IN THE

Commonwealth Court of Pennsylvania

97 CD 2016

GOLF ENTERPRISES, INC., Appellant,

v.

NEWBERRY TOWNSHIP BOARD OF SUPERVISORS,

Appellee, v.

VALLEY GREEN RESIDENTS ORGANIZATION, ANTHONY MILLER, MARY MILLER, LEEANN MENUT, KENNETH MENUT, WILLIAM HENDRICKSON, EDNA HENDRICKSON, LEANN PAGUE, EDWARD PAGUE,

STANLEY OLEJARCZYK, NANCY OLEJARCZYK, JOHN ELLIOTT, AND AMY ELLIOTT,

Appellees, _______________________________

On Appeal from the Order dated December 30, 2015, in the Court of Common Pleas of York County at No. 2013-SU-004461-54

BRIEF FOR APPELLEES

JOHN N. ELLIOTT, ESQ.

ID. No. 82818 REAM, CARR, MARKEY & WOLOSHIN LLP 119 East Market Street York, Pennsylvania 17401 jnelliottesq@comcast.net (717) 843-8968 Attorney for Appellees, Valley Green Residents Organization, LeAnn Pague, Edward Pague, Stanley Olejarczyk, Nancy Olejarczyk, Mary Miller, Anthony Miller, LeeAnn Menut, Kenneth Menut, William Hendrickson, Edna Hendrickson, John Elliott, and Amy Elliott

COUNSEL PRESS • (888) 700-3226

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................................................... ii

COUNTER-STATEMENT OF THE QUESTION INVOLVED .............................. 1

COUNTER-STATEMENT OF THE CASE ............................................................. 1

SUMMARY OF ARGUMENT ............................................................................... 12

ARGUMENT ........................................................................................................... 14

A. The zoning ordinance is presumed to be valid, and GEI cannot prove its heavy legal burden of demonstrating that the ordinance is arbitrary and irrational .................................................... 15

B. The Realen and Heritage Hills cases are distinguishable from the present case .................................................................................... 17

C. GEI voluntarily committed its own land to be used as Open Space prior to 2006.............................................................................. 20

D. The proposed development’s dangerous impact on local roads justifies the denial of GEI’s application .............................................. 23

E. The OS Zone is compatible with the RG Zone and is rationally related to the development objectives as set forth in the Comprehensive Plan ...................................................................... 26

F. The site specific relief requested by GEI is premature ....................... 29

CONCLUSION ........................................................................................................ 30

ii

TABLE OF AUTHORITIES Page(s)

Cases:

Abbey v. Zoning Hearing Board of East Stroudsburg, 126 Pa. Commw. 235, 559 A.2d 107 (1989) ................................................. 14

Atherton Development Company v. Township of Ferguson, 29 A.3d 1197 (Pa. Commw. 2011) ................................................................ 16

Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck, 721 N.E. 2d 971 (N.Y.S. 1999) ..................................................................... 28

Doylestown Township v. Teeling, 635 A.2d 657 (Pa. Commw. 1993) ................................................................ 21

Fisher v. Cranberry Twp ZHB, 819 A.2d 181 (Pa. Commw. 2003) ................................................................ 26

Hal Holding, LLC v. Twp of Mount Laurel, 2012 N.J. Super. Unpub. Lexis 994 ......................................................... 27, 28

HEJ Partnership v. Clinton Cty Comm., 657 A.2d 116 (Pa. Commw. 1995) ................................................................ 14

Heritage Hills Associates v. York Township Board of Commissioners, No. 2010-SU-3147-29 ............................................................................passim

In Re: Appeal of Realen Valley Forge Greenes Associates, 838 A.2d 718 (Pa. 2003) .........................................................................passim

Jay-Lee, Inc. v. Kingston ZHB, 799 A.2d 923 (Pa. Commw. 2002) ................................................................ 14

Keniath v. Twp of Edgmont, 964 A.2d 458 (Pa. Commw. 2009) ................................................................ 26

Penn Street L.P. v. East Lampeter Twp. ZHB, 84 A.3d 1114 (Pa.Cmwlth. 2014) ................................................................. 20

Sharp v. ZHB Twp of Radnor, 628 A.2d 1223 (Pa. Commw. 1993) .............................................................. 16

Twp. of Plymouth v. Cnty. Of Montgomery, 109 Pa.Cmwlth. 200, 531 A.2d 49, 57 (1987) ........................................................ 20

iii

Statutes

53 P.S. § 10609.1(c) ........................................................................................... 24, 29

53 P.S. § 11005-A .................................................................................................... 14

1998 Zoning Ordinance § 209.1 ................................................................................ 4

1998 Zoning Ordinance § 411 ................................................................................... 4

1998 Zoning Ordinance § 422.1 ................................................................................ 4

1998 Zoning Ordinance § 422.2 ................................................................................ 4

1998 Zoning Ordinance § 422.4 ................................................................................ 4

1998 Zoning Ordinance § 422.6 ................................................................................ 4

2006 Zoning Ordinance § 201.1 ................................................................................ 3

Pennsylvania Municipalities Code § 609.1(c) ......................................................... 24

1

COUNTER-STATEMENT OF THE QUESTION INVOLVED Must the decision of the Newberry Township Board of Supervisors be

upheld where the Township’s findings were supported by substantial evidence, and

the Township did not abuse its discretion or commit an error of law?

Suggested Answer: Yes

COUNTER-STATEMENT OF THE CASE

The Newberry Township Board of Supervisors upheld the constitutional

validity of the Open Space (OS) Zone in its zoning ordinance because its adoption

was a valid and reasonable exercise of the Township’s powers. Contrary to the

assertion of Appellant Golf Enterprises, Inc. (“GEI”) the intent of the OS zone was

not simply to “freeze” development but instead, in part, to recognize that GEI itself

had already committed the golf course area at issue to remain as open space and

therefore maintain it as a focal part of the community in harmony with the

surrounding environs. GEI’s proposed curative amendment seeks to rezone the

current OS Zone to a modified version of the Residential Growth (RG) Zone on the

theory that GEI’s property is being treated unjustifiably differently than land

surrounding it. It should be noted however that GEI does not want its land to be

treated exactly like the surrounding RG Zone, but additionally seeks permitting

golf courses and restaurant/taverns (a combination of permitted uses that is not

currently allowed anywhere in the Township).

2

The OS Zone was created as part of the adoption of a new comprehensive

plan and zoning ordinance in 2006. Prior to such adoption the Township engaged

in a thorough fact finding effort that included numerous public hearings; a survey

sent to 4,000 residents; input from numerous professional consultants including

professional engineering firm Rettew; and review and approval from the Newberry

Township and York County Planning Commissions. (Decision of the Bd. of

Supervisors, Appellant’s Brief Appendix A (“Decision”), Findings of Fact ¶28;

Tom Neptune, R. 1745a-1746a). During the planning process, McNaughton

Properties (then owners of the Fox Farm property and the golf course) addressed

the planning committee and indicated they wanted to make sure that the Fox Farm

was going to be included in the primary residential growth area. (Neptune, R.

1751a). GEI and its predecessors indicated their intent to, and by the time of

adoption of the Comprehensive Plan had already dedicated the golf course as open

space by way of conditions attached and agreed to on the final subdivision and

land development plans. (Neptune, R. 1750a-1753a; Townes on the Green Final

Subdivision Plan Ex. T-11, R. 542a).

One of the stated top ten goals of the Comprehensive Plan is to “provide a

coordinated and comprehensive system of parks, recreation, and open space that

will meet the active and passive recreational needs of all residents in the Township

and enhance the community design, identity, and vitality.” (Decision, Findings of

3

Fact ¶30; Comp. Plan Chapter 5, 5-11 #7). The OS Zone adopted in the 2006

Zoning Ordinance was done so in accordance with the stated recommendations and

goals of the Comprehensive Plan. The purposes of the OS Zone include

“protecting the character of the neighborhood and protecting the existing open

space that is so integral to the Township.” (Decision, Findings of Fact ¶27; 2006

Zoning Ordinance §201.1, R. 810a). Open space is compatible generally with

residential growth areas, and the Township’s OS Zone is compatible and in

harmony with the adjacent RS Zone. (Ex. R-7, R.746a; Anthony Miller R. 1325a-

1336a; Dennis Glackin, R. 1159a (acknowledging that “it is permissible to have

open space in a growth area.”)).

The Newberry Township Supervisors correctly concluded that GEI

voluntarily committed its own land to be used as open space by taking advantage

of certain developer incentives offered by golf course cluster developments. In the

Township’s 1992 and 1998 zoning ordinances immediately prior to the 2006

rezoning, the property at issue was zoned Commercial Recreation (C-3). The C-3

Zone permitted by conditional use what were known as “golf course cluster

developments.” Prior to 2006 a Golf Course Cluster Development was a

particular kind of Cluster Development as permitted in other zones, which had the

express purpose of offering density bonus and flexible design standards in

exchange for the preservation and protection of natural features and/or provision of

4

public accessible open space. (1998 Ordinance §411). The Ordinance stated that

“incentives will be provided for the retention of golf courses amid residential

developments.” (1998 Ordinance §209.1). Golf Course Cluster Developments

specifically utilized the Valley Green Golf Course to achieve minimum 100 acres

and open space requirements, and permitted housing density calculations using

gross acreage including the golf course. (Decision, Findings of Fact ¶¶53-55; 1998

Ordinance §§422.2, 422.4, 422.6). At least 60% of any golf course cluster

development had to be devoted to open space. (Decision, Findings of Fact ¶57;

1998 Ordinance §422.6). A Golf Course Cluster Development had to meet the

requirements for the Golf Course Cluster Development as well as a golf course.

(1998 Ordinance §422.1; Ryan Rhoades, R. 1772a-1773a).

GEI applied for and received final approval for golf course developments

called “Townes on the Green,” originally known as “the Cloisters.,” as well as

“Bentwater Crossing,” originally known as “Fox Farm.” (Decision, Findings of

Fact ¶¶58-62). Townes on the Green was originally conceived as a plan known as

the Cloisters, for which the conditional use application was filed on or about

August 8, 1998. (Ryan Rhoades R. 1771a-1774a; Ex. T-5, R. 528a). The Cloisters

was proposed as a Golf Course Cluster Development and used the golf course to

meet its minimum acreage and open space requirements. (Ryan Rhoades, R.

1771a-1774a). The entirety of the golf course was considered part of the

5

development and that was reflected on the final plan. (Ryan Rhoades, R. 1775a-

1779a; Ex. T-8, R. 534a). The Township required unity of title between the

owners of the Golf Course Cluster Developments and the golf course. (Ryan

Rhoades, R. 1781a-1783a; Ex. T-9, R. 535a).

The final subdivision plan for Townes on the Green reflects all of the zoning

requirements necessary for a Golf Course Cluster Development, and it is clear that

the golf course was used and was necessary to meet minimum acreage and open

space requirements. (Ex. T-11, R. 542a; Ryan Rhoades, R. 1785a-1788a; Robert

Fisher, R. 1428a (acknowledging that Townes on the Green could not have met the

minimum 100 acre requirement without using the golf course)). GEI’s own

witness Robert Fisher acknowledged that even if additional golf course cluster

developments could have or had been built, at a minimum 60 acres of the golf

course needs to be committed to open space. (Fisher, R. 1446a).

Bentwater Crossing, f/k/a Fox Farm was another conditionally approved

Golf Course Cluster Development of GEI’s. (Ex. T-12, R. 543a; T-13, R. 552a;

Ryan Rhoades, R.1789a-1794a). The Bentwater Crossing approved plan, in

addition to noting all the zoning requirements necessary for a golf course cluster

development, specifically notes the condition that “the entire area of the ‘Front

Nine’ portion of the golf course is open space calculation of the golf course

6

cluster development.” (emphasis added) (Bentwater Crossing approved plan,

General Note #8; Ex. R-3 (R. 714a); Timothy Mellott, R. 1493a).

Francis McNaughton on behalf of McNaughton Properties/GEI agreed that

the Townes on the Green development and its use of golf course open space had a

benefit to the community at large, and provided “a substantial, well-designed and

much needed use alternative for the enjoyment of the community residents at

large.” (Decision, Findings of Fact ¶63-64; Ex. T-10, R. 540a). Mr. McNaughton

on behalf of McNaughton Properties indicated that the proposed Fox Farm golf

course cluster development was intended to benefit the community and was

consistent with the comprehensive plan and zoning ordinance in place at the time.

(Ex. T-12, R. 543a). Mr. McNaughton stated that the golf course cluster

development “serves to promote ingenuity and originality in total subdivision and

site design, while providing improve Township parks and recreational

opportunities” … “is consistent and should serve well the surrounding social and

economic structure of which it is to become a part” … and “The C-3 proposal

yields the additional advantage of providing a substantial, well-designed and much

needed use alternative for the enjoyment of the community residents at large.” (

Decision, Findings of Fact ¶63-63; Ex. T-10, R. 540a).

Prior to the adoption of the comprehensive plan and zoning ordinance, the

Board of Supervisors was aware of the existing golf course cluster plan approvals,

7

and was aware that GEI had voluntarily committed the Valley Green Golf Course

to be used as open space to meet golf course cluster zoning requirements, including

its use to meet minimum acreage and open space requirements. (Tom Neptune, R.

1751a; George Knoll, R. 1526a-1528a); Townes on the Green Final Subdivision

Plan Ex. T-11, R. 542a; Conditional Use Decision Ex. T-13, R. 552a, 556a #28,

561a-562a); Bentwater Crossing plan conditions Ex. R-3, R. 714a). The testimony

of a former Newberry Township supervisor confirmed that the Board of

Supervisors designated the OS Zone in part so that the golf course cluster

developments could use the golf course to meet their open space requirements.

(Knoll, R. 1527a-1528a).

The comprehensive plan also identified numerous roadway safety issues

concerning the roads and intersections at and around the area of the Valley Green

Golf Course. The traffic from GEI’s proposed new development would get access

to and from Valley Green Road, a collector road in the area of the golf course,

which is only 22’ wide with no shoulders. (Decision, Findings of Fact ¶47). The

Comprehensive Plan includes a Roadway Needs Analysis identifying portions of

Valley Green Road as having deficiencies that must be addressed, including sight

distance issues; speed and geometry; bank removal, vegetation and utility poles.

(Decision, Findings of Fact ¶33; (Comp. Plan Chapter 7, Table 7-3). Chapter 7 of

the Comprehensive Plan confirms that “[p]ast development activities have stressed

8

the local and regional road network to a point where it is becoming overburdened.

The deficiencies identified during the road tour and community-survey speaks

volumes to this.” (Comp. Plan Chapter 7, p. 7-7; Ex. R-3, R. 664a).

State Collector Road design standards call for a minimum road width of 24’

and 8’ shoulders on each side. (Decision, Findings of Fact ¶48; Ex. R-2, R. 586a,

597a; Hendrickson, R. 1230a-1231a). The relevant portion of Valley Green Road

has only a 22’ cartway width and no shoulders at all. (Decision, Findings of Fact

¶47; Ex. R-2, R. 586a, 597a; Hendrickson, R. 1230a-1234a; Gregory Creasy, R.

1188a (agreeing that there are no shoulders on Valley Green Road)). The

Township Comprehensive Plan Roadway Functional Classifications table as well

as the Township’s Subdivision and Land Development Ordinance states that

Valley Green Road/collector roads should have a required right-of-way width of

60’, however the portion of Valley Green Road adjacent to the Golf Course has

only a 33’ right-of-way. (Decision, Findings of Fact ¶49; Ex. R-2, R. 598a-601a;

Hendrickson, R. 1232a). Roads without recommended cartway and shoulder

widths for the amount of traffic generated have the potential for increased

accidents. (Decision, Findings of Fact ¶50; Ex. R-2, R. 602a; Hendrickson, R.

1233a-1234a). The existing limitations to Valley Green Road, including lack of

shoulders, insufficient cart width and insufficient available right of way, make any

9

significant potential improvements to the road not feasible. (Decision, Findings of

Fact ¶51).

In addition to the identified deficiencies of the local road network generally,

civil engineer Joseph Fiocco submitted an expert report and appeared as an expert

witness in the area of highway and traffic safety to testify regarding his analysis of

several intersections that will be directly impacted if the GEI development plan

proceeds as proposed, including existing intersections at Yocumtown Road and

Valley Green Road; Valley Green Road and Pines Road; and Yocumtown Road

and Red Mill Road (Ex. R-1, R. 570a, 577a-578a; Fiocco, R. 1709a). He testified

that the Township can expect, conservatively, an increase of approximately two

and a half times the number of automobile crashes at the effected intersections.

(Ex. R-1, R. 570a, 578a; Fiocco, R. 1713a-1716a). The scope of Mr. Fiocco’s

report was limited to these intersections and does not comprise the full impact that

the proposed development may have on local traffic safety. (Ex. R-1, 570a, 577a-

578a; Fiocco, R. 1715a-1719a). Based on the record developed at the hearings, the

Township found that if existing approved GEI developments are constructed, and

the proposed use as presented by GEI in the curative amendment is developed, the

Township can expect a significant increase in the number of automobile crashes at

Yocumtown Road and Valley Green Road; Valley Green Road and Pines Road;

and Yocumtown Road and Red Mill Road (Decision, Findings of Fact ¶52).

10

The Newberry Township Board of Supervisors made detailed findings of

fact in connection with its decision after several nights of extensive hearings. All

of these were supported by substantial evidence, contrary to the assertions by GEI

in its brief that there was no evidence to counter certain portions of its presentation.

Dennis Glackin conceded that re-zoning the land at issue to Residential Growth

was not the only possible way to cure the alleged spot zoning. (R. 1138a). He

confirmed that cluster developments are a permissible way for a municipality to

preserve open space (R. 1137a) and that it is permissible to have open space in a

growth area (R. 1159a). As discussed above, the evidence at the hearings

established that GEI could not have met the minimum 100 acre requirement for its

two golf course cluster developments without using the golf course. (R. 1428a).

GEI’s own witness Mr. Fisher conceded that even if additional golf course

cluster developments could have been built, a minimum of 60 acres of the golf

course must be committed to open space (R. 1446a) and the plans for Townes

on the Green specifically required that the entire “Front Nine” portion of the

golf course is open space calculation of the golf course cluster development.

(R. 714a). This directly contradicts GEI’s implication that it could have somehow

theoretically used land elsewhere within the township to meet its open space

requirements instead of keeping the golf course itself open, or that it had not

agreed to keep the space open into the future.

11

GEI’s characterization of John Murphy’s testimony is downright misleading.

While the Township acknowledged Mr. Murphy’s qualifications as an expert

generally, it is clear that he did not actually attempt to give an expert opinion. Mr.

Murphy did not prepare the report that was offered and did not know who did. (R.

1172a-1173a). The Township offered GEI the opportunity to identify and bring

back the person who had prepared the report (1175a-1176a) but GEI declined to do

so. As a result, because Mr. Murphy did not have direct familiarity with the

property and had neither authored the proposed report nor knew who did, the

Township expressly rejected his conclusions and those made in the study.

(Decision, Conclusions of Law ¶33).

Gregory Creasy’s testimony was not based upon an actual current study of

the impacted roadways, but rather a previous study and general data. (Decision,

Findings of Fact ¶44). In addition, he was not aware of the road right of way

requirements for the Township. He had not reviewed the comprehensive plan, and

was therefore unaware that it had identified Valley Green Road as one of the top

problem areas to be addressed, and had identified two intersections on that road as

having significant sight distance issues. (R. 1188a – 1190a). As a result, Mr.

Creasy’s traffic impact analysis failed to take into consideration significant safety

issues suggesting that the existing roadways were already overburdened. Perhaps

more importantly, the Township found that the existing limitations on Valley

12

Green Road, including lack of shoulders, insufficient cart width, and insufficient

available right of way, make any significant potential improvements to the road not

feasible. (Decision, Findings of Fact ¶51).

GEI has not directly contested any of the factual findings of the Township.

It has not alleged an error with respect to any particular factual finding or its

evidentiary underpinnings, and did not do so in its Rule 1925 statement of matters

complained of on appeal. Though GEI has averred generally that the Township’s

decision was not supported by substantial evidence, its argument merely invites the

Court to substitute the testimony of its own witnesses or instead disputes the legal

application of the Township’s findings. As such, the Township’s findings of fact

must be accepted and are not to be disturbed on appeal.

SUMMARY OF ARGUMENT

Zoning ordinances are presumptively valid. GEI has a heavy burden to

prove that the Newberry Township OS Zone is arbitrary and unreasonable.

However, GEI cannot succeed where the Township’s actions were reasonable and

taken pursuant to a community-wide approach in furtherance of the public good.

GEI argues that the Township considered improper factors to determine that

adoption of the OS Zone was a valid, constitutional exercise of its powers. GEI

contends that the lone inquiry concerns differential treatment based solely on the

physical characteristics of the surrounding land. This ignores the clear guidance of

13

the case law and the mandates of the Municipalities Planning Code. The Township

properly considered numerous relevant factors including: that the 2006 Zoning

Ordinance was adopted in accordance with and was rationally related to the

development objectives in the Township’s comprehensive plan; the OS zone was

in harmony with existing golf course cluster development conditional use

approvals that had already committed the golf course as open space in exchange

for higher density development on adjacent land; GEI did not meet its burden

under the MPC to demonstrate the standards for site specific relief; the relevant

roadway system is already overburdened, and GEI’s proposed development would

have a significant negative safety impact on local roads; and given the existing

road deficiencies, it is not feasible for GEI to make improvements to the roads that

would cure the defects.

This case is clearly distinguishable from the Realen Valley Forge and

Heritage Hills cases relied upon by GEI. The Township did not view GEI’s

property in isolation, but instead adopted the ordinance from a community-wide

perspective, and therefore its decision must be upheld.

14

ARGUMENT

In zoning appeals where the trial court has taken no additional evidence, the

Court's standard of review is limited to determining whether the zoning hearing

board committed an abuse of discretion or an error of law. Jay-Lee, Inc. v.

Kingston ZHB, 799 A.2d 923 (Pa. Commw. 2002). A conclusion that the zoning

hearing board abused its discretion may be reached only if the zoning hearing

board's findings are not supported by substantial evidence. Id. Substantial evidence

is such relevant evidence as a reasonable mind might accept as adequate to support

a conclusion. Id.

“If the record below includes findings of fact made by the governing body

… whose decision or action is brought up for review, and the court does not take

additional evidence or appoint a referee to take additional evidence, the findings of

the governing body, board or agency shall not be disturbed by the court if

supported by substantial evidence.” 53 P.S. §11005-A. Where the trial court takes

no additional evidence, it is the governing body which has the sole power to judge

the credibility of witnesses and the weight to be given to their testimony. HEJ

Partnership v. Clinton Cty Comm., 657 A.2d 116 (Pa.Cmwlth. 1995) (citing Abbey

v. Zoning Hearing Board of East Stroudsburg, 126 Pa.Cmwlth. 235, 559 A.2d 107

(1989).

15

GEI has not identified any specific factual findings it claims were not

supported by substantial evidence, and has not argued a lack of evidentiary support

for any particular fact. As such, the findings of fact made by the Township must

be accepted and the Court may not accept GEI’s implied invitation to credit the

testimony of its witnesses in contravention to the findings of the Township.

As discussed below the Township did not make any errors of law or abuse

its discretion in any way. The Township’s findings of fact are supported by

substantial evidence and therefore may not be disturbed on appeal. The Court of

Common Pleas decision affirming the Township’s findings and conclusions was

thorough and well-reasoned. No errors of law were committed and the judge did

not abuse his discretion. Therefore the decision of the Township and the opinion

affirming it must be upheld by the Commonwealth Court.

A. The zoning ordinance is presumed to be valid, and GEI cannot prove its

heavy legal burden of demonstrating that the ordinance is arbitrary and irrational. A zoning ordinance must be presumed constitutionally valid unless a

challenging party shows that it is unreasonable, arbitrary, or not substantially

related to the police power interest that the ordinance purports to serve. In Re:

Appeal of Realen Valley Forge Greenes Associates, 838 A.2d 718 (Pa. 2003). A

zoning ordinance is presumed to be valid and constitutional, and the challenging

party has the heavy burden of proving otherwise – there is no precise formula for

16

determining whether a classification of property constitutes spot zoning and cases

should be decided on the facts guided by case law. Sharp v. ZHB Twp of Radnor,

628 A.2d 1223 (Pa.Commw. 1993).

Spot zoning is the "unreasonable or arbitrary classification of a small parcel

of land, dissected or set apart from surrounding properties, with no reasonable

basis for the differential zoning." … the Court must presume the zoning ordinance

is valid and constitutional; the burden of proving otherwise is on GEI, who must

show that the provisions are arbitrary and unreasonable, and have no relation to the

public health, safety, morals, and general welfare. Atherton Development

Company v. Township of Ferguson, 29 A.3d 1197 (Pa. Commw. 2011). Spot

zoning must be clearly established; if the validity of the rezoning ordinance is

debatable, it must be permitted to stand. Atherton Development Company v.

Township of Ferguson, 29 A.3d 1197 (Pa. Commw. 2011) (Emphasis added).

GEI’s arguments all essentially assert that the Township considered

improper criteria to determine that the OS Zone did not constitute unconstitutional

spot zoning. The crux of GEI’s argument seems to be that land may not be treated

differently from surrounding land under any circumstances. GEI attempts to argue

that the Board and the Common Pleas Court were prohibited from considering the

identified factors and that the only issue is the “differential treatment” judged

solely by the physical characteristics of the surrounding land. This ignores the

17

plain language of the case law, and taken to its logical conclusion GEI’s argument

removes any meaningful criteria from which a fact finder could determine that

different treatment was reasonable under the circumstances. (See Supplemental

1925(a) Memorandum Opinion p.6, Appellant’s Brief Appendix C). This is not

what Realen Valley Forge or any other Pennsylvania case on the subject stands for.

Land may not be rezoned in a way that is unjustifiably different. The principal

question is the reasonableness of the governing body’s actions. All of the criteria

considered by the Township were unquestionably relevant to this inquiry and

ultimately illuminate the many differences between this case and Realen Valley

Forge.

B. The Realen and Heritage Hills cases are distinguishable from the

present case.

GEI relies heavily on the Realen case, supra, and Heritage Hills Associates

v. York Twp. Bd. of Commissioners, York Cty. No. 2010-SU-3147-29 (R. 53a)

which have a surface appeal in that they both involve attempts by municipalities to

stop golf courses from being developed by their owners. However, while those

cases determined that there was no reasonable basis for the differential zoning

treatment between the subject property and surrounding land, this case presents

very different factual circumstances. Realen involved the “validity of the

agricultural zoning of a tract located at the heart of one of the most highly

18

developed areas in the region, entirely surrounded by urban landscape, and

immediately adjacent to what is currently the world’s largest shopping complex at

one discrete location: the Court and Plaza at King of Prussia … located at the

confluence of the region’s primary arterial highways and immediately adjacent to

one of the most intensely developed commercial areas in the region.” Id., 838 A.2d

at 721. Heritage Hills involved a farming and open space zoning district located

within the township’s “Urban Growth Boundary” intended for urbanized uses,

including among other things industrial and commercial uses. The court reasoned

that the F-O zone was incompatible with the UGB designation, saying it was “at

odds with reality.” Heritage Hills Associates v. York Township Board of

Commissioners1, No. 2010-SU-3147-29 (R. 67a-68a).

The Realen and Heritage Hills zones were considered spot zoning because

the zone in question was clearly and completely incompatible with the zoning of

the surrounding area. In those cases it was held that the municipality sought to

artificially stop development where the nominally agricultural nature of the zone

conflicted with the heavy commercial/urban environment that had grown around it

in the absence of any comprehensive planning. If those zoning schemes had been

1 The Heritage Hills case was decided by an out of county judge due to the recusal of the entire York County bench. It should be noted that the opinion issued did not directly decide the outcome of the case – the parties entered into a consent agreement and order confirmed by the Court such that this controversial case was never subjected to appellate review. Nevertheless, for the reasons discussed the present case is factually distinguishable.

19

upheld it would have essentially allowed a small island of farmland in the middle

of a commercial hub or a city, which indeed creates an irrational outcome.

To the contrary here in Newberry Township, residential growth and open

space are clearly harmonious and complement one another. Unlike Realen and

Heritage Hills, the Newberry Township OS Zone was not created as a result of

random or haphazard changes over time or the result of changes requested by a

single landowner. Instead, the Newberry Township OS Zone was identified and

created as part of the Comprehensive Plan process with a community-wide view in

mind. The comprehensive rezoning in 2006 was not an action singling out GEI’s

property, but was part of a township-wide plan. The extensive review and planning

process undertaken by the Township is discussed in more detail above.

GEI argues that the Comprehensive Plan process may not be used to justify

the constitutionality of the OS Zone. However, the case law quite clearly and

directly refutes GEI’s position:

The key point is that when a municipal governing body puts on blinders and confines its vision to just one isolated place or problem within the community, disregarding a community-wide perspective, that body is not engaged in lawful zoning, which necessarily requires that the picture of the whole community be kept in mind while dividing it into compatibly related zones by ordinance enactments. In other words, legislation as to a spot is the antithesis of zoning, which necessarily functions within a community wide framework.... [Z]oning, to be valid, must be in accordance with a rational and well considered approach to promoting safety, health and morals and a coordinated development of the whole municipality.

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Penn Street L.P. v. East Lampeter Twp. ZHB, 84 A.3d 1114 (Pa.Cmwlth. 2014) (citing Twp. of Plymouth v. Cnty. Of Montgomery, 109 Pa.Cmwlth. 200, 531 A.2d 49, 57 (1987)). Contrary to GEI’s assertions, evidence of a rational and well considered

community-wide approach to the creation of the zone is a critical factor for the

Court’s analysis. Newberry Township did not view the property in isolation, but

instead considered it as part of a community-wide framework, which included

recognition of the commitments made by the owner in exchange for advantageous

development incentives. In short, the Board of Supervisors considered GEI’s

arguments and correctly concluded that Realen and Heritage Hills were both

distinguishable from this case. (Decision, Conclusions of Law ¶ ¶13-25). But

perhaps most importantly, unlike in Realen and Heritage Hills, GEI as the owner of

the property voluntarily and purposefully dedicated the golf course area to be used

as open space in order to take advantage of special development incentives offered

by the Township available at the time under a prior zoning ordinance.

C. GEI voluntarily committed its own land to be used as Open Space prior

to 2006.

GEI complains that their property is “frozen in time” such that they are now

prevented from any residential development. But that ignores the fact that they

already built it out. GEI voluntarily committed the golf course to be used as open

space in connection with its two approved golf course cluster developments. In

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exchange for keeping the golf course area open, GEI received certain development

advantages, including higher density allowances not available to others. Without

utilizing the golf course to meet minimum acreage and open space requirements,

GEI would not have been able to obtain final approval for the Townes on the

Green golf course cluster development nor the Bentwater Crossings golf course

cluster development. GEI did not appeal any of the conditions attached to its

approvals for either Townes on the Green or Bentwater Crossing, and those

conditions clearly confirm that the golf course was used to meet open space

requirements, among others.

Conditions memorialized on a recorded land development plan have the

effect of deed restrictions, and can be enforced by the Township or an owner

through an equity action in court. Doylestown Township v. Teeling, 635 A.2d

657 (Pa.Cmwlth. 1993) (Emphasis added). The conditions to the recorded final

subdivision plan for Townes on the Green have the effect of deed restrictions and

commit the golf course area as open space for the benefit of the Townes on the

Green development. Those conditions include reference to all zoning requirements

for a golf course cluster development, and the Board of Supervisors found that GEI

accepted those conditions as part of its development scheme which by necessity

involved utilizing the golf course as open space. Decision, Findings of Fact ¶ ¶53-

64, Conclusions of Law ¶18). Using the golf course property as open space to

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support multiple conditional use approvals in order to develop at a higher density is

a proper method of preserving open space. (Decision, Conclusions of Law ¶22;

Glackin, (R. 1137a) (acknowledging that cluster developments are a permissible

way to preserve open space). These findings and conclusions are supported by

ample substantial evidence of record, including but not limited to the written final

land development plans; testimony from former township officials; testimony from

the township engineer; and admissions from GEI’s own witnesses as summarized

in the Counter-Statement of the Case above.

GEI argues that the zoning ordinance at the time did not specifically require

that the golf course area be used, but instead some other theoretical land could

have been substituted. This speculative assertion ignores the fact that no such

thing actually happened, and that the final land development plans specifically

identify the golf course as part of the golf course cluster developments. Further,

this argument directly contradicts the plain language of the zoning ordinance in

effect at the time. The Board of Supervisors found that GEI did commit its own

land to open space, and identified this as one of the important distinguishing facts

from Realen and Heritage Hills – “Here, the Township rezoned the property

shortly after granting approvals for the GEI scheme of development that utilized

the golf course as open space.” (Decision, Conclusions of Law ¶18).

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Because GEI had already committed the golf course area to be used as open

space, it was eminently reasonable for the Township to include it in the OS Zone

established in 2006. Testimony from a former planning commission member and

former supervisor confirmed that the Board of Supervisors was not only aware of

this voluntary dedication but that it informed the decision to create the OS Zone.

As such there is nothing “post hoc” about this rationale as argued by GEI.

D. The proposed development’s dangerous impact on local roads justifies

the denial of GEI’s application. As part of the curative amendment process, the Board of Supervisors was

required to consider factors including:

(1) the impact of the proposal upon roads, sewer facilities, water supplies, schools and other public service facilities; (emphasis added) (2) if the proposal is for a residential use, the impact of the proposal upon regional housing needs and the effectiveness of the proposal in providing housing units of a type actually available to and affordable by classes of persons otherwise unlawfully excluded by the challenged provisions of the ordinance or map; (3) the suitability of the site for the intensity of use proposed by the site's soils, slopes, woodland, wetlands, flood plains, aquifers, natural resources and other natural features; (4) the impact of the proposed use on the site's soils, slopes, woodlands, wetlands, flood plains, natural resources and natural features, the degree to which these are protected or destroyed, the tolerance of the resources to development and any adverse environmental impacts; and

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(5) the impact of the proposal on the preservation of agriculture and other land uses which are essential to public health and welfare. (Pennsylvania Municipalities Code §609.1(c), 53 Pa.C.S.A. §10609.1(c)). The Township found that GEI failed to present sufficient testimony and/or

evidence to meet their burden with respect to each of the factors above. (Decision,

Conclusions of Law ¶¶32-36). Perhaps most importantly, GEI’s proposed

development as identified in their Application would have a significant negative

safety impact on local roads. The local traffic infrastructure on and around Valley

Green Road is inadequate to safely accommodate the volume of traffic expected by

GEI’s proposed development, and such traffic will significantly increase the

amount of automobile crashes at three intersections directly impacted by GEI’s

proposed development. (See specific record cites contained in the Counter-

Statement of the Case above). The Township concluded that the safety

deficiencies intrinsic to Valley Green Road made reasonable improvements not

feasible. (Decision, Findings of Fact ¶51-52).

GEI argues in its brief that the witnesses presented on its behalf testified in

support of the § 609.1(c) factors. However, the Township did not accept this

testimony and it specifically found that GEI failed to meet its heavy burden of

proof. (Decision, Conclusions of Law ¶ ¶31-36).

GEI’s traffic witness, Gregory Creasy, did not perform a traffic impact study

for the proposed development or otherwise specifically analyze Valley Green

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Road. (Creasy, R.1184a-1186a). Mr. Creasy’s testimony was based upon previous

traffic studies for Bentwater Crossing and other older traffic counts and general

data from Transportation Engineers Trip Generation Manual. (Creasy, R. 1185a).

He acknowledged that he had not measured the road width of Valley Green Road

(Creasy, R. 1187a) nor was he aware of the requirements of the Comprehensive

Plan and had not reviewed it in connection with his testimony. (Creasy, R. 1188a-

1190a). Mr. Creasy was not aware that Valley Green Road and relevant nearby

intersections to the proposed development had been identified by the Township as

problem areas that needed to be addressed. (Creasy, R. 1188a-1190a). He also

conceded that there were sight distance limitations on Valley Green Road. (Creasy,

R. 1188a).

GEI presented John Murphy as an expert to submit a Community Impact

Study concerning impact of the proposed development on existing natural

conditions of the property. However, Mr. Murphy did not prepare the study and

did not know the identity of the author. (John Murphy, R. 1172a). Because Mr.

Murphy did not indicate sufficient familiarity with the property outside of playing

golf there previously and because he did not know the author of the report about

which he testified, the Township did not accept his conclusions or those submitted

in the Community Impact Study. (Decision, Conclusions of Law ¶33).

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The determination of witness credibility and the weight to be given the

evidence is solely the purview of the Board of Supervisors. There is ample support

for the Township’s findings of fact contained in its’ written Decision and therefore

those findings must be upheld.

E. The OS Zone is compatible with the RG Zone and is rationally related

to the development objectives as set forth in the Comprehensive Plan.

A municipality has the right to reasonably limit an owner's right to use his or

her property with zoning ordinances designed to protect or preserve public health,

safety and welfare, and preservation of agricultural land and open space are

legitimate goals.” Keniath v. Twp of Edgmont, 964 A.2d 458 (Pa.Cmwlth. 2009).

A zoning ordinance will be upheld if it is rationally related to the Township's

development objectives as set forth in its Comprehensive Plan. Fisher v.

Cranberry Twp ZHB, 819 A.2d 181 (Pa.Cmwlth. 2003).

Unlike virtually any other Pennsylvania spot zoning case, the OS Zone at

issue here was not created as a result of random, haphazard municipal or

landowner action, but was instead created as an integral part of the comprehensive

plan process. The Township concluded that the OS Zone was created as a result of

a thoughtful and careful Comprehensive Planning and rezoning process that was

consistent with the York County Growth Management Plan and Greenways plan;

was rationally related to the Township’s development objectives as set forth on the

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Comprehensive Plan; and is in harmony with the golf course cluster development

conditional use approvals that already utilized the golf course as open space in

exchange for higher density development of adjacent land. (Decision, Conclusions

of Law ¶ ¶26-29).

The Township’s findings were supported by substantial evidence in the

record including excerpts from the York County Growth Management Plan and

Greenways plan, as well as GEI’s land use planning expert’s own admission that

open space is not inconsistent with a growth area designation. (Ex. R-7, R. 746a;

Anthony Miller, R. 1325a-1334a; Dennis Glackin, R. 1159a (acknowledging that

“it is permissible to have open space in a growth area.”)).

Additionally, the Township’s conclusions are supported by persuasive legal

authority from other jurisdictions that have upheld the zoning of golf courses as

open space under circumstances much more analogous to our situation in

Newberry Township. In Hal Holding, LLC v. Twp of Mount Laurel, 2012 N.J.

Super. Unpub. Lexis 994, an unpublished New Jersey case from 2012 (R. 1863a),

the court upheld the rezoning of a golf course from residential to “Outdoor

Recreation Conservation” which effectively allowed for no use of the property

other than the golf course. The New Jersey court employed virtually identical

legal standards for the validity of an ordinance and spot zoning as Pennsylvania,

namely that: “zoning ordinances enjoy a presumption of validity” … “a plaintiff

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may overcome this strong presumption of validity by showing that an ordinance …

is clearly arbitrary, capricious or unreasonable or plainly contrary to the principles

of zoning…” … “Inverse spot zoning occurs when a land-use decision ‘arbitrarily

singles out a particular parcel for different, less favorable treatment than the

neighboring ones’” … and that “preservation of recreational and open space are

valid purposes for an ordinance.” Hal Holding (R. 1869a-1870a).

The Hal Holding court determined that singling out a golf course for

rezoning to the ORC zone adjacent to fully developed residential areas was not

arbitrary and furthered the legitimate government interest of preserving open

space. Hal Holding (R. 1870a1871a). The court determined: “Here, given that a

purpose of the ordinance was to “promote the continuation of open space and

natural features adjacent to fully developed residential areas,” and the subject

property consisted of open space (a golf course) adjacent to fully developed

residential areas … the disparate treatment is not arbitrary.” Hal Holding, (R.

1871a).

Hal Holding relied in part on a New York State Court of Appeals case,

Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck, 721 N.E. 2d 971 (N.Y.S.

1999), which similarly determined that rezoning a golf course property for

exclusively recreational use achieved legitimate interests, including preservation of

open space and providing recreational opportunities for residents, and was

29

therefore valid and did not constitute an unconstitutional taking. Though not

controlling legal precedent in Pennsylvania, these cases are nonetheless instructive

because they employ the same legal standards and have fact patterns more closely

analogous to that of these proceedings.

F. The site specific relief requested by GEI is premature.

GEI contends that they are entitled to site specific relief in the form of

unaltered acceptance of their proposed curative amendment. However, the law

does not require that an applicant be given absolute leave to do anything they want

if spot zoning is established. The Municipalities Planning Code provides two

options for a governing body if a validity challenge has merit – either accepting the

landowner’s curative amendment with or without revision, or it may adopt an

alternative amendment which will cure the challenged defects. 53 P.S.

§10609.1(c). GEI’s own land use expert, Dennis Glackin, acknowledged that

Residential Growth is not the only reasonable classification for the golf course

area. (Glackin, R.1138a). Furthermore, granting GEI’s site specific relief request

would create a new kind of RG Zone which also includes golf courses and

restaurant/taverns as permitted uses which does not currently exist. Therefore,

even if the Court were to hold that the OS Zone is somehow unconstitutional, the

Township must still have the ability to decide how best to cure any identified

deficiencies in the ordinance.

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CONCLUSION

The written findings of fact contained in the Newberry Township Board of

Supervisors Decision were supported by substantial evidence of record. The

Township’s legal conclusions were correct — the Township did not make any

error of law nor abuse its discretion in any way. The Township as fact finder is

solely responsible for determining the credibility of witnesses and the weight to be

given the evidence presented at the hearings and may not be disturbed by a court

on appeal. The OS Zone does not constitute improper spot zoning because it was

based upon a reasonable exercise of the Township’s powers to promote the public

health, safety and welfare. The Township did not view the GEI property in

isolation, but instead the OS Zone was adopted as part of an extensive community-

wide review process, which, in part, recognized that GEI had already committed its

land to open space in connection with its conditional use approvals in exchange for

advantageous development incentives. GEI cannot meet its heavy burden of

proving that the Newberry Township zoning ordinance is unconstitutionally

arbitrary and irrational, and therefore the Township’s Decision must be upheld.

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Respectfully Submitted, ______________________________ JOHN N. ELLIOTT, ESQ. ID. No. 82818 REAM, CARR, MARKEY & WOLOSHIN LLP 119 East Market Street York, Pennsylvania 17401 jnelliottesq@comcast.net (717) 843-8968 Attorney for Appellees, Valley Green Residents Organization, LeAnn Pague, Edward Pague, Stanley Olejarczyk, Nancy Olejarczyk, Mary Miller, Anthony Miller, LeeAnn Menut, Kenneth Menut, William Hendrickson, Edna Hendrickson, John Elliott, and Amy Elliott

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 2135, I certify the following:

This brief complies with the type-volume limitation of Rule 2135, this

brief contains 7,006 words excluding the parts of the brief exempted by this

rule.

By:____________________________ JOHN N. ELLIOTT, ESQ.

AFFIDAVIT OF SERVICE

DOCKET NO 97 CD 2016 -------------------------------------------------------------------------------X Golf Enterprises, Inc.

v.

Newberry Township ------------------------------------------------------------------------------X

I, , swear under the pain and penalty of perjury, that according to law and being over the age of 18, upon my oath depose and say that:

on June 24, 2016

I served the Brief for Appellees within in the above captioned matter upon:

Attorneys for Appellant: Golf Enterprises, Inc. Helen L. Gemmill

Jonathan D. Andrews McNees Wallace & Nurick, LLC

100 Pine Street P.O. Box 1166

Harrisburg, PA 17108 (717) 232-8000

Joel C. McNaughton

The McNaughton Company 4400 Deer Path Road

Suite 201 Harrisburg, PA 17110

(717) 234-4088

Attorney for Appellee: Newberry Township Board of Supervisors Margaret Walsh Driscoll

CGA Law Firm, P.C. 135 North George Street

York, PA 17401 (717) 848-4900

via Express Mail by depositing 2 copies of same, enclosed in a post-paid, properly addressed wrapper, in an official depository maintained by United States Postal Service.

Unless otherwise noted, copies have been sent to the court on the same date as above for filing via Express Mail.

Sworn to before me on June 24, 2016

_______________________________ Robyn Cocho Notary Public State of New Jersey No. 2193491 Commission Expires January 8, 2017 Job # 266148