IN THE COMMONWEALTH COURT OF PENNSYLVANIA

BVRE, LP and Keystone Real Estate :

Group, LP, :

Appellants :

v. :

 : No. 1314 C.D. 2018

College Township : Argued: April 11, 2019

:

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: July 23, 2019

BVRE, LP and Keystone Real Estate Group, LP (together, Developer) appeal 

from the Order of the Court of Common Pleas of Centre County (trial court) that 

denied Developer’s Motion for Summary Judgment (Developer’s Motion), granted 

College Township’s (Township) Motion for Summary Judgment (Township’s 

Motion), and dismissed Developer’s Complaint against Township. In the 

Complaint, Developer sought a refund of the fee in lieu of publicly dedicating land

(Fee) it paid to Township in association with the approval of its residential 

development plan, a declaration that Township’s use of those funds was not timely 

and/or in accordance with Section 503(11) of the Pennsylvania Municipalities 
2

Planning Code (MPC)1 and Section 180-26(E)(9) of Township’s Subdivision and 

Land Development Ordinance (SALDO),

2 and the imposition of statutory interest. 

On appeal, Developer argues the trial court erred because, as a matter of law,

Developer is entitled to a refund of the Fee, plus statutory prejudgment interest, 

where Township did not use the entire Fee and/or did not use the Fee for the proper 

purposes within the required three-year period. Developer additionally argues it is 

entitled to a refund because Township did not comply with the required process for 

handling the Fee at the time of the Fee’s receipt. After review, we affirm.

I. Background

A. Complaint/Answer and New Matter

The pertinent, undisputed facts are as follows. This matter arises out of the

development of The Villas at Happy Valley (the Villas). As part of the land 

development approval process, and as authorized by the MPC and the SALDO, 

Township required Developer to pay the Fee in lieu of it having to publicly dedicate

land for parks and recreational facilities. Township deposited the Fee into an 

account labeled “In Lieu Parkland Account” (Account), which was an interest-

 

1 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10503(11). Section 503(11)(vii) 

of the MPC, formerly 53 P.S. § 10503(11)(vii), stated, relevant here, that, at the request of the 

person or entity that paid a fee in lieu to obtain land development approval, “the municipality shall 

refund such fee, plus interest accumulated thereon from the date of payment, if the municipality 

had failed to utilize the fee paid for the purposes set forth in this section within three years from 

the date such fee was paid.” This provision was amended, effective November 24, 2014, and now 

provides that “[u]pon request of any person who paid any fee under this subsection, the 

municipality shall refund such fee, plus interest accumulated thereon from the date of payment, if 

the municipality had used the fee paid for a purpose other than the purposes set forth in this 

section.” 53 P.S. § 10503(11)(vii).

2 Section 180-26(E)(9) of the SALDO states the Township “shall return the fee, plus 

interest, upon request of any persons who paid the fee if the Township has failed to utilize the fee 

for the purpose it was paid.” (Reproduced Record (R.R.) at 148a.)
3

bearing account.

3

 Developer paid the Fee on July 20, 2012, although it protested the 

amount.

4

 The amount of the Fee was ultimately reduced by the trial court on April 

19, 2013, to $586,460. (Compl. ¶¶ 17-18; Answer ¶¶ 17-18.)

On December 19, 2013, Township adopted a resolution (2013 Resolution), 

which authorized Township to use $52,360 of the Fee, with $45,000 allocated to be 

used for a “supplemental contribution” toward Oak Hall Regional Park (Oak Hall), 

and the remaining $7360 for the paving of a walking path at Fogelman Field, a 

Township park. (Compl. ¶ 28; Answer ¶ 28;

5 Reproduced Record (R.R.) at 78a79a.) Township adopted a second resolution on July 17, 2014 (2014 Resolution),

whereby Township “utilize[d] the remaining $537,045” of the Fee as set forth in a 

document attached to the 2014 Resolution titled “Calculation of Use of Villas Fee 

in Lieu of Parkland Funds.” (Compl. ¶¶ 31-32; Answer ¶¶ 31-32; R.R. at 81a-82a.) 

That attachment listed expenses that Township paid in 2012, 2013, and 2014 for 

“Township’s share of regional park costs” as a member of the Centre Region Council 

of Governments (CRCOG). (Compl. ¶¶ 20-21, 33; Answer ¶¶ 20-21, 33; R.R. at 

83a-87a.) Through the 2013 Resolution and 2014 Resolution (together, 

Resolutions), Township used the Fee to “reimburse . . . Township’s . . . share of . . . 

expenses attributable to” Oak Hall, Whitehall Regional Park (Whitehall), Hess

 

3 The parties do not dispute that the Fee was paid into the Account and that interest was 

accrued on the funds. (See Developer’s Brief (Br.) at 8-9; Motion ¶¶ 24, 36; Township’s Br. at 4.)

4 Developer disagreed with Township’s calculation of the Fee ($1,148,424), and, although

it paid the full amount under protest on July 20, 2012, it also filed a land use appeal with the trial 

court challenging the amount. (Compl. ¶¶ 13, 15-16; Answer ¶¶ 13, 15-16.) Developer prevailed 

in its land use appeal on April 19, 2013, and the trial court reduced the Fee to $586,460. (Compl.

¶¶ 17-18; Answer ¶¶ 17-18.) Township refunded $561,964, plus interest and costs, to Developer. 

Neither party appealed the trial court’s decision.

5 Although paragraph 28 of the Answer “denied” the averment in paragraph 28 of the 

Complaint, both paragraphs recognize that the amounts designated were used for the parks listed 

in the paragraph.
4

Softball Field Complex, Fogelman Field, and other CRCOG expenses. (Compl. 

¶ 38; Answer ¶ 38.6) These parks are located between 1.7 and 6 miles from the 

Villas. (Id.)

Developer asserted in the Complaint that Township’s use of the Fee for the 

regional parks was not proper as such parks are too far away from the Villas and are, 

therefore, not “accessible” to the Villas as required by Section 503(11)(iii) of the 

MPC.

7

 (Compl. ¶¶ 39-41, 48.) To be accessible, Developer averred that the parks 

needed to be within or in close proximity to the Villas, and no more than two miles 

from its center. (Id. ¶¶ 40-41 (citing Section 180-26(D)(1) and (9) of the SALDO 

(addressing the location of land publicly dedicated during land development 

approval)).) Further, Developer cited an annual report of Township’s Parks and 

Recreation Committee (Annual Report), which suggested that “accessible” meant 

“less than 2000 feet walking distance with no major physical impediments or barriers 

such as an arterial road to cross.” (Id. ¶ 42 (emphasis omitted).) Although there 

were closer Township parks to the Villas, Developer averred Township used most 

of the Fee for Oak Hall and Whitehall, which are, respectively, approximately 5 and 

6 miles from the Villas, and none of the Fee was used for parks within 2000 feet of

the Villas. (Id. ¶¶ 45-47.) 

 

6 Paragraph 38 of the Answer did not dispute the use of the Fee as described in the 

Complaint, but did deny the inference that Township’s use was not proper under the MPC and 

SALDO.

7 The version of Section 503(11)(iii) of the MPC in effect at the time Developer paid the 

Fee provided that fees in lieu were “to be used only for the purpose of providing park or 

recreational facilities accessible to the development.” Former 53 P.S. § 10503(11)(iii). This 

provision was amended, effective November 24, 2014, and now provides that fees in lieu “are to 

be used only for the purpose of providing, acquiring, operating or maintaining park or recreational 

facilities reasonably accessible to the development.” 53 P.S. § 10503(11)(iii).
5

Developer also averred, citing Section 503(11)(v) of the MPC, that the use of 

the Fee on the regional parks had no reasonable relationship to the use of those parks 

by the Villas’ residents.8 (Id. ¶ 49.) As the Villas’ residents represent less than 5% 

of Township’s population, Developer contended that using the Fee to pay 

for/reimburse Township for 80% or more of the expenses for some of the parks and 

CRCOG’s general expenses does not bear a reasonable relationship to those 

residents’ possible use of those facilities. (Id. ¶¶ 53-58.) 

Finally, Developer averred the Township’s actions were not in accordance 

with Section 503(11)(vi) of the MPC or Section 180-26(E)(9) of the SALDO9

because Township improperly handled those funds, which were to be expended only 

to construct specific and identified recreational facilities. Based on the expenses 

attached to the 2014 Resolution, Developer maintained Township’s reimbursement 

to itself for expenses that were not used in constructing recreational facilities, let 

 

8 That section provides that “[t]he amount and location of land to be dedicated or the fees 

to be paid shall bear a reasonable relationship to the use of the park and recreational facilities by 

future inhabitants of the development or subdivision.” 53 P.S. § 10503(11)(v).

9 At the relevant time, Section 503(11)(vi) provided: 

A fee authorized under this subsection shall, upon its receipt by a municipality, be 

deposited in an interest-bearing account, clearly identifying the specific 

recreation facilities for which the fee was received. Interest earned on such 

accounts shall become funds of that account. Funds from such accounts shall be 

expended only in properly allocable portions of the cost incurred to construct

the specific recreation facilities for which the funds were collected.

Former 53 P.S. § 10503(11)(vi) (emphasis added). This provision was amended, effective 

November 24, 2014, to state: “[a] fee authorized under this subsection shall, upon its receipt by a 

municipality, be deposited in an interest-bearing account, clearly identified as reserved for 

providing, acquiring, operating or maintaining park or recreational facilities. Interest earned on 

such accounts shall become funds of that account.” 53 P.S. § 10503(11)(vi). Section 180-26(E)(9) 

of the SALDO stated, in relevant part, “[t]he fee shall be deposited into a separate interest-bearing 

account identifying the specific development that contributed the funds.” (R.R. at 32a.)
6

alone any specific facility for which the Fee was paid, did not comport with the 

requirements of the MPC and SALDO. (Compl. ¶¶ 59-64.) 

In its Answer, Township denied its use of the Fee violated the MPC and that 

the cited SALDO provisions related to the criteria for publicly dedicating land had 

any relation to the use of a fee in lieu. (Answer ¶¶ 40-41.) It further denied that the 

Annual Report had any binding legal force on Township and its use of the Fee under 

the MPC and SALDO. (Id. ¶ 42.) Township maintained its use of the Fee was 

proper because it was used to pay for bills that were incurred after the Fee was paid 

and were related to providing parks and recreational facilities that are accessible to 

the Villas. (Id. ¶ 48) Township acknowledged that the Fee’s use was not identified 

at the time it was paid, but stated that the use was identified and billed during the 

three-year period required by the MPC.10 (Id. ¶ 63.) 

Discovery ensued, during which Developer took the deposition testimony of 

Township’s Manager, Engineer, Finance Director, and Auditor. These witnesses 

testified regarding: the land development approval process; how the Fee was 

handled after it was paid; discussions about how and where to use the Fee; the 

location of Oak Hall and Whitehall parks in relation to the Villas; the passage of the 

Resolutions; and the expenditure of the Fee. In addition, Developer obtained

documentary evidence, including bank statements for the Account. At that time, 

Developer learned that, as of December 2016, the Account still had a balance of

$339,027.49.

 

10 In its New Matter, Township averred facts regarding what it did with the Fee following 

its receipt and various legal defenses. (New Matter ¶¶ 79, 81-89.) Developer responded to the 

New Matter essentially denying the averments and that the legal defenses had merit. (Reply to 

New Matter ¶¶ 79, 81-89.) 
7

B. Cross-Motions for Summary Judgment

On December 18, 2017, Developer filed its Motion, citing the above

undisputed facts, as well as some of the deposition testimony of Township’s 

witnesses, the Annual Report, and Township’s bank records reflecting that a portion 

of the Fee remained in the Account after the expiration of the three-year period. 

Relying on this evidence, Developer argued it was entitled to summary judgment 

because the undisputed, material facts established, as a matter of law, that:

Township did not use the Fee within the required period; if it did use the Fee, it was 

not for the construction of parks or recreation facilities that were accessible to the 

Villas or that bore a reasonable relationship to the Villas’ residents’ use of those 

parks and facilities; and Township did not properly designate the Fee for use on a 

specific project. Developer asserted that, in addition to the refund of the Fee, it was 

entitled to six percent prejudgment interest. Township responded, admitting the 

material facts were undisputed, but denying that the legal conclusions Developer 

drew from those facts were correct. Township argued that: Developer was relying 

on MPC and SALDO provisions that applied to land dedication, not to fees in lieu 

or the refund thereof; it properly used the Fee via the Resolutions; and its 

designation, or not, of the Fee for a particular park or recreational facility did not 

have any legal bearing on whether Developer was entitled to a refund. 

Township filed its Motion on December 19, 2017, citing undisputed material 

facts it believed supported its contentions that it used the Fee within the three-year 

period via the Resolutions, and its use of the Fee, as set forth in the Resolutions and 

attachments thereto, was in accordance with the MPC and SALDO because it was 

used on parks and recreational facilities accessible to the Villas. Therefore, 

Township asserted Developer had not produced evidence that would support 
8

Developer’s claims to the contrary. Developer responded, denying that the evidence 

cited by Township supported its claims and asserting that, as a result, Township was 

not entitled to summary judgment. 

II. The Trial Court’s Opinion

After the parties briefed and argued the Motions,11 the trial court issued its 

opinion, which for the following reasons, denied Developer’s Motion, granted 

Township’s Motion, and dismissed the Complaint.12

A. Developer’s Motion

The trial court rejected Developer’s first argument that it was entitled to 

summary judgment because Township failed to utilize the Fee within three years of 

 

11 In its Motion, Township cited to some of the deposition testimony of its own witnesses, 

to which Developer objected in its response based on Borough of Nanty-Glo v. American Surety 

Co. of New York, 163 A. 523 (Pa. 1932) (precluding a moving party in a summary judgment motion 

from relying on the oral testimony of its own witnesses in support of the motion). It appears that 

Developer raised the same issue before the trial court and raises it again, in a footnote in its brief, 

on appeal. However, the trial court held that the challenged assertions did not involve facts 

material to the issues before it and that, during oral argument on the Motions, the parties agreed 

that any dispute in the objected to testimony would not preclude summary judgment. (Trial Ct. 

Opinion (Op.) at 19 n.3; Developer’s Response to Township’s Motion ¶ 28 (admitting that a 

summary judgment motion “can be filed under these circumstances . . . .”), R.R. at 623a.) We 

agree.

12 A party is entitled to summary judgment where there is no genuine issue of material fact 

for a necessary element of the claim, or if, after discovery, the party that will bear the burden of 

proof at trial has not produced evidence of facts essential to the claim. Pennsylvania Rule of Civil 

Procedure 1035.2, Pa.R.C.P. No. 1035.2. Therefore, “if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 

genuine issue of material fact and that the moving party is entitled to a judgment as a matter of 

law,” summary judgment may be granted. Stuski v. Phila. Auth. for Indus. Dev., 162 A.3d 1196, 

1199 (Pa. Cmwlth. 2017) (citation omitted). The evidence of record is reviewed in the light most 

favorable to the non-moving party, and “[a] genuine issue of material fact . . . exists if a reasonable 

jury could find in favor of the non-moving party on that issue.” Perry v. Erie Cty., 169 A.3d 1232, 

1239 (Pa. Cmwlth. 2017). 
9

payment. Instead, the trial court accepted Township’s argument that Township

conducts its official business via legally binding resolutions and that the Resolutions 

identified the use of the Fee on specifically identified parks and recreational facilities

within three years of the Fee’s receipt. (Trial Ct. Opinion (Op.) at 10-11.) The trial 

court next rejected Developer’s arguments that the Fee was not used, as required by 

the MPC and SALDO, on parks and recreational facilities accessible to the Villas 

and the usage of the Fee on the regional parks did not bear a reasonable relationship 

to the Villas’ residents’ use of those parks. On the latter contention, the trial court 

concluded the “reasonable relationship” requirement did not apply to this proceeding 

but went to the amount of the fee in lieu, which had already been decided. (Id. at 

12-13.) The trial court then rejected Developer’s contention that use of the Fee was 

not on parks and recreational facilities “accessible” to the Villas’ residents.

Observing that the term is not defined by the MPC and that neither party presented 

any authority interpreting the term in the context of the MPC, the trial court 

construed “accessible” according to its common and approved usage by considering 

various dictionary definitions. Citing those definitions, and the lack of specific 

language in the MPC or SALDO to fix a set distance, the trial court concluded that 

Developer’s interpretation was unduly restrictive and a broader interpretation was 

required to allow for unique characteristics of a municipality or development. (Id.

at 13-15.) Last, the trial court rejected Developer’s arguments that a refund was 

required because the Fee was not used to construct recreational facilities and 

Township allegedly failed to comply with the requirements related to separating, 

earmarking, and spending fees in lieu on a specific park or recreational facility. The 

trial court held that, under Section 503(11)(iii), the Fee could be used to provide, not 

just construct, parks and recreational facilities and that the earmarking requirements 
10

were not relevant to the question of whether a refund should be granted. (Id. at 16-

17.) The trial court explained that Developer’s interpretation was not supported by 

the plain language of the MPC and SALDO. (Id. at 17.) For these reasons, the trial 

court concluded that Developer did not establish, as a matter of law, its right to the 

relief requested in the Complaint. Therefore, it denied Developer’s Motion.

B. Township’s Motion

Noting that the parties raised essentially the same arguments on Township’s 

Motion, which asserted that Developer, as the party with the burden of proof, could 

not come forward with evidence to support its claims, the trial court reiterated its 

reasons for rejecting Developer’s arguments. The trial court also expanded upon its 

rationale, explaining that under the common and approved usage of “accessible,” the 

parks and recreational facilities upon which Township used the Fee are accessible to 

the Villas’ residents because they were open to the public, free of charge, and could 

be reached fairly easily by vehicle. Developer did not present evidence establishing 

otherwise. (Id. at 18-19.) While it recognized that there might be some situation 

where a six-mile distance, when combined with other facts, may render a park or 

recreational facility inaccessible, the distance alone was insufficient. (Id. at 19-20.) 

Therefore, the trial court granted Township’s Motion and dismissed the Complaint.13

 

13 After Developer filed its appeal, the trial court directed Developer to file a Concise 

Statement of Errors Complained of on Appeal pursuant to Rule 1925(b) of the Pennsylvania Rules 

of Appellate Procedure, Pa.R.A.P. 1925(b). Developer did so, and the trial court issued an order 

indicating that its previously entered opinion addressed the issues raised by Developer.
11

III. Developer’s Appeal 

On appeal,14 Developer argues the trial court erred in denying its Motion and 

granting Township’s Motion. As it asserted before the trial court, Developer argues

that: (1) Township did not utilize the Fee within three years; (2) if Township’s 

Resolutions did utilize the Fee, the uses to which the Fee were put are not for the 

purposes set forth in the MPC and SALDO; and (3) the manner in which Township 

handled the Fee violated the MPC and SALDO. For these reasons, Developer argues 

it is entitled to a refund under the MPC and SALDO, as well as six percent 

prejudgment interest. 

A. Utilization of the Fee Within Three Years of Receipt

Developer first argues that it is entitled to a refund of the Fee pursuant to the 

versions of Section 503(11)(vii) of the MPC and Section 180-26(E)(9) of the 

SALDO in effect at the time it paid the Fee because Township did not use the Fee 

within three years of its payment. Pointing to Township’s bank records, which show 

that $339,027.49 of the funds remained in the Account after the three-year period 

had expired, Developer asserts Township cannot be said to have utilized those funds. 

Developer contends the trial court’s reliance on the Resolutions was erroneous 

because, while the Resolutions may reflect the opinion or will of Township Council, 

resolutions may be rescinded. Seitel Data, Ltd. v. Ctr. Twp., 92 A.3d 851, 859-63 

(Pa. Cmwlth. 2014). Township responds that the Resolutions, passed within the 

three-year period, identified the amounts of the Fee to be used to provide parks and 

recreational facilities accessible to the Villas, were valid, timely expenditures of 

 

14 “Our review of a trial court order granting summary judgment is limited to determining 

whether the trial court erred as a matter of law or abused its discretion.” Stuski, 162 A.3d at 1199 

n.2.
12

those funds. Township points out that Developer does not challenge the validity of 

the Resolutions and disregards the fact that resolutions are official actions of a 

municipal government. Wiley v. Woods, 141 A.2d 844, 847 n.6 (Pa. 1958). 

Section 503(11)(vii) provided, in pertinent part, that “[u]pon request . . . , the 

municipality shall refund such fee, plus interest . . ., if the municipality had failed 

to utilize the fee . . . for the purposes set forth in this section within three years 

from the date such fee was paid.” Former 53 P.S. §10503(11)(vii) (emphasis 

added). Section 180-26(E)(9) of the SALDO contains a similar provision, stating 

“Township shall return the fee, plus interest, upon request . . . if the Township has

failed to utilize the fee for the purposes set forth above within a period of three 

years of the date the fee was paid.” (R.R. at 32a-33a (emphasis added).) Neither 

the MPC nor SALDO define “utilize,” but the term may be defined as “to make 

useful; . . . make use of . . . .” Webster’s Third New International Dictionary 2525 

(2002).

In concluding that Township utilized the Fee within the required three-year 

period based on the Resolutions, the trial court observed that “a municipality 

conducts official business by resolution.” (Trial Ct. Op. at 11.) Through the 

Resolutions, the trial court reasoned, Township had committed the Fee “for payment 

of the specifically identified park and recreation facility expenses incurred within 

the three year window, together with the actual payment of those expenses in that 

window,” which “is sufficient to meet the requirement that the [F]ee . . . be ‘utilized’ 

within three years of receipt.” (Id. at 11.) This analysis is consistent with our 

Supreme Court’s description of “resolution,” as being “[a] formal expression of the 

opinion or will of an official body or a public assembly, adopted by vote; as a 

legislative resolution.” Wiley, 141 A.2d at 847 n.6 (internal quotation marks and 
13

citation omitted). While a resolution may be rescinded, Seitel Data, Ltd., 92 A.3d 

at 859-63, this does not require the Court to disregard Township’s formal action to 

utilize, i.e., make use of, the Fee for costs that had been incurred between the 

payment of the Fee and the adoption of the Resolutions, a period of less than three 

years. (R.R. at 78a-79a, 81a-87a.) The fact that Township has not transferred 

monies from one of its accounts to another of its accounts does not mean the 

challenged monies were not utilized by the Resolutions within three years of the 

Fee’s payment. Accordingly, we discern no error in the trial court rejecting 

Developer’s argument.

B. MPC/SALDO Purposes for the Fee

1. “Accessibility”

Developer next argues the trial court erred in holding that the uses to which 

the Township put the Fee were not in accordance with the MPC and SALDO. 

Developer asserts the trial court erred in broadly construing the term “accessible” to 

include the parks and recreational facilities on which Township used the Fee despite 

their not being within close proximity or walking distance to the Villas, as required 

by Section 180-26(D)(1) of the SALDO and Annual Report. Developer argues that 

when determining whether a park or facility is “accessible,” there should be no 

distinction between the location of land dedicated by a developer and the location of 

the park facilities upon which fee in lieu funds are used. Developer asserts that under 

either circumstance the land or facilities must be within close proximity to, and no 

more than two miles from, the Villas to qualify as “accessible.” Developer argues

its more restrictive interpretation of “accessible” is supported by the recent 

amendments to Section 503(11)(iii), requiring that the facilities be “reasonably
14

accessible to the development.” (Developer’s Br. at 23 (citing legislative history 

related to the 2014 amendment of Section 503(11)(iii), Appendix D of Developer’s 

Brief (Br.)) (emphasis added).) Such amendments, Developer argues, may be 

considered because they can be construed as a response to an ambiguous statute. 

Buehl v. Horn, 728 A.2d 973, 980 (Pa. Cmwlth. 1999).

Township responds that the parks and recreational facilities upon which the 

Fee was used are “accessible” to the Villas’ residents. Because the term “accessible” 

is undefined, Township asserts the trial court properly applied the rules of statutory 

construction to find the term’s “plain, ordinary, usually understood meaning, which, 

generally, is drawn from dictionaries.” (Township’s Br. at 13 (quoting Alessi v. 

Millcreek Twp. Zoning Hearing Bd., 814 A.2d 278, 283 n.8 (Pa. Cmwlth. 2002)).) 

Township asserts Developer’s reliance on the SALDO to support its arguments is 

misplaced because the provisions cited do not apply where a fee in lieu is paid, only 

where land is dedicated. Finally, Township argues the intent of the General 

Assembly in 2014 when it amended Section 503(11)(iii) is irrelevant because it does 

not reflect the intent of the General Assembly that had enacted the version of that 

section at issue here. 

At the time relevant to this matter, Section 503(11)(iii) of the MPC provided 

that “[t]he land or fees, or combination thereof, are to be used only for the purpose 

of providing park or recreational facilities accessible to the development.” Former 

53 P.S. § 10503(11)(iii) (emphasis added). Section 180-26(D)(1) of the SALDO, 

relied upon by Developer, authorizes Township’s Council to determine “if the land 

[to be offered for public dedication by a developer] is acceptable . . . based on . . . 

relevant criteria, including” that the proposed “[a]reas shall generally be designed as 

neighborhood parks or natural areas which provide recreational opportunities for the 
15

residents within the subdivision or in close proximity.” (R.R. at 29a.) An exception 

to this requirement is available if a dedication would be made to a regional park that 

“is located within two miles of the center of the subdivision.” (Id.)

In its opinion, the trial court reviewed the statutory language and, consistent 

with Section 1903(a) of the Statutory Construction Act of 1972, 1 Pa. C.S. 

§ 1903(a),

15 considered dictionary definitions to find and apply the common and 

approved usage of the undefined term “accessible.” Citing definitions of accessible, 

including “capable of being reached,” “being within reach,” “capable of being used 

or seen,” and “capable of being reached or easily approached,” the trial court rejected 

Developer’s assertion that “accessible” meant within close proximity to, and no 

farther than two miles from, the center of the Villas, finding such interpretation 

“unduly restrictive” and without support in the MPC and SALDO. (Trial Ct. Op. at 

13-14.) In addition, the SALDO provisions addressing the location of parkland 

relied upon by Developer expressly apply to dedication of land by a developer and 

do not indicate that those restrictions similarly apply to payment of fees in lieu. As 

observed by the trial court, while the SALDO required that land being publicly 

dedicated by a developer be within a certain distance of the associated development, 

“neither the MPC nor the SALDO contains language evidencing an intent to narrow 

the permissible uses of fee in lieu funds to use for parks or recreational facilities 

within a predetermined, specified distance of a development.” (Id. at 14.) Having 

reviewed the MPC, SALDO, and definitions of “accessible,” we agree with the trial 

court that accepting Developer’s more restrictive interpretation is not supported by 

the statutory language and “would severely limit the discretion of a local 

municipality to plan for parks and recreational facilities in connection with land 

 

15 This provision states, in pertinent part, “[w]ords and phrases shall be construed according 

to rules of grammar and according to their common and approved usage . . . .” 1 Pa. C.S. § 1903(a).
16

development.” (Id.) Accordingly, we discern no error in the trial court’s

determination on this issue.

Moreover, Developer’s reliance on the 2014 amendment to Section 

503(11)(iii) is misplaced. A court “cannot discern the legislative intent of the 

General Assembly that passed the relevant, prior version of . . . [a] statute by 

examining the intent of the General Assembly that amended that statute.” 

Commonwealth v. Lynn, 114 A.3d 796, 827 (Pa. 2015). “[W]hile the former version 

of a statute is relevant to discern the legislative intent of a later version when the 

statutory language is ambiguous, the inverse is not true.” Id. Thus, the General 

Assembly’s intent when it enacted the 2014 amendment does not inform our analysis 

on a prior General Assembly’s intent when it enacted the version of Section 

503(11)(iii) applicable to this matter. Further, Buehl, upon which Developer relies, 

is distinguishable because, in that case, the General Assembly amended a statutory 

provision in response to judicial decisions finding the provision ambiguous and 

interpreting it in a particular way. Here, as the trial court noted, there was no 

authority interpreting the term “accessible” to which the General Assembly was 

responding. (Trial Ct. Op. at 13.) 

Even if we considered that amendment, our Supreme Court has also

recognized that not all amendments are changes in the law; some are “clarifications 

of [a] prior law” that reflect no change in the law. See O’Connor v. City of Phila. 

Bd. of Ethics, 105 A.3d 1217, 1233-34 (Pa. 2014). The addition of the word 

“reasonably” before “accessible” in the 2014 amendment did not necessarily, as 

Developer argues, alter the meaning of this requirement. Section 1922 of the 

Statutory Construction Act of 1972, 1 Pa. C.S. § 1922, requires courts, in 

ascertaining the General Assembly’s intent, to assume that the legislature “does not 
17

intend a result that is . . . unreasonable.” Thus, applying this principle, courts would 

construe the term “accessible” as impliedly including a reasonableness requirement. 

That is what the trial court did here when it found that the parks and recreational 

facilities upon which the Fee was used were accessible. (Trial Ct. Op. at 18-20.) 

The trial court examined who would be residing at the Villas, what types of 

transportation were available (private cars and public transportation) to those 

residents, and the ability of those residents to access the relevant parks and 

recreational facilities. 

2. “Reasonable Relationship”

Developer next argues the trial court erred in not applying the reasonable 

relationship language of Section 503(11)(v) to the purpose provision of Section 

503(11)(iii). Because the Villas’ population comprises less than 5% of Township’s 

residents and the Fee was used to pay Township’s entire 18.11% share of the regional 

park expenses, Developer maintains the required reasonable relationship does not 

exist. Township replies the reasonable relationship requirement applies only to 

Section 503(11)(v) of the MPC, which was at issue in Developer’s 2012 land use 

appeal challenging the amount of the Fee. Township contends that provision is 

irrelevant to the purpose for which a fee in lieu was used – which is the only concern 

in a refund action under Section 503(11)(iii). Township further asserts that 

Developer’s argument is without merit as it attempts to engraft a requirement into 

the refund analysis that was not included by the General Assembly. 

Section 503(11)(v) states that “[t]he amount and location of land to be 

dedicated or the fees to be paid shall bear a reasonable relationship to the use of the 

park and recreational facilities by future inhabitants of the development or 
18

subdivision.” 53 P.S. § 10503(11)(v). The trial court held this subsection was 

relevant to the issue of calculating the amount of a fee in lieu, which had been at 

issue in Developer’s original challenge to the amount of the initial Fee in 2012, rather 

than the permitted purpose language set forth in Section 503(11)(iii). The trial court 

explained that “[t]he legislature could have included the reasonable relationship 

requirement within this express statement of permitted purpose[s, set forth in Section 

503(11)(iii),] had it intended to impose this further restriction on [the] use of fee in 

lieu payments,” but did not, which “indicates a legislative intent that the uses not be 

so restricted.” (Trial Ct. Op. at 12.) We agree with the trial court’s interpretation.

By its terms, Section 503(11)(v) requires that the amount of a fee in lieu a 

developer pays or the amount and location of the land that a developer publicly 

dedicates be reasonably related to a particular development’s inhabitants’ future use

of any park or recreational facilities related thereto. This restriction protects 

developers from unreasonable demands in the amount and location of land to be 

publicly dedicated or the amount of the fee in lieu to be paid. It is, in essence, a 

quantitative restriction. In contrast, Section 503(11)(iii), which addresses the 

purpose of the fee in lieu and dedicated land, requires only that the fee or land be 

used “for the purpose of providing park or recreational facilities accessible to the 

development.” Former 53 P.S. § 10503(11)(iii). Absent from this section is the 

“reasonable relationship” language, which would limit the use of the fee or land 

beyond that it be used on facilities that are accessible to the development. Courts 

are not to add language to a statute which the legislature did not include. Summit 

Sch., Inc. v. Dep’t of Educ., 108 A.3d 192, 199 (Pa. Cmwlth. 2015). Accordingly, 

there was no error in the trial court’s conclusion that the “reasonable relationship” 

language of subsection (v) has no impact on subsection (iii).
19

C. Handling the Fee in Compliance with MPC/SALDO 

Developer argues it is entitled to a refund because Township did not follow 

Section 503(11)(vi) of the MPC and Section 180-26(E)(9) of the SALDO. 

Developer asserts that Township violated these provisions because it did not, when 

the Fee was paid, “identify any specific recreation facilities for which the fee in lieu 

would be used.” (Developer’s Br. at 28.) Moreover, Developer maintains that these 

funds had to be used “‘to construct’ the specific facilities” and Township’s use of 

those funds to pay for regional park expenses, which included non-construction 

charges, does not meet this requirement. (Id. (quoting former 53 P.S. 

§ 10503(11)(vi)).) Developer asserts the trial court erred in overlooking the “to 

construct” language and broadly interpreting the word “providing” in Section 

503(11)(iii) to include activities beyond constructing parks. 

Township responds that the trial court did not err in holding that these 

provisions are unrelated to the purpose-based test for whether a fee in lieu must be 

refunded. It maintains these are accounting and earmarking provisions that allow a 

developer to track the funds as they are used. Here, Township argues, Developer 

knew exactly where the Fee was used, as it pled the specifics of that use in the 

Complaint. Township further contends the relief for a violation of these provisions 

is a mandamus action seeking compliance, not waiting, as Developer did here, for 

the three-year period to expire and then seeking a refund. Last, Township explains 

it could not identify specific recreational facilities at the time Developer paid the Fee 

because Developer did so under protest and requested that the Fee be held in escrow 

pending resolution of Developer’s challenge to the Fee.

Section 503(11)(vi) addressed how and where a fee in lieu is to be deposited 

upon receipt and provided: 
20

A fee authorized under this subsection shall, upon its receipt by a 

municipality, be deposited in an interest-bearing account, clearly 

identifying the specific recreation facilities for which the fee was 

received. Interest earned on such account shall become funds of that 

account. Funds from such account shall be expended only in properly 

allocable portions of the cost incurred to construct the specific 

recreation facilities for which the funds were collected.

Former 53 P.S. § 10503(11)(vi) (emphasis added). At the time Developer paid the 

Fee, Section 180-26(E)(9) of the SALDO stated, in relevant part “[t]he fee shall be 

deposited into a separate interest-bearing account identifying the specific 

development that contributed the funds.” (R.R. at 32a.) Under these provisions, 

when Township received the Fee, Township should have placed those funds in an 

interest-bearing account that identified a specific recreational facility or facilities 

(MPC) and the specific development, the Villas, (SALDO) for which the Fee was 

received. Township did not do this, (Answer ¶ 63), which is not consistent with the 

MPC’s and SALDO’s requirements. 

However, after examining the MPC’s and SALDO’s refund provisions, we 

agree with Township and the trial court that the relief for Township’s noncompliance with these accounting or earmarking requirements is not a refund of the 

Fee, as claimed by Developer. Section 503(11)(vii) provided that a refund must be 

granted if a fee is not used “for the purposes set forth in this section,” and Section 

503(11)(iii) stated that fees in lieu “are to be used only for the purpose of providing 

park or recreational facilities accessible to the development,” former 53 P.S. 

§ 10503(11)(iii), (vii) (emphasis added). Thus, a refund is available when a 

municipality fails to use, within three years of receipt, a fee to provide parks or 

recreational facilities accessible to the development that paid the fee. To hold, as 

Developer requests, that Township’s failure to properly label the interest-bearing 

account in which the Fee was deposited results in the refund of the entire Fee, 
21

notwithstanding the use of the Fee for purposes consistent with the MPC and 

SALDO, is not supported by the statutory language. As the trial court cogently 

explained, under Developer’s “theory, an error in account labeling or documentation 

could result in forfeiture of a fee in lieu, regardless of whether the fee was actually 

used solely for the purposes expressly permitted by the MPC and the SALDO,” and 

this “harsh result” was not intended by the statutory language. (Trial Ct. Op. at 17.) 

We also agree with the trial court’s conclusion that the use of the Fee was not 

limited only to the construction of recreational facilities, as Developer argues. (Trial 

Ct. Op. at 16.) In construing statutory language, it is presumed that the legislature 

“does not intend a result that is absurd, impossible of execution or unreasonable.” 

Section 1922(1) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1922(1). 

“Thus, ‘[s]tatutes should receive a sensible construction . . . .” Summit Sch., Inc., 

108 A.3d at 197 (quoting Capital Academy Charter Sch. v. Harrisburg Sch. Dist., 

934 A.2d 189, 193 (Pa. Cmwlth. 2007)). Where a statute is ambiguous, i.e., there 

are at least two reasonable interpretations of the statute’s text, the legislature’s intent 

may be ascertained by “[t]he consequences of a particular interpretation.” Id.

(internal quotation marks and citations omitted). 

While subsection (vi) indicates that the funds deposited in the relevant 

accounts shall be expended on the “cost incurred to construct” recreational facilities,

subsection (iii) authorizes the use of fees in lieu for “providing” park and recreational 

facilities accessible to the development. Former 53 P.S. § 10503(11)(iii), (vi). 

Subsection (iii) does not expressly limit the use of a fee in lieu to constructing park 

and recreational facilities accessible to the development, but instead limits a fee’s 

use to providing those facilities. “Provide,” undefined by the MPC, can be defined 

as “to supply what is needed for . . . support” or “to supply for use.” Webster’s Third 
22

New International Dictionary 1827. Although a municipality could provide park 

and recreational facilities by constructing new facilities, park and recreational 

facilities also could be provided through the use of existing park and recreational 

facilities that are accessible to the development. These two interpretations are 

reasonable and, therefore, create an ambiguity in the statutory language. Thus, we 

may consider, among other things, the consequences of a particular interpretation to 

ascertain the legislature’s intent. Summit Sch., Inc., 108 A.3d at 197.

Upon review, we conclude the consequences of Developer’s more restrictive 

interpretation creates an unreasonable result. There may be situations where a 

municipality has an existing park accessible to the proposed development, perhaps 

even adjacent thereto, through which park and recreational facilities could be

provided. Or, there may be no land remaining upon which to construct a new park 

or recreational facility, requiring that the existing accessible park and recreational 

facilities be used to provide such facilities to the development. Using Developer’s

more restrictive interpretation would preclude the use of a fee in lieu on these

existing accessible parks, notwithstanding that those existing parks and facilities are

providing or supplying the requisite recreational support to the development. 

Interpreting these provisions, as Developer suggests, to require the use of a fee in 

lieu to construct new facilities to provide recreational opportunities, while 

precluding the use of that fee to provide those opportunities via existing accessible 

parks or recreational facilities, is an unreasonable result: under either scenario, 

accessible parks and/or recreational facilities are provided, as they are “suppl[ied]

for use” or “supply what is needed for . . . support,” of the new development’s 

recreational needs. Webster’s Third New International Dictionary 1827. 
23

Unreasonable results are to be avoided, as the legislature is presumed not to intend 

such results. Summit Sch., Inc., 108 A.3d at 197; 1 Pa. C.S. § 1922(1). 

Additionally, we observe that while the Township’s non-compliance with 

these provisions is troubling, we are also troubled with Developer waiting more than 

three years to challenge that non-compliance. Such challenges must be raised at the 

earliest opportunity, preferably before a municipality utilizes a fee in lieu, or risk 

being waived or barred by laches.

16

 Asserting this type of challenge in a mandamus 

action, as suggested by Township, or as a part of an initial challenge to a proposed

fee under Section 503(11)(v),17 would avoid the situation where, as here, a 

municipality utilizes a fee without knowing that a developer objected to how the 

municipality has handled the fee for accounting purposes until after the fee has been 

expended or given the opportunity to become compliant. Accordingly, we discern

no error in the trial court’s rejection of Developer’s arguments under these 

circumstances.

D. Prejudgment Interest

Finally, Developer asserts that, if the Court agrees that summary judgment 

was improperly granted to Township and a refund should have been granted, it is 

entitled to an award of prejudgment interest at six percent from the date it paid the 

Fee until the Township refunds the entire $586,460 plus the interest that had accrued. 

 

16 The doctrine of laches “bars relief when a complaining party is guilty of want of due 

diligence in failing to promptly institute an action to the prejudice of another.” Nigro v. City of 

Philadelphia, 174 A.3d 693, 699 (Pa. Cmwlth. 2017) (internal quotation marks and citation 

omitted).

17 Although it is questionable whether we will be faced with a matter similar to the present 

one following the amendments to various provisions of Section 503(11), including subsection (iii) 

(the purpose provision), (vi) (the earmarking provisions), and (vii) (the refund provision).
24

However, because we discern no error in the trial court’s decision, Developer’s 

argument necessarily fails.

IV. Conclusion

For the foregoing reasons, the trial court did not err in denying Developer’s 

Motion, granting Township’s Motion, and dismissing Developer’s Complaint. 

Accordingly, we affirm.

_____________________________________

RENÉE COHN JUBELIRER, Judge

Judge Fizzano Cannon did not participate in this matter.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

BVRE, LP and Keystone Real Estate :

Group, LP, :

Appellants :

v. :

 : No. 1314 C.D. 2018

College Township : 

:

O R D E R

NOW, July 23, 2019, the Order of the Court of Common Pleas of Centre 

County, entered in the above-captioned matter, is AFFIRMED.

_____________________________________

RENÉE COHN JUBELIRER, Judge