IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hillandale Gettysburg, LP :

:

v. :

:

Board of Supervisors of :

Codorus Township, : No. 1398 C.D. 201 6

Appellant : Argued : March 7

, 201 7

BEFORE: HONORABLE P ATRICIA A

. McCULLOUGH

, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COSGROVE FILED: June 13, 2017

The Board of Supervisors of Codorus Township ( Township ) appeals

from a July 20, 2016 order of the Court of Common Pleas of York County (trial

court), which reversed its denial of a land development plan filed by Hillandale

Gettysburg, LP ( Appellee )

. Upon revi ew, we vacate and remand.

Appellee is the owner of real property in Codorus Township upon

which it operates a Concentrated Animal Feeding Operation (CAFO). On June 19,

2015, Appellee filed a land development plan (Plan) with the Township for the

purpose of constructing and operating a poultry processing facility as part of the

existing CAFO. The plan was developed by TeamAg, Inc. (TeamAg). Appellee

received letters from three entities

, the York County Planning Commission, the

York Count y Conservation District, and the Township Engineer

, dated July 13,2

2015, July 10, 2015, and July 27, 2015, respectively, all of which advised Appellee

of deficiencies in its plan.

At an August 6, 2015 Township meeting, three ordinances were

adopted which affect ed future development of CAFOs. Neither TeamAg nor

Appellee attended th is meeting. On August 31, 2015, TeamAg and Appellee

requested a 120

- day extension on consideration of the Plan. At a Township

meeting on September 9, 2015, the Township denied both the extension request

and the Plan. TeamAg and Appellee were not present at this meeting and were

unaware of the denials

. By letter dated September 10, 2015, Appellee responded

to the July 27, 2015 letter from the Township engineer and addressed th e

deficiencies of the Plan. TeamAg received no response to the September 10, 2015

letter, but was notified by Appellant in a letter dated September 16, 2015 that the

extension request and the Plan were denied at the September 9

, 2015 Township

meeting. A more detailed explanation of the base s for the denials was set forth in a

September 23, 2015 letter sent to TeamAg and Appellee

.

Appellee appealed to the trial court

, arguing the Township acted in

bad faith by not granting the request for extension. I n its complaint, Appellee

alleged the ordinances passed at the August 6, 2015 Township meeting were

directed at and hostile to CAFOs and, b y denying the extension request and the

Plan, the Township ensur ed any future Plan submissions by Appellee would be

s ubject to the new ordinances.

The trial court

, taking no additional evidence, granted the appeal by

means of interlocutory order and remanded the matter to the Township to review

Appellee ’s Plan under the ordinances in effect at the time the Plan was filed, to

discuss matters involving technical requirements and ordinance interpretation, and3

to provide Appellee a reasonable opportunity to respond to objections or modify

plans where there h ad been a misunderstanding or difference of opinion. The trial

court specifically found the Township acted in bad faith when it denied Appellee’s

first and only request for extension, thereby denying Appellee the opportunity to

respond to objections

. Thi s appeal followed

. 1

Appellant raises the following issues on appeal:

1. Whether the trial court’s interlocutory order

remanding the matter is immediately appealable?

2. Whether the trial court abused its discretion and/or

erred as a matter of law in reversing and remanding

the matter and finding Appellant acted in bad faith in

denying Appellee’s plan?

(Appellant’s Brief at 4.)

The trial court gra n ted Friends of York County Family Farms

(Intervenor) the right to intervene. Intervenor adopts the arguments made by

Appellant and adds that a finding of bad faith on the part of an administrative

agency which has denied an extension request would send a chill throughout state

and local agencies.

DISCUSSION

The preliminary issue which must be decided is whether the

interlocutory order of the trial c ourt is immediately appealable.

1 Our re view in a land use appeal where the trial court heard no additional evidence is

limited in scope to a determination of whether the local agency abused its discretion or

committed an error of law. Kassouf v. Township of Scott, 883 A.2d 463, 469 (Pa. 2005).4 The Township argues that if the matter were simply remanded to the

Board of Supervisors, the trial court’s finding that the Township acted in bad faith

would escape appellate review. The Township relies on Schultheis v. Board of

Supervisors of Upper Bern Township, Berks County, 727 A.2d 145 (Pa. Cmwlth.

1999). The relevant facts of Schultheis are as follows: Schultheis filed with the

township a sketch plan for subdivision of its property. Upon review, the county

planning commission determined the plan did not conform to the county

comprehensive plan. Schultheis thereafter filed a preliminary plan with the

township. The county planning commission foun d this plan also failed to conform

to the county comprehensive plan and it failed to address many deficiencies

identified in the sketch plan. The township denied the plan and Schultheis

appealed to the trial court. The trial court granted Schultheis’ app eal and

remanded the case to give the developer an opportunity to correct the alleged

deficiencies. Following an appeal, th is Court concluded that, while the order at

issue was interlocutory, the preliminary plan would escape appellate review and

the matt er was immediately appealable under Pa.R.A.P. 311(f)(2). 2 O therwise,

o nce Schultheis was provided an opportunity to revise his plan and present it to the

township, the only issues then appealable would be those related to the revised

plan and not the defe ctive preliminary plan.

Appellee argues Schultheis is distinguishable because in Schultheis

the trial court allowed the developer to revise its plan prior to consideration by the

township, which essentially decided the merits of the case before it was remanded

2 An appeal may be taken as of right from an order of a common pleas court or

government unit remanding a matter to an administrative agency or hearing office r that decides

an issue that would ultimately evade appellate review if an immediate appeal is no t allowed.

Pa.R.A.P. 311(f)(2).5

to the township. We cannot agree. The ultimate decision in Schultheis turned on

whether an issue would evade appellate review if the order were not deemed

immediately appealable

.

It is clear in the case sub judice

, that, upon remand, the Tow nship will

review the deficiencies in Appellee’s Plan and determine whether they are

amenable to correction

. But t he issue of whether the Township acted in bad faith

will be forever settled by the decision of the trial court. We therefore conclude that

the order of the trial court is immediately appealable under Rule 311(f)(2) and we

may proceed with reviewing the Township’s second argument

. 3

The Township next argues the trial court abused its discretion in

reversing and remanding the matter to the T ownship and finding the Township

acted in bad faith when it denied Appellee’ s Plan. In support of its argument, the

Township cites to Kassouf v. Township of Scott, 883 A.2d 463 (Pa. 2005) and

Abarbanel v. Solebury Township

, 572 A.2d 862 (Pa. Cmwlth. 1990)

, two cases in

which the townships involved were found to have acted in good faith

.

The underlying facts in Kassouf and Abarbanel

, however, render

those matters easily distinguished from the case sub judice. E xtension requests

submitted by the develop ers were granted in both cases. In Abar banel, the

township granted the developer an extension request ; however, the developer

subsequently failed to file a revised plan. In Kassouf

, the developer submitted

multiple revisions to his plan and was given amp le opportunity to correct any

3 Intervenor argues that, should the lower court’s remand order stand and escape appellate

review, “it would put a chill on other administrative agencies.” (Intervenor’s Brief at 7.) While

Intervenor sets forth a number of burdens to which agencies would be subjected should the

finding of bad faith sur vive, it does not expand upon the claim that bad faith would send a “ chill ”

throughout state and local agencies. Because we have concluded the trial court’s order is

immed iately appealable, we will not address Intervenor’s argument further.6

defects prior to the township’s deadline

. He simply was unable to adequately

address those defects. Presently

, Appellee was denied its fir st and only extension

request and provided no opportunity to file a revised plan

.

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.

Raum v. Board of Supervisors of Tredyffrin Township

, 370 A.2d 777,

798 (Pa. Cmwlth. 1976).

The trial court based its finding of bad faith on two points. 4 Likening

the facts in the present matter to those in Highway Materials, Inc. v. Board of

Supervisors of Whitemarsh Township

, 974 A.2d 539 (Pa. Cmwlth. 2009), the trial

court found the Township acted in bad faith where it denied Appellee’s first and

only request for extension, thereby denying Appellee the opportunity to respond to

objections. (Trial Court Opinion (T.C.O.) at 7.) The trial court also found the

Township’s departure from past practices, w herein it would provide Appellee

specific notice of the date and time of the Township meeting at which Appellee’s

plan was to be considered, as indicative of bad faith on the part of the Township.

Id. at 8.

4 In its brief, Appellee cite s the ordinances approved by the Township at the August 6,

2015 meeting as indicative of the Township’s bad faith in disapproving the Plan

. The trial court

explicitly declined to assume the ordinances were a motivating factor in the Township’s denial of

the Plan. Because we conclude the trial court’s opinion must be vacated and the case remanded

for development of a record, we will not address this issue her ein.7 We disagree with the trial court that the re cord as it stands reflects bad

faith on the part of the Township. The record, or lack thereof, likewise prevents us

from concluding the Township acted in good faith. The Township conducted no

hearings and the trial court took no additional evidence. App ellee filed its Plan in

June 2015. (R.R. at 3a.) In July 2015, Appellee received three letters indicating

those areas in which the Plan was deemed deficient. (R.R. at 3a

- 5a, 25a

- 32a.) On

August 31, 2015, Appellee requested an extension of time for cons ideration of its

plan. (R.R. at 6a.) On Septe mber 9, 2015, the Township denied the extension

request and Appellee’s Plan. (R.R. at 12a.) In a letter dated September 10, 2015,

Appellee mailed the Township revised plans, unaware the Plan had already bee n

disapproved. (R.R. at 7a.)

Both parties argue past practices should factor into a bad faith

inquiry. Appellee avers the Township has, in the past, provided notification when

a plan would be considered at a forthcoming meeting. This assertion is su pported

by a letter dated July 13, 2015 from the Township’s counsel to TeamAg, indicating

the Township intended to take action on a different project of Appellee’s at the

next meeting scheduled for August 6, 2015. (R.R. at 48a

- 49a.) The T ownship

response to this argument is that Township meetings are publicly advertised.

(Township’s Brief at 18.) Further, the Township asserts Appellee has a history of

not responding to the Township when apprised other plans were s cheduled for

consideration at Township meetings

. Id. at 17. Neither TeamAg nor Appellee

appeared at the August 6, 2015 Township meeting for which notice had been

provided. Id. Beyond the July 13, 2015 letter and averments made in the briefs of

the parties, there is nothing in t he record to evidence the past practices between

Appellee and the Township.8 We agree with the Township that Highway Materials is instructive

.

Highway Materials likewise concerned a question of bad faith on the part of the

township in denying a develop er’s application and preliminary plans. The trial

court appointed a referee for purposes of developing a supplemental record. This

Court concluded such an act was not an abuse of discretion because the trial court

“could not rule on whether the Board had engaged in bad faith without comparing

the treatment of Highway to the treatment of other developers who had submitted

applications to the Board.” Highway Material s

, 974 A.2d at 544. Instantly, in the

absence of a record, it is not possible to determine the past practices of the parties

and, specifically, whether the Township’s failure to act in concert with same

evidences bad faith

.

For these reasons, we vacate and remand to the trial court for further

development of the record to determine whether past practices of the parties

indicates bad faith on the part of the Township.

___________________________ JOSEPH M. COSGROVE, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hillandale Gettysburg, LP :

:

v. :

:

Board of Supervisors of :

Codorus Township, : No. 1398 C.D. 2016

Appellant :

O R D E R

AND NOW, this 13 th day of June

, 201 7

, the order of the Court of

Common Pleas of York County dated July 20, 2016 is VACATED and the matter

is REMANDED for proceedings consistent with this opinion. Jurisdiction is

relinquished.

___________________________ JOSEPH M. COSGROVE, Judge