Summary
In Stambaugh v. Township of Reed, 86 Pa. Commw. 316, 484 A.2d 853 (1984), we decided the appeals of the Township of Reed and Gerald Walsh, a subdivision developer, from a final decree in equity of the Court of Common Pleas of Dauphin County in effect directing the township and Gerald Walsh jointly and severally to pay for the paving of the streets shown on a final subdivision plan submitted by Walsh to, and approved by, the township.
Summary of this case from Stambaugh et al. v. Twp. of Reed et alOpinion
Argued October 18, 1984
December 6, 1984.
Municipalities — Streets — Responsibility for paving — Developer's representations — Subdivision ordinance — Acceptance of streets — Second Class Township Code, Act of May 1, 1933, P.L. 103.
1. A court of equity may properly find a developer responsible for the paving of streets in a subdivision when lot purchasers relied upon the promise of the developer that the streets would be paved. [319]
2. When a subdivision ordinance grants to township supervisors discretion to require further improvements before approval of a subdivision plan and where the plan approved did not call for paving of streets and the township did not require such paving of the developer or promise to pave, the township is improperly held to be required to pave the streets of the subdivision. [321-2]
3. Acceptance of streets is a matter of discretion with the municipality under provisions of the Second Class Township Code, Act of May 1, 1933, P.L. 103, and a municipality is not obligated to accept streets of a subdivision merely because a subdivision plan was approved and the streets completed by the developer in the absence of some agreement to the contrary. [322]
Argued October 18, 1984, before Judges CRAIG and PALLADINO, and Senior Judge BARBIERI, sitting as a panel of three.
Appeals, Nos. 787 C.D. 1984 and 829 C.D. 1984, from the Order of the Court of Common Pleas of Dauphin County, in case of Francis L. Stambaugh and April V. Stambaugh, et al. v. Township of Reed, et al., No. 4029 Equity 1980.
Action in equity in the Court of Common Pleas of Dauphin County to compel township and developer to complete and maintain streets within development. Developer ordered to pave streets. Developer's wife absolved of responsibility. Exceptions filed. MORRISON, J. Developer and township held jointly and severally liable for completion of streets by court en banc. Developer and township appealed to the Commonwealth Court of Pennsylvania. Held: Decree modified to provide that developer liable for completion of roads and township to accept same when paved for public use and maintenance.
Linus E. Fenicle, Enrico Fenicle, P.C., for appellant, Township of Reed.
Walter W. Wilt, for appellant, Gerald F. Walsh.
Joel Weisberg, for appellees.
In this subdivision regulation case, we must determine whether the Township of Reed or Gerald Walsh, the developer of a subdivision within the township, is responsible for the completion of streets located in the subdivision. Both parties have cross-appealed from an equity decree of the Court of Common Pleas of Dauphin County, which held both responsible.
On July 6, 1976, the Reed Township Board of Supervisors approved Walsh's Final Subdivision Plan No. 1 of Hidden Acres with the following notation appearing on its face:
All streets shown hereon, if not previously dedicated, are hereby tendered for dedication. Approval of this plan does not constitute acceptance of the streets shown hereon.
The plan showed two streets, Woodland Road and Hillside Drive, having fifty-foot rights-of-way, but contained no further details concerning construction of the streets.
After the plan approval, developer Walsh recorded the plan. He sold the lots to individual purchasers, graded the rights-of-way, installed sub-base, and rolled and otherwise completed the streets, but he did not pave them with a hard surface.
Because both the township and Walsh disclaimed any responsibility for completing the streets, the lot purchasers filed this action in equity in Dauphin County Common Pleas Court, to compel the township or the developer, or both, to complete and maintain the streets within Hidden Acres. The chancellor, Judge MORRISON, determined that developer Walsh was responsible for paving the streets. He therefore entered a decree nisi ordering Walsh to pave the streets in compliance with township specifications, and directing the township to accept the streets for public use after Walsh completed the paving.
The Walshes filed exceptions, and the court en banc entered a final decree which did not negate the acceptance mandate, but revised the previous order to absolve Alma Walsh of any responsibility, and to include the Township of Reed as jointly and severally liable with Gerald Walsh for completion of the streets, prompting these appeals.
The record contains substantial evidence to support the chancellor's finding that the lot purchasers relied on Walsh's promise that the roads would be paved. Hence, the imposition of responsibility for paving the roads upon developer Walsh is well founded, as is the releasing of his wife from liability on the basis that she had no interest or involvement in the development.
Although the record contains conflicting evidence regarding who Walsh said would actually be doing the paving, Walsh had no authority to promise that the township would be responsible, and it could not be bound by any such promise. Therefore, the township's responsibility, if any, must rest upon different grounds.
Section 509 of the Pennsylvania Municipalities Planning Code (MPC), 53 P. S. § 10509, as it stood in 1976 at the time of the plan approval here, provided in part:
The Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 10101 through 11108-A.
No plat shall be finally approved unless the streets shown on such plat have been improved as may be required by the subdivision and land development ordinance . . . . In lieu of the completion of any improvements required as a condition for the final approval of a plat, the subdivision and land development ordinance shall provide for the deposit with the municipality of a corporate bond, or other security acceptable to the governing body in an amount sufficient to cover the costs of any improvements which may be required. (Emphasis added.)
Contrary to that section, the Reed Township Board of Supervisors approved the Hidden Acres plan without requiring any improvement of the streets, and without requiring developer Walsh to post any subdivision improvement bond. As noted, Walsh merely graded the streets, as required by Article III, Section 3B of the Reed Township Subdivision Regulations, which provides in part:
Before approving any subdivision plan for recording, subdivider shall complete the necessary grading, and where necessary in the judgment of the Board, the paving and other street improvements . . . or the subdivider shall assure the Township of the completion of the same by means of a proper completion guarantee in the form of a bond or the deposit of funds or securities in escrow sufficient to cover the cost of the required improvements. (Emphasis added.)
Because MPC § 509 referred to the local subdivision ordinance provision as to the extent of the required improvements, and because here the local ordinance requires only grading unless the governing body specifically calls for paving, the MPC and the local ordinance were satisfied by the grading done by Walsh. According to the township's ordinance, the supervisors may, in their discretion, require further improvements before approval of the plan, but they did not do so here.
In that important respect, this case is different from Safford v. Board of Commissioners of Annville Township, 35 Pa. Commw. 631, 387 A.2d 177 (1978), where the local subdivision regulations apparently required developers either to construct all the public improvements or to provide the township with surety bonds sufficient to assure completion of all such improvements. The commissioners in Safford also neglected to require either completion or a bond, thus enabling the developer to sell lots within the subdivision without full completion of the roads, and permitting purchasers to believe that the township had obtained a guarantee of the completion of all improvements included in the plan. Judge ROGERS of this court stated:
It seems to us that it must follow that a township whose commissioners by approving plans enable developers to record plans showing proposed public improvements and to sell lots, cannot be heard to tell purchasers of lots the public improvements, for which the township was required to obtain the developers' guarantees, will not in fact be supplied because of the township's failure to comply with the law and its own regulations. (Emphasis added.)
Id. at 639, 387 A.2d at 181.
In the present case, however, neither this township's somewhat lax subdivision regulations nor any details on the approved plans required paving. Nor did Reed Township make any explicit promise to pave on the condition that the developer install grading, sewers and curbs, as the township in Safford did. Therefore, contrary to the court en banc's conclusion, Safford is not controlling here, and does not mandate the inclusion of Reed Township as jointly and severally liable with Walsh, who, in addition to fulfilling his ordinance obligation to grade the streets, must also fulfill his promise to the lot owners by paving the streets to township specifications.
This case also differs from Safford with regard to the matter of the municipality's obligation to accept the streets. In Safford, the township expressly obliged itself to accept the streets if the developer properly graded them. Here, there was no comparable agreement in advance by the Township of Reed. As reflected by the notation on the Hidden Acres plan, approval of a plan and acceptance of streets for public use are two distinct matters. Where a plan includes a dedication of streets, neither the plan approval nor the developer's completion of the streets obligates the township to accept them. See §§ 514 and 404 of the MPC, 53 P. S. § 10514 and 10404, read in conjunction. Therefore, acceptance is a matter of discretion with the township, see Section 1147 of the Second Class Township Code, 53 P. S. § 66147.
Act of May 1, 1933, P.L. 103, §§ 101-2201, 53 P. S. § 65101-67201.
Nevertheless, the township at oral argument before this court conceded its intention to accept the streets if they were properly paved. Therefore, we need not revise that provision of the decree nisi mandating acceptance, which the court en banc left undisturbed.
Therefore, the final decree is modified, to have the same effect as Judge MORRISON's decree nisi, except as to the responsibility of Alma Walsh.
Walsh also contends that the trial court erred in permitting counsel for Reed Township to introduce into evidence portions of the deposition testimony of one of the plaintiffs. However, that evidence was clearly admissible under Pa. R.C.P. No. 4020(a)(2) which permits a party to use the deposition of an adverse party for any purpose at trial, without regard to the availability requirements applicable to witnesses and parties, not necessarily adverse, set forth in Pa. R.C.P. No. 4020(a)(3).
ORDER
NOW, December 6, 1984, the Final Decree of the Common Pleas Court of Dauphin County, at No. 4029 Equity, 1980, dated February 17, 1984, is modified to provide that Gerald Walsh shall complete the paving of Woodland Road and Hillside Drive within the Hidden Acres subdivision according to township specifications, and Reed Township shall then accept those streets for public use and maintenance.