The Pennsylvania Commonwealth Court recently held in In Re Rainmaker Capital of Chestnut Hill, LLC (June 15, 2011) that a township’s denial of a developer’s sewage repair permit was not an abuse of discretion where (1) the permit violated a prior agreement between the developer and the township and (2) the permit was inconsistent with the developer’s land development plans for the property.

The developer owned a small shopping center containing two onsite sewage systems, one of which malfunctioned.  As a result, the developer advised the township of its plans to develop a new off-site sewage system on a separate lot.  Prior to constructing the new system, the developer submitted a preliminary land development plan for the property, proposing the construction of a Dunkin’ Donuts, additional parking in the location of the existing malfunctioning sewage system and proposing the relocation of the existing primary sewage system to an off-site location.  The township granted conditional approval of the preliminary plan, and the developer then submitted a new sewage planning module to the Pennsylvania Department of Environmental Protection (PADEP) in order to relocate the sewage system in accordance with the approved preliminary plan.  The planning module was ultimately approved by the PADEP.

A few months later, the developer and the township entered into an agreement whereby the township agreed to issue zoning and building permits to allow construction of the proposed Dunkin’ Donuts; the developer was permitted to use the smaller, non-malfunctioning onsite sewage system, subject to the developer’s agreement to relocate the system off-site upon final PADEP approval; and the developer agreed to submit a final land development plan prior to the issuance of a certificate of occupancy for the Dunkin’ Donuts.  As a result of the agreement, the developer submitted a final land development plan and proceeded to construct the Dunkin’ Donuts.

Thereafter, the developer decided not to pursue construction of the new off-site sewage system and submitted a revised final land development plan eliminating the off-site sewage system and proposing reconstruction of the malfunctioning onsite sewage system in the area previously proposed for additional parking, thereby resulting in a decrease in parking that was not in compliance with the township zoning ordinance.  The developer then submitted an application with the township for an on-lot sewage system “repair” permit for the malfunctioning system.

Upon receipt of the sewage “repair” permit application, the township sewage enforcement officer (SEO) sent the developer three letters advising the permit would not be issued as the permit application was incomplete because the plan submitted with the application was not a current plan of record.  The developer had submitted the existing recorded 1987 plan for the property with the permit, which did not include the newly constructed Dunkin’ Donuts.  The SEO also advised the developer of its right to a hearing regarding the SEO’s decision that the application was incomplete.  The developer requested a hearing before the Board of Supervisors, which denied the developer’s appeal from the SEO’s decision.  The developer appealed to the trial court, which reversed the board’s decision. On appeal to the Commonwealth Court, the township argued the SEO properly determined the SEO was prohibited from issuing the permit based upon the parties’ prior agreement regarding relocation of the sewage system, the 1987 record plan, which was the only plan of record for the shopping center and did not include the Dunkin’ Donuts, and the approved PADEP planning module.

The Commonwealth Court began by noting that municipalities have broad discretion in requiring sufficient information to support the grant of a sewage permit.  The court determined the township did not abuse its discretion in enforcing the SEO’s decision to deny the permit, since the township’s decision was based on two essential reasons: (1) the developer’s request to rebuild the malfunctioning system was inconsistent with the agreement between the developer and the township in which the developer agreed to construct a new off-site sewage system; and (2) the developer’s revised final land development plan, which conflicted with the developer’s approved preliminary plan and its PADEP approved sewage planning module, violated the township zoning ordinance by failing to provide the required amount of parking.  Thus, the court held there was no abuse of discretion in refusing to issue a permit where the developer had no approved land development plan of record that was consistent with the permit application.