IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Appeal of Dogwood Drive, :

L.P. from the April 17, 2020 Decision :

of the Lower Makefield Township : No. 373 C.D. 2021

Board of Supervisors : Argued: November 18, 2021

:

Appeal of: Dogwood Drive, L.P. :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE CEISLER FILED: April 29, 2022

Appellant Dogwood Drive, L.P. (Dogwood) appeals from the Court of 

Common Pleas of Bucks County’s (Common Pleas) March 24, 2021 order, which

affirmed Appellee Lower Makefield Township (Township) Board of Supervisors’ 

(Board) April 17, 2020 denial of Dogwood’s final subdivision and land development 

plan application (Final Application) for a residentially zoned, 14.7377-acre parcel 

of land in the Township (Property). This denial was prompted by Dogwood’s refusal 

to comply with the Township’s subdivision and land development ordinance 

(SALDO) by either agreeing to plant a large number of trees to replace those that 

would be removed as a result of the Property’s development or, in lieu of replacing 

the removed trees, deposit hundreds of thousands of dollars into the Township’s 

replacement tree capital account. After thorough review, we vacate Common Pleas’ 

order and remand with instructions that it dismiss Dogwood’s appeal to that court

for lack of jurisdiction, due to the untimeliness of that appeal.
2

I. Background

On May 18, 2017, Dogwood submitted a revised preliminary subdivision and 

land development plan application (Revised Preliminary Application) to the 

Township, through which it detailed its proposal for building five single-family 

homes on the Property. See Reproduced Record (R.R.) at 82a-111a. The Revised 

Preliminary Application indicated that Dogwood intended to remove 277 existing 

trees from the Property and would replace 66 of those trees with new ones on-site. 

Id. at 111a. The Board considered the Revised Preliminary Application at a public 

hearing on July 19, 2017, and then granted conditional approval on September 19, 

2017;1 of relevance to this appeal, one of these conditions was that the question of 

whether Dogwood’s development proposal complied with the Township’s tree 

protection standards ordinance (Protection Ordinance) would be deferred until 

Dogwood submitted its final subdivision and land development plan (Final Plan) for 

review. Id. at 19a-21a. 

This Protection Ordinance provides, in relevant part:

(1) No tree shown to remain on an approved subdivision 

or land development plan shall be removed without prior 

Township approval unless it is the cause of immediate 

danger to life or property.

(2) No tree shown to remain on an approved subdivision 

or land development plan other than that which is the 

cause of immediate danger to life or property shall be 

removed without Township approval based upon a 

determination that any of the following considerations 

exist:

(a) Affliction by a disease which threatens injury or 

destruction of other trees.

1 The letter informing Dogwood of this approval was not sent until December 11, 2017. 

R.R. at 19a. 
3

(b) Federal, state or Township laws, ordinances or 

regulations superseding this chapter require 

removal.

(c) The tree has been substantially damaged or has 

died.

(3) In the event that a tree over three-inches caliper which 

is shown on an approved plan to remain and which must 

be removed in accordance with Subsection H(1) or (2) 

above, such tree shall be replaced with a tree a minimum 

of three inches in caliper of the same species or as 

approved by the Township at a rate of one new tree for 

every tree removed.

(4) Replacement sizes; alternatives.

(a) Trees of 10 inches caliper or more which are 

proposed to be removed during any stage of 

development, grading and/or construction within a 

subdivision or land development shall be replaced 

with an approved tree or trees of the type provided 

for in this chapter. Said replacement trees shall meet 

the following size limitations:

[1] Trees with a diameter of 10 inches or 

more but less than 18 inches which are

removed shall each be replaced with no less 

than four trees measuring 2 1/2 to three 

inches in caliper.

[2] Trees with a diameter of 18 inches or 

more but less than 30 inches which are 

removed shall each be replaced with no less 

than seven trees measuring 2 1/2 to three 

inches in caliper. Trees with a diameter of 30 

inches or more which are removed shall each 

be replaced with no less than 10 trees 

measuring 2 1/2 to three inches in caliper.

[3] Trees with a diameter of 30 inches or 

more which are removed shall each be 

replaced with no less than 10 trees measuring 

2 1/2 to three inches in caliper.

SALDO § 178-85.H.(1)-(4)(a)[3]. The Protection Ordinance also allows an 

applicant, at its discretion, to make a payment into the Township’s replacement tree 
4

capital account (Tree Account) in lieu of planting replacement trees on-site; such 

funds are earmarked by the Township for funding the planting of trees elsewhere in 

the municipality. See id. at § 178-85.H.(4)(d).2

Dogwood subsequently submitted its Final Application to the Township on 

November 13, 2017. R.R. at 31a-55a. Therein, it stated that it intended to remove 

279 trees from the Property in furtherance of its desired development and would 

plant 66 new trees on-site. Id. at 52a. The Board then convened a public hearing on 

April 15, 2020, at which it considered the Final Application. During the course of 

this hearing, Dogwood’s counsel stated that it would not agree to comply with the 

Protection Ordinance by either planting the necessary number of additional 

replacement trees on-site, which the Township had determined was 1,190, or by 

paying the necessary amount in lieu of doing so into the Tree Account, which the 

2 This subsection states, in relevant part: 

[1] A replacement tree capital account (“tree bank”) will be 

established by the Township where fees in lieu of on-site 

improvement shall be deposited. These funds shall be used for the 

purpose of planting replacement trees at approved locations in the 

Township.

[2] The contribution by the developer to the tree bank will be $315 

per replacement tree. Three years after adoption of this subsection, 

and every three years thereafter, the contribution per replacement 

tree will be adjusted to reflect the compounded annual changes in 

the All Urban Consumers Price Index (CPI-U) as reported by the 

U.S. Bureau of Labor Statistics. Any increase in the amount of the 

tree bank contribution shall be memorialized by the approval of a 

resolution by the Board . . . . 

[3] The contribution to the tree bank will be due at the time of the 

final execution of the development agreement with the Township.

SALDO § 178-85.H.(4)(d)[1]-[3].
5

Township had calculated as $381,780.3Id. at 2a, 5a-9a. As a consequence of this 

refusal, the Board unanimously denied Dogwood’s Final Application. Id. at 11a. The 

Township’s solicitor formally notified Dogwood of this denial through an emailed 

letter on April 17, 2020. See Dogwood’s Br., App. A.

Dogwood responded by appealing the Board’s decision to Common Pleas on 

June 3, 2020. Common Pleas took no additional evidence and, on March 24, 2021, 

affirmed the Board in full. See id., App. B. Dogwood’s appeal to our Court of 

Common Pleas’ order then followed.

II. Discussion

Under normal circumstances, we would now review and analyze Dogwood’s 

substantive appellate arguments. However, we are without jurisdiction to do so, due 

to Dogwood’s failure to appeal the Board’s denial of its Final Application to 

Common Pleas in a timely way. Pursuant to Section 752 of the Local Agency Law, 

“[a]ny person aggrieved by an adjudication of a local agency who has a direct 

interest in such adjudication shall have the right to appeal therefrom to the court 

vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to 

judiciary and judicial procedure).” 2 Pa. C.S. § 752. Accordingly, “an appeal from a 

tribunal or other government unit[, e.g., a local agency,] to a court . . . must be 

commenced within 30 days after the entry of the order from which the appeal is 

3 Both the replacement tree number and the required payment figure reflected the Township 

Environmental Advisory Council’s (EAC) determination that, per the terms of the Protection

Ordinance, Dogwood was required to replace 1,278 trees in total, as well as the EAC’s 

recommendation that Dogwood should receive credit for 88 replacement trees that were going to 

be planted in the proposed development (66 on-site and 22 at various points along the 

development’s streets). See R.R. at 2a-3a, 5a, 16a. Neither of these calculations, however, reflected 

the EAC’s suggestion that the figures be reduced to reflect the amount of sickly ash trees that were 

on the Property, the precise number of which the EAC suggested could be verified by the Township 

engineer’s arborist. Id. at 16a. 
6

taken, in the case of an interlocutory or final order.” 42 Pa. C.S. § 5571(b).

4 The 

Board is undoubtedly a local agency and challenges to its decisions are thus 

governed by the Local Agency Law. See Consumer Inv. Fund v. Supervisors of 

Smithfield Twp., 532 A.2d 543, 546 (Pa. Cmwlth. 1987). Therefore, as the Board 

issued its formal denial via email on April 17, 2020, Dogwood needed to comply 

with the Local Agency Law’s appeal requirements in order to preserve its ability to 

challenge that denial. Given this, Dogwood had until May 18, 2020, to appeal that

denial to Common Pleas and stood to forfeit its appellate rights in the event it failed 

to do so.

5 As Dogwood did not appeal the Board’s denial to Common Pleas until 

June 3, 2020, that appeal was clearly untimely and should have been quashed by the 

lower tribunal on its own initiative, due to lack of jurisdiction. See City of 

Philadelphia v. Frempong, 865 A.2d 314, 317 (Pa. Cmwlth. 2005) (internal citation 

4 There are a handful of exceptions to this rule that are enumerated in 42 Pa. C.S. § 5571(c) 

and 42 Pa. C.S. § 5571.1, none of which are applicable to this matter.

5 As the 30th day of the appeal window fell on May 17, 2020, a Sunday, Dogwood had 

until the end of the following day to file its appeal. See 1 Pa. C.S. § 1908. Furthermore, though 

May 18, 2020, was within the time period affected by the then-active statewide COVID-19 judicial 

emergency, there were no concomitant orders relieving Dogwood of its obligation to appeal the 

Board’s denial by that date. See In Re: General Statewide Judicial Emergency, Emergency Order 

of Statewide Judicial Administration Applicable from May 1, 2020, Through June 1, 2020 (Pa.,

Nos. 531 and 532 Jud. Admin. Docket 2020, filed Apr. 28, 2020), at 5, available at 

https://www.pacourts.us/Storage/media/pdfs/20210510/223934-file-9158.pdf (last order issued by 

Supreme Court during COVID-19 judicial emergency that impacted filing deadlines, which 

suspended those deadlines through May 8, 2020); In Re: Extension of Judicial Emergency for All 

Courts of the Seventh Judicial District Due to Exigent Circumstances Created by COVID-19, 

Emergency Order No. 2020-13.1 (Pa. Ct. Common Pleas, Bucks Cnty., No. 43 MM 2020, filed 

Apr. 30, 2020), at 1, available at https://www.buckscounty.gov/DocumentCenter/View/2514/

Emergency-Order-131-PDF (last order issued by Common Pleas during COVID-19 judicial 

emergency that affected filing deadlines, which suspended those deadlines through May 8, 2020); 

see also In Re: General Statewide Judicial Emergency, Cessation of Statewide Judicial Emergency

After June 1, 2020 (Pa., Nos. 531 and 532 Jud. Admin. Docket 2020, filed May 27, 2020), at 5, 

available at https://www.pacourts.us/Storage/media/pdfs/20210510/224144-file-9376.pdf

(Supreme Court order ending statewide COVID-19 judicial emergency effective June 1, 2020).
7

omitted) (“The timeliness of an appeal is jurisdictional, and the issue of timeliness 

may be raised by any party, even by the Court on its own motion, at any stage of the 

proceedings. . . . An untimely appeal must be quashed absent a showing of fraud or 

a breakdown in the court’s operation.”).

III. Conclusion

Consequently, we vacate Common Pleas’ March 24, 2021 order and remand 

this matter to that court, with instructions that it dismiss Dogwood’s appeal to 

Common Pleas for lack of jurisdiction, due to the untimeliness of that appeal.

__________________________________

ELLEN CEISLER, Judge

Judge Covey did not participate in the decision of this case. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Appeal of Dogwood Drive, :

L.P. from the April 17, 2020 Decision :

of the Lower Makefield Township : No. 373 C.D. 2021

Board of Supervisors :

:

Appeal of: Dogwood Drive, L.P. :

O R D E R

AND NOW, this 29th day of April, 2022, it is hereby ORDERED that the 

Court of Common Pleas of Bucks County’s (Common Pleas) March 24, 2021 order 

is VACATED. It is FURTHER ORDERED that this matter is REMANDED to 

Common Pleas, with instructions that it dismiss Appellant Dogwood Drive, L.P.’s 

June 3, 2020 appeal to Common Pleas, which pertained to Appellee Lower 

Makefield Township Board of Supervisors’ April 17, 2020 denial of Dogwood’s 

final subdivision and land development plan application, due to the untimeliness of 

that appeal and Common Pleas’ consequent lack of jurisdiction.

Jurisdiction relinquished.

__________________________________

ELLEN CEISLER, Judge