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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dale R. Koller and Carolyn L. Koller :

:

v.

: No. 1531 C.D. 2004

:
Weisenberg Township
:
Homeowners of Weisenberg,
:
Kimberly Anderson, Thomas
:
Anderson and Robert Vogel
:

:
v.

:

:
Weisenberg Township
:
Board of Supervisors

:
Appeal of: Weisenberg Township and :
Weisenberg Township Board of
:
Supervisors

:
Dale R. Koller and Carolyn L. Koller :

:

v.

: No. 1555 C.D. 2004

: Argued: December 7, 2004
Weisenberg Township
:
Homeowners of Weisenberg, :
Kimberly Anderson, Thomas Anderson :
and Robert Vogel

:

:
v.

:

:
Weisenberg Township
:
Board of Supervisors

:
Appeal of: Homeowners of Weisenberg, :
Kimberly Anderson, Thomas Anderson :
and Robert Vogel

:

BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
OPINION BY
SENIOR JUDGE McCLOSKEY

FILED: March 3, 2005

This case involves an appeal filed by Weisenberg Township (the
Township), Weisenberg Township Board of Supervisors (the Board), and
Homeowners of Weisenberg, by and through Kimberly and Thomas Anderson, and
Robert Vogel (collectively referred to as "HOW"), of an order of the Court of
Common Pleas of Lehigh County (trial court), dated June 21, 2004, which reversed
the Board's decision regarding conditional approval of a land development plan
submitted by Dale R. Koller and Carolyn L. Koller (collectively referred to as
Koller). The trial court directed that the land development plan be deemed
approved subject to the conditions previously agreed upon by Koller. We now
vacate and remand.

The facts in the case are as follows. Koller filed a land development
plan, which was dated July 26, 2002 and later revised February 10, 2003 (the
Preliminary Plan), for a concrete manufacturing plant on a parcel of land located
on Heffner Road in Weisenberg Township, Lehigh County, Pennsylvania. (R.R. at
2a). In accordance with the Township's Subdivision and Land Development
Ordinance (SALDO), the Township Engineer reviewed the engineering
considerations of the Preliminary Plan and issued reports to the Township's
Planning Commission (Planning Commission), which then conducted hearings.
(R.R. at 59a). On April 10, 2003, the Planning Commission issued a written

opinion, recommending conditional approval of the Plan subject to specific
conditions. (R.R. at 2a).

On April 14, 2003, the Board met to review the recommendations of
the Planning Commission and approve, conditionally approve or disapprove the
Preliminary Plan. It appears that at the hearing on April 14, 2003, Koller agreed
to the imposition of six specific conditions.

On April 24, 2003, the Board rendered a decision conditionally
approving Koller's Preliminary Plan subject to sixteen conditions similar to those
recommended by the Planning Commission.1 Koller failed to accept all the
conditions imposed by the Board. On May 9, 2003, Koller appealed the decision
to the Court of Common Pleas of Lehigh County (trial court), alleging that the
Board abused its discretion when it imposed the ten additional conditions to which
Koller had not agreed. In filing the land use appeal, Koller effectively rescinded
the conditional approval granted by the Board's decision.

On May 29, 2003, HOW filed an appeal of the Board's decision,
identifying grounds to deny Koller's plan. HOW intervened in the appeal of
Koller and both cases were consolidated for disposition by the trial court.

On June 21, 2004, the trial court issued an order reversing the Board's
decision regarding the Preliminary Plan and granting the Preliminary Plan subject
to the six conditions to which Koller had earlier agreed. The trial court reasoned
that the Board did not abuse its discretion when it failed to deny the Preliminary
Plan based upon alleged violations of the Township's SALDO, reasoning that "at

1 Of the sixteen conditions, three related to the use of water; one related to storm water;
two related to water pollution; two related to traffic; one related to buffer and security/safety; one
related to noise; three related to dust; and three were general.
2

this stage, where the Board is giving only preliminary approval of the
[Preliminary] Plan it is sufficient for the Board to state final approval is subject to
compliance with required governmental permits and approvals." (Trial court's
opinion, p. 6). Moreover, "[g]eneralized concerns are insufficient to deny
subdivision approval." The trial court concluded that in some instances, there was
substantial evidence to support the Preliminary Plan. In other instances, objections
were based on general disbelief. Also, the trial court concluded that the concrete
plant was not injurious per se to the public. The trial court also concluded that the
Board did not abuse its discretion when it attached conditions to its approval of the
Preliminary Plan beyond those conditions agreed to by Koller. However, the
Board was required to specify the defects and cite statutes or ordinances on which
it relied to impose the conditions. The Board's failure to do so constituted an
"invalid rejection" tantamount to a "deemed approval." (Trial court's opinion, p.
9). Because it reasoned that the Board's failure constituted a deemed approval, it
reversed the Board.

The Township and Board, as well as HOW, all appealed the trial
court's order to this Court.
On
appeal,2 the Township and Board frame their issues as follows:

1.
Whether the trial court erred as a matter of law
when it ruled that Koller's failure to accept several of the
conditions imposed as part of the conditional approval of
the Preliminary Plan obligated the Board to provide

2 In a land use appeal, where the trial court has not taken any additional evidence, this
Court's scope of review is limited to a determination of whether the governing body has
committed an error of law or abused its discretion. Schultheis v. Board of Supervisors of Upper
Bern Township, Berks County, Pennsylvania, 727 A.2d 145 (Pa. Cmwlth. 1999), petition for
allowance of appeal denied, 559 Pa. 709, 740 A.2d 236 (Pa. 1999).
3

Koller with notice of Preliminary Plan defects with
citation to the provisions of the statutes or ordinances?
2. Whether the Board acted within its discretion and
in accordance with applicable law in issuing its April 24,
2003, decision, because two conditions of the decision
met the notice requirements set forth in section 508(2) of
the MPC?[3]
3. Whether the Board acted within its discretion and
in accordance with applicable law in issuing its April 24,
2003, decision, because five conditions of the decision
were necessary to protect the public health, safety and
welfare?

On appeal, HOW frames the issues as follows:

1.
Whether the Board and trial court abused their
discretion and/or committed an error of law by failing to
deny Koller's Preliminary Plan for failure to satisfy
several sections of the Township's Zoning Ordinance and
SALDO?
2. Whether the Board and trial court abused their
discretion and/or committed an error of law in failing to
deny the Preliminary Plan since the concrete batch plant
is not a permitted use in the industrial/commercial district
of the Township?
3. Whether the Board and trial court abused their
discretion and/or committed an error of law in failing to
deny the Preliminary Plan since the Board's decision
complied with the MPC in specifying sections of the
Township's Ordinances justifying the conditions imposed
upon Koller?
4. Whether the Board and trial court abused their
discretion and/or committed an error of law by failing to

3 The Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805,
as amended, 53 P.S. §§ 10101-11202.
4

insert specific sections of the Township Ordinances
justifying the conditions imposed upon Koller's
Preliminary Plan?

Several of the issues above may be characterized as challenging
whether the Board was authorized to issue a conditional approval of the
Preliminary Plan that imposed conditions that were not agreed to by Koller without
providing Koller with notice of Preliminary Plan defects with citation to the
provisions of the statutes or ordinances.

Sections 508(2) and (3) of the MPC, 53 P.S. §10508(2) and (3),
govern the denial of subdivision and land development plan applications. They
read as follows:

(2) When the application is not approved in terms as
filed the decision shall specify the defects found in the
publication and describe the requirements which have not
been met and shall, in each case, cite to the provisions of
the statute or ordinance relied upon.
(3) Failure of the governing body or agency to render a
decision and communicate it to the applicant within the
time and in the manner required herein shall be deemed
an approval of the application in terms as presented.

Section 503(9) of the MPC, 53 P.S. §10503(9), addresses a
municipality's authority to conditionally approve subdivision and land
development plan applications and states that:

Provisions for the approval of a plat, whether preliminary
or final, subject to conditions acceptable to the applicant
and a procedure for the applicant's acceptance or
rejection of any conditions which may be imposed,
including a provision that approval of a plat shall be
rescinded automatically upon the applicant's failure to
5

accept or reject such conditions within such time limit as
may be established by the governing ordinance.

The Township and Board argue that the trial court erred when it
concluded that the Board was obligated to provide Koller with notice of the
Preliminary Plan defects with citations to the statutes or ordinances relied upon
because such notice obligations apply only when a municipality rejects a
subdivision/land development plan and not when a municipality seeks to impose
conditions as part of a conditional approval. See Bonner v. Upper Makefield
Township, 597 A.2d 196 (Pa. Cmwlth. 1991). Put another way, the Township and
Board argue that the requirement that a governing body provide notice of plan
defects with citations to the statutes or ordinances relied upon is in Section 508(2)
of the MPC which governs denial of a subdivision/land development plan, whereas
conditional approval is governed by Section 503(9) of the MPC, which does not
require that a governing body provide notice of plan defects with citations to the
statutes or ordinances relied upon.

In contrast, the trial court relied upon our earlier opinion in Brown v.
Borough Council of Emmaus, 496 A.2d 873 (Pa. Cmwlth. 1985), for the
proposition that because the Board did not cite authority relating to the imposition
of conditions on Koller's Preliminary Plan, the Board's actions constituted an
invalid rejection, which should be considered to be a deemed approval of the
Preliminary Plan under Section 508(3) of the MPC.4 The Township and Board

4 In Brown, we considered a municipality's approval of a subdivision plan that allegedly
was conditioned on the appellant's installation and maintenance of a sidewalk. The appellant
alleged that he was unaware of the imposition of the condition and argued that if the governing
body intended approval to be conditional, it failed to comply with the notice requirements of
Section 508(2) of the MPC because the condition would change the original plan. This Court
held that such a change required the governing body to cite its authority or legal basis for the
(Footnote continued on next page...)
6

point out that Brown did not make a distinction between the rejection of a plan and
conditional approval, which this Court would later make in the Bonner decision.
In Bonner, this Court noted that "Section 508(4) of the [MPC] permits a
municipality to approve a plan subject to conditions only if the conditions are
accepted by the applicant."5 We explained that if the applicant does not accept the
proposed conditions, then the conditional approval is deemed a rejection. We also
concluded that the MPC does not require citation to the ordinance or statute relied
upon where the governing body seeks to impose a condition.6 Bonner.

(continued...)

imposition of the condition. Because the governing body failed to do so, the Court concluded
that there was a deemed approval under Section 508(3) of the MPC.
5 Bonner involved a situation where an applicant accepted an imposed condition, and a
subsequent purchaser of the property later sought to challenge the imposition of the condition on
the basis that, regardless of the acceptance, the condition was improperly imposed because it was
illegal.

6 In Bonner, we wrote:

Although the phrase `not approved in terms as filed' in Section
508(2) could be construed to refer to the imposition of a condition,
the rest of that sentence speaks of specification of the defects and
citation of provisions relied upon in connection with a `decision'
on the application. Section 107 of the MPC, 53 P.S. §10107,
defines `decision' as the `final adjudication of any board or other
body granted jurisdiction under any land use ordinance or this
act....' [Emphasis added in Bonner.] The decision in Section
508(2), therefore, is the actual denial of the application, rather than
the imposition of a condition that might or might not precede a
denial, depending on whether the applicant accepts the condition.
In our view Section 508(2) does not require a citation to a
provision relied upon in connection with the imposition of a
condition.

(Footnote continued on next page...)
7

Additionally, at least under some circumstances, this Court has held
that a deemed decision pursuant to Section 508(3) cannot occur if the governing
body renders a decision and communicates it to the applicant. See Peterson v.
Amity Township Board of Supervisors, 804 A.2d 723 (Pa. Cmwlth. 2002) (deemed
decision did not occur for purposes of provision of MPC that required appeal of
neighboring property owner to be taken within 30 days of the date on which notice
of deemed decision was given, where the township board rendered actual timely
decision by voting to approve the plan but did not issue written decision). The
requirements imposed on a municipality under Section 508(3) and the provision for
deemed approval are designed to protect the applicant from "governing body
inaction or protracted deliberation." Peterson, 804 A.2d at 727.

Applying the reasoning of our more recent opinion in Bonner, we
conclude that the trial court erred when it determined that Section 508(2) of the
MPC required the Board to note plan defects and cite the statutes or ordinances
relied upon in imposing conditions associated with conditional approval, such that
the Board's actions did not constitute an invalid rejection tantamount to a deemed
approval. Rather, where a preliminary plan is approved with conditions if the
applicant does not accept the proposed conditions, then the conditional approval is
deemed a rejection. If the applicant objects to the conditions, an aggrieved party

(continued...)

If a governing body imposes a condition that the applicant believes
is illegal or otherwise unacceptable, the applicant has the right not
to accept and to appeal the denial of the application to the court of
common pleas.

Bonner, 597 A.2d at 211-12.
8

may appeal the matter to the trial court for a determination of whether the
objected-to conditions are legal. In making such a determination, the trial court
may consider whether the conditions are appropriate to effectuate compliance with
relevant statutes and ordinances and, if so, whether the objected-to conditions are
reasonable in order to make the plan be in compliance. The trial court may strike
conditions that are not legal.

As to HOW's argument that the Board and trial court abused their
discretion and committed an error of law when they failed to deny the Preliminary
Plan on the basis that Koller failed to satisfy several sections of the Township's
Zoning Ordinance and SALDO, the trial court may also consider these arguments
during the course of its review of the conditions sought to be imposed on approval.
We note that if a legally imposed condition would address the alleged failure of the
Preliminary Plan, then such alleged failure cannot provide a basis for challenging
the Board's conditional approval. On the other hand, if after consideration of the
legally imposed conditions, HOW is able to establish that an alleged failure of the
Preliminary Plan still remains, then the Board's conditional approval should be
reversed on the merits and the plan denied.

As to HOW's argument that the Board and trial court erred in failing
to deny the Preliminary Plan because a concrete batch plant is not a permitted use
in the industrial/commercial district, we must disagree. Permitted uses in this
district include the manufacture of concrete or brick products. We disagree with
HOW that the "manufacture of concrete" is distinct and different from the
"manufacture of concrete products" such that it is not a permitted use.
9

Accordingly, the order of the trial court is vacated and this matter is
remanded to the trial court for further proceedings consistent with this opinion.7

JOSEPH F. McCLOSKEY, Senior Judge

7 Because we have vacated and remanded this matter for the reasons discussed above, it is
not necessary for this Court to address any remaining issues that may have been raised.

10

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dale R. Koller and Carolyn L. Koller :

:

v.

: No. 1531 C.D. 2004

:
Weisenberg Township
:
Homeowners of Weisenberg,
:
Kimberly Anderson, Thomas
:
Anderson and Robert Vogel
:

:
v.

:

:
Weisenberg Township
:
Board of Supervisors

:
Appeal of: Weisenberg Township and :
Weisenberg Township Board of
:
Supervisors

:
Dale R. Koller and Carolyn L. Koller :

:

v.

: No. 1555 C.D. 2004

:
Weisenberg Township
:
Homeowners of Weisenberg, :
Kimberly Anderson, Thomas Anderson :
and Robert Vogel

:

:
v.

:

:
Weisenberg Township
:
Board of Supervisors

:
Appeal of: Homeowners of Weisenberg, :
Kimberly Anderson, Thomas Anderson :
and Robert Vogel

:

O R D E R

AND
NOW,
this
3rd day of March, 2005, the order of the Court of
Common Pleas of Lehigh County (trial court), dated June 21, 2004, is hereby
vacated, and the matter is remanded to the trial court for further proceedings
consistent with the attached opinion.

Jurisdiction relinquished.

JOSEPH F. McCLOSKEY, Senior Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dale R. Koller and Carolyn L. Koller :

:

v.

: No. 1531 C.D. 2004

:
Weisenberg Township
:
Homeowners of Weisenberg,
:
Kimberly Anderson, Thomas
:
Anderson and Robert Vogel
:

:
v.

:

:
Weisenberg Township
:
Board of Supervisors

:
Appeal of: Weisenberg Township and :
Weisenberg Township
:

Board of Supervisors
:
Dale R. Koller and Carolyn L. Koller :

:

v.

: No. 1555 C.D. 2004

: Argued: December 7, 2004
Weisenberg Township
:
Homeowners of Weisenberg, :
Kimberly Anderson, Thomas Anderson :
and Robert Vogel

:

:
v.

:

:
Weisenberg Township
:
Board of Supervisors

:
Appeal of: Homeowners of Weisenberg, :
Kimberly Anderson, Thomas Anderson :
and Robert Vogel

:

BEFORE: HONORABLE
ROCHELLE S. FRIEDMAN, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
DISSENTING OPINION
BY JUDGE SIMPSON
FILED: March 3, 2005

I respectfully dissent from part of the thoughtful majority opinion.

As to the developer's appeal, I agree with the trial court's legal
analysis requiring a municipality to inform a developer in writing of defects in a
plan where, as here, a deemed denial occurs by failure of the developer to accept
all conditions. The issue has not been squarely addressed in prior cases, and
Sections 508(2) and (3) of The Pennsylvania Municipalities Planning Code,8 53
P.S. §10508(2), (3), support this conclusion. As a matter of policy, specification of
defects ensures that there is a basis for municipal action of less than full approval.

However, I disagree with the trial court's conclusion that this was not
done. Here, the Board's decision incorporated by reference an engineer's letter
which recommended approval subject to conditions. The letter details outstanding
issues of noise control, traffic and access, storm water management and an erosion
and sedimentation control plan. Clearly, the developer was appropriately advised
regarding these conditions. See Reproduced Record at 85a-91a. Moreover, there
was no abuse of discretion in the Board's acceptance of advice from its engineer
on these conditions.

8 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.

It is worth noting that many of the contested conditions relate more to
land use than to land planning. So, for example, conditions relating to hours of
operation and washing of trucks would usually be addressed in zoning or
occupancy applications. The trial court's holding does not prevent application of
all relevant regulations during these stages.

As to the appeal filed by the objecting neighbors, I would affirm the
trial court. The trial court discussed their issues separately, and no error is evident.

In light of the foregoing, I would affirm the trial court in part and
reverse in part. As a result, the Board decision would be affirmed as to the
conditions accepted by the developer and as to the conditions recommended by the
engineer. No further proceedings would be necessary for the preliminary plan.

ROBERT SIMPSON, Judge