IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael A. Serluco d/b/a :

Consolidated Properties, :

:

Appellant :

:

 v. : No. 1239 C.D. 2020

: Submitted: September 23, 2021

Borough of Camp Hill :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1

HONORABLE MICHAEL H. WOJCIK, Judge (P.)

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: April 13, 2022

Michael Serluco d/b/a Consolidated Properties (Applicant) appeals 

from the order of the Cumberland County Court of Common Pleas (trial court) that 

affirmed the decision of the Borough Council of the Borough of Camp Hill (Borough 

Council and Borough, respectively) that denied Applicant’s preliminary/final 

subdivision and land development application (SALDO Application). Applicant 

sought to consolidate seven properties and develop a Chick-fil-A fast food restaurant 

with a drive-thru window, on the corner of 32nd Street and Chestnut Street in the 

Borough. While the appeal was pending, Applicant filed an application for remand 

based on after-discovered evidence in the form of an affidavit from the former 

1 This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn 

Jubelirer became President Judge.
2

Borough manager, alleging that the Borough conspired to thwart approval of the 

SALDO Application in an illegal private meeting. 

Applicant presents four questions for our review: (1) whether Borough 

Council abused its discretion or erred when it denied Applicant’s SALDO 

Application; (2) whether the trial court erred when it found that Borough Council

acted in good faith regarding Applicant’s SALDO Application; (3) whether Borough 

Council abused its discretion in rejecting Applicant’s request for a waiver of the 

requirement for a preliminary plan under the Borough’s Subdivision and Land 

Development Ordinance (SALDO);2 and (4) whether the case should be remanded 

to the trial court to consider after-discovered evidence of Borough Council’s bad 

faith.3 After careful review, we affirm the trial court’s decision, and deny 

Applicant’s remand request. 

I.

The relevant facts, which are not in dispute, describe the lengthy and 

complex history of this matter, and were summarized by the trial court as follows. 

Applicant is the owner of seven contiguous parcels totaling 1.39 acres, located on 

the southeast corner of the intersection of Chestnut Street and South 32nd Street, 

also known as U.S. Route 15, in the Borough (the Property). The six westernmost 

parcels are in the Borough’s General Commercial Zoning District (GC District) in 

which a restaurant is a permitted use. The easternmost seventh parcel is in the 

Borough’s Low Density Residential Zoning District (LDR District), in which a 

2 Borough of Camp Hill, Pa. Subdivision and Land Development Ordinance 

(SALDO)(1993). 

3 Per this Court’s July 30, 2021 Order, Applicant’s application for remand and the 

Borough’s answer will be considered with the merits of the appeal. 
3

restaurant is not a permitted use. The Property would thus be split-zoned. The 

Property includes land that is encumbered by private alley easements. Applicant 

proposed using the north-south “alley” (north-south alley) on the eastern side of the 

Property for vehicular ingress/egress from and onto Chestnut Street, which would 

be significantly widened for traffic. There is also an east-west “alley” along the 

southern border of the Property (east-west alley) which would not be used for access 

to South 32nd Street, although Applicant proposed using this alley for emergency 

vehicle access using a “mountable curb.” Trial Court 10/30/2020 Opinion at 2-3 

(Trial Court Opinion). 

Applicant began discussing its plan with Borough staff in 2017, after 

which Applicant purchased a small piece of land at the intersection from the 

Borough, which gave Applicant ownership of the entire Property. Reproduced 

Record (R.R.) at 40a-49a. On June 7, 2018, Applicant submitted sketch plans to the 

Borough. Id. at 56a-59a. Applicant and the Borough were aware that the Property 

was split-zoned, and understood that the Borough would either have to rezone the 

parcel in the LDR District, or Applicant would request a variance. The Borough 

Planning Commission (Planning Commission) considered Applicant’s sketch plans 

at a November 2018 meeting, where members expressed concern about increased 

traffic in the area from the proposed development. Id. at 76a-82a, 84a. Applicant 

submitted its initial preliminary/final SALDO Application on December 4, 2018, 

(December 2018 Plan), which included the required Borough application; filing fees;

Cumberland County application for review; the SALDO plans with sheets 1-14; the 

request to waive the SALDO requirement for a preliminary plan; and a stormwater 

narrative and calculations. Applicant sought to waive the requirement for a 

preliminary plan and to essentially consolidate its preliminary and final plans 
4

because “[t]he project involves the redevelopment of land in a commercial corridor, 

with existing supporting infrastructure already in place. No new streets or 

significant utility improvements are needed.” Id. at 85a-161a.

Although not on the agenda, some members of the public provided 

negative comments about the project, particularly regarding traffic, at the Borough 

Council meeting on December 12, 2018, and at a community meeting with Applicant 

the next day. R.R. at 141a-46a. An engineering company engaged by the Borough 

(Borough engineer) reviewed the December 2018 Plan and provided a report dated 

December 14, 2018, with 5 zoning comments and 22 SALDO comments. R.R. at 

147a-49a. Although the Planning Commission was expected to consider the 

December 2018 Plan at its December 18, 2018 meeting, the review was postponed 

at Applicant’s request. Id. at 150a. Nevertheless, members of the public expressed 

negative comments about the project at this meeting. Id. at 150a-59a. The 

Cumberland County Planning Department issued its report dated December 20, 

2018, observing that the plat appeared to generally comply with applicable 

regulations, but that revisions may be required to address several substantive issues 

including parking in the LDR District; the need for a Traffic Impact Study (TIS);

issues with the design of the drive-thru facilities; the proposed use of the north-south 

alley as the main entrance/exit; and some additional traffic concerns. Id. at 180a82a. 

At the January 15, 2019 Planning Commission meeting, members of 

the public again expressed negative comments about the project, and the Planning 

Commission recommended accepting Applicant’s offer to extend the deadline for 

Borough action by 60 days. R.R. at 191a-221a. At that meeting, the Borough 

solicitor publicly stated that the Borough was required to act in good faith, and that 
5

the extension would give the Borough more time to review the project, so that it 

would not run afoul of the time limits for review set forth in Section 508 of the 

Pennsylvania Municipalities Planning Code (MPC).4 Id. at 194a. At its February 

13, 2019 meeting, Borough Council accepted Applicant’s 60-day extension to allow 

for more time to review the plan. At that time, Applicant had not yet submitted the 

TIS, and legal issues concerning the alleys were still not resolved. Id. at 222a-25a, 

227a-32a. 

Applicant submitted a revised Preliminary/Final SALDO Application 

on February 27, 2019 (February 2019 Plan), which attempted to address the 

comments from the Borough engineer and Cumberland County, and again included 

the waiver request. Applicant eliminated parking in the LDR District in response to 

the County’s concern, addressed some other issues, and proposed submitting a TIS 

to the Borough for review within the next week. Applicant offered other revisions 

regarding stacking spaces for the drive-thru and the use of the north-south alley. 

R.R. at 233a-339a. On February 28, 2019, Borough Council issued a public 

statement that the Borough was required to work with Applicant to review and 

address any deficiencies in the project, to act in good faith, and to review the 

forthcoming TIS, so that the Borough could make a fair and responsible decision. 

Id. at 369a. On March 1, 2019, Applicant submitted the TIS to the Borough, to 

which the Borough engineer expressed a number of concerns related to the northsouth alley, parking and pedestrian concerns, and the impact of the project on the 

4 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10508. Section 508 of the MPC 

provides, in relevant part, that Borough Council 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 Borough Council fails to render a timely decision, the application shall be “deemed an 

approval” unless the applicant has agreed in writing to an extension. Id.
6

already busy intersection. Id. at 340a-62a, 370a-73a. On March 13, 2019, the 

Borough retained special counsel to assist in its review of Applicant’s SALDO 

Application. Id. at 376a-81a. The Borough engineer provided comments to 

Applicant’s February 2019 Plan in a report dated March 15, 2019, which made 

recommendations regarding a lot merger agreement, review by local emergency 

services, paving, and a drainage easement. In this report and in its earlier report, the 

Borough engineer took no exceptions to granting the preliminary plan waiver as 

“there was no regulatory benefit to the Borough” in requiring separate submissions. 

Id. at 382a-84a. 

Applicant presented its February 2019 Plan to the Planning 

Commission at its March 19, 2019 meeting. At this meeting, two Commission 

members questioned whether the Property would be treated as a “corner lot,” which 

would require two fronts, a side, and a rear for purposes of setbacks and other 

requirements. Applicant’s counsel responded that although Applicant and Borough 

staff discussed this issue early in the process, he believed that the front of the 

Property would be on South 32nd Street, which was the Property’s street address. 

Applicant’s counsel indicated that Applicant would submit TIS revisions at a future 

meeting, and members of the public again expressed negative comments about the 

project. R.R. at 387a-428a. Because Applicant needed more time for revisions, it 

advised the Borough that it would present the plan at the May 2019 Planning 

Commission meeting, and it agreed to another extension until June 12, 2019, for the 

Borough to act on the plan. Id. at 432a-35a. 

On May 13, 2019, the Borough solicitor advised Applicant’s counsel 

that the Borough zoning officer was reviewing several zoning issues in connection 

with the February 2019 Plan, including measurement of the front yard setbacks, rear 
7

yard setback, drive-thru location, the use of the north-south alley as an access drive 

for commercial use, and documentation for a fence easement outside the east-west 

alley. When Applicant’s counsel objected to what he perceived as a delay for these 

zoning comments, the Borough solicitor responded that these zoning comments were 

in response to recommendations from the Planning Commission and in response to 

the revised February 2019 Plan. R.R. at 436a-39a. 

On May 15, 2019, the Borough zoning officer’s written opinion was 

forwarded to Applicant’s counsel for review. In it, the Borough zoning officer 

advised that a corner lot must have two front lot lines; the front yard setbacks were 

not properly measured and must be measured from the street right-of-way line; the 

building canopy and building were not permitted within the front yard setbacks; the 

drive-thru facilities were not permitted within the front yard setbacks or facing an 

abutting property in the LDR District; the rear yard setback was not properly 

measured; the north-south alley could not be used for commercial purposes in the 

LDR District; and no documentation for the fence easement outside the east-west 

alley had been received. R.R. at 440a-41a. On May 27, 2019, Applicant’s counsel 

advised the Borough zoning officer that Applicant was in the process of revising its 

plan based upon review comments, and it agreed to extend the deadline for Borough 

action to September 11, 2019. Id. at 446a. On June 12, 2019, Borough Council 

again approved an extension to September 11, 2019, as had been recommended by 

the Planning Commission, overruling negative public comments. Id. at 460a-64a. 

On July 30, 2019, Applicant submitted to the Borough an updated TIS, 

crash analyses and a revised Preliminary/Final SALDO Application (July 2019 

Plan), which contained sheets 1-16 and a revised stormwater narrative and 

calculations. R.R. at 465a-518a. Applicant’s transmittal letter for the July 2019 Plan 
8

included responses to the March 15, 2019 Borough engineer’s report, and certain 

zoning and pedestrian information. Importantly, the transmittal letter advised that 

the site layout had been adjusted to provide front yard setbacks for both South 32nd

Street and Chestnut Street, based on existing building setbacks for adjacent 

properties. Applicant indicated that the July 2019 Plan included a one-half-footfront setback on South 32nd Street, and a 16.5-foot-front setback on Chestnut Street. 

Id. at 471a-72a. 

In a separate memorandum to Borough counsel, Applicant’s counsel 

explained that the proposed front yard setbacks were based on Section 732.B of the 

Zoning Ordinance,

5 which permits front yard setbacks to be reduced from the 35-

foot front yard setback required in Section 503 of the Zoning Ordinance, so that the 

setback is similar to existing adjacent buildings and the street right-of-way on 

abutting lots. Applicant’s counsel also questioned the split-zoning issue and the 

Borough zoning officer’s comments regarding commercial use of the north-south 

alley. Applicant’s counsel described the north-south alley as “split-zoned along its 

centerline,” with the western portion in the GC District and the eastern portion in the 

LDR District. R.R. at 527a. Applicant’s counsel stated that zoning regulations 

should not apply to the north-south alley because it is a street, and, if they did apply, 

they could not prohibit the use of the alley to access the proposed restaurant. Id. at

519a-33a. 

On August 19, 2019, in response to Applicant’s July 2019 Plan, the 

Borough zoning officer reported to the Planning Commission, in which he confirmed 

that the Property was a corner lot, with front yards on South 32nd Street and Chestnut 

5 Borough of Camp Hill, Pa., Zoning Ordinance of 2015, as amended. The full Zoning 

Ordinance is included in the Original Record (O.R.) at Item 23. The relevant sections of the Zoning 

Ordinance are included in the Reproduced Record at 702a-34a. 
9

Street, with the address on South 32nd Street. The Borough zoning officer 

questioned whether the north-south and east-west alleys should be considered 

streets, and, if so, the lot lines should coincide with the right-of-way lines for the 

streets/alleys. Based on this measurement, the required rear yard setback would be 

30 feet, and the side yard setback would be 12 feet. The zoning officer also 

questioned whether the proposed front yard setbacks were properly calculated, based 

on the definition of “lot lines” in the Zoning Ordinance and the SALDO.6 R.R. at 

553a-54a. Also, on August 19, 2019, the Borough engineer provided reports to the 

Borough commenting on the updated TIS and the July 2019 Plan. The Borough 

engineer commented that the updated TIS addressed many of the earlier concerns, 

but that some remained inadequately addressed, including traffic flow in the 

intersection and perpendicular parking spaces along the north-south alley. Id. at 

548a-56a. In its more general response to the July 2019 Plan, the Borough engineer 

commented on stormwater review, paving, requirements for the fence and drainage 

easements, and several other suggestions for Applicant to make technical 

adjustments on its drawings. Id. at 544a-47a. 

Applicant again agreed to extend the deadline for Borough action on 

the July 2019 Plan to facilitate review of the comments and to revise the plan 

accordingly. R.R. at 555a. At its August 20, 2019 meeting, the Planning 

Commission recommended approving the extension and again received negative 

comments about the project from members of the public. Id. at 557a-85a. On 

6 Camp Hill Borough Subdivision and Land Development Ordinance of 1993, as amended. 

The full SALDO is included in the Original Record at Item 23, and the relevant sections are 

included in the Reproduced Record at 735a-64a. The Borough enacted an amended SALDO 

effective December 2020, replacing the 1993 SALDO, which does not apply to this appeal. The

amended SALDO may be found at 

https://cms8.revize.com/revize/camphillborough/Departments/Code%20EnforcementZoning/CHB%20FINAL%20SALDO%20120920.pdf (last visited 4/12/22).
10

August 29, 2019, the Borough zoning officer amended his report to respond more 

accurately to Applicant’s July 2019 Plan, in which he addressed designation of front, 

side, and rear yards; setbacks for side and rear yards; conformity of streets under the 

Zoning Ordinance and the SALDO; front yard setbacks on Chestnut Street and 32nd

Street; commercial use of driveways; and the updated TIS. Id. at 643a-45a. On 

September 5, 2019, the Pennsylvania Department of Transportation commented on 

the updated TIS, in which it raised a concern about the unaligned accesses to the 

Property from Chestnut Street, and about the traffic patterns in the intersection. Id. 

at 650a-51a. Applicant again offered to extend the deadline for Borough action on 

the plan until December 11, 2019, to facilitate its submission of another revised plan 

to the Borough by October 22, 2019. Applicant’s counsel expressed frustration at 

receiving new zoning comments at this stage in the process. Id. at 655a-56a. At its 

September 11, 2019 meeting, Borough Council approved the extension to December 

11, 2019, to facilitate submission of Applicant’s revised plan by October 22, 2019. 

Id. at 657a-60a. 

On October 22, 2019, Applicant’s counsel informed the Borough 

solicitor that Applicant would not submit a revised plan or a revised TIS. R.R. at 

662a. On November 15, 2019 Applicant sent a “litigation hold” letter to the 

Borough, seeking preservation of all documents relating to the SALDO Application. 

Id. at 668a-73a. Applicant stated his belief that the Borough’s review of the SALDO 

Application had not been objective or in good faith. Id. at 665a-67a. At its 

November 19, 2019 meeting, at which members of the public again presented 

negative comments about the project, the Planning Commission voted to recommend 

denial of the July 2019 Plan, and denial of Applicant’s waiver request. Applicant 

did not attend this meeting. Id. at 674a-87a. 
11

At its December 11, 2019 meeting, Borough Council voted to deny the 

July 2019 Plan and to deny Applicant’s waiver request. R.R. at 688a-95a. The 

Borough issued a written denial dated December 19, 2019, in which it enumerated 

33 reasons for the denial, with citations to the Zoning Ordinance or the SALDO. Id. 

at 696a-701a. As the trial court noted, several of the reasons for denial are “technical 

in nature and would not normally rise to the level of irremediable, fatal defects in 

the plan,” but also that Applicant declined to submit a revised plan to address those 

technical defects. Trial Court Opinion at 49. The trial court also noted that several 

reasons for denial were substantive in nature, focusing on lot lines, setbacks, 

unrestricted access from the lot along the length of the north-south alley, and 

deficiencies in the TIS. Id. at 49-52. 

Applicant appealed Borough Council’s December 19, 2019 decision to 

the trial court. The trial court took no additional evidence and upheld Borough 

Council’s decision in an opinion and order dated October 30, 2020, which comprised 

some 65 pages and over 200 footnotes. The trial court addressed the following 

issues: whether Borough Council’s denial of Applicant’s waiver request violated 

required timelines and resulted in a deemed approval; whether Borough Council

acted in good faith; and whether Borough Council’s reasons for denial of the July 

2019 Plan were legally sufficient. The trial court concluded that Borough Council 

had not abused its discretion in denying Applicant’s waiver request; Borough 

Council acted in good faith; and Borough Council’s denial of the July 2019 Plan was 

legally sufficient because there were several substantive provisions of the Zoning 
12

Ordinance and the SALDO that Applicant failed to meet. Applicant timely appealed 

the trial court’s decision to this Court.7

II.

As to the first issue, whether Borough Council’s denial was justified, 

Applicant argues that each of the 33 reasons Borough Council provided was

factually inaccurate, ignored details of the plans, or was based on erroneous 

interpretations of the Zoning Ordinance or the SALDO. Applicant claims that some 

of the 33 reasons rely on inconsequential, administrative, or technical matters that 

are remediable and should not be grounds for denial. Although the trial court 

specifically discussed in detail only certain reasons, Applicant seeks a determination 

from this Court that none of the reasons justify denial of its SALDO Application, so 

that Applicant would not be bound in any future plan submissions on undecided 

issues or be barred from raising them in a later proceeding. The Borough responds 

that so long as Borough Council’s decision complies with the requirements of 

Section 508 of the MPC to specify the defects, describes the requirements that have 

not been met, and includes citations to the statute or ordinance upon which it relied, 

the denial will stand if even one of the reasons for denial is supported by substantial 

evidence.

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

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

of a plan may stand if validly supported by even one reason for denial. Herr v. 

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

is to determine whether Borough Council 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). On the issue of whether Borough Council acted in good faith, this Court’s 

standard of review is to determine 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). 
13

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

(citations omitted). Here, Applicant has not argued that Borough Council’s decision 

failed to comply with the requirements of Section 508 of the MPC. Therefore, we 

need not determine if each reason is sufficiently supported by the record if we find 

that at least one reason, based on objective standards, justifies Borough Council’s

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

bears the burden to show it is entitled to approval, Ball v. Montgomery Township 

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

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

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

Borough Council denied the July 2019 Plan because Applicant failed 

to provide a metes and bounds description of the proposed easements for a driveway, 

fence, and drainage onto adjacent property owned by 133 South 32nd Street, LLC, 

nor did Applicant provide proof of the right to construct these facilities on the 

adjacent property, as required by Section 407.1.A.(2) and (5) of the SALDO. R.R. 

696a-710a, reasons 1, 2, 6, 9, and 23. Applicant argues that Section 407.1.A.(2) and 

(5) of the SALDO does not require inclusion of a metes and bounds description, and 

that any disputes between private property owners over an easement are private 

matters between the owners and may not justify a land use denial. Applicant further 

argues that Section 407.1.A of the SALDO applies to review and approval of a final 

plat (or plan, as defined in the SALDO), and because the Borough failed to waive 

submission of a preliminary plan, it cannot now deny it based on Section 407.1.A. 

The Borough responds that although Applicant promised to provide confirmation of 

its right to construct these improvements, it failed to do so, and never provided 

certification of title or a detailed description of these proposed easements. Section 
14

407.1.A of the SALDO requires that for approval of a final plat, an applicant must 

provide: “(2) [t]ract boundary lines, right-of-way lines of streets, easements, and 

other rights of way . . . with accurate dimensions”; and “(5) [c]ertification of title 

showing that the applicant is the owner of land, agent of the landowner or tenant 

with permission of the landowner.” SALDO §407.1.A(2), (5). 

We agree with the trial court that Borough Council did not abuse its 

discretion or commit an error of law when it denied the July 2019 Plan based on 

Applicant’s failure to properly describe the proposed driveway, fence, and drainage 

easements. Section 407.1.A(2) of the SALDO requires that the final plat or plan 

show easements with “accurate dimensions,” and Section 407.1.A(5) requires 

“certification of title” that the applicant has title as owner, agent, or tenant to use this 

property. We agree that Applicant must assert at least a colorable claim to develop 

driveway, fence, and drainage easements onto the adjacent property, which 

Applicant did not. The July 2019 Plan, and the earlier versions, contained 

Applicant’s promise to provide this information, but Applicant failed to do so. 

Because Applicant failed to meet these objective requirements of the SALDO, 

reasons 1, 2, 6, 9, and 23 provide valid reasons to deny the July 2019 Plan. 

Borough Council also denied the July 2019 Plan because it failed to 

depict lot lines and setbacks as required by the Zoning Ordinance. Specifically, 

Borough Council concluded that Applicant failed to depict the required 30-foot rear 

yard setback from the right-of-way lines of the north-south alley, as required by 

Table 5-3 of the Zoning Ordinance, and as “lot line” is defined in Section 202 of the 

Zoning Ordinance. Borough Council also concluded that Applicant failed to depict 

the required 12-foot side yard setback from the right-of-way lines of the east-west 

alley for the same reasons. R.R. at 696a-701a, reasons 24-27. 
15

Applicant argues that Borough Council erred in interpreting the Zoning 

Ordinance to determine that the July 2019 Plan did not include required lot lines and 

setbacks. This issue turns on the relevant definitions in Section 202 of the Zoning 

Ordinance. “Lot line” is defined as “[a] line that separates a lot from another lot or 

from a street or any public or private space.” R.R. at 705a. “Setback” is defined as 

“[t]he required horizontal distance between a required setback line and an abutting 

lot line or street right-of-way line, as applicable.” Id. at 707a. “Street line/right-ofway line” is defined as “[a] line defining the edge of a street right-of-way and 

separating the street from an abutting property or lot.” Id. at 709a. Under this 

definition the “street line” shall be the same as “the legal right-of-way line, or the 

ultimate right-of-way line.” Id. In addition, Section 202 of the Zoning Ordinance 

defines “street” to include an “alley” which is defined as a “minor way, which may 

or may not be legally dedicated, and is used primarily for vehicular service access 

to the rear or side of properties abutting on a street.” Id. Applicant argues that 

Borough Council erred in prioritizing one definition of lot line over another. 

Applicant claims that the Zoning Ordinance permits measurement of the rear yard 

setback from the lot line in the east, and the side yard setback from the center line of 

the east-west alley. In contrast, the Borough responds that the lot lines, and thus the 

rear and side yard setbacks, must be measured from the right-of-way lines of each 

proposed alley, not including the space within each proposed alley, as if they, too, 

were part of the Property. 

Based on our review of the relevant language of the Zoning Ordinance, 

we conclude that the Board did not abuse its discretion or err as a matter of law when 

it denied the July 2019 Plan for failing to meet the required rear yard and side yard 

setback requirements, using the right-of-way lines for each proposed alley. We 
16

cannot conclude that the Board erred by not choosing Applicant’s preferred 

definition of lot line when the plain language of the Zoning Ordinance includes “or” 

in the definition. Because Applicant failed to meet these objective requirements of 

the Zoning Ordinance, reasons 24-27 provide valid reasons to deny the July 2019 

Plan. 

Borough Council also denied the July 2019 Plan because it would allow 

unrestricted access from the Property along a street or alley. R.R. at 696a-701a, 

reasons 12 and 29. The July 2019 Plan shows a row of perpendicular parking spaces 

along the north-south alley, and includes 50 feet of vertical curbing to direct 

vehicular traffic onto the site and to define parking areas. This curbing restricts 

access along part, but not all, of the length of the proposed north-south alley. This 

issue turns on our interpretation of Section 902.D of the Zoning Ordinance, which 

governs driveways and access drives, and states that “[i]n no case shall there be 

unrestricted access from a lot along the length of a street or alley.” Id. at 731a. 

Applicant argues that the July 2019 Plan does not allow unrestricted 

access along “the entire” length of the north-south alley because 50 feet of its length 

is restricted by curbing. The Borough responds that the plain language of Section 

902.D of the Zoning Ordinance prohibits unrestricted access “along the length” of 

the alley, and that the July 2019 Plan violates this requirement. 

We agree with the trial court that Borough Council did not err in its 

interpretation of Section 902.D of the Zoning Ordinance. As the trial court observed, 

the purpose of this requirement is “obviously to prevent the chaotic situation that 

would result from vehicles moving onto and off streets at innumerable points along 

a site’s frontage.” Trial Court Opinion at 60. Because Applicant failed to meet these 
17

objective requirements of the Zoning Ordinance, reasons 12 and 29 provide valid 

reasons to deny the July 2019 Plan. 

III.

As to the second issue, Applicant argues that Borough Council abused 

its discretion when it denied Applicant’s request to waive the requirement for a 

preliminary plan.8 This issue turns on the requirements for plan submissions under 

Sections 403, 404 and 901.1 of the SALDO. Section 403 of the SALDO provides 

that for a “minor subdivision and land development application” defined as one 

where “five (5) or fewer lots are proposed to be subdivided . . . or transferred,” 

Borough Council “being advised by the Planning Commission, in response to a 

written request by the [a]pplicant, may waive the requirements of Preliminary Plat 

requirements, provided such proposal is on an existing street and no new streets are 

involved.” R.R. at 747a. Section 404 of the SALDO governs requirements for filing 

and rendering a decision on preliminary plats. Id. at 748a-49a. Section 901.1 of the 

SALDO provides:

Borough Council may grant a modification of the 

requirements of one (1) or more provisions of this Chapter 

[SALDO] if the literal enforcement will exact undue 

hardship because [of] peculiar conditions pertaining to the 

land in question, provided that such modification will not 

be contrary to the public interest and that the purpose and 

intent of this Chapter [SALDO] is observed. 

R.R. at 764a. 

8 Although Applicant argued before the trial court that Borough Council’s failure to waive 

the preliminary plan requirement resulted in a deemed approval, Applicant does not argue the 

deemed approval issue before this Court. Therefore, we focus only on the waiver issue, as 

presented. 
18

Applicant correctly argues that the Borough engineer advised several 

times that he had no objections to granting Applicant’s waiver request. However, as 

the Borough responds, it is Borough Council, not the Borough engineer or any other 

Borough staff, that has the authority to grant or deny such waivers. Applicant further 

argues that the trial court erred in concluding that the Borough did not abuse its 

discretion in denying the waiver request, because Applicant elected not to make a 

presentation to the Planning Commission for the July 2019 Plan, and because 

Applicant failed to submit a revised plan to address the Borough’s concerns. The 

Borough responds that neither the July 2019 Plan nor any of the earlier versions 

qualify for submission under Section 403 of the SALDO as a “minor subdivision 

and land development application” because more than five lots, namely seven lots, 

are to be transferred for this project. Further, the Borough notes that the July 2019 

Plan is not a minor subdivision under Section 403 of the SALDO because new 

streets, in the form of the expanded north-south alley, are proposed as part of the 

project. The Borough also contends that Applicant failed to demonstrate that the 

submission of a preliminary plan “will exact undue hardship because [of] peculiar 

conditions pertaining to the land” under Section 901.1 of the SALDO. Finally, the 

Borough submits that granting such waivers is at Borough Council’s discretion, as 

evidenced by the use of “may” in Section 901.1 of the SALDO. 

We agree that Applicant’s failure to appear at the final Planning 

Commission meeting or to submit another revised plan are not reasons to deny its 

waiver request under the SALDO. However, based on the plain language of the 

applicable SALDO sections, we cannot conclude that Borough Council abused its 

discretion in denying this waiver. The July 2019 Plan does not qualify as a minor 

subdivision under Section 403 of the SALDO because it proposes transfer of more 
19

than five lots, and it includes a new street, in the form of the expanded north-south 

alley. Further, Applicant failed to provide evidence that its waiver request should 

be granted based on undue hardship caused by peculiar conditions of the land, as 

contemplated under Section 901.1 of the SALDO. Based on the plain language of 

the applicable SALDO provisions, we cannot conclude that Borough Council abused 

its discretion in denying Applicant’s waiver request. 

IV.

As to the third issue, Applicant argues that the trial court committed an 

error of law when it found that Borough Council acted in good faith in denying the 

July 2019 Plan. To determine whether Borough Council acted in good faith, we 

must 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 Developers, L.P. v. London 

Grove Township Board of Supervisors, 161 A.3d 1106, 1115-16 (Pa. Cmwlth. 2017) 

(quoting Raum v. Board of Supervisors of Tredyffrin Township, 370 A.2d 777, 798 

(Pa. Cmwlth. 1977)). 

Applicant argues that Borough Council, the Planning Commission, 

Borough zoning officer, Borough engineer, other Borough staff, Borough solicitor 

and special counsel engaged in actions designed to thwart its ability to meet the legal 

requirements necessary for approval. Applicant asserts the following as evidence of 
20

the Borough’s bad faith: Borough zoning officer withheld comments for eight

months after the December 2018 Plan was filed; Borough changed and added new 

comments repeatedly throughout the process; Borough inaccurately and 

unreasonably interpreted its ordinances; Borough inaccurately cross-referenced 

comments within comment letters to create confusion; Borough applied its Zoning 

Ordinance and SALDO to Applicant differently than other applicants; Borough 

applied overlay provisions of the Zoning Ordinance, which were not enforceable; 

and Borough repeatedly created new hurdles that Applicant had to overcome to 

appease public opposition. 

The Borough responds that this Court has provided additional guidance 

in what constitutes good faith in reviewing land development plans. In Delchester, 

161 A.3d at 1116, this Court reviewed relevant case law including Raum, 370 A.2d 

777, Highway Materials, Inc. v. Board of Supervisors of Whitemarsh Township, 974 

A.2d 539 (Pa. Cmwlth. 2009), Arbanel v. Solebury Township, 572 A.2d 862 (Pa. 

Cmwlth. 1990), and Herr, 625 A.2d 164, to further outline what constitutes good 

faith and bad faith in the review process. In Highway Materials, this Court held that 

when a municipality refuses to advise an applicant on how to cure plan deficiencies, 

and refuses to advise an applicant on its interpretations of its ordinances, the 

municipality will be found to have acted in bad faith. 974 A.2d at 545. In Arbanel, 

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. 572 A.2d at 865. Further, in 

Arbanel, 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. Id. at 864. Finally, in Delchester, this 
21

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. 161 A.3d at 1116. The Borough also notes that “there is no 

requirement that the members of the municipal governing body leap with joy when 

an application for land development or subdivision approval is filed,” citing Robert 

S. Ryan, Pennsylvania Zoning Law and Practice, §11.2.8 (revised July 31, 2007). 

The trial court cited six factors against concluding that the Borough 

acted in bad faith to frustrate or delay Applicant’s approval. First, the Borough 

affirmatively transferred a parcel of land to Applicant so that the entire Property 

could be developed. Second, the Borough tried to accommodate Applicant’s idea 

that the Property was a non-corner lot, until it became clear that under its Zoning 

Ordinance the Property was a corner lot. Third, as public opposition to the project 

increased, Borough Council issued a public statement describing the Borough’s duty 

to act in good faith, and Applicant’s right to receive a fair review in compliance with 

objective standards. Fourth, the Borough solicitor issued a similar public statement 

at a public meeting. Fifth, Borough Council granted every deadline extension 

Applicant requested. Finally, “the record evidences a conscientious effort” by 

Borough officials and consultants to “properly resolve complex legal and practical 

issues presented by a controversial development plan that was significantly 

reconfigured” during the review process. Trial Court Opinion at 56.

After review of the record and applicable case law, we cannot conclude 

that the trial court erred in finding that the Borough acted in good faith. The first 

five factors cited by the trial court demonstrate the Borough’s good faith. As to the 

sixth factor, there is ample evidence in the record demonstrating that the Borough, 
22

its staff, and consultants provided detailed comments and reactions to the December 

2018 Plan, the revised February 2019 Plan, and the revised July 2019 Plan. The 

question of whether the Property was a corner lot under the Zoning Ordinance was 

not resolved until sometime after the Planning Commission’s March 2019 meeting, 

after which Applicant submitted its revised July 2019 Plan describing the Property 

as a corner lot, to which the Borough zoning officer provided comments on the 

requirements for the corner lot and other issues in his August 29, 2019 letter. Factors 

that this Court has found to demonstrate bad faith are not present here, including 

failing to confer with Applicant, failing to grant extensions, failing to consider 

Applicant’s revisions, waiting until the last possible moment to raise objections and 

then claiming there was insufficient time to review Applicant’s revision, or 

attempting to delay consideration of a project so that a zoning ordinance could be 

amended. See Raum, 370 A.2d at 799; Highway Materials, 974 A.2d at 544-45; and 

Honey Brook Estates, LLC v. Board of Supervisors of Honey Brook Township, 132 

A.3d 611, 621-22 (Pa. Cmwlth. 2016). 

V.

As to the fourth issue, while this appeal was pending, Applicant 

requested that this Court remand the matter to the trial court to take additional 

evidence regarding the Borough’s bad faith, and to issue a decision. Applicant 

attached to its request an affidavit from Patrick Dennis, who was Borough manager 

from March 2016 through October 2020, while the Borough was considering 

Applicant’s SALDO Application. (Dennis affidavit). 

In his affidavit, Mr. Dennis states that Borough Council held a private 

meeting in January or February 2019, at which a quorum of Borough Council 
23

members was present, to discuss the SALDO Application, public opposition to it, 

and “conspired to ensure that the review of the [SALDO] Application would be as 

difficult as possible so as to preclude the [SALDO] Application’s approval, 

including having discussions about hiring special counsel for the Borough 

specifically to identify and pursue reasons to challenge the [SALDO] [A]pplication.” 

Dennis affidavit ¶¶10, 11. Mr. Dennis stated that Borough Council engaged in 

discussion of the SALDO Application and hiring special counsel, “against [his] 

admonition.” Id. ¶11. Mr. Dennis further stated that on May 15, 2019, the Borough 

solicitor and special counsel, whom the Borough retained on March 13, 2019 to 

assist in its review of Applicant’s SALDO Application, provided a draft 

memorandum from Borough zoning officer to Applicant’s counsel, which was not 

Borough zoning officer’s “work product.” Id. ¶15. Mr. Dennis further attests that 

Borough Council members “further conspired” to prepare and fast-track a Zoning 

Ordinance amendment that would preclude the construction of a drive-thru 

restaurant on the Property, and that a draft amendment was prepared. Id. ¶¶18, 19. 

The affidavit is silent as to whether a Zoning Ordinance amendment was ever 

introduced or approved. Regardless, the Borough’s denial of Applicant’s July 2019 

Plan cited to provisions of the Zoning Ordinance and the SALDO in effect in 

December 2019, which did not preclude construction of a drive-thru restaurant on 

the Property.

The Borough responds that this Court should deny Applicant’s remand 

request because the Dennis affidavit does not provide after-discovered evidence that 

the Borough acted in bad faith. The Borough claims that the Dennis affidavit seeks 

to “imply some undisclosed ill-will by the Borough or certain (unnamed) officials” 

toward the project. Borough’s Answer ¶10. The Borough further submits that this 
24

Court should disregard the “florid characterizations” regarding illegal, secret 

meetings where Borough Council members allegedly conspired to thwart the 

SALDO Application, and consider the facts contained in the Dennis affidavit. Id. 

¶11. The Borough contends that the facts alleged in the Dennis affidavit reveal what 

was already known and considered by the trial court, namely that Borough Council 

held an executive session to discuss retaining special counsel, which is a permitted 

reason to meet in executive session, that Borough Council interviewed candidates, 

that it retained special counsel in a public meeting, that special counsel worked with 

Borough solicitor to review the SALDO Application, and that Borough Council

issued a decision denying it. The Borough further responds that bad faith does not 

turn on the subjective desires of Borough Council members, but on its actions and 

the denial decision. 

After review of the Dennis affidavit and the parties’ arguments, we 

deny Applicant’s remand request. Section 1005-A of the MPC9 permits the trial 

court to hold a hearing to receive additional evidence and to remand a case to the 

body whose decision has been appealed. Applicant cites Quest Land Development 

Group, LLC v. Zoning Hearing Board of Lower Heidelberg Township, 934 A.2d 686 

(Pa. 2007), to support its contention that remand is appropriate for consideration of 

after-discovered evidence. In its per curiam order in Quest, our Supreme Court cited 

Brannagan v. Great Atlantic & Pacific Tea Company, 41 A.2d 869 (Pa. 1945), for 

the standard for evaluating after-discovered evidence. In Brannagan, our Supreme 

Court stated: 

To entitle a defendant to a new trial on this ground (afterdiscovered evidence) the evidence must have been 

discovered since the trial, and be such as could not have 

9 Added by the Act of July 21, 1988, as amended, 53 P.S. §11005-A.
25

been obtained at the trial by the use of reasonable 

diligence; it must not be simply corroborative or 

cumulative, or merely to impeach the credibility of a 

witness; and it must be such as would likely result in a 

different verdict if a new trial were granted. 

41 A.2d at 870 (citation omitted). 

In Kensington South Neighborhood Advisory Council v. Zoning Board 

of Adjustment of Philadelphia, 471 A.2d 1317, 1320 (Pa. Cmwlth. 1984), this Court 

denied a remand request on the issue of whether hardship existed to justify a 

variance, stating that “[a]ppellant has failed to allege that new evidence, not 

previously available, exists which would warrant a remand. We will not issue a 

remand merely to strengthen weak proofs.” Here, the Dennis affidavit proffered by 

Applicant is cumulative and corroborative of the evidence the trial court already 

considered. Remand is not warranted to “strengthen weak proofs.” Id. 

Further, although not raised by the parties, Applicant’s remedy to what 

it describes as the Borough Council’s illegal, private meeting is found in Section 703 

of the Sunshine Act, 65 Pa. C.S. §703, which requires that a legal challenge to a 

meeting that was not open may not be “commenced more than one year from the 

date of said meeting.” Here, Applicant challenges Borough Council’s private 

executive session that was held in January or February 2019, and its application for 

remand was filed on July 12, 2021, well outside the one-year limitation. 
26

VI.

For all of the foregoing reasons, we affirm the trial court’s order and 

deny Applicant’s request for remand. 

MICHAEL H. WOJCIK, Judge

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

Michael A. Serluco d/b/a :

Consolidated Properties, :

:

Appellant :

:

 v. : No. 1239 C.D. 2020

: 

Borough of Camp Hill :

O R D E R

AND NOW, this 13th day of April, 2022, the order of the Cumberland 

County Court of Common Pleas dated October 30, 2020, is AFFIRMED. The 

Application for Remand of Michael A. Serluco d/b/a Consolidated Properties is 

DENIED. 

__________________________________

MICHAEL H. WOJCIK, Judge