BEFORE THE BOARD OF SUPERVISORS OF LIBERTY TOWNSHIP, ADAMS COUNTY, PENNSYLVANIA

In re: Application of Liberty Development Company, LLC, for approval of a tentative plan for a planned residential development known as "Liberty Valley"

I. BACKGROUND

A. Planned Residential Districts in Liberty Township.

Liberty Township has a Zoning Ordinance (hereinafter "ZO") that was adopted on April 3, 1984. The ZO has been amended at least twice since its adoption in 1984. Of particular concern to the application by Liberty Development Company, LLC (hereinafter "applicant") was an amendment dated May 7th, 1985, which repealed "all special uses under the zoning ordinance of Liberty Township. Specifically sections 3.1 (B), 3.2 (C) and 3.3 (B) of the Liberty Township Ordinances will be repealed by this ordinance."

Prior to the amending ordinance of 1985, planned residential developments (hereinafter "PRD") were permitted only in the General Use district as a "special use". The Board of Supervisors of Liberty Township (hereinafter "Board") believes it was the intent of the Supervisors holding office in 1985 to eliminate planned residential developments from the Township's zoning scheme. However, the article of the ZO that prescribes the details of PRDs was not repealed, and existed as part of the ZO until repealed on February 3, 2004.

The Board concludes that PRDs were eliminated from the Township, but due to an error in not repealing Article V of the ZO, a claim could be, and has been, made that PRDs are now permitted everywhere in the Township. The applicant claims that the failure to remove Article V of the ZO at the time that the PRD use was "repealed" by the 1985 ordinance shows an intent on the part of the Township to allow PRDs in all parts of the Township. Applicant cites Doran Investments v. Muhlenberg Township, 10 Pa.Cmwlth. 143, 309 A.2d 450 (1973) as support for that claim.

Doran is not apposite factually to the Liberty Township situation. In Doran, Muhlenberg Township apparently added PRDs to its zoning scheme after zoning had already been put into place. The additions of PRDs was by a separate ordinance (named "Ordinance 106"), and may have specifically stated that it was applicable throughout the township. ("A few months subsequent to Village 2 at New Hope, the Legislature passed Article VII of the MPC which permits municipalities to adopt ordinances allowing for "planned residential developments" with a mix of types of residential uses and of some commercial uses on a single tract, in specific locations, as in Village 2 at New Hope or, as the Muhlenberg Ordinance, 106 provides, anywhere in the municipality." [underlining added for emphasis]. 309 A.2d at 454.) Liberty Township, on the other hand, had provided for PRDs at one location only (the GU district) and then repealed that designation. Unlike Muhlenberg Township that was adding the PRD use to its zoning scheme, Liberty was repealing existing "special uses". Liberty's action was the antithesis of a wider application of PRD opportunities in the Township.

The Board concludes that the Liberty Valley application is improper and is, therefore, denied on the basis that PRDs are not uses allowed in Liberty Township. However, since the applicant's claim (that the failure to repeal Article V caused PRDs to be retained) might be found to be valid, the Board allowed the applicant to proceed with its application. (The Board feels it was compelled to hold the hearings due to the "deemed approval" language of the MPC. If a court concluded that PRDs were not removed from Liberty Township, but no hearings held been held within 180 days after the filing of the application, the application would have been deemed to have been approved. MPC § 709(a). ) The balance of this decision has been prepared and adopted in the event that a court, by a final order, declares that PRDs were valid in Liberty Township at the time that the application was filed.

B. Interplay between the Municipalities Planning Code and the ZO.

The application filed by the applicant is a request for tentative plan approval for a PRD. The procedures for tentative plan approval and review are prescribed by both the Municipalities Planning Code, found in 53 P.S. §10101, et seq, as amended (hereinafter "MPC") and by the ZO. The procedural provisions of the ZO addressing tentative plans are found in sections 5.8 A. through 5.8 E. Requirements of the Township's Subdivision and Land Development Ordinance (Ordinance of March 18, 1992) (hereinafter "SALDO") are incorporated into Article V of the ZO by sections such as ZO §§ 5.5 D, 5.8 A., and 5.8 B.

At the hearings held on the application, there were recurring discussions about whether the application was complete. It was the position of at least one of the protestants that the tentative plan application was not complete as it did not contain everything required of a preliminary plan that might be filed for subdivision and/or land development review and approval. This position seems to have been based on one or both of the following two ZO sections:

A. The application for tentative approval shall be submitted by or on behalf of the land owner to the Township Secretary in accordance with the requirements of the Township Subdivision and Land Development Ordinance.

B. The application for tentative approval shall in addition to the plans and supporting data required in the Subdivision and Land Development Ordinance and this Article contain the following: [then providing certain requirements similar to some of those provided in MPC § 707 (4)(i - ix)].

ZO, §§ 5.8. A. & B.

The MPC provides, in pertinent part

Application for Tentative Approval of Planned Residential Development. In order to provide an expeditious method for processing a development plan for a planned residential development under the provisions adopted pursuant to the powers granted herein, and to avoid the delay and uncertainty which would arise if it were necessary to secure approval, by a multiplicity of local procedures, of a plat of subdivision as well as approval of a change in the zoning regulations otherwise applicable to the property, it is hereby declared to be in the public interest that all procedures with respect to approval or disapproval of a development plan for a planned residential development and the continuing administration thereof shall be consistent with following provisions:

* * *

(4) The provisions shall require only such information in the application as is reasonably necessary to disclose to the governing body …

(i) the location, size and topography of the site and the nature of the landowner's interest in the land proposed to be developed;

(ii) the density of land use to be allocated to parts of the site to be developed;

(iii) the location and size of the common open space and the form of organization proposed to own and maintain the common open space;

(iv) the use and the approximate height, bulk and location of buildings and other structures;

(v) the feasibility of proposals for water supply and the disposition of sanitary waste and storm water;

(vi) the substance of covenants, grants of easements or other restrictions proposed to be imposed upon the use of the land, buildings and structures including proposed easements or grants for public utilities;

(vii) the provisions for parking of vehicles and the location and width of proposed streets and public ways;

(viii) the required modifications in the municipal land use regulations otherwise applicable to the subject property;

(viii.1) the feasibility of proposals for energy conservation and the effective utilization of renewable energy sources; and

(ix) in the case of development plans which call for development over a period of years, a schedule showing the proposed times within which applications for final approval of all sections of the planned residential development are intended to be filed and this schedule must be updated annually, on the anniversary of its approval, until the development is completed and accepted.

(6) The application for and tentative and final approval of a development plan for a planned residential development prescribed in this article shall be in lieu of all other procedures or approvals, otherwise required pursuant to Articles V and VI of this act.

53 P.S. §§ 10707 (4), 10707(6) [underlining added for emphasis]

In case of conflict between a municipal ordinance, and the MPC, the MPC controls. 53 P.S. § 10103. When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b). Words are to be construed according to their common and approved usage. 1 Pa.C.S. § 1903(a). "Shall" denotes a mandatory, not a permissive, instruction. Cranberry Park Assoc., L.P. v. Cranberry Tp. Z.H.B., 561 Pa. 456, 751 A.2d 165 (2000).

Municipal governments have only those powers expressly given or necessarily implied in grants of power from the Legislature. Appeal of Galgliardi, 401 Pa. 141, 163 A.2d 418 (1960). Any fair, reasonable doubt as to the existence of a power in a municipality is resolved by the courts against its existence. Knauer v. Commonwealth, 17 Pa.Cmwlth. 360, 332 A.2d 589 (1975).

The Board concludes, based on the statutory language and the required interpretation of it, that the application need only show those items set out in the MPC. Any provisions of the ZO that require more be shown in the application than that provided in the MPC are inconsistent with the MPC and are not enforceable. An application that meets all of the requirements of a preliminary subdivision or land development plan would contain much more than that contemplated by the Legislature in a tentative plan application. Such a plan submission would not "avoid the delay … which would arise if it were necessary to secure approval … of a plat of subdivision … ." It should be noted, however, that a duty falls on the applicant to identify the "required modifications in the municipal land use regulations otherwise applicable to the subject property". As part of this decision, the Board finds that any applicable ZO or SALDO regulation for which no modification has been requested (with the exception of those regulations specifically replaced by the spatial, density and use provisions of Article V of the ZO) are deemed to be applicable. Indeed, the bulk of SALDO is applicable to these types of project, and compliance therewith would be mandatory at final plan stage(s). Bd. of Supervisors of Charlestown Tp. v. West Chestnut Realty Corp., 110 Pa.Cmwlth. 481, 532 A.2d 942 (1986).

C. Application and Hearings. The application was filed on September 29, 2003. Thereafter, a supplement to the application was filed on or after November 5, 2003. Pursuant to the MPC, the first hearing was scheduled to commence within 60 days after the filing of the application. That first hearing was held on November 24, 2003. All of the hearings were held at the Fairfield Fire Company facilities, 106 Steelman Street, Fairfield, PA, and unless otherwise noted, each hearing began at 6:30 p.m. and ended on or about 11:00 p.m. The second hearing was held on December 9, 2003; the third hearing was held on December 15, 2003; the fourth hearing was held on December 17, 2003; the fifth hearing was held on December 22, 2003; the sixth hearing was held on January 14, 2004; the seventh hearing was held in two sessions on January 19, 2004, with one beginning at 4:00 p.m. and ending at 5:30 p.m., and the second session beginning at 6:30 p.m. and ending at approximately 10:50 p.m.; and the eighth and last hearing was held on January 21 to January 22, 2004, beginning at 6:30 p.m. and ending at 1:06 a.m. on the 22nd. All of the hearings were stenographically recorded by Rhonda Kershner, except for the last hearing which was recorded by Corrie Ondrizek. The applicant was represented by the law firm of Mette, Evans & Woodside in the persons of Charles B. Zwally and James M. Strong, Esquires. An unincorporated association known as Save Our Liberty (also known as "SOL") was recognized as a party. SOL was represented by Reager & Adler, P.C. in the person of Susan J. Smith, Esquire. Ms. Smith also represented the following land owners who were recognized as parties: John Tomko; Charlene Tomko; Catherine Valentine; John Milton; Faith Milton; George F. Kramer; Karen Kramer; Joseph Marcharsky; Kellie Marcharsky; Richard Swiat; Susan Swiat; George P. Kramer; Linda S. Knox; Gene Valentine; Clyde Wenschhof, Jr.; Nancy Wenschhof; Robert Troxell; Patti Troxell; and Ruppert Farm Limited Partnership. Also recognized as parties, but appearing pro se were: Mr. and Mrs. Geoffrey Ruppert; Mr. and Mrs. David Goetz; and Mid-Atlantic Soaring Association (by James Trygg).

D. Agreement for Extended Decision Time. The MPC provides that the Board has sixty (60) days after the last hearing to render its decision. The ZO provides that the Board has only thirty (30) days to make such a decision. The applicant offered, and all parties in attendance at the end of the last hearing agreed, that the time period for a decision by the Board could be extended to the sixtieth (60th) after the last hearing so that parties can submit post hearing documents. It was further agreed that: 1.any party wishing to submit a memorandum of law, and/or proposed findings of fact and conclusions of law, may do so on or before Monday, February 23, 2004; and, 2.any party wishing to file a reply memorandum of law shall do so on or before Monday, March 1, 2004.

II. FINDINGS OF FACT Facts used by the Board of Supervisors in making its decision on this application are found in the following FINDINGS OF FACT, and in the text found in the portion of the Decision labeled DISCUSSION. Both portions of the Decision must be utilized for the facts underlying the decision.

1. On September 29, 2003, Liberty Development Company, LLC filed with the Board of Supervisors of Liberty Township an application for approval of a tentative plan for a Planned Residential Development known as Liberty Valley (the "Liberty Valley PRD"). The filing made on September 29, 2003 included the following: (a) a transmittal letter; (b) an application form required by the Township Planning Commission; (c) a set of plans containing 30 sheets; and, (d) a bound volume entitled "Supplementary Data".
2. Following receipt of a letter containing a "completeness review" by the Township Engineer, the applicant filed several additional items including the following: (a) a transmittal letter dated November 5, 2003; (b) a revised set of plans containing 32 sheets; and, (c) a bound volume entitled "Addendum to Supplementary Data". The items filed on September 29, 2003 and the supplemental items filed on November 5, 2003 were introduced into evidence as applicant's Exhibit 1.
3. The proposed Liberty Valley PRD consists of three contiguous parcels of land, one owned by Donald S. Dawson, Trustee, identified as Tax Map Parcel D-17-15, and the others by Robert D. and Margaret S. Peloquin, identified as Tax Map Parcel D-17-5 and D-17-37.
4. The Zoning Ordinance requires a proposed planned residential development to contain a minimum of twenty (20) acres of land. ZO, § 5.2(A)(2). The proposed Liberty Valley PRD contains approximately 444.70 acres of land.
5. The applicant is the equitable owner of all of the parcels included in the proposed Liberty Valley PRD. The applicant has received written authorization from the legal owners of the parcels of land within the Liberty Valley PRD, granting applicant authority to file, inter alia, the tentative plan for approval.
6. The applicant also proposes to develop a noncontiguous adjacent tract of land containing approximately 265 acres as a residential subdivision known as "Liberty Estates" to contain approximately 106 residential lots.
7. The proposed Liberty Valley PRD is a separate project from the proposed Liberty Estates subdivision, but the two projects will share a common owners association, as well as a centralized water supply and sewer system.
8. The applicant has established a nonprofit owners association, identified as the Liberty Valley and Estates Owners Association (the "Owners Association"), which will be composed of commercial and residential owners in both the Liberty Valley PRD and the Liberty Estates subdivision, will initially be governed by the applicant as the developer, and then as sales progress control will be transferred to the owners.
9. The centralized water supply and sewer system are anticipated to be owned and operated by a public utility company to be formed by the applicant or by the Owners Association.
10. Additionally, the Owners Association is expected to be responsible for the proposed equestrian center and clubhouse and maintenance of parks and common areas not accepted by the Township.
11. The applicant has also offered to the Fairfield Fire Company, a one-acre parcel within the proposed Liberty Valley PRD to be used by the Fire Company for construction of a fire and EMS substation and a $250 contribution from each sale of a dwelling unit to help fund the Fire Company's services.
12. The applicant submitted a market analysis with the Tentative plan, which estimated potential market demand for various types of housing in the area of the proposed Liberty Valley PRD. ZO, § 5.4(B).
13. The applicant's market analysis based its experience on sales at Worman's Mill, Frederick County, Maryland, and the Links at Gettysburg, Adams County, Pennsylvania. The market analysis also surveyed other nearby projects including Hanover, Pennsylvania, Taneytown, Maryland, and two within the Emmitsburg, Maryland area.
14. The market analysis concludes that a percentage of Liberty Valley PRD would be designed for so-called "empty nesters" comprised of active adults, 55 and older without live-in children who seek first floor master bedroom homes including single family condominiums and townhouses. Other homes will service the middle portion of the population with housing products ranging from townhouses for couples, singles and smaller size families to large estate homes on large single family lots.
15. The applicant's market analysis included a determination that the project could support the commercial uses contemplated in the plan and described as a village center (the "Village Center").
16. The Liberty Valley PRD is a community that anticipates pedestrian travel, through the use of sidewalks and trails, between residential areas throughout the proposed community, and the Village Center, but is not deigned to facilitate maximum pedestrian use.
17. The Liberty Valley PRD incorporates a buffer zone between the residential properties and neighboring agricultural properties, including an equestrian trail and then a 30-foot-wide strip to buffer the properties. The outer boundaries of the buffer will be designated using existing fences or by placing markers. The existing fences are not sufficient to contain the uses planned without causing conflict with existing neighboring uses.
18. In designing the Liberty Valley PRD, the applicant recognized the existence of the Mid-Atlantic Soaring Association (M-ASA) facility and placed the lower density units and the equestrian fields in that area of the project in proximity to the facility.
19. Areas of Liberty Valley PRD consist of "prime agricultural soils".
20. The proposed Liberty Valley PRD consists of three housing styles including single family detached units, attached single family units, and multiple family units.
21. Each type of housing style proposed for the Liberty Valley PRD constitutes a minimum of 20% of the total number of residential units proposed for the Liberty Valley PRD.
22. The residential uses were not designed in accordance with the site design requirements of the ZO, as some units are closer than 20 feet to a collector street. (See, townhouses facing Tract Road in Phase 5). Pedestrian usage is not promoted with regard to access to common open space. (See, Discussion, below).
23. The proposed Liberty Valley PRD includes a centrally located retail/commercial area in the Village Center, which is a single concentrated area within the plan that has access to Tract Road, a major collector street.
24. The proposed commercial area was designed and intended primarily to serve residents of the proposed Liberty Valley PRD.
25. The proposed commercial center does not fit harmoniously and compatibly into the unitary design of the PRD. It "turns its back" on the PRD by exposing the rear of all the commercial buildings and views of the expansive parking lots surrounding those buildings to houses which face the village center and passersby on adjacent roads.
26. The proposed area for commercial use in the Liberty Valley PRD is 8.21 acres, or 1.9% of the total site area, which is less than the 6% maximum permitted area for commercial use for a project that exceeds 250 acres in total site area.
27. The maximum permitted average gross residential density is twelve (12) dwelling units per acre. The Liberty Valley PRD proposes an average gross residential density of 2.66 dwelling units per acre.
28. The Zoning Ordinance requires that at least 25% of the total site area be devoted to common open space. The common open space in the proposed PRD contains storm water management facilities of unknown area. The applicant has failed to prove that the amount of open space provided, after the deduction of the area of the storm water management facilities, meets the minimum requirement.
29. The Zoning Ordinance provides that the maximum permitted impervious coverage is not to exceed 30% of the total site area and the Liberty Valley PRD proposes a maximum impervious coverage of 118.7 acres, or 26.7% of the total site area.
30. The Zoning Ordinance provides that the maximum permitted lot coverage for commercial buildings is not to exceed 25% of the site's area designated for commercial use. The Liberty Valley PRD proposes 1.84 acres of commercial building lot coverage or 22.4% of the land area designated for commercial use.
31. The applicant had requested certain waivers/modifications with respect to requirements of the Subdivision Ordinance. The waiver/modification requests are set forth in the Supplementary Data at Section 7 (Ex. A-1). The waivers/modifications requested and the applicable sections of the Subdivision Ordinance are as follows: 1)Section 402.3 with respect to minimum street widths for one-way alleys; 2)Section 402.10.c applicable to maximum length of a cul-de-sac; applicant requests increase from 500 feet to 800 feet maximum; 3)Section 301.2 Sheet Size - requesting use of standard 24" by 36" size sheet since print paper is not available in required sizes; 4)Section 302.1.e. Key Map Scale - requesting a smaller scale in order to fit plan on one sheet; 5)Section 302.1.h. Contour Interval - requesting use of 5' contours; 6)Section 302.2.d. Preliminary Design of Bridges and Culverts; 7)Section 302.2.i. Erosion and Sedimentation Control Plan - requesting deferral of adequacy letter from Adams County Conservation District and NPDES Permit from Pennsylvania Department of Environmental Protection until final plan.
32. Several of the requested waiver/modifications were favorably recommended by the Adams County Office of Planning and Development; items 1, 2, and 4 above. In addition, the waivers/modifications in items 5 and 6 above, relating to contour intervals and preliminary design of bridges and culverts, were no longer necessary and effectively withdrawn following the filing of the Addendum to Supplementary Data by the applicant in response to the Township Engineer's completeness review.
33. The proposed PRD shows housing units and roadways being constructed in delineated wetlands. (See, Discussion, below.)
34. The Supplemental Data to the proposed Liberty Valley PRD contains a storm water drainage plan that analyzed the amount of storm water runoff the project would generate. The plan provides for the amount of storage necessary to control this runoff, in compliance with the Township Ordinance, through storm water ponds and additional facilities, which would be used to control the volumes, peak runoff and concentration before the storm water leaves the property. It appears that the storm water ponds will need to be extremely deep in order to contain the projected storm water runoff, perhaps as deep as 17 feet. No fencing around such deep ponds has been shown, and the ponds could present a danger and a hazard to the inhabitants of the PRD.
35. The applicant provided the Township with a Natural Features Analysis.
36. The Tentative plan does not show crosswalks at intersections. The applicant indicates that it will place crosswalks in the vicinity of the commercial area, but no other location is slated for crosswalks, even though the PRD is to promote pedestrian usage.
37. The site plan for the proposed Liberty Valley PRD delineates areas of mature trees, which includes trees that are six inches in diameter or larger as determined by site survey and were a factor in the placement of open space and structures.
38. The applicant submitted a Traffic Assessment Report prepared by Mark Metil, P.E. of Gannett Fleming, which analyzed the potential effects of the Liberty Valley PRD upon intersections. The Report did not analyze the effect of the PRD on the Township's roadway systems, such as the current road widths, shoulders, etc.
39. The Traffic Assessment Report called for data from six intersections including: (1)Tract and Wenchoff/Crum Roads; (2) Tract and Pecher Roads; (3) Middle Creek and Pumping Station Roads; (4) Pecher/Topper and Crum/Steelman Marker Roads; (5) SR 16 and Steelman Marker Road; and (6) Maryland Route 140 and Tract Road.
40. The applicant's Traffic Assessment Report predicts the anticipated trip distribution of traffic from the development from the start of occupancy to full occupancy (years 2006 and 2021), with a gravity model, which is based upon population employment centers surrounding the study area, and the distance those centers are from the study area, to extrapolate a distribution percentage of where people will travel. This data included anticipated traffic from the adjoining project, the Liberty Estates subdivision.
41. The Traffic Assessment Report concluded that the addition of trips from the Liberty Valley PRD would have minimal impact on the intersections identified in the study area, due to the current lower traffic volumes that now exist, and that only the intersection at Tract Road and Route 140 in Maryland would require any signalization improvements toward the end of the project schedule. No proposals or suggestions regarding the implementation of traffic signals was provided.
42. In 1992, when the Comprehensive Plan for Liberty Township was prepared, the number of daily trips on Route 16, an arterial road in the Township, had a trip usage of approximately 5,023 trips per day.
43. The applicant's traffic expert testified that the estimated total two-way trip generation for the proposed Liberty Valley PRD would be 1,208 trips during the a.m. peak hour and 1,260 trips during the p.m. peak hour, and these numbers are generally ten (10%) percent of the daily traffic volume. The total traffic to be generated by the proposed PRD would then be calculated to be between 12,080 and 12,600 trips per day.
44. The applicant considered the width of existing Township roads, including the availability of shoulders, only in analyzing the capacity of the roadways to provide volume to the intersections studied. The applicant did not include any information or analysis of the roadway widths, shoulders (or lack thereof), alignment, or other features with regard to the roads themselves in its Traffic Assessment Report. The applicant has no duty under law to construct off-site improvements. If the roads are not sufficient to handle the additional 12,000 trips per day (and it is likely that they will not be able to handle this increased traffic), there is no mechanism in place to assure the safety of persons using the roads.
45. The traffic volumes included anticipated traffic from the adjoining project, the Liberty Estates subdivision, based on the gravity model population centers.
46. The Traffic Assessment Report submitted with the proposed PRD, was also submitted to PennDOT to determine whether the scope of the study was sufficient. As of the time of the hearing, PennDOT had not indicated it position on the sufficiency of the scope of the study.
47. The applicant submitted, as part of the Supplemental Data, a Water Feasibility Study prepared by Thomas Waddington, P.G., concluded that, based on his studies, there are sufficient groundwater resources available for the proposed communities (Liberty Valley PRD and Liberty Estates), as well as for the existing population in the study area.
48. The Water Feasibility Study estimates average water usage per residential unit of 200 gallons per day and maximum demands of around 300 gallons per day. The commercial use per business (24 businesses total) would average around 800 gallons per day and commercial maximum demand would be 1200 gallons per day.
49. The Water Feasibility Study clearly states that the "maximum daily demands" for residential and commercial use of 425,000 GPD.
50. The Water Feasibility Study reported on the drilling of two test wells. One of the test wells was drilled to a depth of 220 feet and yielded 600 gallons per minute (estimated through the bucket and stopwatch methods). The other test well was drilled to a depth of 300 feet, and yielded 800 gallons per minute (by the same methods). Either well could meet the demands of the PRD.
51. The applicant will be required to obtain a public water supply permit from the PaDEP, which will review water quality issues and available water supply issues in the community.
52. The Water Feasibility Study indicates that a storage tank of adequate size will be included in the system to supply water for operating emergency and fire reserve capacity.
53. The application fails to identify the size or location of the water storage tank, which will probably be approximately 150 feet in height.
54. The Natural Features Analysis within the Supplementary Data identified the existing locations and types of vegetation found within the project area including the delineation on the tentative plan of mature tree areas, wetlands and flood plains.
55. The applicant's Community Impact Analysis submitted with the tentative plan includes the applicant's projection of potential impacts of the proposed Liberty Valley PRD on various municipal services and public facilities, including the Fairfield Area School District, Liberty Township and the Fire and Emergency Management Services that provide services to the Township.
56. A Community Impact Analysis was submitted based upon the Penn State model to estimate the impact of the Liberty Valley PRD, both separately and in conjunction with the proposed Liberty Estates subdivision upon municipal services including the impact on the Fairfield Area School District.
57. Applicant presented testimony that the proposed Liberty Valley PRD would be self sufficient in that the Owners Association would be responsible for maintenance of the equestrian center and clubhouse and the provision of the maintenance of parks and common areas to the extent that such facilities are not accepted by the Township. Testimony also indicated that no public or municipal impact would result from utility services since water supply and sanitary sewage collection and treatment would be provided by a public utility corporation or by the Owners Association.
58. Applicant's expert estimated that the Liberty Valley PRD will generate approximately 2,233 new residents once the project is completely built out in 2021, which total would include approximately 381 new school age students for the Fairfield Area School District. These numbers are based on census data for persons per unit in a similar project developed by an affiliate of the applicant (Worman's Mills in Frederick, Maryland) and census data applicable to existing school populations within Liberty Township. Applicant believes that this data was supported in the applicant's experience in The Links at Gettysburg, Mount Joy Township, Pennsylvania.
59. Using the Penn State model, the applicant determined the cost and financial impacts of the Liberty Valley PRD and the Liberty Estates subdivision on the Fairfield Area School District and concluded that the school district can expect a net positive impact of approximately $2.9 million. However, the Penn State model is not appropriate, by its own terms, to situations where new schools or expansions of schools will be needed to meet the needs of the new development.
60. It was also estimated by applicant, using the Penn State model, that the cost and financial impacts of the Liberty Valley PRD and Liberty Estates subdivision on the Township and determined that the Township would experience a net positive impact of $565,000. However, this estimate used the existing budget for the Township which had no monies devoted to "road repair" or "road construction" and reconstruction due to an overrun during a previous budget year. Therefore, the estimate was not based upon a normal budget year and underestimated the per capita cost per resident. Regardless, the Penn State model is not appropriate, by its own terms, where road expansion is required to meet the needs of the development.
61. The applicant reviewed the existing fire call volumes of the Fairfield Fire Company and concluded that the Liberty Valley PRD and the proposed Liberty Estates subdivision would add approximately 78 new fire calls per year once the project is completely built out in 2021.
62. The applicant prepared a response time analysis, supported by an independent GIS analysis, which concluded that response times for emergency vehicles from Fairfield or Emmitsburg, MD, to the Liberty Valley PRD would be approximately 10 to 15 minutes.
63. Mr. Koch, one of applicant's expert witnesses, testified that the applicant was willing to contribute $250.00 to the Fairfield Fire Company for each unit sold within the Liberty Valley PRD at the time of closing on the unit, which would provide approximately $295,250 to the Fairfield Fire Company upon the sale of all units. The donation of land and that sum of money is inadequate to establish a satellite fire station at the project site.
64. The applicant offered a one acre lot within the Liberty Valley PRD to the Fairfield Fire Company where a new fire substation could be constructed to serve the surrounding area.
65. The applicant studied the existing police services in the Township and concluded that the Township will need to add two full time police officers over the life of the project and that the additional tax support of $140,212 from the project will cover the additional costs of expanding the Liberty Township Police Department.
66. The Tentative plan identifies areas of common open space including trails and parks that are located through the Liberty Valley PRD.
67. The common open space areas have been designed, where possible, to incorporate significant natural features within the project area.
68. The applicant contends it has provided 44.7 acres of proposed active recreation area or 37.9% of the proposed common open space. The common open space includes a recreational park with what appears to be a baseball field, two unidentified fields, the equestrian center, trails, and pocket parks. See, Discussion, below, concerning the common open space.
69. The applicant has represented that improvements identified in Section 5.5(D) [streets, sewer and water utilities, storm drainage and soil erosion control, curbs and gutters, and sidewalks] will be designed and improved in accordance with the applicable requirements of the Subdivision and Land Development Ordinance.
70. The applicant has represented that off-street parking and loading facilities will be designed in the final plans for each phase in accordance with Sections 6.5 and 6.6 of the Zoning Ordinance.
71. As identified on the Tentative plan, all telephone, electric, and cable television utilities are proposed to be installed underground.
72. The applicant has identified areas of mature trees where existing trees are greater than six inches in diameter and has submitted a landscaping sketch with the Tentative plan submission. The landscaping sketch fails to show any landscaping for the parking areas around the commercial buildings.
73. The applicant has represented that the Owners Association shall own and maintain any common open space, including any common open space offered to the Township for dedication, but not accepted by the Township.
74. The Liberty Valley PRD is proposed to be developed in phases starting in January of 2005.
75. The Tentative plan includes a phasing schedule that identifies the location and approximate time of construction of each phase of the project. More than fifteen (15%) percent of the proposed residential units in the Liberty Valley PRD are included in the first phase as shown in the Phasing Schedule in the Addendum to Supplementary Data.
76. The commercial area of the Liberty Valley PRD is proposed for the last phase, Phase 10, which phase does not include any residential units. The result is that the residents will not be served at the project site until sometime after 2016, compounding the traffic on the roads as the residents drive to Fairfield, Emmitsburg, and/or Gettysburg for their every need.
77. Horseback riding, walking, and fast walking can be considered active recreation, and areas designated for these uses within the proposed Liberty Valley PRD can be included as active recreation open space. Horseback riding is not an appropriate activity on the same trails used for walking and fast walking. The use of a trail for horseback riding, in effect, makes that trail a single use trail. See, Discussion below.
78. The President of the Fairfield Fire Company testified that the Township should consider an ordinance requiring that condominium dwellings within the proposed Liberty Valley PRD be equipped with sprinkler systems. He indicated Fairfield Fire Company is not currently equipped to handle fires in a multi-unit dwelling.
79. The applicant will have to obtain permission from state and/or federal authorities to perform construction in the wetlands.
80.  Replacing encroached wetlands with substitute wetlands does not cure the alteration made to the site. Encroaching in the wetlands will cause a permanent and undesirable change to the site.
81. Tract Road has been classified in the Comprehensive Plan in the Township's possession as an "Arterial" street. Efforts were made in 1992 to have Tract Road classified as a "major collector" street in the Comprehensive Plan. Whether it is classified as an Arterial or Major Collector street, Tract Road is a major street for the purposes of the Liberty Township Zoning Ordinance and the Liberty Township Subdivision and Land Development Ordinance.
82. A "major street" is defined in Section 704 of the Subdivision Ordinance as: "A street serving a large volume of comparatively high speed and long distance traffic, including all facilities classified as main and secondary highways by the Pennsylvania Department of Transportation." Subdivision Ordinance, Section 704.
83. Tract Road, in comparison with all of the other roads and streets in Liberty Township (including Pa. Route 16) is a high speed and long distance road.
84. By custom and past practice, and for reasons of safety, the distance between access drives and intersections are to be measured from the edge of a cartway of a street or road intersection to the edge of an access drive.
85. The distances between some of the access drives to the commercial area and the nearest intersections are less than the 50 feet required by the ZO, §6.5.E. made applicable to PRDs by §5.5.E.
86. The application shows sufficient parking area provided for multi-family residential buildings, but no visitor parking has been provided.
87. The applicant expects than less than one-quarter of the inhabitants of the PRD will engage in the primary active recreation that is planned, being equestrian activities.
88. If 15% of the inhabitants of the PRD engaged in the activities planned by the applicant, one expert believes that 50 horses would be needed. (The Board, using the figures presented by the expert, calculates that the correct number would be 20 horses, assuming all horses are healthy. It is expected that 20% of the horses would be unavailable at any given time due to lameness or sickness. Therefore, at least 24 horses would be needed.)
89. The amount of space set aside for equestrian activities is insufficient to house and care for the number of horses (be it 20 or 50) required to provide the activities planned by the applicant..
90. The applicant has made an offer on the record that it would accept a condition with respect to existing wells that, if a fair procedure is available to determine that any impairment is caused by the wells to be developed for the Liberty Valley PRD, that the applicant will either pay for the cost of improvement of the affected person's well or connect the person to the water system without cost, upon the understanding that once the person is connected he would have to pay for the water service.

III. CONCLUSIONS OF LAW 1.The burden is on the applicant to prove that the application meets all of the requirements of the ZO and of the MPC. 2.The burden is on the applicant to identify any and all required modifications to the municipal land use regulations otherwise applicable to the subject property. 3. The Liberty Township Subdivision and Land Development Ordinance is applicable to planned residential developments. 4. The applicant must meet all SALDO requirements by the final plan stage unless modification has been requested and granted. 5.At the time the Liberty Valley PRD application was filed with the Township planned residential developments were not permitted in Liberty Township. (See discussion in Introduction concerning the proceedings held on this application in the event that a final order of court ruled that PRDs had not been removed from the ZO in 1985.) 6.The proposed Liberty Valley PRD does not comply with all of the planned residential development provisions set forth in Article V of the Zoning Ordinance. 7.The proposed Liberty Valley PRD is not consistent with the goals of the Liberty Township Comprehensive Plan. 8.In addition to the failure of the application to meet all of the requirements of the ZO, there are particular deficiencies with the application that militate against the public interest. 9.The application shows that the proposed PRD is not beneficial to the neighborhood surrounding the site of its proposed location (see Findings of Fact, and Discussion).

IV. DISCUSSION

This Discussion section may contain facts which, by oversight, were not stated in the Findings of Fact. If facts are contained in the Discussion that are not part of the Findings of Fact, then those facts should be deemed to have been included in the Findings of Fact section of this Decision.

A. Lack of Consistency with the Liberty Township Comprehensive Plan.

Section 709 of the MPC requires that any decision on a tentative plan application include findings of fact and conclusions on those respects in which the application is or is not consistent with the township's comprehensive plan.

1. Agricultural Preservation. The Comprehensive Plan of Liberty Township in pages 7 through 10 of Phase 2 sets out an "Agricultural Land Use Plan". It identifies certain areas of the Township that have good agricultural soils, but due to their location near existing residential populations and the likelihood of public utilities extensions, are not recommended for agricultural preservation. Other areas are identified as locations in the Township were agricultural preservation should be pursued. An Agricultural Land Use Plan map is included in the Comprehensive Plan on page 10. The applicant's proposed development falls completely within an area marked on the said map as a location for agricultural preservation. The location of the proposed PRD in this area conflicts with the Comprehensive Plan and is not consistent with it.

2. Residential Land Use Plan. Pages 17 through 20 of Phase 2 of the Comprehensive Plan discusses those areas of the Township that are most suited to increased residential development. Page 19 is a map showing the Residential Land Use Plan, including areas where future residential development would be best suited. "The policy of the Comprehensive Plan is to retain the general character of the Township as one primarily devoted to an agricultural and residential community. "This policy is to be implemented through the limitation of mass residential development to the ample vacant land in and near the already developed portions of the Township, and in close proximity to feasible future public utilities. The best suited agricultural lands will be reserved for such use, and any residential development in these areas will be of a relatively low density."

Liberty Township Comprehensive Plan, Phase 2, page 17.

The applicant's development falls completely outside of the areas identified on the said map as locations for future residential development. The location of the proposed PRD conflicts with the Comprehensive Plan and is not consistent with it.

3. Street Classification. Phase 2 of the Comprehensive Plan contains a classification of the roads in Liberty Township. This classification system is expressly stated to be the same classifications as contained in Phase 1 of the Comprehensive Plan. Liberty Township Comprehensive Plan, Phase 2, page 351. The applicant's proposed development lies on the east and west sides of Tract Road. It also lies on the north and south sides of Wenschof Road, and on the north side of Crum Road. The Township's version of the Comprehensive Plan identifies Wenschof Road and Crum Road as "collector" roads, and identifies Tract Road as an "arterial" road. In Phase 1 of the Comprehensive Plan, Collector Roads are stated to "transport primarily local traffic between arterial roads and the minor streets and roads throughout the Township." Arterial Roads "generally carry significant traffic volumes between neighboring communities or within the Township." Tract Road begins in the Borough of Fairfield (labeled as both McGinley Drive and Tract Road in the Borough), and traverses Hamiltonban Township and Liberty Townships to its terminus south of the Mason-Dixon Line on Maryland Route 140 just outside Emmitsburg, Maryland. It is a main highway from the Fairfield area to the Emmitsburg area. The applicant has treated Tract Road as a collector road. The Township finds that Tract Road is either an Arterial road, or a "major collector" road for the purposes of designing developments in the Township. The classification of Tract Road as something less than a "major" street by the applicant is not consistent with the Comprehensive Plan (nor the SALDO).

. B. The extent to which the application departs from zoning and subdivision regulations otherwise applicable to the property, and the reasons why such departures are or are not deemed to be in the public interest are to be included in the decision. MPC, §709(b)(3).

Two witnesses have demonstrated that many of the SALDO requirements for plans have not been complied with in the application. The Board concurs that the application does not demonstrate that many of these requirements have been, or will be met. However, it is the position of the Board that if the applicant has not requested a modification of otherwise applicable land use regulations, then it is expected that if there is a final plan stage those requirements will be met or the final plan will be denied. See, I. Background, B. Interplay between the Municipalities Planning Code and the ZO, above.

1. Distance of some townhouses from streets. Section 5.5(A)(5) of Article V of the ZO, Planned Residential Developments, directs that all structures should be no less than 20 feet from the right of way of collector streets. The application shows that this requirement has not been faithfully observed by some of the townhouse units. The failure to comply with this requirement is an encroachment into what are to be open pathways in areas where dense development is already provided in a PRD, and is unwarranted. This violation negatively affects the public interest as it removes one of the very few aspects of openness in the densely developed area, and limits the area for stock piling of plowed snow and for potential future widening of the street.

2. Location of parking stalls. Section 6.5 I. of the ZO requires that all parking stalls shall be no less than 10 feet from principal structures. The application shows that certain stalls in the commercial area violate this requirement. This violation of the ZO is not substantial and could be easily corrected at the final plan stage by removing those spaces.

3. Bridge and culvert design. SALDO §302.2.d requires designs of bridges and culverts. The applicant had requested a modification so that these designs would not be required until final plans are submitted. In the Addendum to Supplementary Data, culvert designs were provided. The Board questions whether, pursuant to MPC §707(b) such designs were required at the tentative plan stage. However, if such plans would be deemed to be required at the time of submission of a tentative plan, and such designs have not already been submitted, then a modification is granted to allow them to be submitted at the final plan stage.

4. Erosion and sedimentation plan. SALDO §302.2.i requires that an erosion and sedimentation plan, together with a letter from the Department of Environmental Protection acknowledging the adequacy of the plan, be submitted. The applicant seeks a modification of that requirement at the tentative plan stage. The Board questions whether, pursuant to MPC §707(b) such designs are required at the tentative plan stage. However, if such plans would be deemed to be required at the time of submission of a tentative plan, a modification is granted to allow them to be submitted for the first time at final plan stage.

5 Minimum length of blocks. SALDO §403.2.a requires that blocks have a minimum length of 500 feet. Several blocks in the applicant's submission do not meet that minimum requirement. The length and location of blocks is important to demonstrate the bulk and location of structures, as contemplated by MPC §707(b)(iv). No modification of this requirement has been formally requested. The Board finds that the provision of blocks no less than 500 feet in length helps to prevent the proliferation of intersections too close to each other, which can be a traffic hazard. As there was no request for relief from this requirement based upon the topography or storm water run off concerns, the reason for minimum block lengths remains in tact. As a safety issue, the public interest would be affected by an allowance of short blocks, and the plan does not conform with SALDO.

6. Clear sight triangles. SALDO §402.9.a. requires that clear sight triangles be shown on plans to assure that adequate vision is available to vehicles entering a road way at an intersection. In the case of roads other than "major" streets, the clear sight triangle must be 75 feet from the point of intersection of the centerlines of the roads in question. The clear sight triangles for "major" streets must be 150 feet. The applicant's plan shows that at several intersections along Tract Road, the 150 foot