conditions of a warehouse as there will be no 

water usage for manufacturing. The estimated number of 

employees is expected to be a [maximum] of 150; 150 x 

5GPD = 750 GPD.

Id. at 1344a.

Under the Transportation section, Applicant responded to the comment 

regarding the TIS as follows:

TPD [Traffic Planning and Design, Inc., which prepared 

the TIS] continues to maintain that the definition provided 

by ITE for “Warehousing” (Land Use Code 150) more 

closely matches the allowable uses identified in the 

Township’s RCO [D]istrict, and therefore, is more 

appropriate for usage as trip generation in the [] (TIS). The 

ITE definition for Light Industrial (Land Use Code 110) 

indicates that the emphasis is on activity other than 

manufacturing, such as printing, material testing, or data 

processing equipment. By contrast, the RCO [District]

specifically allows wholesaling, processing, packaging 

and storage which are traditionally associated with 

warehousing (and more closely matches the ITE 

warehousing definition). 

However, based on conversations with the Township 

Engineer (and to provide a highly conservative estimate 

for trip generation), TPD has agreed to modify the TIS to 

utilize the ITE’s Land Use Code 110 (Light Industrial) for 

trip generation and analysis. TPD is in the process of 

updating the TIS to specifically reflect/analyze ITE’s 

Light Industrial data, and an updated TIS will be provided 

under separate cover. It is anticipated that the change will 

increase the automobile trip generation but decrease the 

truck trip generation. It is also anticipated that the change 

will have no effect on the conclusions reached by the TIS.

R.R. at 1347a. 
10

The Township Engineer responded to the third revised SALDO 

Application in a letter dated April 27, 2021. R.R. at 1631a-34a. Under the 

Subdivision section, the Township Engineer again responded that the planning 

module for sewer usage must be approved by the Township and DEP and must 

provide a DEP code number referencing the approved planning module, and 

requested “additional justification” for the “sewer flows provided on the mailer.” Id. 

at 1631a. Under the Transportation Improvements section, the Township Engineer 

noted that “[t]he existing [TIS] references a warehouse, and the plan is referencing 

industrial use. [A]pplicant has indicated that [he] will submit a revised [TIS] 

regarding the warehouse but has not completed [it] as of the date of this review.” Id. 

at 1633a. At its April 27, 2021 public meeting, the Board considered and denied 

Applicant’s offer of an extension, denied the SALDO Application, and authorized 

the Township solicitor to send a formal denial letter to Applicant. Id. at 1638a-39a. 

On April 28, 2021, the Township sent a formal denial of the SALDO 

Application to Applicant, comprised of findings and reasons for the denial, and 

incorporating numerous exhibits attached to the decision. R.R. at 1644a-1854a. The 

Board’s explanation for rejecting Applicant’s extension request was as follows: 

[A]pplicant requested a time extension to allow 

submission of revised plans. The Board [] did not act on 

the request because it is deemed moot by the plan denial. 

The plans have been pending for over seven months so 

[A]pplicant has had adequate time to review and correct 

any deficiencies. Moreover, the Board believes that 

several of the deficiencies cannot be corrected by 

[A]pplicant and, therefore, additional time will not result 

in compliance. [A]pplicant’s landscape architect has also 

stated in correspondence that [A]pplicant will not comply 

with certain requirements regarding Culhane Road and the 

intersection of Culhane Road and Sipe Road because those 

improvements are considered off-site by [A]pplicant. 
11

Id. at 1644a. 

Regarding Applicant’s third revised SALDO Application, the Board 

stated as follows: 

The Board notes [A]pplicant submitted a set of revised 

plans now labeled “preliminary” on April 21, 2021, just 

six days ahead of the Board [] meeting. Section 306.06 of 

the SALDO [Ordinance] provides that “[p]reliminary 

plans must be submitted not less than ten (10) calendar 

days prior to the regular Board [] meeting at which 

consideration is desired, in order to be placed on the 

agenda.” Despite the re-submission being less than ten 

(10) days prior to the Board meeting, the Township has 

reviewed and considered the plan in good faith. A revised 

[Township E]ngineer comment letter was provided to 

[A]pplicant ahead of the Board meeting on April 27, 2021. 

Because the revised plan does not correct numerous of the 

technical deficiencies that existed in prior plans, those 

deficiencies continue to exist on the re-submitted plans, 

and because [A]pplicant has stated in [his] correspondence 

that [he] will not address certain of the key traffic 

deficiencies, the Board has determined that it made a good 

faith effort to consider the re-submitted plans and does not 

believe additional time will result in plans that comply 

fully with the SALDO [Ordinance]. 

R.R. at 1644a-45a. 

In the Zoning section, the Township denied the SALDO Application 

for its failure to specify the type of light industrial use as required by Section 

209.2.E.1.b, stating that “[w]arehousing and wholesale trade is not a permitted use 

in the [RCO District].” R.R. at 1645a. The Board concluded as follows: 

The [P]roperty is located in the RCO District. The plans 

provide for “Industrial Use” as the proposed use of the 

building to be constructed on four parcels merged into a 

single 33.04-acre site along Culhane Road (the “property” 

or “site”). The plan lacks any specifics regarding the 

proposed industrial use, but [A]pplicant has made multiple 
12

prior attempts to develop the property as a warehouse use 

and the Board has legitimate concerns [that] this is merely 

a new attempt at the same goal of warehousing.

[A]pplicant originally sought a rezoning of the [P]roperty 

to the Industrial (I) district. The York County Planning 

Commission by letter dated October 18, 2018, 

recommended not to approve the rezoning for multiple 

reasons, including that it was not consistent with the future 

land use map of the Township’s comprehensive plan. The 

York County Planning Commission letter is attached 

hereto and incorporated into this decision. The Board [] 

conducted a hearing on the proposed rezoning on 

November 13, 2018. Several residents appeared at the 

public hearing to testify against the rezoning. The Board 

[] later during the regular Township meeting unanimously 

denied the rezoning request. The minutes of the 

November 13, 2018 meeting are attached and incorporated 

into this decision as Exhibit “C”. 

[A]pplicant next sought a text amendment to the [Z]oning 

[O]rdinance that would have permitted a warehouse of 

limited size in the RCO [D]istrict if certain road conditions 

were met to ensure adequate ingress and egress to 

Interstate 83. The proposed text amendment resulted from 

meetings with Township staff. Township staff provided 

comments by letter dated January 8, 2021 from [] the 

Township [] [E]ngineer, and by letter dated January 8, 

2021, from [] the Township solicitors. The comment 

letters are attached hereto and incorporated into this 

decision. [A]pplicant appeared before the [] Township 

Planning Commission on January 11, 2021, where the 

Planning [C]ommission voted 5-1 to approve the text 

amendment subject to four conditions as outlined in the 

minutes of the meeting. A copy of the minutes is attached 

hereto and incorporated into this decision. [A]pplicant 

appeared before the Board [] on January 26, 2021, to 

request the Board schedule a public hearing to consider the 

text amendment. Again, several residents appeared to 

testify in opposition to the proposed text amendment and 

proposed warehouse. The Board [] then voted 4-1 to deny 

the text amendment. The minutes from the January 26, 
13

2021 meeting are attached hereto and incorporated into 

this decision as Exhibit “D”. 

Prior versions of the plan provided for a warehouse use in 

an identical or nearly identical footprint. The sewer 

planning calculations and [TIS] both still utilize 

assumptions for a warehouse use. The Board [] believes 

this is no more than a way to back-door a warehouse[-]

type facility into the RCO [D]istrict where the use is not 

permitted and has been repeatedly denied for the site twice 

in the past. The Board [] after reviewing the plan 

determines the plan shows a warehouse which is not a 

permitted use in the RCO [D]istrict and the plan is 

therefore denied for this reason. 

R.R. at 1645a-46a. 

Under the Subdivision section, the Board noted the deficiency in the 

sewer planning module, as follows: 

Planning module or exemption must be approved by the 

Township and DEP (SALDO 611.01). Provide []DEP 

code number referencing the approved planning module 

(SALDO 403.1.f). Provide sewage calculations for review 

to verify the proposed sewage flows. Additional 

justification must be provided for the sewer flows 

provided on the mailer. Provide reference to planning 

module approval [number] on the cover sheet. The 

proposed sewage calculations are for a warehouse use 

which is not a permitted use under the [Z]oning 

[O]rdinance. Therefore, [A]pplicant has failed to provide 

adequate sewage calculations. The plan is denied for this 

reason.

R.R. at 1647a. 

Under the Transportation section, the Board provided several reasons 

for its denial based on the TIS, including the following: 

Further, the existing [TIS] utilizes ITE Land Use Code 150 

(warehouse use), and [A]pplicant has voluntarily changed 

the plan to reference an Industrial Use. [A]pplicant has 

indicated [he] will submit a revised [TIS] regarding the 
14

warehouse, but ha[s] failed to do so, which is a further 

reason for denial of the plan.

R.R. at 1651a. 

Applicant appealed the Board’s April 28, 2021 decision to the trial 

court. On March 2, 2023, the trial court heard arguments from the parties and took 

no additional evidence. Trial Ct. Op. 6/19/23 at 2. The trial court denied Applicant’s 

appeal and affirmed the Board’s decision in a 25-page opinion. The trial court 

addressed the following issues: whether the Board’s denial of the SALDO 

Application lacked legal justification and whether the Board acted in bad faith when 

it denied the SALDO Application. Id. at 17. The trial court concluded that the Board 

did not abuse its discretion in denying the SALDO Application, and that the Board 

did not act in bad faith. The trial court focused, as did the parties, on Applicant’s 

proposed use of the Property and concluded that substantial evidence supported the 

Board’s finding that Applicant proposed a warehousing use that was not permitted 

in the RCO District under Section 209.2.E.1.b of the Zoning Ordinance. Id. at 20. 

The trial court opined as follows: 

Here, the [Board] determined that [A]pplicant’s plan did 

not comply with all objective provisions of the applicable 

[Z]oning [O]rdinance, not seeking a permitted use, for 

instance. The [Board] issued a decision that specified the 

defects, described the requirements that had not been met, 

cited the relevant provisions of the [SALDO Ordinance] 

relied upon, and offered reasons for rejecting 

[A]pplicant’s plan that were not vague. Thus, because the 

decision complied with [Section] 508(2) of the MPC,[6]

even if one of the [Board’s 24] cited reasons is supported 

by substantial evidence, the denial will stand. It appears 

to this court that at least one of the [Board’s 24] cited 

6 Section 508(2) of the MPC, 53 P.S. §10508(2), requires that the Board’s denial specify 

the defects, describe the requirements that were not met, and cite the provisions of the statute or 

ordinance upon which it relied. 
15

reasons is supported by substantial evidence. It appears 

that there was substantial evidence for the [Board] to find 

that [A]pplicant has not proposed a use that is permitted in 

the RCO [D]istrict. Based on [A]pplicant’s lack of details 

regarding the light industrial use claimed, the calculations 

flagged that were consistent with warehousing, the text 

amendment submitted to permit the warehousing use in 

the RCO [D]istrict, after having attempted to have the 

[P]roperty rezoned to permit warehousing, the [Board] 

determined that one of the reasons that [A]pplicant’s plan 

should be denied was that [A]pplicant’s use was not 

permitted.

Id. 

The trial court acknowledged and rejected Applicant’s argument that 

because the terms “storage” and “wholesaling” appear in Section 209.2.E.1.b of the 

Zoning Ordinance, that a warehousing use should be permitted in the RCO District, 

even though the term “warehouse” does not appear in that section. The trial court 

noted that “warehouse” is defined in Section 114.C.263 of the Zoning Ordinance as 

“[a]n industrial use of a building or group of buildings primarily used for indoor 

storage, transfer and distribution of products and materials, but not including retail 

uses or heavy equipment washing, servicing and/or repair, unless such uses are 

specifically permitted in that zoning district.” Trial Ct. Op. 6/19/23 at 7; R.R. at 

2114a. “Storage” is defined in Section 114.C.243 of the Zoning Ordinance as “[a] 

function involving the depositing of materials, goods, products or combination 

thereof, for safekeeping.” Trial Ct. Op. 6/19/23 at 7; R.R. at 2111a. “Wholesale” is 

defined in Section 114.C.267 of the Zoning Ordinance as “[a]ny distribution 

procedure involving persons who, in the normal course of business, do not engage 

in sales to the general public.” Trial Ct. Op. 6/19/23 at 7; R.R. at 2114a. Further, 

the trial court noted that although “warehousing and wholesale trade establishments” 

are a permitted use in the General Industrial zoning district (I District) under Section 
16

211.2 of the Zoning Ordinance, subject to the conditions outlined in Section 525.61 

of the Zoning Ordinance, this use is not permitted in the RCO District. The trial 

court opined that 

[i]t is not clear why [A]pplicant embarked on an effort to 

equate the warehousing use permitted in the [I D]istrict 

with the RCO [D]istrict, parsing definitions from different 

parts of the [Z]oning [O]rdinance, asserting vagueness, 

and drafting a text amendment to expressly permit 

warehousing if his intended use was, indeed, light 

industrial.

* * * *

Yet, looking to see what’s permitted in other districts and 

jumbling definitions together appears to be exactly what 

[A]pplicant did concern himself with, by looking at a 

different district where warehousing is permitted and 

comparing it to the RCO [D]istrict where warehousing is 

not permitted and by approaching the Township with the 

argument that warehousing is essentially already allowed 

in the RCO [D]istrict. [A]pplicant’s pursuit of a text 

amendment to expressly allow a warehousing use in the 

RCO [D]istrict only contributed to the [Board’s] belief 

that [A]pplicant was actually proposing a warehousing 

use, while claiming to propose a light industrial use.

Trial Ct. Op. 6/19/23 at 10. The trial court further opined that Applicant’s failure to 

specifically state the nature of his proposed light industrial use, and his continued 

use of warehousing codes in the sewer planning calculations and TIS, supported the 

Board’s determination that Applicant was proposing a warehousing use, and not a 

light industrial use. Id. at 4-5, 11-16. 

As to the Township’s bad faith, the trial court stated that the Township 

worked with Applicant over the course of seven months, reviewed and commented 

on four versions of the SALDO Application, and determined that substantive 

deficiencies remained as of April 2021, when Applicant submitted his final revised 
17

SALDO Application. Trial Ct. Op. 6/19/23 at 24. The trial court agreed with the 

Township, that under Kassouf v. Township of Scott, 883 A.2d 463 (Pa. 2005), “good 

faith does not require providing an applicant with infinite opportunities to remedy 

defects.” Id. at 23. Accordingly, the trial court “does not find that the [Board] acted 

in bad faith in denying [A]pplicant’s latest revised plan.” Id. at 24. Applicant timely 

appealed the trial court’s order to this Court.

On appeal,7 as to the first issue, Applicant argues that the Board lacked 

legal justification to deny the SALDO Application that proposed to develop the 

Property with a light industrial use, and that its reasons for denial are not supported 

by substantial evidence. Importantly, although Applicant continues to reference 

definitions in the Zoning Ordinance to support its contention, he does not argue that 

the Board committed legal error in interpreting the Zoning Ordinance, but, rather, 

that the Board abused its discretion by denying the SALDO Application for reasons 

not supported by substantial evidence. Applicant argues that the Board erred when 

it improperly ignored Applicant’s explanation that the proposed use would be 

limited to the permitted uses in the RCO District, without identifying the specific 

use. Applicant argues that the Board’s conclusion that Applicant’s intended use was 

warehousing was based on a suspicion of an impermissible use, rather than relying 

on evidence in the record. Applicant also argues that the remaining reasons asserted 

7 When, as here, the trial court took no additional evidence, this Court’s review is limited 

to determining whether the Board abused its discretion or erred as a matter of law. Allegheny 

Tower Associates, LLC v. City of Scranton Zoning Hearing Board, 152 A.3d 1118, 1121 n.3 (Pa. 

Cmwlth. 2017). A board abuses its discretion if its findings are not supported by substantial 

evidence in the record. Callowhill Center Associates, LLC v. Zoning Board of Adjustment, 2 A.3d 

802, 806 n.3 (Pa. Cmwlth. 2010). Substantial evidence is that relevant evidence that a reasonable 

mind might accept as adequate to support a conclusion. Id. (citations omitted). On the issue of 

whether the Township acted in bad faith, this Court’s review is limited to determining whether the 

trial court abused its discretion or erred as a matter of law. 1050 Ashbourne Associates, LLC v. 

Cheltenham Township Board of Commissioners, 167 A.3d 828, 837 (Pa. Cmwlth. 2017). 
18

by the Township do not justify denial of the SALDO Application. The Township 

responds that substantial evidence supports its denial, based on Applicant’s failure 

to identify a specific permitted use, his repeated efforts to amend the Zoning 

Ordinance, and his continued reference to “warehousing” in the sewer flow and TIS 

calculations. 

The following authorities will assist in our analysis of this issue. We 

note that when a plan complies with all “objective provisions” of the applicable 

ordinance or applicable regulation, the plan must be approved. However, denial of 

a plan may stand if validly supported by even one reason. Herr v. Lancaster County 

Planning Commission, 625 A.2d 164, 168-69 (Pa. Cmwlth. 1993)(citations omitted). 

We further note that the party seeking approval of a land development plan bears the 

burden to show it is entitled to approval, see Ball v. Montgomery Township Board 

of Supervisors, 598 A.2d 633, 637 (Pa. Cmwlth. 1991), and that the Township is 

entitled to deference in interpreting its ordinances. See Kohl v. New Sewickley 

Township Zoning Hearing Board, 108 A.3d 961, 968 (Pa. Cmwlth. 2015).

In Delchester Developers, L.P. v. London Grove Township Board of 

Supervisors, 161 A.3d 1106 (Pa. Cmwlth. 2017), our Court considered whether 

substantial evidence supported the board’s denial of the applicant’s SALDO 

application. Although the Court agreed that mere technical deficiencies that could 

be easily cured did not support the denial, “the presence of inadequate independent 

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

identified by the board. Id. at 1113. The Court upheld the board’s denial because it 

was “clear that [the applicant’s plan] does not comply with substantive and objective 

requirements of the applicable ordinances.” Id. “Where a preliminary plan contains 

clear substantive issues of noncompliance with a township’s SALDO or other 
19

applicable ordinances, the governing body is within its discretion to deny the plan.” 

Id. 

In addition to the Zoning Ordinance provisions already discussed, we 

note that “use” is defined in Section 114.C.260 of the Zoning Ordinance as 

[t]he purpose, activity, occupation, business or operation 

for which land or a structure is designed, arranged, 

intended, occupied or maintained. Uses specifically 

include but are not limited to the following: activity 

within a structure, activity outside of a structure, any 

structure, recreational vehicle storage or parking of 

commercial vehicles on a lot.

R.R. at 2113a. 

Here, we conclude that Applicant’s SALDO Application failed to 

comply with Section 209.2.E.1.b of the Zoning Ordinance because the proposed 

warehousing use is not permitted in the RCO District. It is the function of the Board 

to determine whether the evidence satisfies the criteria for denying the SALDO 

Application. “The [board], as fact[]finder is the sole judge of credibility.” Omatick 

v. Cecil Township Zoning Hearing Board, 286 A.3d 413, 430 (Pa. Cmwlth. 2022) 

(citations omitted). The board has exclusive authority to determine matters of 

witness credibility and weight. Id. (citations omitted). Here, the Board found that 

Applicant’s insistence that his proposed use would be limited to a permitted light 

industrial use was not credible based on his inability or refusal to identify a specific 

light industrial use, repeated attempts to amend the Zoning Ordinance to permit 

warehousing in the RCO District, and use of warehousing land use codes to calculate 

sewer flow and traffic needs associated with the project. Applicant does not dispute 

these facts but argues that the Board erred by failing to credit Applicant’s statements 

that he would limit the project to a permitted use, even though he failed to specify 

the permitted use. Applicant further contends that the Board misinterpreted his 
20

efforts to amend the Zoning Ordinance and misinterpreted the use of warehousing 

land use codes in his sewer and traffic calculations. However, the Board has 

exclusive authority to determine matters of witness credibility and weight. Omatick, 

286 A.3d at 430. Further, in reviewing decisions of the board, this Court should not 

act as a “super zoning board of adjustment [or board] and impose its own preference 

on local municipalities.” Kadi v. Zoning Hearing Board of the Township of Lynn, 

457 A.2d 1042, 1044 (Pa. Cmwlth. 1983). Because we affirm the Board’s denial 

based on Applicant’s failure to comply with the objective requirements of Section 

209.2.E.1.b of the Zoning Ordinance, and with Section 611.01 of the SALDO 

Ordinance, we need not address Applicant’s other assertions of error in the Board’s 

denial, or the effect of the trial court’s failure to address the other reasons. Denial 

of a plan may stand if validly supported by even one reason. Herr, 625 A.2d at 168-

69. 

As to the second issue, Applicant argues that the trial court committed 

an error of law when it concluded that the Board acted in good faith in denying the 

SALDO Application. Applicant argues that the Township engaged in multiple 

actions to thwart Applicant’s ability to meet the legal requirements under the 

SALDO Ordinance, including denying the SALDO Application based on the 

Township Engineer’s comments that were provided to Applicant on the day of the 

Board’s meeting. The Township responds that it went to great lengths to review and 

respond to each revised SALDO Application over a seven-month period, including 

a review of the third revised SALDO Application submitted just six days before the 

Board’s scheduled meeting, even though Section 306.06 of the SALDO Ordinance 

requires preliminary plans to be submitted not less than 10 days before the regular 

Board meeting to be placed on the agenda. The Township further responds that 
21

Applicant refused to correct certain deficiencies in each revision, and that Applicant 

is not entitled to infinite opportunities to revise his plan. 

To determine whether the trial court erred when it concluded that the 

Board did not act in bad faith, we examine relevant case law that discusses a 

municipality’s duty of good faith. This Court has established 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 the applicant, and providing the 

applicant a reasonable opportunity to respond to objections or to modify plans where 

there has been a misunderstanding or difference of opinion.” Delchester, 161 A.3d 

at 1115-16 (quoting Raum v. Board of Supervisors of Tredyffrin Township, 370 A.2d 

777, 798 (Pa. Cmwlth. 1977)). In Delchester, 161 A.3d at 1116, this Court reviewed 

case law including Raum, Highway Materials, Inc. v. Board of Supervisors of 

Whitemarsh Township, 974 A.2d 539 (Pa. Cmwlth. 2009), Abarbanel v. Solebury 

Township, 572 A.2d 862 (Pa. Cmwlth. 1990), and Herr, to further outline what 

constitutes good faith and bad faith in the review process. In Highway Materials, 

974 A.2d at 544-55, this Court held that when a municipality refuses to advise an 

applicant on how to cure plan deficiencies, and to advise an applicant on its 

interpretations of its ordinances, the municipality will be found to have acted in bad 

faith. In Abarbanel, 572 A.2d at 865, this Court held that where a municipality 

reviewed plans in good faith, highlighted the plans’ deficiencies, and gave the 

applicant an opportunity to cure those deficiencies, the municipality did not act in 

bad faith. Further, in Abarbanel, this Court held that an applicant has a reciprocal 

good faith duty to submit revised plans in a reasonable and timely manner so that 

the municipality can comply with its duties under Section 508 of the MPC. See id. 
22

at 864. Finally, in Delchester, 161 A.3d at 1116, this Court held that the municipality 

acted in good faith by granting numerous extensions at the applicant’s request, and 

by granting waivers, although the applicant failed to correct issues of noncompliance 

with relevant ordinances during the four-year review process.

In addition, in Kassouf, 883 A.2d 463, our Supreme Court considered 

whether the township acted in bad faith in reviewing the applicant’s SALDO plan. 

The Court determined the applicant had been given “ample, multiple opportunities 

to correct the defects in his plan” in time to meet the township’s deadline, “but failed 

to do so.” Id. at 476. The Court opined that 

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 [SALDO] 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. [The 

applicant’s] plan raised multiple issues related to 

noncompliance with ordinances, and [the applicant] was 

made aware of those defects on a number of occasions 

between July and October of 2000. That he failed to 

adequately address them all prior to [the township’s] 

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.

After careful review of the record, we conclude that the trial court did 

not err in determining that the Board did not act in bad faith in denying Applicant’s 

SALDO Application. The trial court reviewed the record and determined that the 

Township reviewed each revised SALDO Application and provided detailed 

comments on each SALDO Application so that Applicant could correct the 

deficiencies, even for the SALDO Application submitted only six days before the 
23

Board meeting. We agree with the trial court that the facts presented here are 

analogous to those presented in Kassouf, 833 A.2d at 476, and that Applicant is not 

entitled to “infinite opportunities to address and remedy the defects in a [SALDO] 

plan.” Here, Applicant failed to adequately address the proposed use for the Property 

in each SALDO Application and failed to file a revised TIS with his third revised 

SALDO Application. We discern no error in the trial court’s conclusion that it “does 

not find the [Board] acted in bad faith in denying [A]pplicant’s latest revised plan.” 

Trial Ct. Op. 6/19/23 at 24. 

Accordingly, we affirm the trial court’s order. 

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chris Haring, :

:

Appellant :

:

v. : No. 731 C.D. 2023

: 

Newberry Township :

O R D E R

AND NOW, this 15th day of July, 2024, the order of the York County 

Court of Common Pleas dated June 16, 2023, is AFFIRMED. 

__________________________________

MICHAEL H. WOJCIK, Judge