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Commonwealth Court Vacates Ruling on Toll Brothers Development in Ferguson Township

by on May 18, 2017 10:03 AM

A Commonwealth Court panel on Wednesday vacated a Centre County court's ruling that Ferguson Township's Board of Supervisors committed an error of law in approving Toll Brothers' final Planned Residential Development (PRD) plan for the Cottages at State College.

The decision also reverses an earlier ruling that denied a motion by Toll Brothers' subsidiary Springton Pointe, LP to quash a land use appeal filed by a group of 15 neighboring landowners.

The Cottages is a proposed 264-unit development on 44 acres of land near the intersection of Whitehall Road and Blue Course Drive in Ferguson Township. A tentative plan was first brought to Ferguson Township supervisors in October 2014 and approved in March 2015. A final plan was submitted that month and a revised final plan was approved in November 2015.

But since the proposal first came to the board, township residents have been vocal about concerns that stormwater runoff would harm the nearby Harter-Thomas well fields, the source of drinking water for the majority of homes served by the State College Borough Water Authority, which provides water to the Centre Region.

Toll Brothers and the township have said in the past that the stormwater management design in the plans changed significantly to exceed stormwater regulations, and that the proposal has much lower density than is permitted and higher percentage of open space than is required.

The final PRD plan for the site included three parcels. Two totaling 38 acres were zoned R4 for multi-family residential use and the third 5.5-acre parcel is zoned rural agricultural. The plan included a subdivision and lot consolidation that joined part of the R4 with the RA, but left the underlying RA zoning for the 5.5 acres. The RA portion remained excluded from the PRD and was to be used for stormwater management facilities.

The group of residents appealed approval of the plan to Centre County Court of Common Pleas on the grounds that the board's decision was an abuse of discretion and error of law and that it violated the state's Environmental Rights Amendment.

Toll Brothers/Springton Pointe argued in January 2016 that the appeal should be quashed because the residents did not argue that the final PRD plan deviated from the tentative plan, the latter of which they did not appeal from. The residents countered that the tentative plan required the final PRD plan to comply with all township zoning ordinances. Because it did not, they argued, it constituted a deviation and so the appeal was timely.

Judge Jonathan Grine denied the motion to quash and in July ruled that the supervisors committed an error of law in approving the final PRD plan, reversing the supervisors' approval. Toll Brothers appealed that decision in August.

The Commonwealth Court ruling this week noted that the state's Municipal Planning Code gives authority to local governments to establish conditions and standards for the development of PRDs that can override traditional zoning controls for larger developments.It also sets a two-part procedure for approving a tentative plan and a final plan.

"When read together the three sections make clear that the critical step in the PRD process is tentative plan approval and that a municipality's authority to deny approval is limited to instances where the final plan contains deviations from the tentative plan, except where those deviations are required to comply with conditions attached to the tentative plan approval," Senior Judge James Gardner Collins wrote in a memorandum.

The MPC also limits appeal by a party other than the landowner unless the final plan deviates substantially from the tentative plan. The residents did not argue the final plan deviated from the tentative plan, the Commonwealth Court filing stated, but rather that allowing stormwater management on the RA parcel violated zoning and the MPC and usurped the zoning hearing board's authority by granting a de facto variance.

The residents raised the issue of deviation between plans after Toll Brothers' motion to quash. The Commonwealth Court panel ruled that the residents waived their right to raise the issue by failing to raise it in their notice of appeal. Even if the issue had been sufficiently raised, the motion to quash the appeal would still be granted because the residents' claim is dependent on the supervisors' interpretation of the zoning ordinance related to stormwater management when they approved the tentative plan. 

The residents, Collins wrote, would have had to challenge the board's tentative plan approval.

The case was remanded to county court to enter an order quashing the residents' land use appeal. The decision can still be appealed further by the objecting residents.


Geoff Rushton is managing editor for Contact him at [email protected] or find him on Twitter at @geoffrushton.
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